Citation Nr: 1307950	
Decision Date: 03/11/13    Archive Date: 03/20/13

DOCKET NO.  09-24 868	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUE

Entitlement to service connection for a psychiatric disorder.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

S. Coyle, Counsel






INTRODUCTION

The Veteran served on active duty from May 1968 to December 1969.   

This matter is before the Board of Veterans' Appeals (Board) on appeal of a July 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).  

The Veteran filed a claim for service connection for PTSD in June 2003, but abandoned it in December 2006.  38 C.F.R. § 3.158.  The claim presently on appeal was filed in December 2007, resulting in the July 2008 rating decision from which the Veteran perfected an appeal.  

Although the Veteran filed his claim seeking service connection for PTSD specifically, he has been diagnosed with and has sought treatment for multiple psychiatric disorders, including PTSD and major depressive disorder.  Thus, the Veteran's claim is more accurately classified as one for a psychiatric disorder, to include PTSD and major depressive disorder.  Clemons v. Shinseki, 23 Vet. App. 1 (2009).

The Veteran has been diagnosed with coronary artery disease, which is among the list of diseases associated with exposure to certain herbicide agents.  38 C.F.R.          § 3.309(e).  The Veteran served in the Republic of Vietnam from December 1968 to December 1969; thus, exposure to herbicides is conceded.  38 C.F.R.                        § 3.307(a)(6)(iii).  A claim of entitlement to service connection for coronary artery disease has been raised by the record, and is referred to the AOJ for appropriate disposition.  

FINDING OF FACT

The Veteran has a psychiatric disorder that is as likely as not related to his active service, including fear of hostile military activity.  


CONCLUSION OF LAW

The criteria for the establishment of service connection for a psychiatric disorder are met.  38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R.            §§ 3.102, 3.159, 3.304(f) (2012).  

REASONS AND BASES FOR FINDING AND CONCLUSION

VA's Duty to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  The Board is granting in full the benefit sought on appeal.  Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed.   

Service Connection

Service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303.  There must be medical evidence of a current disability, medical or lay evidence of in-service incurrence or aggravation of a disease or injury, and medical evidence linking the current disability to that in-service disease or injury.  Pond v. West, 12 Vet. App. 341, 346 (1999); Hickson v. West, 12 Vet. App. 247, 253 (1999).

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 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.  "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.  38 C.F.R. § 3.304(f).  

The Veteran has been diagnosed with PTSD and major depressive disorder, which he attributes to fear of hostile military activity during service.  He asserts that he was exposed to combat conditions, that he helped to collect the bodies of soldiers killed in action and transport wounded troops, and that his position took incoming enemy fire resulting in injury and death.  

The Veteran's military occupational specialty was unit supply clerk.  He was assigned to the HHC (headquarters), 3rd Battalion, 187th Infantry, in the Republic of Vietnam from December 1968 to December 1969.  This unit participated in many combat operations in the Republic of Vietnam, including the assault on Dong Ap Bia, otherwise known as "Hamburger Hill," in May 1969, in which it sustained heavy losses.  Michael Kelly, Where We Were in Vietnam, p. 5-211 (1st ed. 2002).  

During an October 2005 VA psychiatric consultation, the Veteran related that he was "in the front line and did all required.  He was transported in a helicopter to the villas and fight.  He had to carry wounded and dead friends to the helicopters...  [he experienced] fear [and] apprehension."  The VA psychiatrist diagnosed PTSD and major depressive disorder as a result of exposure to soldiers dying from battle wounds, and handling dead bodies on the battlefield.

In May 2008, the Veteran was evaluated by a private psychologist.  He asserted during that interview that his duty station often received incoming enemy fire, resulting in injury and death.  The psychiatrist diagnosed PTSD and major depressive disorder as a result of the Veteran's "extreme fear and horror" that "they were all going to be killed" in Vietnam.  

The evidence of record meets all the elements for an award of service connection a psychiatric disorder.  The Veteran has been diagnosed with PTSD and major depressive disorder.  He was assigned to an infantry unit in the Republic of Vietnam for one year.  His unit participated in many combat operations, including the May 1969 assault on "Hamburger Hill" in which 56 American servicemembers were killed and 400 wounded.  Id.  Thus, the Veteran's stressors of exposure to dead bodies, transporting wounded servicemen, receiving incoming enemy fire, and experiencing general fear and apprehension of hostile military action are presumed true based on the circumstances of his service.  Opinions from a VA psychiatrist and a private psychologist have been received which link the Veteran's PTSD and major depressive disorder to his military stressors.  Service connection for a psychiatric disorder is warranted.   See 38 U.S.C.A §5107 (West 2002).  

ORDER

Entitlement to service connection for a psychiatric disorder is granted.   



____________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs