Citation Nr: 1314367 Decision Date: 05/01/13 Archive Date: 05/15/13 DOCKET NO. 13-06 852 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depressive disorder, and anxiety disorder. REPRESENTATION Appellant represented by: Kenneth M. Carpenter, Private Attorney ATTORNEY FOR THE BOARD Devon Rembert-Carroll, Associate Counsel INTRODUCTION The Veteran had active service in the Army from April 1966 to April 1968. The matter is before the Board of Veterans' Appeal (Board) on appeal from a July 2011 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim is not limited to the diagnosis identified by the Veteran. In this case, the Veteran has filed a claim for PTSD but the record shows other psychiatric diagnoses. As a result, the issue on appeal has been re-characterized on the title page. FINDINGS OF FACT 1. The Veteran served in Vietnam from October 1966 to October 1967. 2. Resolving all doubt in the Veteran's favor, an acquired psychiatric disability, to include PTSD, depressive disorder, and anxiety disorder, was incurred as a result of service. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, an acquired psychiatric disability, to include PTSD, depressive disorder, and anxiety disorder, was incurred in active service. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 , 3.303, 3.304(f), and 4.125 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duties to notify and assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, and 3.326(a) (2012). In light of the favorable determination being reached, the Board finds that no further discussion of VCAA compliance is necessary as any error that was committed as to either the duties to notify or assist is harmless. Analysis Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). In addition to the general criteria for service connection, PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between the current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) (2012). The evidence necessary to establish the occurrence of a recognizable stressor during service to support a diagnosis of PTSD will vary depending upon whether the veteran "engaged in combat with the enemy." 38 U.S.C.A. § 1154(b) (West 2002); Cohen v. Brown, 10 Vet. App. 128 (1997); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993); 38 C.F.R. § 3.304(f) (2012). Participation in combat, a determination that is to be made on a case-by-case basis, requires that the veteran have personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. See VAOPGCPREC 12-99 (1999). If VA determines that the veteran engaged in combat with the enemy and his alleged stressor is combat-related, then his lay testimony or statement is accepted as conclusive evidence of the stressor's occurrence and no further development or corroborative evidence is required, provided that such testimony is found to be consistent with circumstances, conditions, or hardships of service. See 38 U.S.C.A. § 1154(b); Cohen, at 146-47; Zarycki, at 98; 38 C.F.R. § 3.304(f). If the veteran did not engage in combat with the enemy, or the claimed stressor is not related to combat, the veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must contain service records or other corroborative evidence that substantiates or verifies the veteran's statements as to the occurrence of the claimed stressor. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown at 98. 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. 75 Fed. Reg. 39852 (July 13, 2010) (now codified at 38 C.F.R. § 3.304(f)). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002). The Veteran seeks service connection for PTSD based on stressful events that occurred during his service. In a July 2012 statement submitted by his representative the Veteran claimed that while stationed in Long Binh, Vietnam an ammunition dump exploded sometime around November 1966. The Veteran stated that he was on guard duty at the compound across from the ammunition dump. The Veteran reported that after the explosion he volunteered for the ambush squad that was created to guard the ammunition dump. The Veteran also stated that several months after the first explosion the ammunition dump was attacked again. The Veteran was afforded a VA examination in May 2011. In addition to the stressors above, the Veteran also reported that while serving on the ambush squad he saw dead bodies in two or three villages. The VA medical examiner diagnosed the Veteran with depressive disorder. The examiner concluded that the Veteran's irritation and losing of temper on a daily basis was not related to the stressors from Vietnam. The examiner also did not find a diagnosis of PTSD. The Veteran's Virtual VA e-folder contains VA medical treatment records dated February 2012 through December 2012 that show that the Veteran was diagnosed as having depressive and anxiety disorders. He was also diagnosed as having possible PTSD based on reported service events. In May 2012, a private psychiatrist diagnosed the Veteran with post traumatic stress disorder with associated anxiety and depression. The psychiatrist found that the Veteran's psychiatric disorders, including PTSD were related to the Veteran's reported in-service stressors. In November 2012, the psychologist's impression was that the Veteran was endorsing symptoms of PTSD and related depression. The psychologist stated that the Veteran's PTSD symptoms appeared to negatively impact his daily functioning and his relationship with others. In December 2012, a psychologist found that the Veteran did not meet the criteria for a diagnosis of PTSD based on lack of symptoms. The Board notes that these conflicting VA and private opinions place the evidence in equipoise on the question of whether the Veteran meets the criteria for the diagnosis of PTSD in accordance with DSM-IV. Resolving reasonable doubt in the Veteran's favor, the Board concludes that the requirements for a diagnosis of PTSD are satisfied. Additionally, the Board finds that the May 2012 private opinion provides a nexus between the Veteran's alleged stressors and his PTSD symptomology. Two of the three elements of service connection are thus satisfied. The remaining question is whether there is credible evidence supporting the occurrence of the claimed in-service stressor. Service treatment records do not reflect a diagnosed psychiatric disorder. The Veteran's DD-214 reflects a military occupational specialty (MOS) of metal body repairman. Although he was awarded a medal, it is not of the sort that the VA recognizes as conclusive evidence of participation in combat. The Veteran's service records reflect that he was stationed in Vietnam from October 1966 to October 1967. His units of assignments were the 94th Light Maintenance Company, from October 1966 to March 1967, and the 19th Light Maintenance Company, from March 1967 to October 1967. The service records note participation in the Vietnam Counteroffensive Phase II, but do not indicate that the Veteran was personally involved in combat. The Veteran is not a combat Veteran and therefore his testimony cannot establish the occurrence of the claimed in-service combat-related stressors. However, the Board finds that a June 2012 letter from the Joint Services Records of Research Center (JSRRC) provides credible supporting evidence of at least one stressor which was the basis of the diagnosis of PTSD. The Board notes that credible supporting evidence need not corroborate every detail of a claimed stressor. Suozzi v. Brown, 10 Vet. App. 307, 311 (1997). The records need only imply the Veteran's participation (e.g., not to controvert the Veteran's assertion that he was present when the events the records establish that his unit experienced occurred). Pentecost v. Principi, 16 Vet. App. 124,128-9 (2002). The letter from the JSRRC states that the Operational Report-Lessons Learned (OR-LL) submitted by the 94th Maintenance Company, located at Long Binh, Vietnam, for the period ending January 31, 1967 did not provide any information on an attack at Long, Binh Ammunition Supply Depot (ASD) during November 1966. However, the JSRRC reviewed the OR-LL submitted by the 1st Logistical Command for the period ending January 21, 1967. This OR-LL documented that on October 28, 1966 a small band of saboteurs penetrated the ASD and successfully exploded heavy artillery charges and projectiles, which resulted in two friendly killed and nine wounded. On November 18 and December 10, 1966 the ASD was again penetrated and hostile forces used satchel charges. On November 18, 1966 explosives items had a value of about $48,000 and on December 10, 1966 a pad of small arms ammunition was sabotaged which had an approximate value of $438,000. There was one friendly wounded. As stated above, the Veteran was assigned to the 94th Light Maintenance Company from October 1966 to March 1967. A preliminary list of the United States Army Combat Units of the War of the Republic of Vietnam, published by the Department of the Army and dated April 1979, shows that in October 1966 the 94th Maintanence Company was stationed in Long Binh, Vietnam. The list shows that the 94th Maintenance Company reported to the United States Army Support Command, Saigon. The list further shows that the United States Army Command, Saigon reported to the 1st Logistical Command. As such, the Board finds that the JSRRC letter is sufficient corroboration of the claimed stressful events and of the participation of the Veteran's unit. This satisfies the corroboration element of the Veteran's reported PTSD stressors. The Board also observes that there is no evidence in the file that directly and uncontrovertibly contradicts the Veteran's claims. In May 2012, the private psychiatrist found that the Veteran's reported symptoms were sufficient to support a diagnosis of PTSD. Reading the report as a whole, the Board finds that the psychiatrist found a nexus between the Veteran's inservice stressor and his current psychiatric symptoms. At that time, numerous psychiatric symptoms were reported by the Veteran and the Board finds that the Veteran is competent to report having these symptoms. The Board also finds that the Veteran is also credible in the report of his symptoms. His psychiatric symptoms have been, for the most part, consistently reported when treated or evaluated by VA. The Board notes the private psychiatrist found that the Veteran's anxiety and depressive disorders were associated with the Veteran's service-related PTSD. In short, the Board finds that the Veteran has a current psychiatric disability, variously diagnosed as an acquired psychiatric disorder to include PTSD, depressive disorder, and anxiety disorder that is associated with events (including stressor events) that occurred during his military service. Thus, the required nexus is met. For these reasons and resolving any doubt in the Veteran's favor, the Board finds that each of the elements required for entitlement to service connection has been satisfied. See 38 C.F.R. § 3.304(f). As such, service connection for an CONTINUE ON THE NEXT PAGE acquired psychiatric disorder to include PTSD, depressive disorder, and anxiety disorder is granted. ORDER Service connection for an acquired psychiatric disorder, to include PTSD, depressive disorder, and anxiety disorder is granted. ____________________________________________ K. Osborne Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs