Citation Nr: 1032816 Decision Date: 08/31/10 Archive Date: 09/08/10 DOCKET NO. 05-26 367 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Katz, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1966 to February 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio (RO) and Board remand. FINDING OF FACT The Veteran has a current diagnosis of posttraumatic stress disorder (PTSD) that is associated with an in-service stressor which is related to fear of hostile military activity. CONCLUSION OF LAW PTSD was incurred in active military service. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 4.125 (2009); 3.304(f)(3) (July 13, 2010). REASONS AND BASES FOR FINDING AND CONCLUSION In November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009). VA has issued regulations implementing the VCAA. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2009). Without deciding whether the notice and development requirements of the VCAA have been satisfied in the present case, this law does not preclude the Board from adjudicating the issue involving the Veteran's claim for service connection for a psychiatric disorder, to include PTSD, as the Board is taking action favorable to the Veteran by granting service connection for this disorder. As such, this decision poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004). Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In addition, 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). Service connection for PTSD requires (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; and (3) credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f) (2009). A diagnosis of a mental disorder, including PTSD, must conform to the criteria of Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). 38 C.F.R. § 4.125. 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, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(f)(1). Furthermore, if the Veteran did not engage in combat with the enemy or if the claimed stressors are not related to combat, then the Veteran's testimony alone is not sufficient to establish the occurrence of the claimed stressors, and his testimony must be corroborated by credible supporting evidence. See Cohen v. Brown, 10 Vet. App. 128 (1997); Moreau v. Brown, 9 Vet. App. 389 (1996); Dizoglio v. Brown, 9 Vet. App. 163 (1996); Fossie v. West, 12 Vet. App. 1, 6 (1998). During the pendency of this appeal, the criteria for verifying in-service stressors were amended, effective July 13, 2010. The amendment states that 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. 38 C.F.R. § 3.304(f)(3) (July 13, 2010). The Veteran's service treatment records and service personnel records are negative for any complaints or diagnoses of a psychiatric disorder. The Veteran's service personnel records reveal that he had service in Vietnam, and that while in Vietnam, his primary duties were in supply and as a rifleman. The Veteran's service personnel records also reveal that his combat history in Vietnam included participation in operations against the insurgent communist (Viet Cong) forces in the Republic of Vietnam (Danang) on February 1, 1968; participation in operations against insurgent communist forces in the Thua Thien Province in the Hue City area from March 31, 1968 to May 17, 1968; participation in operations against insurgent communist forces in the Quang Nam Province and Danang from May 16, 1968 to May 30, 1968; and participation in OPERATION ALLEN BROOK in the Quang Nam Province from May 31, 1968 to June 23, 1968. His DD 214 reveals that he was awarded the National Defense Service Medal. His service personnel records indicate that he was also awarded the Vietnam Service Medal with two stars and the Republic of Vietnam Campaign Medal. In June 1969, the Veteran underwent a VA examination. The examination report notes that the Veteran had apparent headaches which were part of a minimal anxiety reaction. In a March 2004 lay statement, the Veteran's wife reported that she has known the Veteran since 1962 and that since his discharge from active duty service he has had a personality change with mood swings, depression, social withdrawal, nightmares, night sweats, fear of large crowds, hypervigilance, and drinking problems. In an April 2004 statement, the Veteran indicated that he experienced numerous stressors during active duty service in Vietnam. He reported stressors including: 1) a "Viet Cong gorilla" fell into his foxhole one night and scared the Veteran so much that he urinated in his pants and killed him; 2) he killed an old woman and a little girl who were shooting at him with a machine gun; 3) he killed many enemy soldiers; 4) he saw men die after stepping on a mine; and 5) while standing behind a fallen tree, a mortar round came in and flipped him "like a little doll" causing shrapnel to lodge in his leg and his gunman to die. He noted that he had a corpsman fix his leg and not say anything about it because his mother was dying of cancer at home and he did not want her to worry about him. He stated that, since service discharge, he drank a lot and had symptoms including nightmares, depression, fear of crowds and noisy places, hypervigilance, night sweats, and anger outbursts. VA treatment records from October 2003 through March 2006 reveal diagnoses of and treatment for PTSD. A January 2004 record notes that the Veteran reported stressors during active duty service in Vietnam including shooting an enemy soldier who fell into his bunker and that a friend who was kneeling behind him was shot. The physician noted that the Veteran had some shrapnel marks on his leg. The diagnoses were alcohol dependence, rule out PTSD, and rule out panic disorder. The physician stated that the Veteran related symptoms of reliving, avoidance, and physical stress suggestive of PTSD. Another January 2004 treatment record reveals that the Veteran reported combat during service in Vietnam. The diagnoses were partial alcohol dependence and PTSD. February 2004 and April 2004 treatment records also reflect diagnoses of unstable PTSD. A May 2004 treatment record notes that the Veteran reported stressors in Vietnam including killing an enemy soldier who fell into his bunker at night and being injured in a mortar blast along with a friend, Bill the "A" gunner, who took the majority of the blast to his chest. After determining that all criteria necessary to support a finding of PTSD were met, the VA physician diagnosed PTSD, alcohol dependence in early remission, and rule out major depression. A June 2004 treatment record notes a diagnosis of PTSD. August 2004, September 2004, October 2004, and November 2004 treatment records reflect diagnoses of unstable PTSD. January 2006 and March 2006 treatment record also reveals a diagnosis of PTSD. During a January 2006 hearing before the RO, the Veteran reported stressors including the following: 1) while on perimeter watch in April 1968 with mortar rounds coming in, a Viet Cong soldier fell into the same foxhole that the Veteran was in, and that they struggled and the Veteran killed him; 2) the Veteran experienced rocket and mortar attacks in March 1968 and April 1968; and 3) while in Phu Bai in March 1968 or April 1968, the Veteran was injured in the leg by shrapnel rounds from a mortar explosion and observed the mortar explosion kill his aide gunner. An April 2010 memorandum from the RO's U.S. Army and Joint Services Records Research Center (JSRRC) reflects that the Veteran's report of coming under attack and receiving rocket and mortar rounds while on perimeter watch was verified because records showed that the Veteran's unit, Company A, 1st Battalion, 27th Marines, 1st Marine Division, received rocket and heavy small arms fire as well as small arms and automatic weapon fire from an estimated 45 enemies. After a thorough review of the evidence of record, the Board concludes that service connection for PTSD is warranted. The medical evidence of record clearly shows that the Veteran has a current diagnosis of PTSD for VA purposes. See 38 C.F.R. § 4.125. However, the Veteran's claim was most recently denied on the basis that there was no medical evidence of record linking the Veteran's PTSD to his verified inservice stressor of having come under attack and received rocket and mortar fire while on perimeter watch. In this regard, the Board observes that a May 2004 VA treatment record reflects that the Veteran's diagnosis of PTSD was based on the reported stressors of killing an enemy soldier who fell into his bunker at night and being injured in a mortar blast along with a friend (Bill the "A" gunner) who took the majority of a blast to his chest. Although there are numerous other diagnoses of PTSD of record, they do not reflect the stressors on which such diagnoses are based. Thus, although the RO's JSRRC Coordinator was able to confirm the Veteran's reported stressor of having come under attack and received rocket and mortar fire while on perimeter watch, there is no evidence that the specific stressors on which the Veteran's diagnosis of PTSD is based have been verified. However, the regulatory changes which became effective on July 13, 2010 state that the Veteran's lay testimony alone is sufficient to establish the occurrence of a claimed in-service stressor if that stressor is related to the Veteran's fear of hostile military or terrorist activity. As noted above, the May 2004 VA treatment record reflects that the Veteran's diagnosis of PTSD was based on the reported stressors of killing an enemy soldier who fell into his bunker at night and being injured in a mortar blast along with a friend (Bill the "A" gunner) who took the majority of a blast to his chest. The Board finds that the stressors cited in the May 2004 VA treatment record are clearly related to the Veteran's fear of hostile military activity, and his statements are consistent with the information available about his period of service in Vietnam, to include his combat history. Therefore, in accordance with the regulatory changes made to 38 C.F.R. § 3.304(f)(3), effective July 13, 2010, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. Accordingly, there is credible evidence of record which establishes the occurrence of the Veteran's claimed stressors. For the reasons discussed above, the Board finds that the Veteran has a current diagnosis of PTSD that is associated with in-service stressors related to fear of hostile military activity. See 38 C.F.R. § 3.304(f)(3) (July 13, 2010). Thus, applying the doctrine of reasonable doubt, the Board finds that the Veteran's PTSD is related to active military service and therefore, service connection for PTSD is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for PTSD is granted. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs