Citation Nr: 1032011 Decision Date: 08/25/10 Archive Date: 09/01/10 DOCKET NO. 05-18 932 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Tabitha G. Macko, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1968 to December 1969, which included service in the Republic of Vietnam from April 1969 to November 1969. This matter is on appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In consideration of a recent Court decision, the Board has recharacterized the Veteran's psychiatric claim, as is now stated on the title page. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). This case was remanded by the Board in January 2008 for further development and is now ready for disposition. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during the Vietnam era, though he did not engage in combat. 2. The medical evidence shows a diagnosis of PTSD. 3. The stressor event is sufficiently confirmed. CONCLUSION OF LAW An acquired psychiatric disorder, claimed as PTSD, was incurred in service. 38 U.S.C.A. §§ 1110, 1154(b), 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303. 3.304(f) (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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(a). Service connection may also 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). Certain chronic diseases, such as psychosis, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Establishing service connection for PTSD requires that there be (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in- service stressor; (3) and credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304(f) (2009); see also Cohen v. Brown, 10 Vet. App. 128, 138 (1997). The diagnosis of a mental disorder must conform to the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM- IV) and be supported by the findings of a medical examiner. See 38 C.F.R. § 4.125(a) (2009). In adjudicating a claim of service connection for PTSD, VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which a veteran served, his or her military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a); 38 C.F.R. §§ 3.303(a), 3.304. 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." If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, his or her lay testimony alone may establish the occurrence of the claimed in-service stressor. See 38 C.F.R. § 3.304(d) (2009); see also 38 U.S.C.A. § 1154(b) (West 2002); VAOPGCPREC 12-99. VA General Counsel has held that "[t]he ordinary meaning of the phrase 'engaged in combat with the enemy,' as used in 38 U.S.C.A. § 1154(b), requires that a veteran have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality." The determination whether evidence establishes that a veteran engaged in combat with the enemy is resolved on a case-by-case basis with evaluation of all pertinent evidence and assessment of the credibility, probative value, and relative weight of the evidence. VAOGCPREC 12-99; 65 Fed. Reg. 6,256- 58 (Feb. 8, 2000). If VA determines that a veteran did not engage in combat, lay testimony, by itself, is not sufficient to establish the occurrence of the alleged stressor. Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Instead, there must be credible supporting evidence. The credible supporting evidence is not limited to service department records, but can be from any source. See YR v. West, 11 Vet. App. 393, 397 (1998); see also Moreau v. Brown, 9 Vet. App. 389, 395 (1996). Further, credible supporting evidence of the actual occurrence of an in-service stressor cannot consist solely of after-the-fact medical nexus evidence. See Moreau, 9 Vet. App. at 396. For claims pending or filed on or after July 13, 2010, VA amended the regulations governing adjudication of PTSD claims 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: 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. See 75 Fed. Reg. 39843 (July 13, 2010). The Veteran has alleged the following stressful in-service events: (1) while assigned to the 86th Combat Engineer Battalion, then located outside of Dong Tam, he was in a convoy when a dump truck two vehicles in front of him hit a landmine, leaving the cab torn away and killing the driver and a passenger, the sight of which made him sick; (2) on another occasion in a convoy on the road to base camp a jeep struck a mine, also tearing apart and killing the command first sergeant and a lieutenant; (3) and the constant stress of the sounds of the live fire especially at night, which included mortar fire, rockets, and RPG's, as well as the stress of the landmines along the road. See Statement December 2003; VA psychiatric evaluation, December 2003. The initial threshold question in this case requires a determination as to whether the Veteran was "engaged in combat with the enemy." The DD Form 214 indicates that he served as a combat engineer. The list of assignments, of record, from his personnel file indicated he was assigned to the 86th Engineer Battalion in mid-1969 as a bridge specialist and then in the summer of 1969 he was assigned to the 67th Engineer Company as a dump truck driver. Although he received the Vietnam Service Medal, Vietnam Campaign Medal, and an Army Commendation Medal, these awards are not indicative of involvement in combat. Because his own statements do not establish that he personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality, his assertions of service stressors are not sufficient to establish the occurrence of such events, and instead his reported stressors must be verified. See 38 U.S.C.A. § 1154(b). Shortly after the Veteran submitted his current claim, the RO sought to confirm his stressor. The response from the agency indicated a review of daily staff journals from the 86th Engineer Battalion, dated April to November 1969 found a May 1969 account of a 3/4 ton truck with three men being ambushed by the enemy near Dong Tam, the base camp location of the 86th. All three men were wounded, two seriously, such that a medical evacuation aircraft and a light fire team were summoned to secure the ambush site and remove the wounded. In Pentecost v. Principi, 16 Vet. App. 124 (2002), the United States Court of Appeals for Veterans Claims (Court) pointed out that corroboration of every detail of a stressor under such circumstances, such as the claimant's own personal involvement, was not necessary. See also Suozzi v. Brown, 10 Vet. App. 307 (1997). The Veteran's primary stressor, the description of which remained consistent in the record, was of a heavy vehicle, assigned to the 86th Engineer Battalion, his own assignment, near Dong Tam, where the Veteran described himself while he was assigned there having arrived in April 1969, exploded - was damaged - by hostile action such that men were injured seriously. The Veteran remembered that two died, though the daily staff journal only indicated two were seriously wounded. There is nothing to suggest that he was "detached and protected from the events that affected his company." See Suozzi at 310. The Board finds that the stressor is confirmed. Given that the Veteran's in-service combat stressor has been verified, to establish service connection the evidence must show (1) a current medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a) and (2) medical evidence of a causal nexus between current symptomatology and the in-service stressor(s). With regard to these matters, the Board finds that the Veteran has a sufficient, current medical diagnosis of PTSD, which was found and discussed in considerable detail in a December 2003 VA psychiatric evaluation, as well as in a March 2004 VA PTSD examination, and sufficient medical evidence of a causal nexus between his current symptoms, in particular the chronic exhaustion and inability to sleep, and the confirmed in-service stressor in these same evaluations. In consideration of the above, the Board finds that an in-service stressor was verified sufficiently to establish a claim for PTSD pursuant to 38 C.F.R. § 3.304(f). For this reason, the benefit of the doubt rule does not apply. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. As the weight of the evidence is in favor of the claim for service connection for an acquired psychiatric disability, claimed as PTSD, the appeal is granted. 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, 3.326(a) (2009). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered. ORDER Service connection for an acquired psychiatric disorder, claimed as PTSD, is granted. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs