Citation Nr: 1127822 Decision Date: 07/26/11 Archive Date: 08/02/11 DOCKET NO. 07-28 074 ) 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: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1967 to April 1969 and from July 1969 to August 1988. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified at a Board hearing at the VA Central Office in Washington, DC in March 2008. This transcript has been associated with the file. The case was brought before the Board in November 2008, at which time the claim was remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his claim, to include providing him with new notice on substantiating his claim, verifying his dates of service, obtaining a copy of the Presidential Unit Citation and the associated command history, and scheduling him for a VA examination. In December 2008 the Veteran was given proper notice on substantiating his claim. A December 2008 response from the National Personnel Records Center (NPRC) also verified the Veteran's periods of active duty. Finally, he was scheduled for a VA examination in May 2009. With regard to the Presidential Unit Citation, the Board notes that a response in December 2008 from the NPRC indicated that there was no evidence to substantiate that the Veteran had received this badge. The Board again notes that in his personnel records, a DD Form 214 from his separation indicated that the Veteran received the Republic of Korea Presidential Unit Citation Badge. Typically, there must be substantial compliance with the Board's remand directives or the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Although there was not substantial compliance with the Board's remand directives by the AOJ, the Board is granting the claim of entitlement to service connection for PTSD, and as such, any noncompliance will be considered harmless error. FINDING OF FACT The Veteran's PTSD is related to service. CONCLUSION OF LAW PTSD was incurred in active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to review the entire record, the Board does not have to discuss each piece of evidence reviewed. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. 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 it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Veterans Claims Assistance Act of 2000 (VCAA) Since the Board is granting entitlement to service connection for PTSD, the entire benefit sought on appeal has been granted. Thus, no purpose would be served by undertaking an analysis of whether there has been compliance with the notice and duty to assist requirements set out in the VCAA. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder on a direct basis, generally there must be probative evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Effective July 13, 2010, VA has 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 providing that 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. See Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843 (July 13, 2010) (to be codified at 38 C.F.R. § 3.304(f)). Arguably, the new regulation is applicable. The Veteran contends that he suffers from PTSD as a result of the incidents he experienced while in-service. See e.g., April 2009 statement. The Veteran's service personnel records indicate that his military occupational specialty (MOS) was an indirect fire infantryman and that he served in Korea from January 1968 to April 1969 and in Vietnam from June 1970 to May 1971. In this case, the Veteran contends that while in-service he was involved in fire fights, witnessed numerous soldiers die, and feared he would die on at least one occasion. See June 2005 VA treatment record. He also reported that he continues to suffer from nightmares about his time in Vietnam and Korea and he avoids discussions of Vietnam and contact with other Veterans. Id. At his March 2008 Board hearing the Veteran testified that he was under fire frequently while stationed in Vietnam and he often saw American soldiers get injured or killed. He also testified that he suffers from nightmares and cold sweats and he takes medication to help with his PTSD symptoms. The Veteran was afforded a VA examination in May 2009. At this examination the examiner noted a mild severity of symptoms including avoidance of war topics, recurrent images from the war, difficulty staying asleep, and diminished interest in activities. The examiner cited to a March 2009 VA treatment record which reported the Veteran's accounts of being in-service, participating in patrols, and getting ambushed. The record also indicated that most of the battles occurred at night and there were instances where the Veteran and his fellow soldiers ran out of ammunition. The examiner's opinion was that the in-service stressors appeared to be linked directly to the Veteran's current condition. The Board also notes that a November 2005 VA treatment record linked the Veteran's PTSD to service. With regard to the new regulations, the Board acknowledges that the Veteran has claimed that he was afraid of enemy attack while stationed in Vietnam. See e.g., June 2005 VA treatment record. A VA psychologist has confirmed that the Veteran's in-service experiences support his current diagnosis of PTSD and are related to his current symptoms. See May 2009 VA examination. It was noted that the veteran had scored in the "honest" range on assessment of response style. Furthermore, there is no evidence contradicting that the Veteran's claimed in-service stressors are related to his current symptoms and diagnosis of PTSD. See Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843 (July 13, 2010) (to be codified at 38 C.F.R. § 3.304(f)). In sum, as there is corroborative evidence that the Veteran currently suffers from PTSD and there is a competent medical opinion linking PTSD to service, the Board finds that, resolving all reasonable doubt in favor of the Veteran, the criteria for a grant of service connection have been met. As such, the Veteran's claim of service connection for PTSD is granted. ORDER Entitlement to service connection for PTSD is granted. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs