Citation Nr: 1126487	
Decision Date: 07/14/11    Archive Date: 07/21/11

DOCKET NO.  10-22 619	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to service connection for post traumatic stress disorder (PTSD).  


REPRESENTATION

Appellant represented by:	Georgia Department of Veterans Services


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Christopher Maynard, Counsel


INTRODUCTION

The Veteran had active service from February 1968 to February 1970.  

This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an August 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia which denied service connection for PTSD.  


FINDING OF FACT

The Veteran is shown to be causally or etiologically related to service.  


CONCLUSION OF LAW

The Veteran's PTSD was incurred during active service.  38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f) (2010).  


REASONS AND BASES FOR FINDING AND CONCLUSION

Before addressing the merits of the Veteran's claims on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied.  See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010).  However, in this decision, the Board grants service connection for PTSD and this award represents a complete grant of the benefit sought on appeal.  Thus, any deficiency in VA's compliance with its "duty to notify" and "duty to assist" obligations is deemed to be harmless error, and any further discussion of VA's responsibilities is not necessary.  

Service Connection:  In General

Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Service connection may be demonstrated either by showing direct service incurrence or aggravation or by using applicable presumptions, if available.  Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).  

Direct service connection requires a finding that there is a current disability that has a definite relationship with an injury or disease or some other manifestation of the disability during service.  Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992).  

Service connection for PTSD requires: (1) medical evidence diagnosing the condition, (2) credible supporting evidence that the claimed, in-service stressor actually occurred, and (3) a link, established by medical evidence, between current symptomatology and the claimed, in-service stressor.  

If the evidence establishes a veteran engaged in combat with the enemy and the claimed stressor is related to this 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 a veteran's service, a veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.  38 C.F.R. § 3.304(f).  

In adjudicating a claim of entitlement to service connection for PTSD, the Board is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by a veteran's military records, and all pertinent medical and lay evidence.  38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f); see also Hayes v. Brown, 5 Vet. App. 60, 66 (1993).  

The regulations pertaining to PTSD were recently amended, and 38 C.F.R. § 3.304(f)(3) no longer requires the verification of an in- service stressor if the Veteran was in a location involving "fear of hostile military or terrorist activity."  Rather, lay testimony alone can be used to establish the occurrence of an in-service stressor in these situations.  The new regulatory provision requires that: (1) A VA psychiatrist or psychologist, or contract equivalent, must confirm that the claimed stressor is adequate to support a diagnosis of PTSD; (2) the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service; and (3) the Veteran's symptoms are related to the claimed stressor.  Id.  The liberalizing criteria contained in the new § 3.304(f)(3) will be applied to PTSD service connection claims that are pending as of the effective date of the regulation (July 13, 2010) and to claims filed on or after this effective date.  

Factual Background & Analysis

The Veteran contends that he has PTSD due to several traumatic events that he experienced while serving in Vietnam as a military police (MP) officer, including coming under enemy fire while providing security for convoys delivering supplies and ammunition to frontline units, the loss of fellow soldiers in his unit during rocket/mortar attacks, and seeing numerous dead soldiers and civilians during the course of his investigative duties as an MP.  The Veteran reported that he was anxious and scared most of the time, and believed that he would probably die in Vietnam and never see his family again.  

The Veteran described, in detail, several stressful incidents, including investigating the accidental death of an old Vietnamese civilian who was blown apart by a claymore mine and seeing pieces of flesh hanging from concertina wire.  The Veteran reported that he was scared and thought he would not survive when the convoy of ammunition that he was guarding came under small arms fire.  The Veteran reported that one of his duties involved processing and transporting POWs, and that on one occasion when they picked up POWs after a firefight, he saw several dead VC with ghoulish, blue-gray ashened skin that had been laid out on the ground like fire wood.  The Veteran also described another incident in which a soldier in his unit was killed by a rocket the day before he was scheduled to return home, and the thought of that happening to him was always on his mind, particularly as he neared the end of his tour of duty.  

The service records showed that the Veteran completed infantry training as a rifleman (11B10), and was shipped to Vietnam with his infantry unit in August 1968.  When he arrived in Vietnam, the Veteran was reassigned to a military police unit (Headquarters & Headquarters, 199th Infantry Brigade) and was given a secondary MOS of 95B10.  The Veteran served in Vietnam from August 1968 to July 1969.  

The service treatment records do not show any complaints, treatment, abnormalities, or diagnosis for any psychiatric problems, including PTSD during service.  The first reported complaint for any psychiatric problem was on a private psychological evaluation in November 2007.  At that time, the Veteran reported that he was exposed to numerous traumatic events while serving in Vietnam, including the incidents described above, and described the fear and anxiety he felt from not knowing what was going to happen next.  The examiner indicate that the Veteran responded to the Personality Assessment Inventory (PAI) and the Mississippi Scale for Combat-Related PTSD tests in an undistorted and direct manner, and that his responses were consistent to the content of the test items.  The Veteran answered in a reasonably forthright manner and did not attempt to present an unrealistic impression that was either more negative or more positive than the clinical picture would warrant.  The diagnoses included PTSD.  The evidentiary record also includes numerous outpatient clinical notes showing additional treatment by the same private psychologist from April to September 2008, and September 2010.  

The Veteran was afforded a VA examination in May 2009.  Although the examiner indicated that he reviewed the Veteran's DD Form 214, and the private psychological evaluation report and associated treatment records, his description of the Veteran's history and symptomatology departed significantly from the Veteran's statements of record and the private reports, and raises serious questions as to the reliability of the examiner's final report.  For example, the examiner noted that the Veteran served in Vietnam and participated in combat action, but said later in the report, that the Veteran did not serve in a war zone, that he did not witness anyone wounded, injured or dead, and that he did not experience a close comrade being killed or seriously hurt.  

As to the latter point, the Board notes that the Veteran has consistently stated that while he was not close with the soldier who was killed by a rocket the day before he was to leave Vietnam, the soldier was in his unit and that he knew him, and that his death had an emotional affect on him, then and now.  The VA examiner also indicated that the private psychologist did not mention the Veteran's alcoholism, which the record suggested has been an ongoing problem since 1970.  However, a review of the private report showed that the psychologist included a somewhat lengthy discussion of the Veteran's alcoholism and indicated that it was not clear whether his drinking was caused by or a result of his depression.  Thus, it would appear that the VA examiner's evaluation and review of the record was less than optimal, and did not provide an accurate historical account of the Veteran's clinical condition.  The examiner concluded that the Veteran did not meet the full criteria for a diagnosis of PTSD under DSM IV.  

The VA examiner's assessment, notwithstanding, the Board finds it noteworthy that the examiner indicated that the Veteran was a reliable historian.  To this extent, the Board finds the examination report to be of some probative value in assessing the Veteran's credibility.  

Under the new regulations, "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 a veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror.  

Here, the Board finds that the private medical reports of record satisfy the first element of a PTSD claim under the former and revised criteria of 38 C.F.R. § 3.304(f), because they include diagnoses of PTSD related to the Veteran's self-described stressors.  

Having submitted a diagnosis of PTSD that is linked to claimed in-service traumatic stressors, the Board must now determine whether the record contains credible supporting evidence that the claimed in-service stressors actually occurred.  

In this regard, a veteran need not corroborate every detail of an alleged stressor, including his participation in the activity, for verification purposes.  Suozzi v. Brown, 10 Vet. App. 307, 311 (1997); Pentecost v. Principi, 16 Vet. App. 124, 128 (2002) (holding that a veteran who had a military occupational specialty unrelated to combat, but was stationed with a unit that sustained attacks strongly suggests that the veteran was, in fact, exposed to these attacks). 

The occurrence of an event alleged as the "stressor" upon which a PTSD diagnosis is based (as opposed to the sufficiency of the alleged event to cause PTSD) is an adjudicative determination, not a medical determination.  Zarycki v. Brown, 6 Vet. App. 91, 97-98 (1993).  

In this case, the Veteran's DD Form 214 and other service personnel records showed that he served as an MP in an Infantry Brigade that was involved in combat action in Vietnam.  Although he was not awarded any decorations denoting valor or combat action, the Veteran's testimony that he provided security for supply convoys to frontline units, came under small arms fire and rocket attacks, and investigated incidents of accidental deaths is consistent with his duty assignment as an MP, and is believable.  Further, the Board notes that the Veteran's statements and testimony concerning his stressor experiences in Vietnam have been consistent throughout his appeal.  That is, the Veteran has not embellished or otherwise contradicted his reported experiences.  The fact that he was assigned to an infantry unit which was involved in combat action lends at least some credible evidence to his claimed stressors.  

The evidence required to warrant a grant of disability benefits does not have to be conclusive.  The question is whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).  

The weight of credible medical evidence shows that the Veteran has been diagnosed with PTSD related to the events in Vietnam as reported to his treating psychologist.  Although the record does not show that the Veteran engaged in combat action, service personnel records showed that he served in a combat area in duties, places, and circumstances consistent with his reports of traumatic events that included coming under enemy attack, seeing numerous dead bodies, and fearing for his life.  The Board concludes that the Veteran's lay testimony of these events is consistent, credible, and sufficient to verify the occurrence of the events.  Certainly there is no evidence of record to indicate otherwise.  Therefore, service connection is warranted.  The Board notes that in reaching this conclusion, the evidence is at least in equipoise, and the benefit of the doubt doctrine is appropriate to the facts in this case.  See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  

Therefore, resolving all reasonable doubt in the Veteran's favor, the Board finds that the elements required to establish service connection for PTSD have been satisfied.  38 C.F.R. § 3.102.  


ORDER

Service connection for PTSD is granted.  



____________________________________________
RAYMOND F. FERNER
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs