Citation Nr: 1126009 Decision Date: 07/11/11 Archive Date: 07/19/11 DOCKET NO. 04-06 338 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The veteran served on active duty from July 1969 to July 1971. He also served in the Reserve. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a May 2003 rating decision of the RO held that new and material evidence had not been submitted to reopen a previously denied claim of service connection for PTSD. In October 2009, the Board determined that new and material evidence had been submitted to reopen the Veteran's claim and remanded the reopened claim for further development and adjudication. The claim has been returned to the Board and is ready for appellate disposition. FINDINGS OF FACT 1. The Veteran has been apprised of what evidence would substantiate the claim for benefits and the allocation of responsibility for obtaining such evidence; and all relevant medical and lay evidence obtainable and necessary to render a decision in this matter has been received. 2. The currently diagnosed PTSD is shown to be due to a stressor event that as likely as not was incurred during the Veteran's period of active service in the Republic of Vietnam. CONCLUSION OF LAW By extending the benefit of the doubt to the Veteran, his disability manifested by PTSD is due to disease or injury that was incurred in active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f) (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Preliminary Matters: Duties To Notify And Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. Under 38 U.S.C.A. § 5103, VA must notify the claimant of any information or evidence not of record that is necessary to substantiate the claim, as well as what parts of that information or evidence VA will seek to provide, and what parts VA expects the claimant to provide. 38 C.F.R. § 3.159(b) (2010). To the extent that the action taken hereinbelow is favorable to the Veteran, further discussion of VCAA is not required at this time. II. Analysis The Board has reviewed all the evidence in the claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran contends that he is entitled to service connection for PTSD. He has informed various treatment providers that he incurred stressful events during his Vietnam service, to include various combat experiences, which has resulted in his current diagnosis. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet. App. 341, 346 (1999). Establishing 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); see Cohen v. Brown, 10 Vet. App. 128 (1997). Having carefully considered the Veteran's claim in light of the record and the applicable law, the Board finds the evidence to be in equipoise in showing that the diagnosed PTSD is due to traumatic events to which he was subjected during his service in the Republic of Vietnam. 38 C.F.R. § 3.102. In this regard, the Veteran's service personnel records show he served in the Republic of Vietnam from February 1970 to December 1970. His DD Form 214 lists his military occupational specialty as a Combat Engineer. His service personnel records also show he was assigned to Company A, 8th Engineer Battalion, 1st Cavalry Division. The Veteran was awarded the Vietnam Service Medal. He is also shown to have participated in the following campaigns: Vietnam Winter-Spring 1970; DA Sanctuary Counteroffensive; and the Vietnam Counteroffensive Phase VII. These records further reveal he was awarded the Army Commendation Medal for meritorious achievement in connection with ground operations against hostile enemy forces in the Republic of Vietnam. The Veteran's service treatment records were negative for treatment or complaints referable to an innocently acquired psychiatric disorder. The Veteran has reported in various statements that his PTSD symptomatology includes nightmares, flashbacks, hallucinations, intrusive thoughts, avoidance behavior and irritability. Subsequent to his discharge from service, the Veteran has been variously diagnosed with PTSD, schizophrenia and depressive disorder. Lay statements from the Veteran's wife revealed that, after service, the Veteran's nerves were "out of control." She further indicated he suffered from bad humor and a depressive state. Dr. MB indicated in December 2002 that the Veteran experienced frequent reminders of trauma and war situations and had flashbacks to military situations and nightmares. The Veteran was diagnosed with PTSD. Dr. MB opined the Veteran's PTSD was an emotional condition that developed while he was in service. The VA outpatient treatment records dated in September 2004 and June 2007 contain positive PTSD screens. The records dated in June 2008 and July 2008 show PTSD was a problem area. Upon VA examination in December 2009, the Veteran relayed a history of combat experiences and wounds. He indicated that his chopper was hit and was thrown into the bamboo. He reported being rescued by his fellow soldiers. The PTSD symptoms included recurrent and intrusive thoughts of Vietnam, avoidance behavior, difficulty concentrating, and sleepless, to name a few. The Veteran was diagnosed with PTSD based on combat experience. The examiner concluded the Veteran met the DSM-IV criteria for PTSD. The Board is cognizant that there was a negative PTSD screen in July 2009 and no diagnosis of PTSD at the time of a VA examination in May 2003; however, based on the evidence of record, the evidence is in approximate balance as to support the grant of service connection for PTSD. 38 U.S.C.A § 5107(b) (West 2002); Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown, 5 Vet. App. 413, 421 (1993) (Observing that under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the claimant shall prevail upon the issue). As noted, while a specific stressor has not been verified, the Veteran's service personnel records show he participated in several operations against hostile forces in the Republic of Vietnam. He has been diagnosed with PTSD based on the experiences as reported to the VA examiner. Thus, under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). The mandate to accord the benefit of the doubt is triggered when the evidence has reached such a stage of balance. In this matter, the Board concludes that this point has been attained. Because a state of relative equipoise has been reached in this case, the benefit of the doubt rule will therefore be applied. See Alemany, 9 Vet. App. at 519; Brown, 5 Vet. App. at 421. The current medical evidence, as previously discussed, contains a diagnosis of PTSD and participation in ground operations against hostile enemy forces in the Republic of Vietnam is established for the purpose of supporting that diagnosis. Therefore, the appeal is granted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for PTSD is granted. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge Board of Veterans' Appeals Department of Veterans Affairs