Citation Nr: 1127650 Decision Date: 07/25/11 Archive Date: 08/02/11 DOCKET NO. 05-08 893 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Morgan, Lewis, & Bockius, LLP ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from December 1967 to July 1969. The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs' (VA) Regional Office (RO) in San Juan, Puerto Rico, that denied the benefit sought on appeal. The issue on appeal was previously denied by the Board in an April 2009 decision. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2010 Order, the Court vacated the April 2009 Board decision and remanded the matter back to the Board for development consistent with the parties' Joint Motion for Remand and to Stay Proceedings (Joint Motion). The Board notes that although additional medical evidence was submitted after the last supplemental statement of the case, in May 2011 the Veteran waived his right to have this evidence reviewed in the first instance by the RO. The issue of entitlement to service connection for an intestine disorder and entitlement to a total rating based on individual unemployability (TDIU) have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDING OF FACT The Veteran has PTSD that is related to service. CONCLUSION OF LAW The criteria for service connection for PTSD have been met. 38 U.S.C.A. §§ 1131, 1154, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION At the outset, the Board notes that on November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). This law eliminated the concept of a well-grounded claim, redefined the obligations of VA with respect to the duty to assist, and imposed on VA certain notification requirements. Without deciding whether the notice and development requirements of VCAA have been satisfied in the present case, it is the Board's conclusion that the new law does not preclude the Board from adjudicating the Veteran's claim for service connection. This is so because the Board is taking action favorable to the Veteran by granting service connection for PTSD; a decision at this point poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). The Veteran contends he has PTSD as the result of events from service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military duty. 38 U.S.C.A. §§ 1110, 1131. Service connection may also 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. 38 C.F.R. § 3.303(d). The 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). See also Cohen v. Brown, 10 Vet. App. 128 (1997). A "clear" diagnosis of PTSD is no longer required. Rather, a diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a), which simply mandates that, for VA purposes, all mental disorder diagnoses must conform to the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV). See 38 C.F.R. § 3.304(f). The United States Court of Appeals for Veterans Claims (Court) has taken judicial notice of the mental health profession's adoption of the DSM-IV as well as its more liberalizing standards to establish a diagnosis of PTSD. The Court acknowledged the change from an objective "would evoke . . . in almost anyone" standard in assessing whether a stressor is sufficient to trigger PTSD to a subjective standard (e.g., whether a person's exposure to a traumatic event and response involved intense fear, helplessness, or horror). Thus, as noted by the Court, a more susceptible person could have PTSD under the DSM-IV criteria given his or her exposure to a traumatic event that would not necessarily have the same effect on "almost everyone." Cohen, 10 Vet. App. 128, 140-141 (1997). 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. 38 C.F.R. § 3.304(f)(1). See also 38 U.S.C.A. § 1154(b). The ordinary meaning of 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 issue of whether any particular set of circumstances constitutes engagement in combat with the enemy for purposes of section 1154(b) must be resolved on a case-by-case basis. See VAOPGCPREC 12-99 (October 18, 1999). Generally, if there is no combat experience, or if there is a determination that the Veteran engaged in combat but the claimed stressor is not related to such combat, there must be independent evidence to corroborate the Veteran's statement as to the occurrence of the claimed stressor. Doran v. Brown, 6 Vet. App. 283, 288-89 (1994). However, a recent change to the regulations has created an exception to this. Effective July 13, 2010, VA 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 U.S.C.A. § 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. Here, the Veteran has been diagnosed with PTSD, recently documented in a May 2009 VA treatment note, for example. On this issue, the Board acknowledges that both the RO and the Board in April 2009 have based the denial of this claim on a lack of current diagnosis. While it is clear that the Veteran has been diagnosed with an array of disorders, including, for example, major depression, dysthymia, and anxiety, there can be no dispute that he has also been diagnosed with PTSD on numerous occasions. For example, current VA treatment records from 2008-2010 contain this diagnosis, as does a private treatment report of March 2008, and a VA report of November 2003. The Board finds that pursuant to McClain v. Nicholson, 21Vet. App. 319 (2007), the satisfaction of the first element of service connection is compelled in this case. McClain, 21 Vet. App. at 321 (holding that the requirement for a current disability is satisfied if the claimant has a disability at the time a claim was filed or at any time during the pendency of the appeal, even if the disability resolves prior to the Secretary's adjudication of the claim). As for the stressors alleged in this case, the Board notes that throughout the course of this appeal the Veteran has consistently described numerous stressful events he believes to be the cause of his current PTSD. The Board finds that an April 2006 letter succinctly describes a number of these events. The Veteran contends that in the summer of 1968 he was assigned to a reconnaissance team and that while serving as an escort for a convoy near Quang Tri, he and his team came across a battleground where a number of American soldiers had been massacred. The Veteran stated that the sight of these mutilated bodies was awful and traumatizing, and that he felt extreme fear for his life. The Veteran also contends that in the fall of 1968, while escorting another convoy, the convoy was attacked by the Viet Cong. The Veteran contends he feared for his life during this week-long attack. In early winter 1969, the Veteran contends that his convoy was again attacked. During this attack, a friend, Esmeraldo De Jesus, was shot. The Veteran and another soldier administered first aid until De Jesus was flown out of the combat zone. In other statements, the Veteran has contended that his camp received "incoming" every night, and that he lived in a state of fear during his tour in Vietnam. As noted by the Board in the April 2009 decision, VA has conceded the corroboration of the Veteran's stressors. The Veteran's service records reflect that he served in Vietnam from May 3, 1968 to July 13, 1969. His records do not reflect combat service, but the Veteran has provided June 1991 buddy statements from S.C. and J.T. who served with the Veteran, stating that the Veteran did not work in his MOS, an equipment storage specialist, when they were stationed in northern Vietnam, but rather, that he served in the combat field. A November 1988 letter from the U.S. Army and Joint Services Environmental support group corroborates that a staff sergeant named Esmeraldo De Jesus was wounded in action in February 1969. Significantly, the Board further finds that the Veteran's stressors are corroborated by application of 38 C.F.R. § 3.304(f)(3). The Veteran's stressors here are related to his "fear of hostile military or terrorist activity" as defined above. The Veteran here experienced, witnessed, and was confronted with events that involved actual or threatened death or serious injury, as well as a threat to the physical integrity of the Veteran or others. He has consistently contended that his experience in Vietnam caused a state of fear, helplessness, and horror and the injury of his comrade has been objectively corroborated. Moreover, the record contains medical opinions to the effect that the Veteran's fear of hostile military activity has resulted in his current PTSD. In a March 2008 report of Carol Romey, Ph.D., Dr. Romey stated, Upon enlisting in the Army and with experiences in the war zone in Viet Nam, [the Veteran] was exposed to the dramatic and traumatic aspects of death, mutilation, decay, and tortured soldiers. He saw women, children, fellow soldiers and Viet Cong in their last moments. The extreme experiences in the war zone for [the Veteran] produced a psychotic break in his defensive structure within the Post Traumatic Stress reaction. The fact that these images of war continue in his inner imaging in such an immediate, profound, intense and pervasive manner as evidenced in these assessment findings, attests to the incapacitating and overwhelming nature of these experiences. The assessment data reveals that there has been no abatement or relief from the psychological impact of these war zone experiences in the 38 years that have transpired. Similarly, in a December 2004 VA clinical evaluation, the Veteran was noted to have served in the Vietnam war zone for 14 months primarily in reconnaissance patrol. The examiner diagnosed the Veteran with PTSD, finding that he experienced the injuries and deaths of others, felt fear, helplessness or horror, received fire, was exposed to either American or other troops who had been killed or wounded. In a November 2003 VA treatment record it was also noted that the Veteran had served for 14 months in Vietnam performing reconnaissance patrol and guard duty during which time he witnessed dead bodies and was under fire on multiple occasions. The examiner, J.A. Juarbe, M.D. opined, "beyond any reasonable doubt this patient is suffering from PTSD chronic severe that had its onset during patient's service in Vietnam." In a February 1986 VA PTSD evaluation, it was determined that all of the Veteran's symptoms are "related to VN discharge." The Board here finds all of these positive opinions to be probative pursuant to relevant caselaw. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120 (2007). The record contains no negative nexus evidence whatsoever. Pursuant to the new regulation, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. This, combined with the positive nexus evidence of record and the lack of any negative nexus evidence, warrants an allowance of service connection for the claim. ORDER Service connection for posttraumatic stress disorder is granted. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs