Citation Nr: 1034883	
Decision Date: 09/16/10    Archive Date: 09/21/10

DOCKET NO.  06-18 066	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, 
California


THE ISSUE

Entitlement to service connection for posttraumatic stress 
disorder (PTSD).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

C. P. Swick, Associate Counsel




INTRODUCTION

The Veteran served on active duty in the U.S. Army from August 
1968 to August 1970, including a tour in Vietnam from January to 
August 1970.

This appeal to the Board of Veterans' Appeals (Board) is from a 
July 2004 rating decision by the Department of Veterans Affairs 
(VA) Regional Office (RO) in Los Angeles, California.

In June 2010, as support for his claim, the Veteran testified at 
a hearing at the RO before the undersigned Veterans Law Judge of 
the Board, commonly referred to as a Travel Board hearing.


FINDING OF FACT

There is probative (competent and credible) evidence linking the 
Veteran's PTSD to stressful events that, as likely as not, 
occurred during his military service - including especially 
exposure to mortars and artillery fire while stationed in 
Vietnam.


CONCLUSION OF LAW

Resolving all reasonable doubt in his favor, the Veteran's PTSD 
was incurred in service.  38 U.S.C.A. §§ 1110, 1154, 5107 (West 
2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2009).




REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran claims that he developed PTSD as a result of 
stressful incidents ("stressors") he experienced while serving in 
the Republic of Vietnam from January to August 1970.  For the 
reasons and bases set forth below, the Board finds that the 
evidence supports his claim or, at the very least, is in relative 
equipoise - meaning about evenly balanced for and against his 
claim, so it must be granted with resolution of all reasonable 
doubt in his favor.  38 C.F.R. § 3.102.

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 for 
PTSD, in particular, requires:  [1] a current medical diagnosis 
of this condition in accordance with 38 C.F.R. § 4.125(a) (i.e., 
DSM-IV) (presumed to include the adequacy of the PTSD 
symptomatology and the sufficiency of a claimed in-service 
stressor), [2] credible supporting evidence that the claimed in-
service stressor(s) actually occurred, and [3] medical evidence 
of a causal relationship between current symptomatology and the 
specific claimed 
in-service stressor(s).  See 38 C.F.R. § 3.304(f).  See also 
Cohen v. Brown, 10 Vet. App. 128 (1997)

The Veteran has the required DSM-IV diagnosis of PTSD based on 
the claimed stressor of mortars falling near him while he was on 
guard duty.  His VA treatment reports from 2003-2005 show he 
received this diagnosis of PTSD predicated on combat-related 
stressors and resultantly underwent treatment.  Since the record 
contains this required diagnosis of PTSD, which, according to 
Cohen v. Brown, 10 Vet. App. 128 (1997), was presumably in 
accordance with the DSM-IV criteria both in terms of the adequacy 
and sufficiency of the stressors claimed, the first requirement 
for establishing entitlement to service connection for PTSD has 
been satisfied.  Consequently, resolution of this case turns on 
whether there also is credible supporting evidence that a claimed 
in-service stressor actually occurred, and, if so, whether there 
is medical evidence of a causal relationship between the 
Veteran's PTSD and the verified in-service stressor.  As the 
Board will discuss, there is indeed this additional necessary 
evidence supporting the claim.

In adjudicating a claim for PTSD, the evidence necessary to 
establish the occurrence of a stressor during service to support 
a diagnosis varies depending on whether the Veteran "engaged in 
combat with the enemy."  Hayes v. Brown, 5 Vet. App. 60, 66 
(1993).  If it is shown through military citation or other 
appropriate evidence that a Veteran engaged in combat with the 
enemy, and the claimed stressors are related to combat, the 
Veteran's lay testimony regarding the reported stressors must be 
accepted as conclusive evidence of their actual occurrence, 
provided the testimony is found to be satisfactory, e.g., 
credible and "consistent with the circumstances, conditions, or 
hardships of such service."  In such cases, no further 
developmental or corroborative evidence is necessary.  38 C.F.R. 
§ 3.304(f)(2).  See also 38 U.S.C.A. § 1154(b); 38 C.F.R. § 
3.304(d).

In this case, there is no conclusive evidence the Veteran engaged 
in combat with an enemy force.  The record confirms that he was 
stationed in the Republic of Vietnam from January to August 1970 
and that his military occupational specialty (MOS) was senior 
message clerk.  His medals include the National Defense Service 
Medal, Vietnam Service Medal, Vietnam Campaign Medal, and Army 
Commendation Medal.  These medals, while commendable in their own 
right, are not prima facie evidence he engaged in combat with an 
enemy force.  In addition, he was not awarded any other 
commendation typically associated with valor or heroism shown 
while engaged in combat with an enemy force.  So there is no 
evidence confirming his involvement in combat.  See VAOPGCPREC 
12-99 (October 18, 1999).

Where a determination is made, as in this case, that the Veteran 
did not "engage in combat with the enemy," or that the claimed 
stressor is not related to combat, his lay testimony, alone, will 
not be enough to establish the occurrence of the alleged 
stressor.  Rather, the record must contain service records or 
other corroborative evidence that substantiates or verifies his 
testimony or statements as to the occurrence of the claimed 
stressor.  See West (Carlton) v. Brown, 7 Vet. App. 70, 76 
(1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993).  
And credible supporting evidence of the actual occurrence of an 
in-service stressor cannot consist solely of after-the-fact 
medical nexus evidence.  Moreau v. Brown, 9 Vet. App. 389, 396 
(1996).  In other words, whether an alleged incident in service 
occurred is a factual, not medical, determination.

Evidence in this case, however, all but acknowledges the Veteran 
probably experienced various stressors during his military 
service which underlie his diagnosis of PTSD.  He testified under 
oath during his recent hearing that his duties and 
responsibilities in Vietnam involved much more than just clerical 
work, his designated MOS.  His stressors underlying the diagnosis 
of PTSD include no less than six mortars falling near him while 
he was on guard duty with the NCO quarters and toilet facilities 
being hit by mortars.  He did not provide a specific timeframe 
for these attacks in order to submit to the Joint Services 
Records Research Center (JSRRC) for possible verification.  But 
he did submit the 1970 Annual Supplement History of the 210th 
Combat Aviation Battalion, 1st Aviation Brigade, and the monthly 
reports of the 56th Transportation Company, who were co-located 
with his 54th Aviation Company, as support for his statements.  
Strictly speaking, these reports do not show that his location 
was hit by mortars and that damage resulted to the NCO quarters 
and toilet facilities.  The information that it does include 
indicates a small mortar attack in January 1970 that fell outside 
of the 56th company area and a larger mortar attack in March 1970 
when 60 rounds fell between Long Thanh and Bearcat, severing an 
electrical cable between the two locations.  Again, though, no 
damage was reported to the 56th Company's area in the March 
attack.

Although these and the other records in the file do not include 
the specific incident described by the Veteran or list any 
property damage, the account provides reasonable corroboration 
that artillery and mortar fire was experienced in the vicinity of 
Long Thanh while he was stationed there.  And it stands to 
reasons that he was exposed to traumatic incidents at this 
location.  There need not be corroboration of every detail of his 
participation in these alleged events.  Pentecost v. Principi, 16 
Vet. App. 124 (2002).  Suozzi v. Brown, 10 Vet. App. 307, 311 
(1997).



Additionally, the new regulations regarding PTSD found at 38 
C.F.R. § 3.304(f)(3) (eff. July 13, 2010) state 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.

See 75 Fed. Reg. 39843 (July 13, 2010).

This most recent regulation amendment has no impact on PTSD 
stressors claimed to have been experienced during combat, while 
interned as a prisoner of war (POW), or the result of personal or 
sexual assault since there already are special provisions, 
exceptions, etc., for these other type claims.



Although during his recent June 2010 Travel Board hearing the 
Veteran testified that he was in fear of hostile activity while 
stationed in Vietnam, his diagnosis of PTSD and its relationship 
to his military service was based on actual exposure to combat-
related incidents and not simply on fear of hostile activity.  
But as there is a sufficient basis to grant his claim, 
regardless, the Board finds that the claim does not need to be 
remanded to provide a medical examination for an opinion 
concerning whether fear of hostile activity is an additional 
stressor that could have resulted in his PTSD.  Because there is 
evidence confirming the occurrence of the alleged events in 
question during service, while in Vietnam, and consequent PTSD, 
service connection is warranted - again, especially resolving 
all reasonable doubt in the Veteran's favor.  38 C.F.R. § 3.102; 
Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

Given this favorable outcome, there is no need to discuss whether 
VA has satisfied its duties to notify and assist pursuant to the 
Veterans Claims Assistance Act of 2000 (VCAA).  38 U.S.C.A. § 
5100, et seq.


ORDER

The claim for service connection for PTSD is granted. 



____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs