Citation Nr: 1312905 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 10-46 417 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Karl A. Kazmierczak, Esq. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD William Alan Nelson II, Associate Counsel INTRODUCTION The Veteran had active service from January 1965 to December 1968, which included service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared and provided testimony before the undersigned Veterans Law Judge (VLJ) in July 2012. A transcript of the hearing has been associated with the claims file. The Board has reviewed the Veteran's physical claims file, as well as his electronic file through the "Virtual VA" system, to ensure a complete review of the evidence in this case. FINDINGS OF FACT 1. The Veteran's claimed in-service stressor events of being subjected to enemy rocket, mortar, and ground attack and seeing dead bodies during his service in Vietnam are consistent with the places, types, and circumstances of his service. 2. Although the most recent VA PTSD examination found that the Veteran did not meet the criteria for PTSD, he has been diagnosed with PTSD during the course of his claim/appeal and his PTSD symptoms have been attributed to his claimed in-service stressor events by a VA psychologist. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for PTSD have been met. 38 U.S.C.A. §§ 1110, 1154, 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 Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In view of the favorable disposition below, the Board finds that any possible errors on the part of VA in fulfilling its duties under the VCAA with respect to the Veteran's claim are rendered moot. Service Connection Laws and Regulations 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). Service connection for PTSD requires: medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (conforming to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)); 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); ); see also Cohen v. Brown, 10 Vet. App. 128 (1997). The applicable regulation requires that the in-service stressor or traumatic event involve actual or threatened death, serious injury, or a threat to the physical integrity of self or others and the person's response involve intense fear, helplessness, or horror. See DSM-IV § 309.81 (4th ed. 1994). In adjudicating a claim for service connection for PTSD, the evidence necessary to establish the incurrence of a stressor during service to support a claim of entitlement to service connection for PTSD will vary depending on whether or not the Veteran was "engaged in combat with the enemy." See Hayes v. Brown, 5 Vet. App. 60, 66 (1993). If it is determined through military citation or other supportive evidence that a veteran engaged in combat with the enemy, and the claimed stressors are related to combat, a veteran's lay testimony regarding the reported stressors must be accepted as conclusive evidence as to their actual occurrence and no further development or corroborative evidence will be necessary, provided that the testimony is found to be satisfactory, that is, not contradicted by service records, 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); Doran v. Brown, 6 Vet. App. 283, 289 (1994). To gain the benefit of a relaxed standard for proof of service incurrence of an injury or disease, 38 U.S.C.A. § 1154(b) requires that a veteran have actually participated in combat with the enemy. See VAOPGCPREC 12-99. If it is determined that a veteran did not engage in combat with the enemy, or the claimed stressor is not related to combat, a veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. In such cases, the record must contain service records or other corroborative evidence which substantiates or verifies a veteran's testimony or statements as to the occurrence of the claimed stressors. See Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Effective July 13, 2010, VA amended 38 C.F.R. § 3.304(f) by liberalizing, in certain circumstances, the evidentiary standards for establishing the occurrence of an in-service stressor for non-combat veterans. See 75 Fed. Reg. 39,843-39,852 (effective July 13, 2010). Previously, VA was required to undertake extensive development to determine whether a non-combat veteran actually experienced the claimed in-service stressor and lay testimony, by itself, was not sufficient to establish the occurrence of the alleged stressor. Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Instead, credible supporting evidence of a corroborated in-service stressor was required. Credible supporting evidence was not limited to service department records, but could be from any source. See YR v. West, 11 Vet. App. 393, 397 (1998); see also Moreau v. Brown, 9 Vet. App. 389, 395 (1996). Further, credible supporting evidence of the actual occurrence of an in-service stressor could not consist solely of after-the-fact medical nexus evidence. See Moreau, 9 Vet. App. at 396. The amended version of 38 C.F.R. § 3.304(f)(3) eliminated the need for stressor corroboration in circumstances in which the Veteran's claimed in-service stressor is related to "fear of hostile military or terrorist activity." Specifically, the amended version of 38 C.F.R. § 3.304(f)(3) states: 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 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. See 38 C.F.R. § 3.304(f)(3) (codified in 75 Fed. Reg. 39,843-39,852). A new rule may not extinguish any rights or benefits the Veteran had prior to enactment of the new rule. See VAOPGCPREC 7-2003. However, if the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C.A. § 5110(g), can be no earlier than the effective date of that change. VA can apply only the earlier version of the regulation for the period prior to the effective date of the change. The Veteran in this case receives consideration under the amended version of 38 C.F.R. § 3.304(f) because his claim was appealed to the Board prior to July 13, 2010, but not decided by the Board as of July 13, 2010. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on a veteran's behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service Connection for PTSD In this case, the Veteran contends that he currently suffers from PTSD as a result of multiple traumatic incidents that occurred during his service in the Republic of Vietnam. The claimed in-service stressors include: being subjected to sniper, rocket, and mortar attacks during his service in Vietnam; and seeing fellow service members killed and wounded in January and February 1968 while serving in Vietnam. Because the Veteran has alleged fear of hostile military activity, but is not in receipt of any military citations clearly indicative of combat service such that the presumption afforded combat Veterans under 38 U.S.C.A. § 1154(b) would apply, we will first consider whether service connection is warranted under the amended regulatory provision, 38 C.F.R. § 3.304(f)(3). In evaluating the Veteran's claim under the amended regulatory provision, the Board must consider whether the Veteran's claimed stressor events are consistent with the places, types, and circumstances of his service. The Veteran's personnel records show that, while stationed in the Republic of Vietnam, he was assigned to the combat control division of the 7th Aerial Port Squadron. Service records reflect that the Veteran was deployed to Vietnam in February 1968 for 16 days in a combat support role. Thus, although the Veteran's precise whereabouts during the attacks as well as the casualties resulting therefrom are unknown, the Board finds that the occurrence of the Veteran's claimed stressor events of being subjected to enemy rocket, mortar, and ground attacks in January and February 1968 and witnessing dead bodies during that period are consistent with the places, types, and circumstances of his service in Vietnam. There is no clear and convincing evidence to the contrary of record. Therefore, in light of the above, the Board will next consider whether there is evidence showing that a VA psychiatrist or psychologist has confirmed that the claimed stressors are adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressors. In an April 2007 VA treatment record, the Veteran reported that he saw combat in Vietnam and that he had nightmares concerning his service in Vietnam. The VA examiner diagnosed depression and PTSD. In a June 2007 VA treatment record, the Veteran reported nightmares about his service in Vietnam and symptoms of hypervigilance and withdrawal. The VA examiner diagnosed PTSD. In an October 2008 VA treatment record, the VA examiner opined that, based upon a review of the Veteran's claims file and observations from the examination, the Veteran met the criteria for diagnoses of PTSD, depressive disorder, and alcohol dependence. In a January 2009 VA psychological examination, the VA examiner reported that the Veteran was exposed to multiple traumatic experiences occurring in a combat environment while serving in Vietnam. The VA examiner also reported that the Veteran re-experienced trauma from service as manifested by intrusive thoughts and memories. The VA examiner opined that as a result of the Veteran's military-related PTSD, he experienced significant impairment across multiple domains of functioning. The Axis I diagnosis was chronic PTSD, combat-related, and depressive disorder NOS. Thus, it is clear that the VA psychologist who performed the January 2009 assessment of the Veteran found that his claimed stressors were adequate to support a diagnosis of PTSD and that his symptoms were related to the claimed stressors. There is no indication that the medical opinion is inadequate. If a veteran has received a diagnosis of PTSD from a competent medical professional, VA must assume that the diagnosis was made in accordance with the appropriate criteria in regard to adequacy of the symptomatology and the sufficiency of the stressor. See Cohen. For these reasons, the Board finds the diagnosis of PTSD and the medical opinion evidence linking it to combat-related events during the Veteran's Vietnam service to be of great probative value. The Board recognizes that the psychologist who conducted the March 2012 VA PTSD examination alternatively found that the Veteran did not present with any PTSD symptoms at that time. However, he specifically commented that, although the Veteran was previously diagnosed with PTSD, he did not meet the criteria for PTSD or evidence symptoms of PTSD that day. The Court has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). Moreover, since that VA examination was conducted, additional VA outpatient treatment records have been received. [Incidentally, the Board notes that these records were placed into the Veteran's Virtual VA file in April 2013, well after the RO's last supplemental statement of the case in 2012. However, there is no prejudice to the Veteran in the Board relying on these records in the first instance, since this results in a grant of benefits.] A Mental Health Clinic note dated in March 2013 showed continued diagnosis of PTSD by a VA psychiatrist. The Board finds that the weight of the medical evidence is at least in relative equipoise with regard to a current diagnosis of PTSD. The March 2012 VA examiner opined that the previous diagnoses of PTSD were based upon subjective reports of symptoms, with no objective data to support the clinical diagnoses; however, as stated above, there is no indication that the prior VA medical opinions diagnosing PTSD are inadequate. See Cohen. The March 2012 VA examiner also only provided a general statement of why the earlier VA examinations were inadequate, but did not provide any specific reasons for his opinion. See Obert, 5 Vet. App. at 33. For these reasons, and with resolution of reasonable doubt in favor of the Veteran, the Board finds that the criteria for service connection for PTSD are met. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for PTSD is granted. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs