Citation Nr: 1123943 Decision Date: 06/23/11 Archive Date: 06/29/11 DOCKET NO. 10-26 032 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Kenneth M. Carpenter, Esq. ATTORNEY FOR THE BOARD C. J. Houbeck, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1978 to January 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 Regional Office (RO) in St. Louis, Missouri rating decision, which denied the claim on appeal. FINDING OF FACT There is at least an approximate balance of positive and negative evidence as to whether the Veteran has a current diagnosis of PTSD, as a result of his military service. CONCLUSION OF LAW Resolving doubt in favor of the Veteran, his PTSD was incurred during his military service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f) (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). In light of the favorable decision herein as to entitlement to service connection for PTSD, the Board finds that any deficiencies in notice or assistance were not prejudicial to the Veteran. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2010). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2010). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection for PTSD specifically requires medical evidence establishing a diagnosis of the disability, credible supporting evidence that the claimed in-service stressor actually occurred, and a link between the current symptomatology and the claimed in-service stressor. See 38 C.F.R. § 3.304(f) (2010). 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. See 38 C.F.R. § 3.304(f)(2) (2010); see also, 38 U.S.C.A. § 1154(b) (West 2002 & Supp. 2010). Similarly, 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. See 38 C.F.R. § 3.304(f)(3); see also 75 Fed. Reg. 39,843 (July 13, 2010); 75 Fed. Reg. 41092 (July 15, 2010). Otherwise, the law requires verification of a claimed stressor. Where a determination is made that the Veteran did not "engage in combat with the enemy," or the claimed stressor is unrelated to combat, the Veteran's lay testimony alone will not be enough 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). In such cases, the record must include service records or other credible evidence that supports and does not contradict the Veteran's testimony. Doran v. Brown, 6 Vet. App. 283, 289 (1994). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. See Moreau, 9 Vet. App. at 395-396; Cohen v. Brown, 10 Vet. App. 128, 42 (1997). The Veteran contends he has PTSD as the result of his active duty service. Specifically, the Veteran reports that in October 1986 he was present in the immediate aftermath of the electrocution of five civilians at the submarine base on Ballast Point on Point Loma in San Diego, California when metal scaffolding they were transporting came in contact with an electrical wire. Four of the individuals later died. The Veteran contends that he hear a loud noise, followed by several seconds of screaming, rushed to the scene, and saw the bodies and smelled the burned bodies and grass. He asserts that his current psychiatric symptoms are due to that incident in service. As an initial matter, the Veteran provided multiple newspaper accounts of the incident and his personnel records establish that he was stationed on the submarine base at the time of the incident. The RO determined that while the incident itself may have occurred there was no evidence that the claimed stressor was related to the Veteran's service, in that there was no indication that the Veteran was present when the incident occurred or in the immediate aftermath. The Board notes that in order to show presence during a stressful event, evidence need not demonstrate a veteran actually was present during the event if the evidence shows his unit was present. Pentecost v. Principi, 16 Vet. App. 124, 128 (2002). The Veteran's service personnel records show that at the time of the incident he was assigned to Commander, Submarine Group Five and stationed in San Diego, California. As noted above, the Veteran's report of being on the scene in the immediate aftermath of the October 1986 electrocution is not directly corroborated by the evidence of record. However, as noted above, the Veteran's unit was stationed at the submarine base at the time of the incident. While the newspaper articles articulate that there were no witnesses of the incident itself, there were multiple individuals, primarily military service members, who appeared on the scene in the immediate aftermath of the incident, which is when the Veteran claims to have appeared on scene. Thus, the evidence of record establishes that the Veteran's unit was present on the base where the electrocution occurred and that military personnel responded immediately to the electrocution incident. As such, it is not inconceivable that the Veteran was present in the immediate aftermath of the October 1986 electrocution of five civilian contractors. Given the foregoing and affording the Veteran the benefit of the doubt, the Board will presume that the Veteran's claimed stressor has been verified. Even with a conceded in-service stressor, the evidence must still establish by competent medical evidence that the Veteran has a current disability due to those service events. See Gregory v. Brown, 8 Vet. App. 563, 567 (1996); see also Kessel v. West, 13 Vet. App. 9, 17-19 (1999). As there is an approximate balance of the positive and negative evidence as to whether he has PTSD due to service, the Board concludes service connection is warranted. In this regard, to the extent available, the Board notes that the Veteran's service treatment records are silent as to any treatment for or diagnosis of PTSD or other psychiatric disorders. The Board notes in-service treatment for alcohol abuse, but such treatment occurred both before and after the October 1986 electrocution incident and there is no evidence of record linking any such treatment to PTSD or other psychiatric disorder. After service, the Veteran appears to have initially sought treatment for psychiatric problems in approximately September 2007 and was treated with therapy and psychotropic medication. In December 2007, the Veteran underwent a psychiatric evaluation. At that time, the Veteran described the in-service stressor discussed above. In addition, the Veteran reported increased alcohol abuse following the claimed stressor, but that he had abstained since June 2007. Based on these reports, the examining psychology intern, and confirmed by the supervising doctor, concluded that the Veteran met the criteria for a diagnosis of PTSD and major depressive disorder. The Veteran was afforded a VA examination in December 2008. At that time, the examiner noted review of the claims file and medical records. The Veteran reported that he entered military service shortly after letting his friend borrow his car, which the friend used in a drag race, and that the other car hit a telephone pole killing the driver. The Veteran also reported that in October 1986, while returning to his duty station, he heard a popping sound and that after rounding a corner he saw five men stuck to scaffolding in the midst of an electrical fire, with scaffolding melting, grass and flesh burning, and hair on fire. The Veteran discussed the efforts of others to free the individuals from the electrified scaffolding. The examiner noted that the Veteran had alcohol counseling in August 1986, prior to the October 1986 electrocution incident. The Veteran reported that he received no counseling in the immediate aftermath of the incident, but that in February 1987 he sought counseling during a weekend retreat sponsored by the Chaplains Religious Enrichment Development Operation (CREDO). Based on the foregoing, and psychiatric evaluation, the examiner diagnosed PTSD, bipolar disorder, and substance use disorder, in remission. Thus, the Veteran has a current diagnosis of and ongoing treatment for PTSD from multiple VA providers. The December 2007 and December 2008 VA doctors found that the Veteran met the criteria for a diagnosis of PTSD based, at least in part, on his verified in-service stressor. The Board finds these opinions linking the incident involving the electrocution of five individuals to his current diagnosis of PTSD to be competent and probative medical evidence. Thus, the Board concludes the findings of the VA physicians in December 2007 and December 2008, at the very least, place the evidence in equipoise as to whether the Veteran currently has PTSD related to military service. As such, the Veteran is entitled to the benefit of the doubt and service connection may be granted. In short, in light of the Veteran's service in the same location as the verified October 1986 electrocution of five individuals, his multiple current diagnoses of and treatment for PTSD, and the medical opinions linking his current PTSD to his confirmed in-service stressor, the Board further concludes that service connection is warranted. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). ORDER Entitlement to service connection for PTSD is granted. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs