Citation Nr: 1031206 Decision Date: 08/19/10 Archive Date: 08/24/10 DOCKET NO. 09-17 856 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD E.M. Evans, Law Clerk INTRODUCTION The Veteran served on active duty from November 1964 to November 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2007 rating decision of the St. Louis, Missouri, Regional Office (RO) of the Department of Veterans Affairs (VA). Additional evidence was received subsequent to the certification of the appeal to the Board. Although no waiver accompanied the submission, the Board may proceed with adjudication in this case, given the entirely favorable disposition herein. FINDINGS OF FACT 1. The record demonstrates that the Veteran participated in Operation Swift Play and was subject to hostile fire during his active duty. 2. There is a diagnosis of PTSD due to the Veteran's exposure to hostile fire from his active duty. 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. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The duty to notify has been substantially complied with in this case. As the Board herein grants the claim, the need to discuss VA's efforts to comply with the VCAA, its implementing regulations, and the interpretive jurisprudence is obviated. II. Discussion The Veteran is claiming service connection for PTSD. Specifically, he contends to have been exposed to hostile fire while serving in the Republic of Vietnam. He recalls being afraid all the time and presently relives memories of these events. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2009). In general, service connection requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2009). Specifically regarding PTSD claims, the record must establish a diagnosis in accordance with 38 C.F.R. § 4.125(a) (i.e., under the criteria of the Diagnostic and Statistical Manual of Mental Disorders, (4th ed. 1994), (DSM-IV)). The regulations pertaining to PTSD claims have been recently amended, effective July 13, 2010. Such revisions liberalize, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. Specifically, the final rule amends 38 C.F.R. § 3.304(f) by redesignating current paragraphs (f)(3) and (f)(4) as paragraphs (f)(4) and (f)(5), respectively, and by adding a new paragraph (f)(3) that reads as follows: (f)(3) If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of [PTSD] and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 75 Fed. Reg. 39843 (2009)(to be codified at 38 C.F.R. § 3.304(f)(3)). The Board finds that based on the evidence of record entitlement to service connection for PTSD is warranted. As will be explained below, the Veteran has a current diagnosis of PTSD, the record establishes in-service stressor incidents that are consistent with the places, types, and circumstances of service, and contains a nexus opinion from a VA psychologist. In this case, the Veteran's stressors, involving a fear of hostile military activity, are consistent with the places, types, and circumstances of service. 38 U.S.C.A. § 1154(a). Specifically, the Veteran served aboard the U.S.S. Washtenaw County and the U.S.S. Merrick. From July 1968 to August 1968, and from September 1968 to October 1968, he participated in Operation Swift Play and Operation Swift Play II, respectively. Administrative remarks contained in his personnel file indicate that the Veteran was subject to hostile fire during these operations. The record here also demonstrates that the Veteran has a current diagnosis of PTSD. Specifically, a March 2007 VA PTSD evaluation by a VA psychologist provided such diagnosis, which was noted to conform to DSM-IV. The examiner reported that due to the Veteran's persistent re-experiencing, and persistent distressing recollections of the traumatic event, his intense psychological distress at exposure to internal and external cues symbolizing or resembling the distressing event, and other symptoms associated with diagnostic criteria, the Veteran met the criteria for a PTSD diagnosis. Therefore, as the criteria for service connection under 38 CFR § 3.304(f)(3) have been met, this claim must be granted. Again, the record demonstrates that the claimed stressor relating to hostile military activity was consistent with the Veteran's active service, and that the Veteran has a confirmed diagnosis of PTSD based, at least in part, on that stressor. Thus, the claim must be granted. The Board notes that in reaching this conclusion, the evidence is at least in equipoise, and the benefit of the doubt doctrine has been appropriately applied. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (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