Citation Nr: 1327397	
Decision Date: 08/27/13    Archive Date: 09/05/13

DOCKET NO.  11-15 801	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Entitlement to service connection for hepatitis C.

2.  Entitlement to service connection for posttraumatic stress disorder (PTSD).


REPRESENTATION

Veteran represented by:	Paralyzed Veterans of America, Inc.


ATTORNEY FOR THE BOARD

Patricia Kingery, Associate Counsel





INTRODUCTION

The Veteran had active military service from January 1971 to November 1972.

This appeal comes to the Board of Veterans' Appeals (Board) from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.

The Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. 
 

FINDINGS OF FACT

1.  The Veteran expressed his desire to withdraw his appeal for service connection for hepatitis C in January 2013 before a decision by the Board was issued on the claim.

2.  The Veteran has been diagnosed by a VA psychologist as having PTSD due to his fear of hostile military or terrorist activity arising from his active service in the Republic of Vietnam.


CONCLUSIONS OF LAW

1.  The appeal with regard to service connection for hepatitis C has been withdrawn.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.204 (2012).   

2.  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 FINDINGS AND CONCLUSIONS

I.  Procedural Duties

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159 (2012).  As the withdrawn claim for hepatitis C in this case is decided as a matter of law, no discussion of the duties to notify and assist with respect to this issue is necessary.  As to the sole remaining claim, service connection for PTSD, 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.  

II.  Law and Analysis

A.  Hepatitis C

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C.A. § 7105 (West 2002).  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204 (2012).  Withdrawal may be made by the appellant or by his or her authorized representative.  Id.

In a January 2013 statement, the Veteran made clear in writing that he intended to withdraw the claim of service connection for hepatitis C.  The withdrawal of this issue is valid.  Once the Veteran withdrew this issue, there remained no allegations of error of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review this issue.  38 U.S.C.A. § 7105(d)(5).  As such, the claim for hepatitis C is dismissed.



B.  PTSD

Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012).  

In this case, the disorder at issue, PTSD, is not a "chronic disease" listed under 38 C.F.R. § 3.309(a).  Therefore, 38 C.F.R. § 3.303(b) does not apply.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Service connection may be established for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  This has been interpreted as a three-element test based on nexus: (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 in or aggravated by service.  See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009).

Service connection for PTSD requires the following three elements: (1) a current medical diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor(s) actually occurred; and, (3) medical evidence of a causal relationship between current symptomatology and the specific claimed in-service stressor(s).  38 C.F.R. § 3.304(f).

Effective July 13, 2010, VA amended the regulations for adjudicating disability compensation claims for PTSD in 38 C.F.R. § 3.304(f)(3) to liberalize the evidentiary standard for establishing the required in-service stressor in certain cases.  See 75 Fed. Reg. 39,843 (July 13, 2010) (announcing final rule, incorrectly listing effective date as July 12, 2010) and 75 Fed. Reg. 41092 (July 15, 2010) (correcting effective date to July 13, 2010) (codified in 38 C.F.R. § 3.304(f)(3)).  The current, liberalized version of § 3.304(f)(3) states that when the claimed in-service stressor is related to a veteran's "fear of hostile military or terrorist activity," the following shall be demonstrated to establish service connection for PTSD: (1) the claimed stressor is consistent with the places, types and circumstances of the veteran's service; (2) a VA psychiatrist or psychologist, or contract equivalent, confirms the claimed stressor is adequate to support a diagnosis of PTSD; and (3) the veteran's symptoms are related to the claimed stressor.

This recent regulatory change has eliminated the requirement for corroborating evidence of the claimed in-service stressor if it is related to the veteran's "fear of hostile military or terrorist activity."  For purposes of 38 C.F.R. § 3.304(f)(3), "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.

First, the Veteran has a current medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a).  VA treatment records dated from 2008 to 2010 show that the Veteran receives current treatment for PTSD.  Additionally, an April 2011 VA PTSD examination by a VA psychologist confirmed a current diagnosis of PTSD. 

Next, there is credible supporting evidence of a stressor stemming from fear of hostile military or terrorist activity.  In this case, although the Veteran has reported several in-service stressors, none has been specifically corroborated.  The Veteran claims that, during his service in the Republic of Vietnam, even though his military occupational specialty (MOS) was a plumber, he actually served as a security police officer on a military base.  The Veteran has submitted photographic evidence of himself as a security police officer and the Board accepts this contention as true.  In August 2008 and December 2008 written statements, the Veteran detailed his responsibilities as a security police officer to include guarding and securing the main gate of the installation and policing the compound.  The Board finds his contention that he served as a security police office during service in Vietnam to be credible.

Additionally, the Veteran claimed the Viet Cong were trying to kill them outside of the fence of the base and that he was worried about the Viet Cong attacking.  In his January 2010 Notice of Disagreement, he again detailed his fear of the Viet Cong attacking and "trying not to get killed by . . . the [Viet Cong]."  A March 2010 VA treatment record notes that he felt paranoia from dealing with the "enemy" while at the military base in Vietnam.  The Veteran's experiences in guarding the main gate and patrolling a military compound in close proximity to hostile military forces involved a threat of death or serious injury from small arms fire and his response to these circumstances involved a state of fear.  Thus, the Board finds his claimed stressors comport with the definition of "fear of hostile military or terrorist activity" of 38 C.F.R. § 3.304(f)(3) and are consistent with the places, types and circumstances of his service. 

Given the above, the remaining question is whether there is medical evidence of a link between current symptoms and the claimed in-service stressors of the fear of hostile military or terrorist activity.

During the April 2011 VA examination, the VA psychologist indicated that the Veteran's stressors of his combat experience from his time in Vietnam are adequate to support the diagnosis of PTSD and are related to his fear of hostile military or terrorist activity.  The examination report noted the Veteran's trauma occurred during military service, and that he experienced fear and hopelessness.  Although his stressors have not been corroborated, the VA psychologist's opinion nevertheless provides a link between the Veteran's PTSD and his fear of hostile military activity during service.  

As discussed above, the Veteran's claimed stressors in this case are related to his fear of hostile military or terrorist activity.  Here, the Veteran is competent to describe his in-service stressors, and his claimed stressors are consistent with the places, types, and circumstances of the Veteran's service as a security police officer serving at a base in Vietnam.  There is no clear and convincing evidence to the contrary; therefore, the Board finds that the Veteran's lay testimony alone is sufficient to establish the occurrence of his claimed in-service stressors.  See 38 C.F.R. § 3.304(f)(3).  In an April 2011 VA examination, a VA psychologist found that the Veteran's claimed stressors are adequate to support a diagnosis of PTSD and that his PTSD symptoms are related to his claimed stressors.  The Board finds the April 2011 VA examination report to be competent and credible medical evidence.  Therefore, resolving any reasonable doubt in the Veteran's favor, the Board finds that the Veteran has PTSD that is causally related to his fear of hostile military or terrorist activity during service.  Thus, service connection for PTSD is warranted.


ORDER

Service connection for hepatitis C. is dismissed.

Service entitlement to service connection for PTSD is granted.



____________________________________________
K. J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs