Citation Nr: 1311874 Decision Date: 04/10/13 Archive Date: 04/19/13 DOCKET NO. 10-48 226 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for hepatitis C. 3. Entitlement to service connection for lung nodules. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD S. M. Kreitlow INTRODUCTION The Veteran had active military service from January 1968 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. The issues of service connection for hepatitis C and lung nodules are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran served in Chu Lai, Republic of Vietnam from March 1969 to December 1969. 2. The Veteran's reported in-service stressors that are consistent with the places, types and circumstances of his service in the Republic of Vietnam. 3. The Veteran is diagnosed to have PTSD that is causally related to his fear of hostile and terroristic military action in the service while deployed to Vietnam. CONCLUSION OF LAW PTSD was incurred in service. 38 U.S.C.A. §§ 1110, 1112, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this decision, the Board grants service connection for PTSD, which represents a complete grant of the benefit sought on appeal. Thus, no discussion of VA's duty to notify and assist is necessary. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (2012); 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. 38 C.F.R. § 3.304(f). 38 C.F.R. § 4.125(a) requires that diagnoses of mental disorders conform to the Diagnostic and Statistical Manual for Mental Disorders (DSM-IV). On the question of the occurrence of an in-service stressor to support the diagnosis of PTSD, the evidence necessary to establish the occurrence of an in-service stressor varies depending on whether or not the Veteran engaged in combat with the enemy. Gaines v. West, 11 Vet. App. 353, 358 (1998). If it is determined through military citation or other supportive evidence that a veteran engaged in combat with the enemy, and the claimed stressor is related to combat, the veteran's lay testimony regarding the reported stressor must be accepted as conclusive evidence as to the actual occurrence and no further development or corroborative evidence will be necessary, provided that the testimony is found to be satisfactory and consistent with the circumstances, conditions or hardships of such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d), (f). The phrase "engaged in combat with the enemy" means that the veteran must have personally participated in a fight or encounter with a military foe or hostile unit or instrumentality. The fact that the veteran served in a "combat zone" does not necessarily mean that he engaged in combat against the enemy. Whether or not a veteran "engaged in combat with the enemy" must be determined through recognized citations or other official records. No single item of evidence is determinative, and VA must assess the credibility, probative value, and relative weight of each item. Any assertions of combat service are not ignored, but are evaluated along with other evidence. A mere assertion of combat service, alone, is insufficient to establish this fact. VAOPGCPREC 12-99; Zarycki v. Brown, 6 Vet. App. 91 (1993) (mere presence in a combat zone is not sufficient to establish combat service). Effective July 13, 2010, the regulations governing adjudication of service connection for PTSD were liberalized, in certain circumstances, with respect to the evidentiary standard for establishing the required in-service stressor. For cases pending before VA as of that date, the following regulation applies: 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. 38 C.F.R. § 3.304(f)(3). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the veteran, and the veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Veteran seeks entitlement to service connection for PTSD. The Veteran contends that his current PTSD is due to his service in the Republic of Vietnam. The Veteran has provided a statement providing to two specific stressful events (see PTSD Questionnaire dated in December 2010). The first claimed stressor involved an incident that occurred around July 1969 when the Veteran traveled to Da Nang to meet up with a lifetime friend who was serving there with the 1st Marines, C Company. They had plans to go to Thailand for R&R together with another hometown friend. When he arrived in Da Nang, he proceeded to the 1st Marines, C Company, which was located just outside of Da Nang, but found out once he got there that his friend could not go on R&R because he had to go out on a mission. The Veteran ended up spending the night in Da Nang where they were awakened by mortars and small arms fire. He related that, at first light as he was preparing to leave, these Marines started milling around checking the barbed wire for any breaks and doing a body count when one Marine started picking up limbs and waving them in the air, laughing and joking while throwing them in a pile. Suddenly, this Marine picked up the remains of a body (just the upper half and was missing one arm with its organs hanging out) and proceeded to shake the body and started using it like a "puppet." The Veteran stated that he immediately ran to the out-house and started vomiting profusely. He said that, although he had other attacks after returning to Chu Lai, nothing was ever the same. Every bunker line fire fight and rocket or mortar attack became horrifyingly frightening. These feelings continued throughout his time in Chu Lai and Quang Tri. The second stressor event the Veteran has identified he says occurred in August or September of 1969 while stationed at Chu Lai. The Veteran stated that he became very ill with a high fever and was admitted to sick bay where he remained for four days. While he was under a 24 hour watch, they had an attack of incoming rockets. The corpsman who was assigned to watch him ran from the room with no regard for his safety. He stated that he managed to pull out an intravenous tube from his arm and make his way to the safety of a bunker. He related that, from that moment on, he had many sleepless nights in Vietnam and lost trust and faith in his fellow soldiers. Service records reveal that the Veteran served in the Republic of Vietnam from March 11, 1969 to December 10, 1969. The Veteran's military occupational specialty (MOS) per his DD 214 was Metal Worker; however, his Record of Service shows his duties while in the Republic of Vietnam also included Motor Vehicle Operator. While in Vietnam, he was assigned to "MABS-13, MAG-13, 1stMAW, FMF." He was awarded the following medals: National Defense Service Medal and the Vietnam Service Medal. Neither the Veteran's MOS/duties nor the medals awarded him indicate that he was in combat in the Republic of Vietnam. Service treatment records are silent for any complaints of or treatment for a psychiatric disorder or symptoms thereof. They are also silent for any combat-related injury. They do, however, indicate that the Veteran was admitted to the MAG-13 Dispensary, 1st MAW, FMFPAC from March 29 to April 3 in 1969 due to a fever of undetermined origin probably scrub typhus. This treatment record indicates the Veteran had a fever of 103.0 degrees and was treated with intravenous fluids. An undated letter from a VA psychiatrist received in November 2010 indicates that Veteran has a diagnosis of PTSD and was receiving treatment for it. In addition, the Veteran underwent two VA examinations in September 2010 and January 2011. At the September 2010 VA examination, the Veteran identified the following as traumatic experiences from the war in which he feared for his life at times: constant mortaring and rockets fire in the evenings, serving one week a month on guard duty in the bunkers and contending with incoming mortars, and witnessing numerous deaths. After examining the Veteran, the examiner diagnosed him to have PTSD, chronic, moderate. The examiner opined that it appeared more likely than not that the Veteran's current impairments in social and industrial functioning are due to his service experiences. At the January 2011 VA examination, the Veteran reported as military stressors/trauma essentially the same two stressors he set forth in his December 2010 PTSD Questionnaire. After examining the Veteran, the examiner diagnosed him to have PTSD, chronic. The examiner stated that it appears that the Veteran is experiencing significant symptoms of PTSD that are causally related to his fear of hostile and terroristic military action in the service, specifically while deployed to Vietnam. The examiner stated that, although the Veteran's MOS was a welder, he reported specific incidents where he feared for his life. Finally, in support of his claimed stressor relating to his visit to Da Nang, he submitted a statement in September 2011 from his buddy he was to meet there who confirmed that, between May and July of 1969, the Veteran visited him in Da Nang during his in-country R&R while he was stationed with the 1st Marines, C Company during that time. He also confirmed that his base camp was just outside of Da Nang. The Board finds that entitlement to service connection for PTSD is warranted. The Veteran has reported that he was exposed to rocket and/or mortar fire throughout his time in Vietnam to include two specific incidents that were most traumatizing to him. In addition, the Veteran has reported that he was fearful of losing his life during the times of experiencing these rocket and/or mortar attacks. For a stressor to be sufficient for PTSD, the stressor must meet two requirements: (1) A person must have been "exposed to a traumatic event" in which "the person experienced, witnessed, or was confronted with an event or events that involved actual or a threatened death or serious injury, or a threat to the physical integrity of self or others" and (2) "the person's response [must have] involved intense fear, helplessness, or horror." Pentecost v. Principi, 16 Vet. App. 124, 127 (2002). Moreover, with regard to the credible-supporting-evidence, or corroboration, requirement of 38 C.F.R. § 3.304(f), the Court of Appeals for Veterans Claims (Court) has held that a veteran does not have to prove his physical proximity to, or firsthand experience with, the attacks. Rather his presence with his unit at the time such attacks occurred corroborates his statement that he experienced such attacks personally. Id. at 128. Thus, in accordance with Pentecost and the recent liberalizing changes to the PTSD regulations according significant probative value to a veteran's report of stressors relating to fear of hostile military or terrorist activity, the Board finds that the Veteran's competent and credible report of his presence on the bases at Da Nang and Chu Lai while they came under rocket and/or mortar fire is sufficient to establish his exposure to a stressful event while serving in the Republic of Vietnam. Furthermore, the Board finds that the service treatment records showing the Veteran was admitted to the dispensary in Chu Lai for four days from March 29 to April 3 of 1969 for a fever is consistent with the Veteran's report except for the timeframe. Nevertheless the facts shown in the treatment record are consistent with the facts reported by the Veteran. In addition, the witness statement the Veteran submitted corroborates his statements that he visited this buddy in Vietnam, who was a member of the 1st Marines, C Company, from May to July of 1969. Finally, both VA examiners relate the Veteran's PTSD to his reported stressors. More specifically, the January 2011 VA examiner specifically states that the Veteran's PTSD is causally related to his fear of hostile and terroristic military action. Under the new regulations, in the absence of clear and convincing evidence to the contrary, the Veteran's lay testimony alone is sufficient to establish the occurrence of the claimed stressor. The Board finds that, in the present case, there is no clear and convincing evidence contradicting the Veteran's lay statements as to the occurrence of the claimed stressors. To the contrary, there is evidence supporting his statements. The Board notes that, although the Veteran's MOS is not one indicating combat, the service records clearly demonstrate that he was stationed at Chu Lai in Vietnam. Furthermore, the buddy's statement corroborates the Veteran's statement about going to Da Nang on R&R to meet him. Finally, the service treatment records confirm the Veteran's admission for four days to the dispensary in Chu Lai for a fever. Thus, the Board finds that the Veteran's statements are consistent with the places, types, and circumstances of his service in the Republic of Vietnam. Thus, the Board finds that the reported stressors represent events wherein the Veteran was confronted with threatened death or serious injury by hostile military or terrorist activity (i.e., rocket, mortar and/or sniper fire), and the Veteran's testimony alone is enough to establish the occurrence of such in-service stressors. See 38 C.F.R. § 3.304(f)(3). The Veteran has been diagnosed to have PTSD by both VA examiners and his PTSD has been related to his claimed in-service stressors. Therefore, based upon the criteria for service connection for PTSD set forth in 38 C.F.R. § 3.304(f)(3), the Board finds that service connection for PTSD is warranted. ORDER Entitlement to service connection for PTSD is granted. REMAND The Board finds that remand of the Veteran's claims for service connection for hepatitis C and lung nodules is warranted for additional development. With regard to his claim for service connection for hepatitis C, the Board notes that the Veteran's Agent Orange Registry examination in June 2009 resulted in a positive test for prior exposure to hepatitis C. However, there are no treatment records showing treatment for hepatitis C. On remand, the Veteran should be contacted and asked to identify all VA and non-VA medical care providers who have treated him for his hepatitis C and such identified records should be obtained. Furthermore, the Board notes that the Veteran has not provided information regarding risk factors for contracting hepatitis C; however, in its Informal Hearing Brief, his representative has indicated he is now willing to provide such information and requested that he be provided another opportunity to do so. Thus, on remand, the Veteran should again be requested to provide such information relevant to his claim. With regard to his claim for service connection for lung nodules, the Board notes that there are no medical records showing a diagnosis of lung nodules, although a history of such was reported at the June 2009 Agent Orange Registry examination. On a VA Form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs (VA), submitted in November 2009, the Veteran identified a private physician, Dr. Patel, who treated him in May 2009 for emphysema and long nodules. On this form, the Veteran also indicated that Dr. Patel had referred him to a lung specialist whom he had yet to see. The Board notes, however, that the VA Form 21-4142 was not complete in that it did not provide a sufficient address for this physician nor was it signed and dated by the Veteran. Such should have been returned to the Veteran for him to provide a correctly completed form; or, at the very least, the Veteran should have been advised that this form was not adequate for VA to seek these private treatment records. Thus, on remand, the Veteran should be asked to provide a new VA Form 21-4142 for Dr. Patel so that his treatment records may be obtained. In addition, as the Veteran indicated he was referred to a lung specialist for his emphysema/lung nodules, he should be asked to provide a VA Form 21-4142 for this private physician's records as well, if any. Based upon the evidence obtained, if necessary, the Veteran should be scheduled for VA examinations relating to his claims and all needed opinions obtained. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask him to submit a detailed description of each risk factor he claims he was exposed to during his active military service that resulted in his current hepatitis C. 2. Contact the Veteran and ask him to identify both VA and private medical care providers who have treated him for his hepatitis C. For each private medical care provider identified, he should be asked to complete a release form authorizing VA to obtain their treatment records. The Veteran should be advised that, in lieu of submitting a completed release form, he can submit these private medical treatment records to VA himself. If the Veteran provides a completed release form, then the medical records identified should be requested. All efforts to obtain these records, including follow-up requests, if appropriate, should be fully documented. The Veteran and his representative should be notified of unsuccessful efforts in this regard and afforded an opportunity to submit the identified records. 3. Send the Veteran a copy of the VA 21-4142 he submitted in November 2009 and advise him that the identified records from Dr. Patel could not be obtained because it is not complete. Ask him to complete a new release form authorizing VA to obtain the treatment records of Dr. Patel whom he had indicated treated him in May 2009 for emphysema/lung nodules. He should also be asked to complete a release for treatment records from any lung specialist from whom he received treatment for lung nodules. The Veteran should be advised that, in lieu of submitting a completed release form, he can submit these private medical treatment records to VA himself. If the Veteran provides completed release forms, then the medical records identified should be requested. All efforts to obtain these records, including follow-up requests, if appropriate, should be fully documented. The Veteran and his representative should be notified of unsuccessful efforts in this regard and afforded an opportunity to submit the identified records. 4. After all additional available evidence has been obtained, if necessary, schedule the Veteran for appropriate VA examination and request all necessary medical opinions. 5. Thereafter, the Veteran's claims should be readjudicated. If such action does not resolve the claims, a Supplemental Statement of the Case should be issued to the Veteran and his representative. An appropriate period of time should be allowed for response. Thereafter, these claims should be returned to this Board for further appellate review, if in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112. ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs