Citation Nr: 1107238 Decision Date: 02/23/11 Archive Date: 03/04/11 DOCKET NO. 09-33 936 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant (the Veteran) ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran served on active duty from October 1967 to June 1969. This case comes to the Board of Veterans' Appeals (Board) on appeal of a December 2008 rating decision of the Nashville, Tennessee, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied service connection for PTSD. In November 2010, a travel board hearing was held before the undersigned in Nashville, Tennessee. A transcript of the hearing is associated with the Veteran's claims file. FINDING OF FACT Diagnosed PTSD is related to stressful events in service. CONCLUSION OF LAW Resolving reasonable doubt, PTSD was incurred in service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). Inasmuch as the benefit sought is being granted, there is no reason to belabor the impact of the VCAA on the matter; any notice defect or duty to assist failure is harmless. Service Connection for PTSD Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). 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). 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 a 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 a 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). A diagnosis of PTSD which is based on an examination which relied upon an unverified history is inadequate. See West v. Brown, 7 Vet. App. 70, 77-78 (1994). 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. 39843 (July 13, 2010). 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. Thus, they apply to the Veteran's claim. The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence where appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran contends that he incurred PTSD as a result of his service in the Republic of Vietnam. The record shows that Veteran had Vietnam service from June 1968 to June 1969 with the 4th infantry division. His military occupational specialty (MOS) was as an aircraft maintenance crewman and helicopter repairman. During the Board personal hearing before the undersigned, the Veteran testified that in his this capacity he serviced damaged helicopters, including the recovery of human remains. He also testified that he was subjected to enemy mortar and rocket fire while on perimeter guard duty while stationed at Pleiku, Vietnam. The Veteran is competent to report that he repaired helicopters, including the recovery of human remains, and experienced mortar and rocket attacks. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board finds the Veteran's recollection of the in- service stressor events credible. Additionally, information regarding the divisional order of battle of the 4th infantry division shows that the division was stationed at Pleiku, Vietnam for four years from September 1966. Review of the Veteran's service treatment records (STRs) shows no complaint or manifestation of a psychiatric disorder. On examination at entry and separation from active duty, psychiatric clinical evaluation was normal. VA outpatient treatment records, dated from July 2008 to June 2009, include multiple therapy sessions at the mental health clinic. These records consistently show a diagnosis of PTSD as a result of the Veteran's past military experiences. Applying the new 38 C.F.R. § 3.304(f)(3) to the Veteran's claim, the evidence of record is at least in relative equipoise on the questions of whether the Veteran had an in-service stressful event, and whether his diagnosed PTSD is related to the in- service stressful events. Specifically, the Veteran reported that his PTSD stressor is related to his fear of hostile military activity. A VA psychiatrist has confirmed that the claimed stressor is adequate to support a diagnosis of PTSD, and that the Veteran's symptoms are related to service, which history of in- service stressors included generally the fear of hostile military activity. Moreover, the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service in the Republic of Vietnam, and there is no clear and convincing evidence to the contrary. See 75 Fed. Reg. 39843 (July 13, 2010). Under these circumstances, and resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for PTSD is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for PTSD is granted. ____________________________________________ J. Parker Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs