Citation Nr: 1111682 Decision Date: 03/23/11 Archive Date: 04/05/11 DOCKET NO. 04-37 765 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York THE ISSUE Entitlement to service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Katie K. Molter, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1951 to January 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision in which the RO denied the Veteran's claim. The Veteran and his spouse testified at a January 2007 Travel Board hearing in January 2007. The Veterans Law Judge who conducted the January 2007 Travel Board hearing is no longer employed at the Board. As such, the Veteran was sent a January 2011 letter which advised him of his right under 38 C.F.R. § 20.717 to have an additional hearing before another Veterans Law Judge. The Veteran responded to the letter in February 2011 and indicated that he did not wish to appear at another hearing and asked that his case be decided on the evidence of record. This claim was previously before the Board in May 2007 and April 2010 and was remanded for notice and development. The Board finds that the RO substantially complied with the May 2007 and April 2010 remand directives, and that no further action in this regard is warranted. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where there was substantial compliance with Board's remand instructions). See also Chest v. Peake, No. 2007-7303, 283 Fed. Appx. 814 (Fed. Cir. July 21, 2008) (unpublished disposition) ("substantial" compliance, rather than "complete" or "absolute" compliance is the correct legal standard to be employed when determining whether remand instructions were complied with). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran has a current diagnosis of PTSD that is related to the Veteran witnessing an event that involved a threat to the physical integrity of the Veteran and others, and the Veteran's response to the event involved a psychological state of fear, helplessness, or horror. CONCLUSION OF LAW The criteria for the establishment of entitlement to service connection for an acquired psychiatric disorder, diagnosed as PTSD, have been met. 38 U.S.C.A. §§ 1110, 1131, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (2010). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found in part at 38 U.S.C.A. § 5103 (West 2002 & Supp. 2010) and 38 C.F.R. §3.159 (2010). V A's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In light of the Board's favorable decision on the Veteran's service-connection claim, the Board finds that all notification and development action needed to fairly adjudicate this appeal has been accomplished. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2010). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disorder on a direct basis, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether the requirements for service connection are met is based on an analysis of all of the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 3.303(a) (2010). See Baldwin v. West, 13 Vet. App. 1 (1999). When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2010). See Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). If the Board determines that the preponderance of the evidence is against the claim, then it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule will not be applicable. Ortiz, 274 F.3d at 1365. According to 38 C.F.R. § 3.304(f) (2010), service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with § 4.125(a) (i.e., DSM-IV); (2) a link, established by medical evidence, between current PTSD symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. With regard to the third PTSD criterion, prior to July 13, 2010, evidence of a stressor in service, the evidence necessary to establish that the claimed stressor actually occurred varied depending on whether it could be determined that the Veteran "engaged in combat with the enemy." 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d). If the evidence establishes 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 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 C.F.R. § 3.304(f)(2). Prior to July 13, 2010, where, conversely, a determination is made that the Veteran did not "engage in combat with the enemy," or the claimed stressor is not related to combat, the Veteran's lay testimony alone would not be sufficient to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Rather, in these situations, the record must contain service records or other corroborative evidence that substantiates or verifies his 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). Previously, a medical opinion diagnosing PTSD after the fact did not suffice to verify the occurrence of the claimed in-service stressor. See Moreau, 9 Vet. App. at 395-96; Cohen v. Brown, 10 Vet. App. 128, 142 (1997). VA recently amended its regulations governing service connection for PTSD by liberalizing the evidentiary standard for establishing the required in-service stressor where the following requirements are satisfied. First, the Veteran must have experienced, witnessed, or have been confronted by 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, and the Veteran's response to the event or circumstance must have involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304(f)(3)). Second, a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, must confirm that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor. Id. Additionally, there must be in the record no clear and convincing evidence to the contrary, and the claimed stressor must be consistent with the places, types, and circumstances of the Veteran's service. Id. A January 2003 statement from a private doctor indicates that the Veteran is suffering from PTSD since the Korean War. An April 2003 VA mental health outpatient note shows that the Veteran suffers from chronic PTSD as a result of his combat experiences in the Korean War. The Veteran reported having many traumatic experiences in Korea. He stated that three days after his arrival, a truck in a convoy he was riding in was blown up by enemy mortar fire. His unit was located close to graves registration and so he saw many dead bodies. On one occasion he saw the body of a black man, not in a body bad, riddled with bullet holes. He mixed napalm and killed enemy soldiers in tunnels with it and operated a flame thrower and killed enemy soldiers in tunnels. The Veteran recalled one North Korean soldier he fired on who then came running at him on fire, a ball of flames. He witnessed devastation in Seoul and remembers the smell if the dead from there as well. The VA doctor stated that the Veteran has suffered from PTSD since Korea and stated that the Veteran abused alcohol for a number of years in an attempt to escape the feelings and memories but stopped this a few years ago. A January 2004 VA behavioral health outpatient note shows that the Veteran was diagnosed with PTSD as a result of his combat experiences in the Korean War. The clinical psychologist stated that the following experiences met all of the clinical criteria for a stressor, utilizing the DSM IV diagnostic criteria: (1) three days after his arrival, a truck convoy he was riding in was blown up by enemy mortar fire and he noted that no one got out of the truck-his response was one of horror and extreme fear (2) he remembered the smell of burning flesh (his unit was located close to the graves registration and so he saw many dead bodies) (3) seeing the body of a black man, not in a body bag, who was riddled with bullet holes (4) killing enemy soldiers with napalm "flame throwers" and (5) witnessing a North Korean man, who the Veteran had fired on, come running at him on fire. The clinical psychologist stated that the Veteran had suffered from PTSD since Korea and stated that his PTSD was well documented. At his January 2007 Board hearing and in various written statements, the Veteran stated that in October 1951 he came under mortar attack while traveling a truck convoy and witnessed a Private First Class R.C. get wounded by enemy fire. In November 2010 the VA received notification that Private First Class R.C. was shot and wounded in action in Korea in October 1951. The Veteran was afforded a VA examination in August 2010. The Veteran reported that some time in the monsoon of 1952, in a place called Bucker Hill, in Korea, his unit was bombed by enemy combatants and several people got wounded. The Veteran stated he received several shrapnel wounds. Around the same time, in a place called "76 alley" his unit was hit by rockets and many soldiers were injured and he again received several shrapnel wounds. Upon psychological examination the Veteran was casually dressed. He was hyperactive and restless. His speech was unremarkable and his attitude was cooperative. His affect was constricted and his mood was anxious, fearful, and dysphoric. The Veteran was unable to do serial 7's or to spell a word forward and backward. His thought process and content were unremarkable and he did not have any delusions. Insight and judgment were intact. The Veteran reported sleep impairment and stated that he wakes up several times from sleep and feels tired and irritable the following day. He denied obsessive and ritualistic behavior, panic attacks, and suicidal and homicidal thoughts. The examiner noted that the Veteran lacks motivation to socialize with people and that his mood is often anxious and fearful. The Veteran's remote and immediate memory were mildly impaired. His recent memory was normal. He reported experiencing trauma during his military service. Specifically, the Veteran stated that he used to drive his Major from headquarters to other places for inspection. The Veteran thought many times he was going to die and experienced feelings of intense fear, hopelessness, and horror. The Veteran was diagnosed with Axis I PTSD and the examiner opined that the Veteran's PTSD was as a result of an in-service event. The examiner further stated that the Veteran currently carries a diagnosis of PTSD and did not have PTSD when he entered military service. While in service, the Veteran was exposed to stressors which could cause PTSD in any person and the Veteran reacted to the stressors with symptoms that meet the criteria of PTSD. The evidence of record does not show that the Veteran engaged in combat for the purposes of 38 C.F.R. § 3.304. The Veteran's DD Form 214 shows that the Veteran received the Korean Service Medal with 2 Bronze Service Stars, United Nations Service Medal, and a Meritorious Unit Commendation. However, the Veteran's DD Form 214 verifies service in a location what would involve "hostile military activity" as evidenced by the Veteran's awards. The August 2010 VA examiner opined that the Veteran's PTSD was as a result of an in-service event. The examiner further stated that the Veteran currently carries a diagnosis of PTSD and did not have PTSD when he entered military service. While in service, the Veteran was exposed to stressors which could cause PTSD in any person and the Veteran reacted to the stressors with symptoms that meet the criteria of PTSD. Additionally, the examiner indicated that the Veteran thought many times he was going to die and experienced feelings of intense fear, hopelessness, and horror with regards to his in-service stressors. After reviewing the evidence of record, the Board finds that after resolving all reasonable doubt in favor of the Veteran, that service connection for PTSD is warranted. Pursuant to the recently amended 38 C.F.R. § 3.304(f)(3)) the Veteran has experienced, witnessed, or have been confronted by 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, and the Veteran's response to the event or circumstance must have involved a psychological or psycho-physiological state of fear, helplessness, or horror. This has been established by the Veteran's lay testimony that he was witnessed a convoy get hit and saw a fellow soldier get wounded. And that testimony was corroborated by the RO and also by the August 2010 VA examiner show found that the Veteran's response to the event was intense fear, hopelessness, and horror. Secondly, the August 2010 VA examiner confirmed that the claimed stressor was adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor. Finally, the record contains no clear and convincing evidence to the contrary, and the claimed stressor must be consistent with the places, types, and circumstances of the Veteran's service. Id. Thus, following a full review of the record, and giving the Veteran the benefit of the doubt, the Board concludes that service connection for PTSD is warranted. ORDER Entitlement to service connection for an acquired psychiatric disorder, diagnosed as PTSD, is granted. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs