Citation Nr: 1313394 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 09-22 738 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran, who is also the appellant, had active service from October 1956 to September 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina on behalf of the RO in Newark, New Jersey. Jurisdiction of this case belongs to the RO in Newark, New Jersey. In June 2012, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO in Newark, New Jersey. A transcript of that proceeding is of record. In October 2012, the Board remanded this matter for further development, to include a VA examination. The requested development has been completed and the matter is now ready for appellate review. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT The Veteran's current PTSD is of service origin. CONCLUSION OF LAW PTSD was incurred in service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 has been amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). The Court has also held that that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The VCAA is not applicable where further assistance would not aid the Veteran in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004 (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision on this claim, further assistance is not required to substantiate that element of the claim. Service Connection Service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection requires 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The Board notes that establishing service connection for PTSD requires specific findings. These are (1) a current medical diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. See 38 C.F.R. § 3.304(f). The diagnosis of PTSD must comply with the criteria set forth in the Diagnostic and Statistical Manual of Mental Disorders, 4th edition, of the American Psychiatric Association (DSM-IV). Id. See also 38 C.F.R. § 4.125(a) (2012). It is the defined and consistently applied policy of VA 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. 38 C.F.R. § 3.102. The Veteran maintains that he currently has PTSD resulting from witnessing a fellow soldier being killed during an attempted parachute jump out of a plane while at Ft. Bragg, North Carolina, in April 1957. He has reported that this served as the stressor for his current PTSD. Service treatment records associated with the claims folder reveal that the Veteran was referred for a neuropsychological consultation in November 1957 for "dizzy spells". He was noted to have had 3 or 4 of these. There had been no convulsive movements seen and the Veteran denied incontinence. The Veteran was noted to appear very anxious. It was indicated that the Veteran felt on the edge a great deal and was quite depressed at times. He was married but had been separated from his wife since coming to Germany and was worried about the long separation. At the time of the December 1957 consultation, the Veteran reported that he had had dizzy spells on four occasions. He noted having had episodes of loss of consciousness beginning with abdominal symptoms that lasted a few moments. Attacks had not followed any pattern and there had been no associated aura, incontinence, convulsive moments, or tongue biting. There was also no history of head injury. The Veteran was also reported to have been under considerable situational tension. He was married shortly before coming overseas and his plans to have his wife join him were not successful. He resented this and had been in minor disciplinary difficulty with his unit for several months. He denied symptoms of serious mental disorder. Neurological examination was negative. The examiner indicated that the Veteran was utilizing passive-aggressive mechanisms and was quite tense and hostile. He stated that the Veteran's symptoms probably arose from these factors. In a March 2006 statement, the Veteran indicated that he was in his last week of jump school at Ft. Bragg and his then pregnant wife was staying off post close to base. He stated they were on a jump at Pope AFB when one of the guys (fellow paratrooper) got hung up behind a C-119 aircraft. He was hanging for quite awhile and the plane kept circling overhead as they tried to retrieve him. The Veteran indicated that they eventually foamed the runway and landed with him at the end of the static line and he was killed. He noted that his wife saw the whole thing happen and this became a big problem in both their lives as she became worried about him. In August 2006, a formal finding of lack of information required to verify stressors was made. In support of his claim, the Veteran submitted a May 2009 letter from his former wife indicating that in the Spring of 1957 she was living off base in Fayetteville, North Carolina, as the Veteran was in jump school at Ft. Bragg. She reported that there was a demonstration of jumps that the wives were invited to attend. She indicated that she had just parked her vehicle and was getting out when some of the women started screaming and pointing upward at the plane. She stated that as she looked up she saw a horrible sight of a body hanging on the back of the plane. In seconds, it was pure pandemonium, jeeps with lights flashing, and military police telling them to leave the field. She noted that everyone was asking and yelling for information as they were told to get off the field. She stated that she went home crying, shaking, and praying, hoping against all hope that it wasn't her husband. She stated that it was one of the most horrific times in their lives. She noted that she could continue but the memory hurt. In a May 2009 statement, P. O. indicated that in April 1957 he was with the Special Forces Reserves when they got word that a jumper had misguided the static line and did not separate from the apex of his chute. As a result, he was dragged behind the C1-119 aircraft for an hour before the plane landed, causing his death. At the time of his June 2012 hearing, the Veteran testified as to the April 1957 parachute incident at Ft. Bragg. He noted that the individual who was involved in the accident was killed. He stated that he was on the plane with the person who was killed and had jumped before he did. He testified that he witnessed the entire event. The Veteran's second wife reported that the Veteran talked about the plane incident all the time. In October 2012, the Board remanded this matter for further development, to include a VA examination, with the examiner being requested to identify all psychiatric disabilities and to provide an opinion as to whether it was at least as likely as not that any current psychiatric disorder, including PTSD, was related to his period of service, to include the claimed inservice airborne training incident. In conjunction with the Board remand, the Veteran was afforded a VA examination in October 2012. The examiner indicated that the claims folder was available and had been reviewed. The examiner diagnosed the Veteran as having PTSD. He stated that it was his opinion that the diagnosis of PTSD was clearly and causally related to the Veteran's military service. The examiner indicated that the Veteran witnessed a catastrophic accident during parachute jumping school in which a fellow soldier died due to an improperly rigged parachute. It was noted that the Veteran witnessed the entire incident and his service medical records clearly indicated changes in behavior, disciplinary actions taken, loss of rank for insubordination and other "changes in behavior" that were temporally related to the incident in question. Therefore, his PTSD was directly related to his exposure to a fatality during parachute jump school in April 1957 at Pope AFB. The Board notes that the military records which have been obtained in conjunction with the Veteran's claim make no reference to the reported April 1957 parachute/plane incident, which the Veteran claims serves as the stressor for his current diagnosis of PTSD. However, the Veteran has consistently reported and testified as to the incident which he claims serves as the stressor for his PTSD. In support of his claim, the Veteran has submitted a statement from his ex-wife, who has provided specific details as to the incident she witnessed relating to the April 1957 parachute incident. The details provided by the Veteran's ex-wife do not significantly differ from those reported by the Veteran. Moreover, the Veteran has submitted a statement from P. O., who has indicated that he was a member of the Special Forces Reserves in April 1957 when they received word that a jumper had misguided the static line and did not separate from the apex of his chute causing him to be dragged behind the C1-119 aircraft for an hour before the plane landed resulting in his death. Based upon the above, the Board resolves reasonable doubt in favor of the Veteran and finds that his statements and testimony with regard to the claimed parachute/plane incident are credible. Moreover, the VA examiner diagnosed the Veteran as having PTSD and related it the to April 1957 parachute/plane incident. As such, the Veteran has satisfied the requirements of service connection for PTSD in that he has a current medical diagnosis of PTSD; credible supporting evidence that the claimed in-service stressor actually occurred; and medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. Given the foregoing, service connection for PTSD is warranted. ORDER Service connection for PTSD is granted. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs