Citation Nr: 1126446 Decision Date: 07/14/11 Archive Date: 07/21/11 DOCKET NO. 07-23 105 ) DATE ) ) Received from the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for a left shoulder disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The Veteran served on active duty from May 1966 to April 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision by the Togus, Maine RO, which denied service connection for PTSD and degenerative joint disease of the left shoulder. On May 6, 2011, the Veteran offered testimony at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The Board notes that, in November 2008, the Veteran filed a notice of disagreement with a September 2008 rating decision, which had denied service connection for migraine headaches, obstructive sleep apnea, and blurred vision. A statement of the case (SOC) was issued in November 2009, and the Veteran filed a VA Form 9, Appeal to Board of Veterans' Appeals, in August 2010, indicating that he wanted to appeal all of the issues listed on the statement of the case and supplemental statement of the case. It appears that the RO took no further action on the question of whether the August 2010 Form 9 represented an appeal of the issues addressed in September 2008. (These issues have not been certified to the Board.) Consequently, this matter, including the question of whether the Form 9 was a timely filed substantive appeal with respect to the November 2009 SOC, is referred to the agency of original jurisdiction (AOJ) for action. (The issue of entitlement to service connection for a left shoulder disorder is addressed in the remand that follows the decision below.) FINDING OF FACT The Veteran's in-service stressors are related to fear of hostile military action and are consistent with the places, types, and circumstances of the Veteran's service in Vietnam, and a VA psychiatrist has confirmed that the Veteran's claimed stressors are adequate to support a diagnosis of PTSD. CONCLUSION OF LAW The Veteran has PTSD that is the result of disease or injury incurred during active military service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.304(f) (2009); 75 Fed. Reg. 39852 (July 13, 2010). REASONS AND BASES FOR FINDING AND CONCLUSION I. Background The Veteran served on active duty from May 1966 to April 1968; the record indicates that he served in Vietnam from August 1967 to April 1968. His DD 214 shows that his specialty was Construction Machine Operator; he was a roller operator with the engineers. He was awarded the National Defense Service Medal, the Vietnam Campaign Medal, and the Vietnam Service Medal. His military personnel record shows that he was assigned to the 610th Engineer Company. The Veteran's application for service connection for PTSD (VA Form 21-526) was received in December 2005. The Veteran indicated that he served in Vietnam as a combat engineer, responsible for building roads and air strips. The Veteran reported that his unit frequently came under attack during convoy movements of equipment, as well as when constructing roads. The Veteran related that, during one of those attacks, he fell off a tanker truck and injured his left shoulder. The Veteran stated that he was present when others on his team were injured or killed; he also witnesses incidents during which many others were wounded or killed. The Veteran indicted that he suffers frequent nightmares, flashbacks, and intrusive thoughts involving his experiences in Vietnam. Submitted in support of the Veteran's claim were VA progress notes dated from April 2005 to November 2005. These records show that the Veteran was referred to the mental health clinic by his primary care physician in June 2005. It was noted that he had flashbacks from Vietnam; he was also experiencing nightmares. The Veteran reported decreased interest in activities and increased fatigue. The Veteran also reported that he cried often, was unmotivated, and did not enjoy things that he once did. The Veteran reported that he once thought of killing himself; however, he would never want to hurt his children and grandchildren. He stated that he continues to have trouble dealing with his brother's death. The Veteran related that he has difficulty sleeping, and he often wakes up kicking, screaming, and sweating. The Veteran reported being anxious all the time. He indicated that he used to smoke; however, he quit smoking in Vietnam after he saw a buddy get killed in a foxhole. He stated that the enemy were able to see his buddy and kill him because of the light from his cigarette. Following an evaluation, the assessment was PTSD. A diagnosis of PTSD was also reported in August 2005, September 2005, October 2005, and December 2005. The Veteran was afforded a VA examination for mental disorders in January 2006. At that time, it was noted that the Veteran spent 8 months and some odd days in Vietnam. The Veteran indicated that he spent his time all over Vietnam laying asphalt at landing zones. The Veteran stated that he was constantly at risk of sniper fire while perched inside or atop earth moving and asphalt laying equipment. The Veteran explained that the continuing frightening aspect of his job was that rarely could he determine where enemy fire was coming from; he returned fire although he was not wounded. The Veteran related that he injured his left shoulder when he jumped off a tanker to evade sniper fire. The Veteran indicated that he did not expect to survive Vietnam, particularly knowing that three close friends in his unit were killed. Following a mental status examination, the examiner reported a diagnosis of PTSD, chronic, combat related. The examiner explained that the Veteran was in Vietnam and worked as a heavy equipment operator, regularly at risk of mortal injury/death at the hands of snipers. It was noted that the Veteran presented with a spectrum of re-experiencing, avoidance, numbing of responsiveness, and hyperarousal symptoms that met the full DSM-IV criteria for a diagnosis of chronic combat-related PTSD. Of record is a lay statement from the Veteran's mother, dated in August 2007, indicating that she noticed a distinct change in the Veteran when he returned home from Vietnam. She stated that he was a different person when he came home; the changes in his behavior and emotional state have continued until the present. In a statement, dated in February 2008, the Veteran indicated that he was in South Vietnam in 1967 and 1968, during which time he was assigned to the 610th Combat Engineers. He noted that his platoon was TDY a majority of the time. The Veteran stated that their job was to pave highways and put in asphalt pads at designated locations for different types of aircraft. While working on highway 1 and while on convoys to various locations, they came under fire numerous times. The Veteran indicated that on one occasion, they were en route to repair a bridge, he and another soldier were driving a truck hauling fuel, and a jeep was blown up right in front of their vehicle. They then began receiving fire from a nearby village. The Veteran stated that they had a machine gun mounted on their truck which they used to return fire. When the firing stopped, about 6 to 7 minutes later, they went into the village where they found that several villagers had been killed. The Veteran stated that he has never forgotten what he saw that day. The Veteran also recalled another incident where they fired upon a bus loaded with people; there were over 30 dead--some were armed but many were not. The Veteran indicated that, while he has never talked about many of those incidents, they have haunted him until the present. Subsequently received were VA progress notes, dated from April 2005 to August 2009, which show that the Veteran received clinical evaluation and treatment for a psychiatric disorder diagnosed as PTSD. Of record is a response from the U.S. Army and Joint Services Records Research Center (JSRRC), dated in January 2009, indicating that they researched the 1967 through 1972 Unit History submitted by the 610th Engineer Company; the history stated that, during this time period, the company was assigned to the 87th Engineer Battalion. However, the history did not verify that an element of the company was involved in an engagement with the enemy during this reporting period. They also researched the Operational Report-Lesson Learned (OR-LL) submitted by Headquarters, 87th Battalion for the time periods ending July 30, 1968 and October 31, 1968. The OR-LL's did not verify an incident in which an element from the 610th Engineer Company was involved in an engagement with the enemy. Received in February 2010 was a lay statement from the Veteran's wife, wherein she attested to the change in the Veteran's behavior upon his return home from Vietnam. She stated that the Veteran had recurring nightmares involving an incident in Vietnam in which, upon being attacked, he and another soldier returned fire into a grass hut and later realized that they had killed a child and a woman. The Veteran's wife noted that he was deeply affected by everything he did and saw in Vietnam. Of record is a medical statement from a readjustment counselor at a Vet Center, dated in November 2010, indicating that the Veteran was referred to the Center by a VA clinic. He noted that the Veteran was first seen at the Vet Center in July 2010 for evaluation of symptoms of PTSD; he stated that the Veteran described experiencing many symptoms of PTSD, including: nightmares, short-term memory loss, hypervigilance, anxiety, survivor's guilt, anger, intrusive thoughts, depression, emotional numbing, loss of interest in things he was interested in before, significant tendency to isolate from people, severe issues with trust, and startle reflex. The Veteran reported that his experience in Vietnam was one filled with constant anxiety. It was noted that he was assigned to the 610th Engineer Company, 87th Engineer Battalion, but noted that they were on TDY for most of the time in Vietnam. It was also noted that the Veteran was a combat engineer while in Vietnam; he indicates that he was exposed to hostile and friendly fire while in Vietnam. The Veteran reported being shot at while on a tanker. The Veteran also reported an incident when a busload of Vietnam civilians was hit by a mortar; they had to pull the wounded and dead off the bus. The counselor stated that it was his professional opinion that the traumatic events that the Veteran witnessed and participated in during his tour of duty in Vietnam caused him severe PTSD symptoms. At his personal hearing in May 2011, the Veteran indicated that he worked on open roads in Vietnam. During that time, he was afraid of military actions. The Veteran reported an incident during which they were in a convoy that was going through a village when they began receiving spine fire. He stated that they fired back, which resulted in two dead children and one adult. The Veteran reported another incident when his unit got caught in the middle of a bridge; he stated that they were there for hours before they finally got pulled out. The Veteran recalled an incident when a man in a foxhole down from where he was smoking got shot in the neck. The Veteran stated that all the men in his unit were afraid for their lives. II. Analysis Service connection is warranted for disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. § 1110. To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"--the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Holton v. Shinseki, 557 F.3d 1362 (2009). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 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). The provisions of 38 C.F.R. § 4.125(a) require that a diagnosis of a mental disorder conform to the Diagnostic and Statistical Manual, Fourth Edition (DSM-IV). Effective July 13, 2010, VA amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. Specifically, the final rule amends 38 C.F.R. § 3.304(f) by redesignating current paragraphs (f) (3) and (f) (4) as paragraphs (f) (4) and (f) (5), respectively, and by adding a new paragraph (f) (3) that reads as follows: (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. 75 Fed. Reg. 39852 (July 13, 2010). Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d. 1372 (2007); see Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. Resolving reasonable doubt in favor of the Veteran, the Board finds that the evidence of record meets all the elements for an award of service connection for PTSD. In the instant case, in a February 2008 stressor statement, the Veteran stated that he was assigned to the 610th Combat Engineers. He noted that his platoon was TDY a majority of the time. The Veteran stated that their job was to pave highways and put in asphalt pads at designated locations for different types of aircrafts. While working on highway 1 and while on convoys to various locations, they came under fire numerous times. The Veteran indicated that on one occasion, they were en route to repair a bridge, he and another soldier were driving a truck hauling fuel and a jeep was blown up right in front of their vehicle; they then began receiving fire from a nearby village. The Veteran stated that they had a machine gun mounted on their truck which they used to return fire; when the firing stopped, about 6 to 7 minutes later, they went into the village where they found that several villagers had been killed. The Veteran stated that he has never forgotten what he saw that day. The Veteran also recalled another incident where they fired upon a bus loaded with people; there were over 30 dead, some were armed but many were not. The Veteran's DD 214 service personnel record showed that his primary military occupation specialty during the period he served in Vietnam was a power roller operator. He was awarded the National Defense Service Medal, the Vietnam Campaign Medal, and the Vietnam Service Medal. His military personnel record shows that he was attached to the 610th Engineer Company, the 87th Engineer Battalion. Significantly, the medical evidence of record shows that the Veteran has been diagnosed with PTSD for several years. During a visit at the mental health clinic in December 2005, a clinical worker reported a diagnosis of PTSD. She noted that the Veteran had PTSD from two sources--his experiences in Vietnam and his experiences right after Vietnam. She explained that it has been hard to prove his stressors in Vietnam since his unit was TDY out of Cam Rhan Bay almost the entire time they were there, and no one keeps good records on TDY units. Also they were designated as combat engineers. Moreover, almost everyone he knew in Vietnam is now deceased. Similarly, following a VA examination in January 2006, the VA examiner reported a diagnosis of PTSD, chronic, combat related. The examiner explained that the Veteran was in Vietnam and worked as a heavy equipment operator in Vietnam for 8 months, regularly at risk of mortal injury/death at the hands of snipers. It was noted that the Veteran presented with a spectrum of re-experiencing, avoidance, numbing of responsiveness, and hyperarousal symptoms that met full DSM-IV criteria for a diagnosis of chronic combat-related PTSD. The Veteran's fear of hostile attack was specifically documented. Therefore, based on the evidence of record, the Board finds that service connection for PTSD is warranted. The Veteran's claimed stressors of his unit receiving sniper fire while traveling in a convoy, seeing dead Vietnamese civilians after firing into a village after a firefight, are consistent with the places, types, and circumstances of the Veteran's service in Vietnam as detailed in his service personnel records. His fear of attack or other incoming enemy fire has been documented by VA examiners, who in turn have ascribed his PTSD, at least in part, to this fear. A VA examiner has specifically confirmed that the claimed stressors are adequate to support a diagnosis of PTSD. Accordingly, the Board finds that the Veteran does suffer from PTSD and that his PTSD has been sufficiently linked to wartime experiences. In sum, when resolving reasonable doubt in favor of the Veteran, the Board finds that the statutory and regulatory criteria for entitlement to service connection for PTSD have been met. See 38 U.S.C.A. § 5107(b). In consideration of the evidence of record, the Board finds that the Veteran has PTSD that is likely attributable to events during his active military service. Therefore, the three elements of the Veteran's claim are established. See 38 C.F.R. § 3.304(f). Accordingly, service connection for PTSD is warranted. ORDER Service connection for PTSD is granted. REMAND The Veteran contends that he is entitled to service connection for a left shoulder disorder that developed as a result of a fall in service. The Veteran maintains that he injured his left shoulder in Vietnam when he fell off a tanker truck. He stated that the shoulder was felt to be strained at that time and it was placed in a sling. The Veteran states that he was in a war zone and continued on active duty, but the pain never fully went away, and he continues to have pain today. After examining the record, the Board concludes that further assistance to the Veteran is required in order to comply with the duty to assist as mandated by 38 U.S.C.A. § 5103A (d) (West 2002 & Supp. 2011). The Board acknowledges that the service treatment records (STRs) contain no record of treatment for injuries to the left shoulder; however, the military personnel records confirm that the Veteran was a power roller operator and was assigned with an engineer company responsible for repairs. At his personal hearing in May 2011, the Veteran indicated that he injured his left shoulder in Vietnam. The Veteran stated that his unit was installing a carrier mat for carrier jets when they started receiving sniper fire; he jumped off the roller and landed on his left shoulder. The Veteran related that he was treated at a field hospital and the arm was put in a sling. He stated that his duty was changed because he could not raise his arm. The Veteran indicated that he was told that he had a problem with his clavicle. The Veteran related that, after service, he was involved in a motor vehicle accident in 1972; at that time, he received treatment from Dr. Mack, a family doctor in Lincoln Park. The Veteran indicated that he has been told that he now has chronic arthritis in the left shoulder area. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A (d) (West 2002 & Supp. 2011). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). A veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, at 83. The Veteran was afforded a VA examination for evaluation of his left shoulder in January 2006. At that time, he reported injuring his left shoulder joint when he fell down in 1968 while in Vietnam. He said he was treated for a sprain with medication. The Veteran indicated that he has been having pain since then. The Veteran related that the pain has been almost constant for the last 30 years. Following a physical examination, the examiner reported a diagnosis of degenerative joint disease involving the left shoulder joint, status post traumatic injury of the left shoulder joint in 1968. The Board observes that while the January 2006 VA examination resulted in a diagnosis of degenerative joint disease of the left shoulder, the examiner did not provide an explicit opinion as to whether the left shoulder disorder is related to active military service. It is not clear whether the examiner's comment that this disability was post-traumatic was meant to specifically link current disability to what happened in service, especially given the Veteran's post-service accidents, including a motorcycle accident that occurred eight years before the VA examination. (The motorcycle accident resulted in the Veteran being in a body cast for about a year.) Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, VA must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As such, the Board finds that, further development, specifically a VA examination, is necessary to obtain an etiological medical opinion prior to a Board decision. As noted above, the Veteran testified that he sought private care for his left shoulder before 1972 from Dr. Mack, in Lincoln Park. However, the claims file does not contain treatment records from Dr. Mack. Such records may prove to be relevant and probative. Therefore, the RO should attempt to obtain and associate with the claims file any and all treatment records pertaining to a left shoulder disorder. In light of the discussion above, and to ensure full compliance with due process requirements, the case is REMANDED to the AOJ for the following actions: 1. The AOJ should obtain the names and addresses of all medical care providers, VA as well as non-VA, who have treated the Veteran for his left shoulder since his separation from service. The source of treatment for injuries sustained following the aforementioned motorcycle accident that resulted in the Veteran being in a body cast for a year should also be identified. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. A specific request should be made for treatment records from Dr. Mack and any records prepared in conjunction with the motorcycle accident about 8 years before the 2006 VA examination, as well as any motor vehicle accident in about 1972. Any attempts to obtain these records that are ultimately unsuccessful must be documented in the claims folder. (The Veteran should be given opportunity to obtain and submit any records the AOJ could not obtain.) 2. The Veteran should thereafter be afforded a VA examination to determine the nature and etiology of any left shoulder disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, including x-rays to determine whether the Veteran has arthritis of the left shoulder. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. (This should include any records relating to a motor vehicle accident in about 1972 and any motorcycle accident that occurred about 8 years before the 2006 VA examination.) The examiner should identify all current left shoulder disorders and specifically indicate whether the Veteran has degenerative joint disease of the left shoulder. For each diagnosis identified, the examiner should state whether it is at least as likely as not that the current disorder is causally or etiologically related to the Veteran's military service, to include his fall off of a tanker in 1968. The examiner should provide a rationale for any opinion expressed, outlining the medical reasons to accept or reject the Veteran's account of injury in service and continuity of symptoms thereafter. 3. The AOJ should ensure that all requested actions have been accomplished in compliance with this remand. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 4. Thereafter, the AOJ should readjudicate the Veteran's claim on the basis of all evidence of record and all applicable laws and regulations. If any determination remains unfavorable to the Veteran, both he and his representative should be furnished a supplemental statement of the case (SSOC), which includes a summary of additional evidence submitted, and any additional applicable laws and regulations. The SSOC must provide reasons and bases for the decision reached. Thereafter, the Veteran and his representative should be given the opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs