Citation Nr: 1120104 Decision Date: 05/24/11 Archive Date: 06/06/11 DOCKET NO. 04-43 923 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran had active service from July 1967 to July 1969. This matter comes before the Board of Veterans' Appeals (Board) from a July 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts in which the RO denied entitlement to service connection for PTSD. In August 2005, the Veteran testified at a hearing held at the RO before a Veterans Law Judge (VLJ), a transcript of which has been associated with the claims folder. In a June 2006 decision, the Board remanded this issue for additional development. In April 2011, the Board sent a letter to the Veteran informing him that the VLJ before whom he had testified in August 2005 was no longer employed at the Board and advising him that he had a right to a new hearing before another VLJ that would decide his case. See 38 U.S.C.A. § 7107(c) (West 2002) (providing that the member or members designated to conduct a hearing shall participate in making the final determination of a claim on appeal). That letter noted that, if he did not respond to the letter within 30 days, the Board would assume that the Veteran did not want an additional hearing. In an April 2011 letter, the Veteran responded that he did not wish to appear at a hearing. Accordingly, consistent with the letter, the Veteran does not desire an additional personal hearing before the Board. FINDING OF FACT The Veteran engaged in combat with the enemy, and his diagnosis of PTSD is based upon specific stressors experienced and described by the Veteran during said combat. CONCLUSION OF LAW PTSD was incurred in military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.304 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Notice should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. A Supplemental Statement of the Case, when issued following a notice letter, satisfies the due process and notification requirements for an adjudicative decision for these purposes. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59,989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Given the favorable disposition of the claim for service connection for PTSD, the Board finds that all notification and development actions needed to fairly adjudicate the claim have been accomplished. Laws and Regulations Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. 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). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of 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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service connection for PTSD requires medical evidence establishing a diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a) (2009); a link, established by medical evidence, between current symptomatology and an in-service stressor; and credible supporting evidence that the claimed in- service stressor actually occurred. 38 C.F.R. § 3.304(f). 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 C.F.R. § 3.304(f)(2). VA's General Counsel has held in a precedent opinion that "the 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 participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality." The determination as to whether evidence establishes that a Veteran engaged in combat with the enemy must be 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 (Oct. 18, 1999). The evidentiary standard outlined in 38 C.F.R. § 3.304(f)(3) for establishing in-service stressors in claims for PTSD was recently relaxed, adding to the types of claims VA will accept through credible lay testimony alone. The new regulations provide 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. 75 Fed. Reg. 39,843, 39,852 (July 13, 2010) (to be codified at 38 C.F.R. pt. 3). The DSM-IV diagnostic criteria for PTSD include exposure to a traumatic event in which the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and a response that involved intense fear, helplessness, or horror. Additional diagnostic criteria must be met before a diagnosis of PTSD is warranted. Factual Background and Analysis The Veteran contends that his currently diagnosed PTSD results from an incident that occurred in approximately February 1969, while he was serving in Vietnam. He described this incident as "friendly fire," in that he was a gun chief on a howitzer and fired the artillery as directed, but the shell landed on American forces. This resulted in the deaths of American soldiers. An investigation was conducted after the incident, and he was transferred to a security unit. Personnel records indicate that from July 1968 to February 1969 he was a gunner assigned to Battery C, 5th Battalion, 4th Artillery, 5th Infantry Division. From February to July 1969 he was assigned to Battery C, 5th Battalion, 4th Artillery, 1st Brigade, 5th Infantry Division, as a Security Chief. He bases his report on when the incident occurred on the time at which he was transferred from the gunnery position to the security position. In a September 2004 report the United States Army and Joint Services Records Research Center (JSRRC) determined that the historical unit summary for the Veteran's unit for 1968 to 1969 did not mention any "friendly fire" incidents, nor did the Daily Journals from January to March 1969 of the 1st Infantry Brigade, 5th Infantry Division, the higher headquarters for the Veteran's unit. The Daily Journals showed that the Veteran's unit was involved in many fire missions. The Veteran also testified that he fired artillery at enemy forces, and was also subjected to fire from enemy forces. The RO obtained information from the U.S. Marine Corp which demonstrated that the 11th Marine Regiment provided supporting fires for the 1st Marine Division in defense of the Danang vital area in January 1969. The 11th Marine Regiment noted 2 enemy rocket attacks during this month. There were also 23 ground fire incidents during January 1969. The Veteran underwent a VA examination in July 2008. It was noted that the Veteran served in Vietnam as a gun chief in various firebases including Quan tri Province. The Veteran reported being a very active combatant in Vietnam as he fired almost daily. He was in daily firefights when he served in July 1968 to July 1969 in Vietnam. He reported that his stressor was due to an incident where he fired on his own troops which involved injuries and fatalities. He noted that after this incident he was taken off of guard duty and was placed as a security officer. The examiner noted that while the Veteran's stressors have been challenged by reviewers, it appeared from the method and the way the Veteran reported, that an incident such as this did take place. The examiner determined that the Veteran met the criteria for PTSD. It was noted that in addition to the Veteran's described stressor of firing on his own troops, he also experienced constant exposure to trauma and witnessed many injuries. The examiner concluded that "after 40 years of working with vets that he (the Veteran) is not malingering in terms of his traumatic stressor and may not have been properly documented in the record." Based on the above evidence, the Board finds that service connection for PTSD is warranted. The Veteran's stressors of taking enemy fire from enemy forces while supporting fires for the 1st Marine Division in defense of the Danang vital area are within the new evidentiary standard of fear of hostile military or terrorist activity. The Veteran described these stressors to the treating VA psychiatrist, who, as indicated in a July 2008 examination, diagnosed him with PTSD that was related to his various stressors in Vietnam. There is no clear and convincing evidence to indicate the stressors did not occur or that his PTSD is not related to these stressors. The stressors are consistent with the circumstances of his service in Vietnam, as he was a gunner assigned to Battery C, 5th Battalion, 4th Artillery, 5th Infantry Division which provided supporting fires for the 1st Marine Division. JSRRC also reported that the Veteran's unit was involved in many fire missions. Additionally, while the Veteran's reports concerning a friendly fire event in February 1969 were not verified, information from the 11th Marine Regiment noted multiple enemy rocket attacks and ground fire incidents in January 1969. The Veteran's record of service indicates that he was assigned to the 11th Marine Regiment, 3rd Marine Division during this time. It is at least as likely as not that the Veteran was with his company during these attacks. See, e.g. Pentecost v. Principi, 16 Vet. App. 124, 129 (2002) (finding that evidence that the Veteran's unit was subject to attacks corroborated the Veteran's allegations that he was subject to such attacks). See also Cohen v. Brown, 10 Vet. App. 128 (1997). Based upon the foregoing facts and analysis, the Board finds that the Veteran has met the evidentiary standard outlined in 38 C.F.R. § 3.304(f) (3) for establishing in-service stressors in claims for PTSD, and that he has a current diagnosis of PTSD based on his described stressors. Giving the benefit of the doubt to the Veteran, his PTSD is shown to be at least as likely as not related to his military service. Consequently, service connection for PTSD must be granted on that basis. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b). ORDER Service connection for PTSD is granted. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs