Citation Nr: 1315348 Decision Date: 05/09/13 Archive Date: 05/15/13 DOCKET NO. 08-10 311 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION The Veteran had active military service from January 1969 to August 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Veteran testified before the Board at a July 2011 hearing. A transcript of the hearing is of record. This case was previously before the Board in September 2011, at which time the claim was remanded to the Agency of Original Jurisdiction (AOJ) for further development. While on remand, the claims of service connection for peripheral neuropathy of the bilateral upper and lower extremities were granted. See August 2012 rating decision. Therefore, the appeal on these issues has been fully resolved in the Veteran's favor and is no longer before the Board. See generally AB v. Brown, 6 Vet. App. 35 (1993). The claim of service connection for PTSD is once again before the Board for appellate consideration of the issue on appeal. FINDING OF FACT The Veteran has been diagnosed by a VA psychiatrist as having PTSD due to his fear of hostile military or terrorist activity. CONCLUSION OF LAW The criteria for service connection for PTSD have been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Since the entire benefit sought on appeal has been granted, no purpose would be served by undertaking an analysis of whether there has been compliance with the notice and duty to assist requirements set out at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002)). See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Service Connection Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran has claimed service connection for PTSD, which requires medical evidence diagnosing the condition in accordance with VA regulations; 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) (2012). In this case, the Veteran contends that two stressors caused his PTSD, one related specifically related to his service in the Republic of Vietnam, and the second related to a personal assault. As the Veteran's claimed stressors do not involve being engaged in combat with the enemy, his lay testimony alone is generally not enough to establish the occurrence of the alleged stressors. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Given the differing nature of the Veteran's claimed stressors, and specific regulatory provisions pertaining to each, for the sake of clarity, the Board will address each stressor separately below. Service in Vietnam The Veteran claims that, during his service in the Republic of Vietnam, he was kidnapped by the Viet Cong and, after escaping with another soldier, feared for his life as he hid from and evaded the enemy. See, e.g., November 2011 VA examination report. In other words, it is argued that his stressors consisted of fear of hostile military or terrorist activity. The regulations regarding service connection for PTSD were recently amended to provide that if a stressor claimed by a Veteran is related to the Veteran's "fear of hostile military or terrorist activity" and a VA or VA-contracted psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor so long as there is not clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service. 38 C.F.R. § 3.304(f)(3) (2012). For purposes of this section, "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; 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." Id. Personal Assault With regards to his second claimed stressor, the Veteran has testified, and stated on numerous occasions, that he was forced to perform sex acts against his will. See, e.g., June 2011 Board hearing transcript; see also November 2011 and November 2006 VA examination reports. The Court has held that that there are special evidentiary procedures for PTSD claims based on personal assault. See Patton v. West, 12 Vet. App. 272, 278 (1999); see also VA ADJUDICATION MANUAL M21-1MR, Part IV, subpart ii.1.D.17. Because personal trauma is an extremely personal and sensitive issue, many incidents of personal trauma are not officially reported, and the victims of this type of in-service trauma may find it difficult to produce evidence to support the occurrence of the stressor. It is often necessary to seek alternative evidence. Id. If a PTSD claim is based on in-service personal assault, evidence from sources other than the Veteran's service records may corroborate the Veteran's account of the stressor incident. 38 C.F.R. § 3.304(f)(5). Examples of such evidence include, but are not limited to: records from law enforcement authorities, mental health counseling centers, hospitals, or physicians; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. Id. VA will not deny a PTSD claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the Veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. Id. Analysis The AOJ has made numerous attempts to verify the Veteran's claimed stressors, including submitting his stressors to the U.S. Army Joint Services Environmental Support Group (ESG), later known as the Joint Services Record Research Center (JSRRC). In a December 1993 reply, the ESG noted that, without specific dates of his kidnapping or legal action regarding his personal assault, verification cannot be accomplished. However, the ESG did verify that the base at which the Veteran was stationed was attacked during his tour in Vietnam. Furthermore, the Board notes that a VA examiner characterized the Veteran's stressor as consisting of a fear of hostile or terrorist activity and determined that his assertions were consistent with his previous descriptions. Likewise, the November 2011 VA examiner found it significant that while the Veteran's stressor reports were not directly verified, ESG records do indicate that the base at which he was stationed was attacked during his tour. It was also concluded that "it is at least as likely as not that there was a sexual assault...[and] some men pointed guns at him for some period of time until he escaped." Given the ESG's finding, the Board finds the Veteran's general claimed stressors of being fearful for his own safety while serving in Vietnam, are entirely consistent with the circumstances, conditions, or hardships of the his service. See 38 C.F.R. § 3.304(f)(3) (2012). The Veteran's lay testimony is therefore sufficient to establish the occurrence of the claimed stressor. Id. Furthermore, the Board again notes that an appropriate medical or mental health professional may opine as to whether the evidence indicates that a personal assault occurred. See 38 C.F.R. § 3.304(f)(5). While this specific question has not been directly asked, it is clear that both the November 2006 and November 2011 VA examiners found the Veteran's reports, in light of the other evidence of record, to be sufficiently credible to find it at least as likely as not the reported assault occurred. Given the Board's finding that both reported stressors are sufficiently supported by the evidence of record under applicable regulations, the remaining question is whether the Veteran has been diagnosed with PTSD by a VA psychologist or psychiatrist due to such fear of hostile military or terrorist activity or otherwise due to the in-service personal assault. 38 C.F.R. § 3.304(f)(3) and (5). Significantly, both November 2006 and November 2011 determined that it is at least as likely as not the Veteran suffers from PTSD due to the stressors discussed above. Further, the November 2011 VA examiner, a psychiatrist, also related the Veteran's PTSD due to his fear of hostile military activity leading to a response involving intense fear, helplessness or horror. These opinions were offered following a review of the claims folder and clinical evaluation of the Veteran, and specifically considered any inconsistencies contained in the record in determining the credibility of the Veteran's reports. "A Veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. Under the benefit of the doubt doctrine established by Congress, when the evidence is in "relative equipoise, the law dictates that the Veteran prevails." Id. The evidence is at least in equipoise regarding whether the Veteran's claimed stressors occurred. Resolving all doubt in favor of the Veteran, the Board concludes that, while he may have exaggerated some of the specifics over time, the evidence supports a finding that the claimed stressors occurred. The Veteran is diagnosed with PTSD by competent and credible medical professionals, and this diagnosis has been related to an adequate stressor in service, namely an in-service personal assault and his fear of hostile military or terrorist activity while serving in the Republic of Vietnam. Accordingly, service connection for PTSD is warranted. ORDER Service connection for PTSD is granted. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs