Citation Nr: 1032425 Decision Date: 08/27/10 Archive Date: 09/01/10 DOCKET NO. 05-10 131 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and/or depression. 2. Entitlement to service connection for hypertension, to include as secondary to herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Terrence T. Griffin INTRODUCTION The Veteran served on active duty from August 1968 to June 1970. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of April 2004 by the Department of Veterans Affairs (VA), St. Petersburg, Florida, Regional Office (RO). In July 2007, the Veteran testified during a hearing at the RO before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In November 2007, the Board remanded the Veteran's claims for further development. The RO has substantially complied with the mandates of the remand. The case has been returned for appellate review. The Board has recharacterized the Veteran's single service connection claim for PTSD, as service connection claim for an acquired psychiatric disorder, to include PTSD and/or depression, to comply with Clemons v. Shinseki, 23 Vet. App. 1 (2009). Thus, the issue is as stated on the title page. The issue of entitlement to service connection for irritable bowel syndrome, to include as secondary to PTSD, has been raised by a July 2004 statement from the Veteran. Additionally, in April 2008 statements from the Veteran and his representative filed a Notice of Disagreement with the March 2008 denial of service connection claims for cardiac problems and hypertension; however, only November 2008 rating action addressing entitlement to service connection for hypertension, to include as secondary to herbicide exposure, has been made of record, making it unclear if a separate service connection claim for cardiac problems was ever adjudicated by the Agency of Original Jurisdiction (AOJ). Based on the evidence presently of record, the Board concludes that the AOJ has not adjudicated the Veteran's respective service connection claims, for irritable bowel syndrome, to include as secondary to PTSD, or for cardiac problems, in the first instance. Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The issue of entitlement to service connection for hypertension, to include as secondary to herbicide exposure is addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran has an acquired psychiatric disorder, currently diagnosed as PTSD and depression. 2. When resolving doubt in the Veteran's favor, the Veteran's account of his stressors is credible and consistent with the places, types and circumstances of his service. 3. A December 2008 VA examiner diagnosed the Veteran with PTSD based on his claimed in-service stressors. CONCLUSION OF LAW PTSD was incurred in service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f) (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has considered the Veteran's claim with respect to the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100 et. seq. (West 2003). Given the favorable outcome, the Veteran is not prejudiced from the Board's adjudication of his claim at this time. In this regard, the agency of original jurisdiction will be responsible for addressing any VCAA notice defect with respect to the rating and effective date elements when effectuating the award. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran claims that his currently diagnosed PTSD is related to events that occurred during his military service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military duty. 38 U.S.C.A. § 1110. 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). Establishment of service connection for PTSD requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). Alternatively, effective July 13, 2010, VA amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. See 75 Fed. Reg. 39843 (July 13, 2010). 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. Id. at 39852. At the outset, the Board notes that multiple private and VA treatment records document the Veteran's diagnosis with PTSD and have related this diagnosis to his claimed in-service stressors. See Statement/Evaluation, R.E., Ph.D., December 10, 2003; Statement/Opinion, G.F., M.D., January 12, 2007; Statement/Opinion, D.B., Psy.D., February 13 , 2007; "Diagnosis," VA Exam Report, December 3, 2008. Therefore, the determinative issue, and the focus of the analysis to follow, is whether there is credible supporting evidence that the claimed in-service stressor actually occurred (i.e., has the Veteran's claimed stressor(s) been sufficiently confirmed). In this regard, there is both positive and negative evidence of record. At his July 2007 Board hearing, the Veteran provided testimony indicating that he witnessed the death of many fellow service members, although his unit sustained no casualties. Hearing Trans., pp. 13-16, July 24, 2007. The Veteran also submitted an account detailing the death of a "Lt. Kim," whom was a member of the Republic of Korea Signal Company. See Statement in Support of Claim for Service Connection for Post- Traumatic Stress Disorder (PTSD), July 20, 2009. With respect to the aforementioned claimed stressors, the Board notes that the stressor of witnessing the death of many fellow service members, although none in his unit, is not necessarily consistent with the circumstances of the Veteran's service. It is also noted that the U.S. Army and Joint Services Records Research Center (JSSRC) could not conduct a meaningful search with regard to the death of a "Lt. Kim." Nonetheless, at the 2007 Board hearing, the Veteran also testified that on multiple occasions, while installing communications antennas, he and members of his "Antenna Team" came under small arms enemy fire. Hearing Trans., pp. 13-16, July 24, 2007. Additionally, during the pendency of the appeal, the Veteran has asserted that he and his unit incurred rocket attacks. As indicated above the Veteran served on active duty from August 1968 to June 1970. His service personnel records indicate that he was deployed to Phu Lam, Vietnam with the USASTRATCOM Signal Support Agency from August 1969 to June 1970, as a Radio Systems Officer and Platoon Leader. The Veteran also received a Bronze Star Medal. The Bronze Star Medal citation reflects in part that the Veteran distinguished himself by outstandingly meritorious service in connection with military operations against a hostile force in the Republic of Vietnam. During the period 18 October 1969 to 30 May 1970 he consistently manifested exemplary professionalism and initiative in obtaining outstanding results. His rapid assessment and solution of numerous problems inherent in a combat environment greatly enhanced the allied effectiveness against a determined and aggressive enemy. Additionally, the Department of Defense Manual of Military Decorations & Awards indicates that a Bronze Star Medal is awarded to a service member who ...distinguishes himself or herself by heroic or meritorious achievement or service...[w]hile engaged in an action against an enemy of the United States...[w]hile engaged in military operations involving conflict with an opposing foreign force...[and/or] [w]hile serving with friendly foreign forces engaged in an armed conflict against an opposing armed force in which the United States is not a belligerent party. See AP1.1.2.20, DoD Instruction 1348.33-M. Indeed, the Board acknowledges that the Bronze Star Medal does not in and of itself confirm the Veteran's presence in a combat zone, as would the Combat Infantryman's Badge or the Purple Heart. However, after considering the criteria necessary to receive this medal, the nature of the Veteran's MOS and his confirmed service in Vietnam, the Board finds that these factors together highly suggest that the Veteran's claimed stressors of incurring small arms fire, rocket attacks or mortar attacks are consistent with the places, types, and circumstances of his service. The Board also points out that although the U.S. Army and Joint Services Records Research Center (JSSRC) was unable to locate any unit records confirming any enemy attacks during the relevant period, JSSRC was able to confirm that the Veteran's unit "visited [multiple] subscriber terminals" in May 1970 and July 1970, including the II Field Forces area of Operation, Long Binh, Vietnam that came under enemy attack in May 1970. Although this does not provide definitive evidence that the Veteran was at this location when the documented attack occurred, upon considering all evidence of record (both favorable and unfavorable to the Veteran), the Board, as the fact finder, finds his account of experience and duties in Vietnam to be competent and credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). As such, although the Veteran had a noncombat military occupational specialty, his assignment to a unit that "visited" a military base that came under enemy attack, within the timeframe of such visit, would strongly suggest that he was, in fact, exposed to such attacks. See Pentecost v. Principi, 16 Vet. App. 124 (2002) (base subjected to rocket attacks during time that Veteran was stationed at the base). After resolving all reasonable doubt in his favor, the evidence is suggestive of the Veteran's presence at a location at the time of an attack, minimally, would tend to confirm his statements that he experienced such attacks. Moreover, a claimed stressor need not be corroborated in every detail. Souzzi v. Brown, 10 Vet. App. 307, 311 (1997). In light of the recent revisions to 38 C.F.R. § 3.304(f), as outlined above, the Board finds that the evidence of record sufficiently satisfies the criteria necessary to confirm the Veteran's stressors. Initially, the Veteran's claimed stressors relate to "fear of hostile or terrorist activity," within the meaning of 38 C.F.R. § 3.304(f)(3). See 75 Fed. Reg. 39852 (July 13, 2010). The Veteran's statements of being exposed to enemy fire are credible. In addition, a December 2008 VA examiner reviewed the Veteran's numerous stressor statements and conducted an appropriate psychiatric examination that resulted in the Veteran being diagnosed with PTSD. See "Diagnosis," VA Exam Report, December 3, 2008. In other words, the VA examiner confirmed that the Veteran's claimed stressors adequately supported a diagnosis of PTSD. As highlighted previously, and based on the evidence of record, the Board finds the Veteran's stressors are consistent with the places, types and circumstances of his service and that there is no clear and convincing evidence to the contrary. See Buchanan, 451 F.3d at 1335. Therefore, the Veteran's lay statements sufficiently establish the occurrence of his claimed stressors. See 75 Fed. Reg. 39852 (July 13, 2010). In sum, whether considered under 38 C.F.R. § 3.304(f) prior to or following the revision, and with the resolution of any reasonable doubt as may be present in the present circumstance in his favor, the Board finds that the Veteran's claimed stressor has been sufficiently confirmed, satisfying the criteria necessary to establish service connection for PTSD. To this extent, the Veteran's claim is granted; nonetheless, the Board's grant herein in no way indicates the appropriate rating for the Veteran's service connected disorder. As an aside, the Board adds that in Clemons v. Shinseki, 23 Vet. App. 1 (2009), though a Veteran may only seek service connection for PTSD, the Veteran's claim "cannot be limited only to that diagnosis, but must rather be considered a claim for any mental disability that may be reasonably encompassed." Id. at 5. Essentially, the Court found that a Veteran does not file a claim to receive benefits only for an acquired psychiatric disorder, such as PTSD, but in fact makes a general claim for whatever mental condition may be afflicting the Veteran. In the present matter, the Board has granted the Veteran's service connection claim for PTSD. However, the claims folder documents a diagnosis of a depressive disorder as well. See "Diagnoses," VA Mental Health Record, November 14, 2005; "Treatment," VA Exam Report, December 3, 2008. The record reflects that the Veteran statement that he "ignored [his] symptoms," and finally went to seek help in approximately 2002, reasonably suggesting he may have experienced psychiatric symptoms since his separation from service. "Comments," VA Medical Release Form, January 30, 2004. Given that there is no competent evidence of record distinguishing the symptoms between PTSD and a major depressive disorder, the Board finds service connection for depression is warranted. When it is not possible to separate the effects of the service-connected condition versus a nonservice-connected condition, 38 C.F.R. § 3.102 requires that reasonable doubt be resolved in the claimant's favor, thus attributing such signs and symptoms to the service-connected disability. Mittleider v. West, 11 Vet. App. 181 (1998). ORDER Service connection for an acquired psychiatric disorder, diagnosed as PTSD and depression is granted. REMAND The Board notes that an August 2008 rating action denied the Veteran's service connection claim for hypertension, to include as secondary to herbicide exposure. In September 2008, the Veteran filed a timely Notice of Disagreement with this rating action. However, the Veteran has not been provided a Statement of the Case (SOC) related to this issue, and should be provided one. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); see also Godfrey v. Brown, 7 Vet. App. 398, 408-410 (1995); Archbold v. Brown, 9 Vet. App. 124, 130 (1996); VAOPGCPREC 16-92 (O.G.C. Prec. 16-92). However, if the Veteran wishes to perfect his appeal to the Board, he must file a timely substantive appeal after receiving his SOC. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997); Archbold, 9 Vet. App. at 130. Accordingly, the case is REMANDED for the following action: Issue a Statement of the Case to the Veteran addressing the claim of entitlement to service connection claim for hypertension, to include as secondary to herbicide exposure. The Veteran and his representative should be informed of the period of time within which he must file a substantive appeal to perfect his appeal to the Board concerning these respective issues. If a timely substantive appeal is not filed, the claim should not be certified to the Board. If, and only if, a timely substantive appeal is filed, the case should be returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs