Citation Nr: 1016366	
Decision Date: 05/03/10    Archive Date: 05/13/10

DOCKET NO.  05-38 838	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, 
Mississippi


THE ISSUE

Entitlement to service connection for PTSD.  


REPRESENTATION

Appellant represented by:	American Red Cross


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Sara Schinnerer, Associate Counsel


INTRODUCTION

The Veteran had active service from April 1967 to June 1968. 

This matter comes before the Board of Veterans' Appeals (BVA 
or Board) from a rating decision of the Department of 
Veterans Affairs (VA) Regional Office (RO) in Jackson, 
Mississippi.     

The Veteran provided testimony at an April 2008 hearing 
before the undersigned.  A transcript of the proceeding is 
associated with the claims folder.  

The Board remanded the Veteran's appeal in September 2008 and 
July 2009.  On the latter occasion, the Board found that new 
and material evidence had been received to reopen a 
previously denied PTSD claim.


FINDINGS OF FACT

The record demonstrates the Veteran's receipt of the Combat 
Infantry Badge; there is a diagnosis of PTSD within the 
appeal period and credible evidence of continuous 
symptomatology since active service.


CONCLUSION OF LAW

PTSD was incurred in active service.  38 U.S.C.A. §§ 1110, 
5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 
(2009).




REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Veterans Claims Assistance Act

The Veterans Claims Assistance Act of 2000 (VCAA) describes 
VA's duty to notify and assist claimants in substantiating a 
claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 
5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 
3.159 and 3.326(a) (2009).  

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and his or her representative, if any, of any 
information, and any medical or lay evidence, that is 
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) 
(West 2002); 38 C.F.R. § 3.159(b) (2009); Quartuccio v. 
Principi, 16 Vet. App. 183 (2002).  

Additionally, the VCAA provides that VA shall make reasonable 
efforts to assist a claimant in obtaining evidence necessary 
to substantiate the appellant's claim, unless no reasonable 
possibility exists that such assistance would aid in 
substantiating the claim.  

In view of the Board's fully favorable disposition in this 
matter, the application of the VCAA is moot.  Bernard v. 
Brown, 4 Vet. App. 384 (1993). 

II.  Discussion

The Veteran is claiming service connection for PTSD.  

Service connection for PTSD requires medical evidence 
diagnosing the condition in accordance with 38 C.F.R. § 
4.125(a) (i.e., under the criteria of DSM-IV), a link, 
established by medical evidence, between current symptoms and 
an in-service stressor, and credible supporting evidence that 
the claimed in-service stressor occurred. 38 C.F.R. § 4.125.

Regarding the existence of an in-service stressor, in Zarycki 
v. Brown, 6 Vet. App. 91 (1993), the United States Court of 
Appeals for Veterans Claims (Court) set forth the analytical 
framework and line of reasoning for determining whether a 
veteran was exposed to a recognizable stressor during 
service, which, as discussed above, is an essential element 
in solidifying a claim for service connection for PTSD. In 
Zarycki, it was noted that, under 38 U.S.C.A. 1154(b), 38 
C.F.R. 3.304(d) and (f), and the applicable provisions 
contained in VA Manual 21-1, the evidence necessary to 
establish the incurrence of a recognizable stressor during 
service to support a claim of service connection for PTSD 
will vary depending on whether the veteran "engaged in combat 
with the enemy." See Hayes v. Brown, 5 Vet. App. 60 (1993).

The determination as to whether the veteran "engaged in 
combat with the enemy" is made, in part, by considering 
military citations that expressly denote as much. Doran v. 
Brown, 6 Vet. App. 283, 289 (1994). However, the Court has 
recently held that the Board may not rely strictly on combat 
citations or the veteran's military occupational specialty to 
determine if he engaged in combat; rather, other supportive 
evidence of combat experience may also be accepted. See 
Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996); West v. 
Brown, 7 Vet. App. 70, 76 (1994).

If combat is affirmatively indicated, then the veteran's lay 
testimony regarding claimed combat-related stressors must be 
accepted as conclusive as to their actual occurrence and no 
further development or corroborative evidence will be 
required, provided that the veteran's testimony is found to 
be "satisfactory," i.e., credible, and "consistent with the 
circumstances, conditions, or hardships of such service." 
Zarycki, 6 Vet. App. at 98.

The record here demonstrates the Veteran has a current 
diagnosis of PTSD.  Specifically, the Veteran's private 
physician diagnosed him with PTSD in June 2007.  The record 
also demonstrates that the Veteran's claimed in-service 
stressor has been confirmed.  See July 2009 Board remand.  
Thus, the sole question for consideration is whether the 
current PTSD is related to an in-service stressor.  In this 
case, no medical opinion of record expressly addresses this 
point.  However, the July 2007 private treatment record 
indicates continuity of symptomatology.  Indeed, that report 
indicated that the Veteran had presented for treatment of 
anxiety, intrusive recollections, and concentration 
difficulty.  It was noted that such problems "had been going 
on to one degree or another since his Tour of Duty in 
Vietnam."  Although based on the Veteran's reported history, 
such evidence remains probative as the Veteran is certainly 
competent to report a history of observable symptoms such as 
anxiety and concentration problems.  Layno v. Brown, 6 Vet. 
App. 465 (1994).  

The Board acknowledges that the Veteran has other psychiatric 
pathology, to include schizophrenia, but the evidence is 
nevertheless at least in equipoise as to whether PTSD 
symptoms were continuously manifested since service, thus 
linking them to an in-service event.  

The Board also acknowledges evidence of record, to include an 
October 2009 VA examination, which refutes a current 
diagnosis of PTSD.  However, pursuant to McLain v. Nicholson, 
21 Vet. App. 319 (2007), the requirement that a claimant have 
a current disability before service connection may be awarded 
for that disability is also satisfied when a claimant has a 
disability at the time a claim for VA disability compensation 
is filed or during the pendency of that claim, even if no 
disability is present at the time of the claim's 
adjudication.  Again, PTSD was clearly diagnosed as an Axis I 
disability in 2007, during the pendency of the claim.  
Moreover, in the October 2009 VA examination in which the 
examiner found against a diagnosis of PTSD, his rationale was 
the absence of intrusive thoughts.  However, intrusive 
thoughts were very clearly reported by the Veteran in the 
2007 private treatment report.  Therefore, the conclusions in 
the October 2009 VA examination, and in earlier VA 
examinations, that the Veteran does not have PTSD are not 
found to hold greater weight than the favorable evidence of 
record, which includes a diagnosis of PTSD, proof of the 
Veteran's combat status and credible evidence of continuous 
symptomatology since service.  Accordingly, the claim is 
found to be in equipoise and the benefit of the doubt shall 
be afforded the Veteran.  See 38 U.S.C.A. § 5107(b); Gilbert 
v. Derwinski, 1 Vet. App. 49, 54-56 (1990).




ORDER

Service connection for PTSD is granted, subject to governing 
criteria applicable to the payment of monetary benefits.



____________________________________________
ERIC S. LEBOFF
Acting Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs