Citation Nr: 1123330	
Decision Date: 06/20/11    Archive Date: 06/28/11

DOCKET NO.  09-03 102	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

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


REPRESENTATION

Appellant represented by:	Florida Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

B. Berry, Associate Counsel


INTRODUCTION

The Veteran served on active duty from November 1967 to November 1970.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in November 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

In September 2010, the Veteran testified during a hearing before the undersigned at the St. Petersburg, Florida RO.  A transcript of the hearing is of record.


FINDING OF FACT

The competent and credible evidence establishes that the Veteran as been diagnosed with PTSD by a VA psychiatrist and that such diagnosis is due to a stressor that is based on "fear of hostile military or terrorist activity" while serving in the Republic of Vietnam from October 1968 to October 1969 with Company C, 759th military police battalion at Long Binh Army Base.


CONCLUSION OF LAW

PTSD was incurred during the Veteran's active military service.  38 U.S.C.A. 
§ 1110 (West 2002); 38 C.F.R. § 3.304(f) (2010); Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843, 39,852 (July 13, 2010) (to be codified at 38 C.F.R. § 3.304(f)(3)); 75 Fed. Reg. 41,092 (July 14, 2010).  



REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Veterans Claims Assistance Act of 2000

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010).  In this case, the Board is granting in full the benefit sought on appeal.  Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed.  To whatever extent the decision of the United States Court of Appeals for Veterans Claims (Court) in Dingess v. Nicholson, 19 Vet. App. 473 (2006), requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as a disability rating and effective date, the Board finds that the RO will address any applicable downstream issues when effectuating the award and therefore any failure to provide this notice at this junction cannot prejudice the claimant because he will be free to appeal any unfavorable finding by the RO regarding the disability rating and effective date.

II.  Merits of the Claim for Service Connection

The Veteran contends that he is entitled to service connection for PTSD based on his experiences while serving in the Republic of Vietnam.  The Veteran contends that his traumatic experiences in Vietnam include firefights with the Viet Cong, guard duty where he had to deal with sappers, sniper fire, mortar attacks, and a personal assault.  See June 2006 VA treatment record and Hearing Transcript at 21.  He also testified that the he was in fear of his life during the sniper fire and mortar attacks during service.  Id.

Service connection for PTSD requires medical evidence establishing a diagnosis of the disorder, credible supporting evidence that the claimed in-service stressor(s) occurred, and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor(s).  38 C.F.R. § 3.304(f) (2010).  With regard to the second PTSD element as set forth in 38 C.F.R. § 3.304(f), evidence of an in-service stressor, the evidence necessary to establish the claimed stressor varies depending on the circumstances of the stressor and the nature of a veteran's service.  

If the evidence establishes that a 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)(2) (2010).  

Additionally, if a stressor claimed by a veteran is related to the veteran's "fear of hostile military or terrorist activity" and a VA or VA-contracted psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor so long as there is not 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.  Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843, 39,852 (July 13, 2010) (to be codified at 38 C.F.R. § 3.304(f)(3)); 75 Fed. Reg. 41,092 (July 14, 2010) (correcting the effective date of the rule published on July 13, 2010).  For purposes of this section, "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, . . . , and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror."  75 Fed. Reg. at 39,852.  

Initially, the Board observes that the Veteran's service records fail to corroborate his lay assertions that he directly engaged in combat with the enemy during service.  See VAOPGCPREC 12-99 (October 18, 1999); Moran v. Principi, 17 Vet. App. 149 (2003) (personal participation in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality); see also Sizemore v. Principi, 18 Vet. App. 264, 273-74 (2004).

However, service personnel records show that the Veteran served on active duty from November 1967 to November 1970 with service in the Republic of Vietnam from October 1968 to October 1969 with Company C, 759th military police battalion at Long Binh Army Base.  The records reveal that his military occupational specialty (MOS) during this period was military police.  His personnel records indicate that he was awarded the National Defense Service Medal, the Republic of Vietnam Campaign Medal, and the Vietnam Service Medal.  

Moreover, while none of this evidence supports the conclusion that the Veteran directly engaged in combat with the enemy, it does show that he served in the Republic of Vietnam during the Vietnam war and the claimant has presented lay evidence that his military police duties included: guard duty, conducting perimeter checks of the base, and convoy security.  Moreover, while on guard duty and convoy security, the Veteran had to deal with sniper fire, small arms fire, and mortar attacks.  Furthermore, the Veteran submitted articles' supporting his contentions that the Long Bin Army base was attacked by mortar fire during the period the claimant was on the base. 

The Board finds that these reported stressor events, if credible, are consistent with a stressor based on "fear of hostile military activity" as defined above.  In the instant case, there is nothing in the record which tends to refute the Veteran's assertion that he served in areas where the enemy was present, thereby placing his unit under the threat of fire.  Moreover, such circumstances would seem consistent with his service in Vietnam as military police during an era of conflict and on a base that received mortar fire from the enemy.  Absent clear and convincing evidence to the contrary, the Board finds the Veteran's lay assertions regarding fearing for his life to be credible.  

Given that the Veteran's stressor is based on "fear of hostile military or terrorist activity," the critical remaining element of this PTSD claim is whether he has been diagnosed with PTSD by a VA or VA-contracted psychiatrist or psychologist based on this stressor.  See 75 Fed. Reg. at 39,852.

In this regard, the Veteran was evaluated by a VA psychiatrist in June 2006 and October 2006 for PTSD.  During the evaluation, the Veteran reported the following stressors: convoy security where he engaged in firefights with the Viet Cong, guard duty where he had to deal with sappers, harassment sniper fire, and the security of the base.  The psychiatrist provided a diagnosis of PTSD due to these military traumas.  

Therefore, the Board finds that the VA psychiatrist provided the Veteran with a diagnosis of PTSD related to the fact that he had been exposed to a traumatic event while stationed in the Republic of Vietnam, which involved threatened death and threat to the physical integrity of the claimant and threat to the physical integrity of others and the appellant responded with intense fear, helplessness, and horror.  

Based on the foregoing, the Board finds that the Veteran has a current diagnosis of PTSD from a VA psychiatrist.  Moreover, this diagnosis is the result of a stressor that is based on "fear of hostile military activity."  Under these circumstances, the board finds that service connection is warranted for PTSD.  38 C.F.R. § 3.304(f) (2010); 75 Fed. Reg. 39,843; 75 Fed. Reg. 41,092.  The appeal is therefore granted.


ORDER

Service connection for PTSD is granted.



____________________________________________
NEIL T. WERNER
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs