Citation Nr: 1122275 Decision Date: 06/08/11 Archive Date: 06/20/11 DOCKET NO. 06-12 689 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The Veteran served on active duty from August 1968 to August 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In January 2008, a videoconference hearing was held before the undersigned Veterans Law Judge. In February 2008, the Board denied the claim. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In October 2008, the parties submitted a Joint Motion for Remand. In an Order also dated in October 2008, the Court granted the motion and remanded the case to the Board for further appellate review. In October 2009, the Board remanded the case for additional development. The case has since returned to the Board. The Board observes that in the course of developing the appeal, the RO requested service personnel records for another soldier (W.J.). For privacy reasons, the RO should consider whether these records should be returned to the appropriate repository. FINDINGS OF FACT 1. The Veteran did not engage in combat with the enemy; however, his reported stressors of mortar attacks and the death of his friend are sufficiently corroborated. 2. Resolving reasonable doubt in the Veteran's favor, evidence of record shows a diagnosis of PTSD related to in-service stressors. CONCLUSION OF LAW PTSD was incurred during active military service. 38 U.S.C.A. §§ 1110, 5103, 5103A (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) In light of the favorable decision in this case, a detailed discussion regarding how VA complied with the VCAA is unnecessary. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Analysis In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2007); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Establishing service connection for PTSD requires: (1) medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125 (for VA purposes, all mental disorder diagnoses must conform to American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM -IV); (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). With regard to the validity of the averred stressor, the evidence necessary to establish that the claimed stressor actually occurred varies depending on whether it can be determined that the veteran "engaged in combat with the enemy." When the veteran is found to have 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, his 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(d), (f). VA's General Counsel has defined the ordinary meaning of the phrase "engaged in combat with the enemy" to mean that the veteran must have personally participated in a fight or encounter with a military foe or hostile unit or instrumentality. See VAOPGCPREC 12-99; 65 Fed. Reg. 6257 (2000). Service personnel records show that the Veteran served in Vietnam from January to December 1969. He was assigned to the Army Depot at Long Binh. Military occupational specialties were listed as equipment storage specialist, salvage inspector, and senior equipment store specialist. The Veteran was not awarded any medal or other decoration indicating combat participation. Evidence of record does not support finding that the Veteran engaged in combat with the enemy. If the claimant did not engage in combat with the enemy, or the claimed stressors are not related to combat, then the claimant's testimony alone is not sufficient to establish the occurrence of the claimed stressors, and his testimony must be corroborated by credible supporting evidence. Service department records must support, and not contradict, the claimant's testimony regarding non-combat stressors. Doran v. Brown, 6 Vet. App. 283 (1994). Notably, the regulations governing PTSD were amended, effective July 13, 2010. 75 Fed. Reg. 39843-52 (July 13, 2010). Specifically, this amendment eliminates the requirement for corroborating that the claimed in-service stressor occurred if a claimed stressor 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, provided that the claimed stressor is consistent with the places, types, and circumstances of the veteran's service. Id. Pursuant to regulation, "fear of hostile military or terrorist activity" means that the 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. In various statements, the Veteran reported two stressors. At the hearing, he testified that in mid-January 1969 his base was shelled and mortared. He indicated that it was frightening to him and he stayed in the bunker for at least two weeks prior to being permanently assigned to a disposal branch. The second stressor was when he found out that his friend, W.J., had been killed. He reported that they were from the same town and were close all through school. He also testified that they may have been half-brothers. The RO requested verification of the mortar attacks through the Joint Services Records Research Center (JSRRC). Based on information received, the RO determined that the Veteran's statements were corroborated. See Memorandum dated March 31, 2010. The Board observes that the Army Depot at Long Binh was a large installation and there is no way to confirm that the Veteran was physically located in those areas that received mortars. Notwithstanding, the Board finds the stressor sufficiently corroborated. See Pentecost v. Principi, 16 Vet. App. 124, 128 (2002) (corroboration of every detail of a claimed stressor, including personal participation, is not required, and independent evidence that the incident occurred is sufficient). Information in the claims file also verifies that W.J. was killed in action in Vietnam in June 1969. Evidence of record shows that the Veteran and W.J. were from the same town and the Veteran submitted information indicating that they were in the same high school class. The Veteran's statement that they were related has not been verified. Having determined that the reported stressors are verified, the Board must consider whether the Veteran has a confirmed diagnosis of PTSD related to such stressors. The Veteran underwent a VA examination in July 2004. In regard to traumatic events in Vietnam he described, "[j]ust seeing peoples' lives destroyed." He also reported that while in Vietnam, he went to visit a close childhood friend and when he got there, he found out that this individual had been killed. Following interview and examination, axis I diagnosis was PTSD versus malingering. The examiner noted that he was unable to diagnosed PTSD with certainty and he recommended that he be set up for a psychologic evaluation. The Veteran underwent psychiatric testing and additional evaluation in September 2004. The diagnosis was PTSD. The examiner noted that while the Veteran demonstrated a tendency to exaggerate symptoms, it was his opinion that he was not malingering. The examiner further stated that the Veteran's presentation and objective psychological test findings were consistent with PTSD and appeared related to his experiences in Vietnam. The Veteran most recently underwent a VA examination in June 2010. He reported hearing loud explosions during his tour and that he primarily experienced distress related to the loss of W.J. Following interview and examination, the examiner indicated that there was no axis I diagnosis. The examiner noted that the Veteran had previously been diagnosed with PTSD but noted that the reported stressor (death of W.J.) does not meet criteria for a stressor that would cause PTSD. The examiner also stated: Overall on interview, the Veteran reported symptoms of [PTSD]. However, the stressor does not qualify as an in-service stressor that would cause symptoms of [PTSD]. ... The Veteran does not present with an axis I clinical disorder, nor does he present with any mental disorder that is service connected. As set forth, the record contains conflicting evidence regarding whether the Veteran currently meets the criteria for a diagnosis of posttraumatic stress disorder. That is, the September 2009 examiner determined that the Veteran did have PTSD related to Vietnam experiences. The June 2010 examiner, however, determined that the Veteran did not meet the criteria for a confirmed diagnosis based on the absence of a sufficient stressor. The Board notes that the examiner provided extensive discussion; however, he did not address whether a diagnosis of posttraumatic stress disorder could be supported by the corroborated exposure to mortar attacks. Under the benefit-of-the-doubt rule, for the appellant to prevail, there need not be a preponderance of the evidence in his favor, but only an approximate balance of positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Given the evidence set forth above, such a conclusion cannot be made in this case. The Board does not find a sufficient reason to favor one opinion over the other. Thus, resolving reasonable doubt in the Veteran's favor, the evidence shows a diagnosis of PTSD related to verified in-service stressors and service connection is established. See 38 C.F.R. § 3.102. ORDER Entitlement to service connection for PTSD is granted. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs