Citation Nr: 1323485 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 06-10 848 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Hancock, Charles INTRODUCTION The Veteran served on active duty from December 1966 to August 1970. This service included foreign service in Korea from May 1969 to August 1970. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In September 2012 the Board remanded this claim so that certain due process concerns could be addressed, and so that additional development of the evidence could be undertaken. The United States Court of Appeals for Veterans Claims (Court) has held "that a remand by this Court or the Board confers on the Veteran or other claimant, as a matter of law, a right to compliance with the remand orders." See Stegall v. West, 11 Vet. App. 268, 271 (1998). As noted, in part, the purpose of the remand was to achieve further development of the claim. This development included the Veteran being afforded a VA examination. A review of the post-remand record shows that the Veteran was afforded a VA initial PTSD examination in March 2013. As will be discussed in more detail below, the examination report (and associated findings and opinion) are adequate. Therefore, the Board determines that compliance has now sufficiently occurred with the Board's orders in the remand, and that the Board may now proceed with adjudication of the claim. In June 2012, the Veteran testified at a video conference hearing with the Veteran sitting at the RO and the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of this hearing is associated with the claims folder. FINDINGS OF FACT 1. The Veteran's claimed stressor - specifically, witnessing in October 1969 the aftermath of a firefight ambush inside the American sector of the Korean demilitarized zone (DMZ) where he counted four dead -- indicates fear of hostile or terrorist activity and they are shown to support a diagnosis of PTSD provided by a VA psychologist. 2. The Veteran's lay statements are sufficient to establish the occurrence of his claimed stressor. 3. The Veteran has a current diagnosis of PTSD as a result of a claimed stressor. CONCLUSION OF LAW PTSD was incurred during the Veteran's active duty service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f)(3) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim 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 and 3.326(a) (2012). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Service Connection 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, 581 F.3d 1313, 1316; 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 v. Nicholson, 492 F.3d 1372, 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) (West 2002). Moreover, the 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 traumatic experiences in service, including witnessing the aftermath of a fire fight ambush inside the American sector of the Korean DMZ where he counted four dead bodies. He informed a VA examiner in March 2013 that he had never seen such a "horrifying site." See March 2013 VA examination report. As part of a VA Form 21-0781, dated in November 2012, shows that the Veteran claimed that this ambush incident occurred on October 18, 1969, while he was assigned as a surveillance officer in the air branch to I Corps G-2 Intelligence for "[o]peration Focus Lens." He added he was only armed with a 45 caliber side arm weapon and was very nervous fearing he might be shot and killed. One of the dead North Korean infiltrators he claimed to have seen was "bloated and had been dead for several days. Flies and maggots were on his body. The odor was overwhelming and sickening to smell." Id. The Veteran has also in the course of his appeal claimed to have sustained enemy fire while flying helicopters. See October 2010 letter from Veteran. As the Board found in September 2012, resolving all reasonable doubt in favor of the Veteran, he was assigned to a unit serving near the Korean DMZ between April 1, 1968, to August 31, 1971. The Veteran testified at a June 2012 hearing before the undersigned that he was stationed at Camp Casey, Korea in 1969 to 1970. See page three of transcript. Service personnel records confirm that this service was from May 1969 to August 1970. He testified that he provided flight records which showed he flew helicopters which picked up staff officers along the DMZ. Id. One such flight record shows that he served from July 1969 to June 1970. The record also showed that the Veteran had 274 hours of total pilot time in a single rotor rotary wing helicopter. In support of his contention that he was on or near the DMZ during his military service in Korea, the Veteran submitted a map entitled "SANG-PONGAM-IL-LI" which shows that Camp Casey was near a DMZ area. A VA treatment record, dated in July 2012, shows that PTSD was diagnosed by a psychiatrist. The Veteran reported having flashbacks and nightmares about his service in Korea. He informed the examiner that he saw four soldiers who were killed by the North Koreans. He added he saw "intestines" and "blood." In March 2013 the Veteran was afforded a VA initial PTSD examination. As above noted, the Veteran informed the examining psychologist ("PhD") that he witnessed the aftermath of a fire fight ambush inside the American sector of the Korean DMZ where he counted four dead bodies. He added that he had never seen such a "horrifying site." After a thorough review of the Veteran's history, and following his examination, the examiner found that the had a diagnosis of PTSD, which conformed to the criteria in the DSM-IV. The examiner indicated that the Veteran's reported stressor was related to the Veteran's "fear of hostile military or terrorist activity." He added that the Veteran had been exposed to a traumatic event in which he "experienced, witnessed or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others." Of significant note, the examiner checked the box on the examination report which reads: "The claimed condition was at least as likely as not (50 percent or greater probability) incurred or caused by the claimed in-service injury, event, or illness." As rationale for this finding, the examiner opined that the Veteran's "stressor was severe enough to cause PTSD, and was related to the Veteran's fear of hostile military/terrorist activity. Veteran endorsed having feared for his life when exposed to stressor." The Board finds that entitlement to service connection for PTSD is warranted. The Veteran has reported that while in service, in pertinent part, he witnessed the aftermath of an ambush in which four were killed by the North Koreans in the American sector of the Korean DMZ zone. The Veteran has reported that he was frightened by this event. Service personnel records reveal that the Veteran served in the Republic of Korea at the time of this alleged event. The Veteran's post service treatment records reveal that the Veteran has been diagnosed with PTSD. After examination in March 2013 it was noted that it was at least as likely as not that the Veteran's diagnosed PTSD was related to his claimed stressor. Also, of significant note, the examining VA psychologist has confirmed that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's PTSD is related to his claimed stressor which is consistent with the Veteran's fear of "hostile military or terrorist activity." See 38 C.F.R. § 3.304(f)(3) (2012). Therefore, giving the Veteran the benefit of the doubt, as the Veteran's claimed stressor has been associated with his current PTSD, entitlement to service connection for PTSD is granted. ORDER Service connection for posttraumatic stress disorder (PTSD) is granted. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs