Citation Nr: 1127615 Decision Date: 07/25/11 Archive Date: 08/02/11 DOCKET NO. 09-46 552A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran served on active duty from September 1969 to June 1972. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In April 2011, the Veteran testified before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is associated with the claims file. FINDINGS OF FACT 1. The Veteran has a diagnosis of PTSD related to traumatic events experienced in Vietnam. 2. The Veteran's lay statements and testimony of coming under attack, fear of attack, and incurring incoming fire are consistent with the places, dates, and circumstances of service in Vietnam, and are sufficient to verify the occurrence of the reported events. CONCLUSION OF LAW The criteria for entitlement to service connection for PTSD have been met. 38 U.S.C.A. §§ 1110, 1154 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.304, 4.125 (2010), 75 Fed. Reg. 39,843 (Jul 13, 2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Regarding the duties to notify and assist under the Veterans Claims Assistance Act of 2000, the Board finds that any discussion of these duties is unnecessary in light of the fully favorable decision contained herein. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp 2010); 38 C.F.R. § 3.303 (2010). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service or aggravated by service. 38 C.F.R. §§ 3.303, 3.306 (2010). Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (2010); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) a link, established by medical evidence, between the current symptoms and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2010); see also Cohen v. Brown, 10 Vet. App 128 (1997). This appeal is also subject to changes in applicable regulations pertaining to PTSD claims that were appealed to the Board but not decided as of July 13, 2010. Specifically, 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. 38 C.F.R. § 3.304 (f) (3); 75 Fed. Reg. 39,843 (Jul 13, 2010). "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 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). Under DSM-IV, a stressor is a traumatic event in which both of the following were present: (1) the person experienced, witnessed, or was confronted with an event or event that involved actual or threatened death or serious injury, or threat to the physical integrity of self or others; and (2) the person's response involved intense fear, helplessness, or horror. A stressor must consist of an event during such service that is outside the range of usual human experience and such that would be markedly distressing to almost anyone, such as experiencing an immediate threat to one's life or witnessing another person being seriously injured or killed. It is the distressing event, not mere presence that constitutes a valid stressor. Zarycki v. Brown, 6 Vet. App. 91, 99 (1994). Moreover, service in a combat zone is stressful to some degree to all who are there, whatever their duties or experiences. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see also VAOPGCPREC 12-99 (Oct. 18, 1999) (cited at 65 Fed. Reg. 6257 (2000)) ("the phrase 'engaged in combat with the enemy,' as used in 38 U.S.C. § 1154(b), requires that a veteran have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality"). The Veteran's separation document (DD Form 214) shows that he had service in the Republic of Vietnam from January 1971 to December 1971. His specialty was as a cook. In an October 1972 rating decision, the Veteran was awarded service connection for schizophrenia, undifferentiated type. In February 2007, the Veteran submitted a claim of entitlement to service connection for PTSD. VA outpatient treatment records beginning in November 2007, show an assessment of rule out PTSD. The Veteran had reported nightmares connected to combat in Vietnam. He also described intrusive thoughts and memories related to combat. In a February 2008 rating decision, the RO assigned a 100 percent rating for the Veteran's service-connected paranoid schizophrenia, effective from July 29, 2002. Beginning in September 2008, VA outpatient treatment records show a diagnosis of PTSD. Those records note that the Veteran was in combat during service. He continued to report nightmares and flashbacks. In April 2011, the Veteran testified before the undersigned. He indicated that he served as a cook in Vietnam. He stated that he had only been trained on certain weapons. In March 1971, his artillery unit left their station by the demilitarized zone and travelled into Cambodia. They incurred mortar fire. His unit was trapped in Cambodia and surrounded by Viet Cong on both sides of the road. He was on a truck, and they received fire. The Veteran's gun jammed, and he did not know how to take it apart. He also reported that his artillery unit received incoming fire on a daily basis. He currently described nightmares, flashbacks, cold sweats, panic attacks, and anxiety. In this instance, the Board concludes that service connection for PTSD is warranted under the new regulations permitting the Veteran's own statements to establish the occurrence of a stressor. The weight of credible medical evidence shows that he has been diagnosed with PTSD related to the events in Vietnam as reported to VA clinicians and adjudicators. While the VA outpatient treatment records do not contain specific references to the stressors that the Veteran reported during his Board hearing, they do indicate that the Veteran was involved in combat in diagnosing him as having PTSD. The Veteran receives ongoing VA treatment for the disorder. The evidence indicates that he served in a combat area in duties, places, and circumstances consistent with his reports of traumatic events that included fear of personal injury, being under attack, and witnessing of the deaths of a fellow soldier and other persons. The Board concludes that the Veteran's lay testimony of these events is consistent, credible, and sufficient to verify the occurrence of the events. Therefore, service connection is warranted. In reaching this conclusion, the Board finds that the evidence is at least in equipoise, and the benefit of the doubt doctrine has been appropriately applied in granting service connection for PTSD. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for PTSD is granted. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs