Citation Nr: 1124274 Decision Date: 06/27/11 Archive Date: 07/06/11 DOCKET NO. 09-18 441 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. Edwards, Associate Counsel INTRODUCTION The Veteran had active service from June 1970 to July 1970. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. FINDING OF FACT The Veteran has been diagnosed with PTSD that is medically attributed to a stressor he experienced during his service. CONCLUSION OF LAW The criteria for service connection for PTSD are met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f) (2010). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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 & Supp. 2010); 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. Consequently, the Board finds that any lack of notice and/or development, which may have existed under the VCAA, cannot be considered prejudicial to the Veteran, and remand for such notice and/or development would be an unnecessary use of VA time and resources. II. Entitlement to Service Connection for PTSD Establishment of service connection for PTSD requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). In addition, the Board notes that VA has recently amended its adjudication regulations governing service connection for posttraumatic stress disorder by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. Specifically, the final rule adds the following exception to the general requirements for stressor verification set forth in 38 C.F.R. § 3.304 (f)(3) 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. For purposes of this paragraph, "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, 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. The provisions of this amendment apply to applications for service connection for PTSD that were appealed to the Board before July 13, 2010 but have not been decided by the Board as of July 13, 2010. As such, they are applicable to this case. 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 Veteran prevailing in either event, or in whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. VA regulations provide that if PTSD is based on an in-service personal assault, evidence from sources other than the Veteran's service records may corroborate the Veteran's account of the stressor incident. Evidence of behavioral changes following the claimed assault is one type of relevant evidence that may constitute credible evidence of the stressor and such evidence includes, but is not limited to, a request for a transfer to another military duty assignment, deterioration in work performance, substance abuse, episodes of depression, panic attacks, or anxiety without an identifiable cause, or unexplained economic or social behavior changes. Under 38 C.F.R. § 3.304(f)(3), VA will not deny a PTSD claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the Veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. The Veteran is seeking entitlement to service connection for PTSD. The Veteran asserts that while at training camp, he and another solider were looking at a statue when they were grabbed by the backs of their shirts, arrested by Military Police, and placed in the back of a police vehicle. See July 2009 RO Hearing Transcript. The Veteran asserts that the Military Police would not tell them why they were being detained and showed them their weapons. Id. When they arrived at jail, the Military Police officers laughed at the Veteran and after a Senior Drill Instructor inquired why the Veteran and his fellow service member were being detained, the Military Police laughed and the Drill Instructor instructed the Veteran and the other service member were to be returned. Id. When the Veteran was returned, he was again grabbed by the shirt and thrown to the ground. Id. The Board finds the requirements for service connection have been met. The initial element is met because the Veteran's diagnosis of PTSD is documented, for example, in a February 2009 VA outpatient record. The Veteran has submitted evidence of his treatment at VA outpatient centers for his PTSD. See, e.g. October 2008, February 2009 and September 2009 VA outpatient notes. As for the second element, the Board finds the Veteran's stressor has been corroborated. At the outset, the Board observes that the Veteran's account of his stressor has been consistent throughout the record, over the course of multiple years. The Board notes that the Veteran is competent to give evidence about what he experiences. See Layno v. Brown, 6 Vet. App. 465 (1994). Furthermore, the Board finds the Veteran's statements to be credible. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Veteran's service records also help to corroborate the stressor. The Veteran asserts his stressor occurred while stationed at Parris Island in 1970 and service records indicate the Veteran was stationed at Parris Island in 1970. See July 1970 Medical Board Report Cover Sheet. Giving the Veteran the benefit of the doubt, the Board finds that the Veteran's stressor is credible and verified. The third element has also been met, as the Veteran's PTSD has been linked to his in-service stressor. A VA outpatient note from February 2009 indicates that the Veteran had been diagnosed with PTSD. He reported that he was still experiencing episodes of anxiety and difficulty coping with employment stresses which tended to throw him back into having flashbacks. The psychiatrist's assessment indicated that the Veteran was still experiencing anxiety with panic-like attacks that had a PTSD component of his traumatic experience with the Military Police while in the service. Additionally, during a more extensive assessment in September 2009, the Veteran described his current symptoms and provided a description of his stressor involving his incident with the Military Police. The Veteran was diagnosed with PTSD and the psychologist stated that the Veteran experiences intrusive memories of the military event as well as nightmares directly related to the incident at least two or three times a month. The psychologist reported that the Veteran experienced deep sorrow while recounting his experience and became tearful. He also demonstrated symptoms such as isolation and loss of interest in participating in activities he used to do in the past. In sum, the Veteran has been diagnosed as having PTSD as a result of his experience during active service and there is sufficient evidence corroborating the in-service personal attack. Resolving all doubt in the Veteran's favor, the Board finds that service connection is warranted for PTSD. ORDER Entitlement to service connection for PTSD is granted. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs