Citation Nr: 1031244 Decision Date: 08/19/10 Archive Date: 08/24/10 DOCKET NO. 04-42 013 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD B. Ogilvie, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1970 to January 1972, to include service in the Republic of Vietnam. This appeal to the Board of Veterans' Appeals (Board) arose from a February 2003 rating decision in which the RO, inter alia, denied service connection for PTSD and Hepatitis C. In April 2003, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in October 2004, and the next month, the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals). In June 2005, the Veteran testified during a hearing before a Decision Review Officer (DRO) at the RO; a transcript of that hearing is of record. In August 2006, the Veteran testified during a hearing before a Veterans Law Judge (VLJ) at the RO; a transcript of that hearing is also of record. The Board notes that the VLJ who conducted the August 2006 hearing has retired and is no longer employed by the Board. In March 2010, the Veteran was notified of this information and afforded the opportunity for another hearing pursuant to 38 C.F.R. § 20.707 (2009) (noting that a VLJ who conducts a hearing on appeal must participate in any decision made on that appeal). See also 38 U.S.C.A. § 7107(c) (West 2002). The Veteran was informed that if he did not respond within 30 days from the date of the letter, the Board would assume that he did not want another hearing and proceed accordingly. The Veteran did not respond. Therefore, the Board will proceed with the claim on appeal, as noted. In February 2007, the Board denied the Veteran's claim for service connection for Hepatitis C, and remanded the remaining matter on appeal to the RO (via the Appeals Management Center (AMC), in Washington, D.C.) for further action, to include an additional VA examination. After accomplishing the requested action, the AMC continued the denial of the remaining claim on appeal (as reflected in a December 2009 supplemental SOC (SSOC)) and returned this matter to the Board for further appellate consideration. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim on appeal have been accomplished. 2. The Veteran did not engage in combat with the enemy, and the occurrence of none of his claimed in-service stressors has been independently verified. 3. The Veteran has alleged an in-service stressor related to fear of hostile military activity that is consistent with the circumstances of his service, and the record includes competent opinion confirming that this stressor is sufficient to support a diagnosis of PTSD, and that there exists a link between this stressor and the Veteran's symptoms. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for PTSD are met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 4.125(a) (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2009)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). Given the favorable disposition of the claim for service connection for PTSD, the Board finds that all notification and development actions needed to fairly adjudicate the claim have been accomplished. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the in-service stressor occurred. 38 C.F.R. § 3.304(f). The first requirement for service connection for PTSD is a medical diagnosis of the disorder. Diagnoses of PTSD must be rendered in accordance with the diagnostic criteria for the condition set forth in the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). See 38 C.F.R. § 4.125 (noting that VA has adopted the nomenclature of the DSM-IV). The Veteran has been diagnosed with service-related PTSD, as reflected, by example, in the reports of September 2008 and September 2009 VA psychological examinations, each performed by a licensed VA psychologist. These reports reflect a diagnosis of PTSD, rendered in accordance with the diagnostic criteria for the condition set forth in the DSM-IV, and detailed clinical interview and mental status examination. Thus, the remaining questions are whether there exists a link between a claimed in- service stressor, and whether there is credible evidence that the in-service stressor occurred. The Veteran has reported three essential stressors related to his experiences in Vietnam. First, he reported that he was in a bar in Vietnam when a grenade exploded, and he saw several people killed. Second, he reported that he was incarcerated for six months in Vietnam, where he could hear explosions around him. He felt trapped in his cell with an overwhelming fear that he would be killed. Third, he reported that he was abused by four military police officers while in Vietnam while he was incarcerated. The evidence necessary to establish the occurrence of a recognizable stressor during service to support a diagnosis of PTSD will vary depending upon whether a Veteran engaged in "combat with the enemy." See Gaines v. West, 11 Vet. App. 353, 359 (1998). Participation in combat, a determination that is to be made on a case-by-case basis, requires that a Veteran have personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. See VAOPGCPREC 12-99 (October 18, 1999); Moran v. Principi, 17 Vet. App. 149 (2003). See also Sizemore v. Principi, 18 Vet. App. 264, 273-74 (2004). If VA determines that a veteran engaged in combat with the enemy and his alleged stressor is combat-related, then his lay testimony or statement is accepted as conclusive evidence of the stressor's occurrence and no further development or corroborative evidence is required-provided that such testimony is found to be "satisfactory," i.e., credible and "consistent with circumstances, conditions or hardships of service." See 38 U.S.C.A. 1154(b) (West 2002 & Supp. 2009); 38 C.F.R. 3.304(f)(1) (2009); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Under the legal authority in effect at the time of the Veteran's claim, if the alleged stressor was not combat related, then the Veteran's lay testimony, alone, would not be sufficient to establish the occurrence of the alleged stressor; rather, corroborating evidence would be needed to support the claim for service connection. See Cohen v. Brown, 10 Vet. App. 128, 147 (1997); Moreau v. Brown, 9 Vet. App. 389, 395 (1996). See also Zarycki, 6 Vet. App. at 98; Doran v. Brown, 6 Vet. App. 283, 289- 290 (1994). The Veteran has not alleged, and the evidence does not suggest, that he engaged in combat with the enemy. Notably, the Veteran's DD Form 214 does not indicate he received any combat-related awards or medals, such as the Combat Infantry Badge. Therefore, pursuant to the legal authority in effect at the time of the Veteran's claim, in February 2007, the Board remanded the claim in an attempt to independently verify the occurrence of the Veteran's stressors-specifically, the alleged explosion at a bar in Saigon, and mortar attacks during his imprisonment at Long Binh-through research by the Joint Services Records Research Center (JSSRC). The JSSRC provided a negative response as to verification of both stressors. Because there was no independent verification of either stressor, the AMC continued to deny the Veteran's claim for service connection for PTSD (as reflected in a December 2009 SSOC). The Board notes, however, that on July 13, 2010, VA published a final rule that amended its adjudication regulation governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the occurrence of the required in-service stressor. See 75 Fed. Reg. 39843 (July 13, 2010), and 75 Fed. Reg. 41092 (July 15, 2010) (correcting the effective and applicability dates from July 12, 2010 to July 13, 2010). The revisions apply to, among others, claims appealed before July 13, 2010, but not yet decided by the Board. The revisions add to the types of claims the VA will accept through credible lay testimony alone, as being sufficient to establish the occurrence of an in-service stressor without undertaking other development to verify the Veteran's account. 38 C.F.R. § 3.304(f) previously only authorized VA to accept statements from Veterans who served in combat, as denoted by combat-related awards or decorations or other evidence sufficient to establish participation in combat, as sufficient to establish the occurrence of the claimed in-service stressor. VA later amended 38 C.F.R. § 3.304(f) to also authorize VA to accept the statements of Veterans who are former prisoners-of-war, as well as those with an in-service diagnosis of PTSD, as sufficient to establish occurrence of an in-service stressor if such statements are consistent with the places, types, and circumstances of service. The July 2010 amendment of 38 CFR § 3.304(f) eliminates the requirement for corroborating evidence of the claimed in-service stressor if it is related to the Veteran's "fear of hostile military or terrorist activity." The new regulatory provision requires that a VA psychiatrist or psychologist, or contract equivalent, must confirm that the claimed stressor is adequate to support a diagnosis of PTSD; that the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service; and that the Veteran's symptoms are related to the claimed stressor. The amendment has no impact on PTSD claims that arise out of in-service diagnoses of PTSD, or PTSD stressors experienced during combat, internment as a prisoner-of-war, or as the result of personal assault. In this case, the September 2009 psychologist found that each of the Veteran's three alleged stressors is adequate to support a diagnosis of PTSD. The psychologist specifically noted that PTSD is supported by the Veteran's feelings of being in considerable danger, as well as his fear of being killed while he was locked in a cell, listening to explosions occurring around him, with the knowledge that he could not escape. Specifically as regards the Veteran's claimed stressor of being trapped in a cell during artillery attacks, the Board notes that the Veteran's service personnel records confirm that he was imprisoned in Long Binh prior to his Court Martial in Vietnam. As such, this claimed stressor-which is clearly related to the Veteran's fear of hostile military activity-is consistent with the places, types, and circumstances of the Veteran's service. Significantly, moreover, the VA psychologist noted that the Veteran's symptoms, to include avoidance of being in locked places, anxiety, and fear of loud noises, such as fireworks, are related to his claimed stressor. Under these circumstances, the Board finds that the record reasonably establishes the existence of a link between this alleged in-service stressor and the Veteran's symptoms, and, that, consistent with recent regulatory amendments, that the Veteran's lay assertions may be accepted as sufficient evidence of the stressor's occurrence. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Given the facts noted above, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for PTSD, pursuant to 38 C.F.R. § 3.304(f), are met. ORDER Service connection for PTSD is granted. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs