Citation Nr: 1328891	
Decision Date: 09/10/13    Archive Date: 09/17/13

DOCKET NO.  04-04 518	)	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


ATTORNEY FOR THE BOARD

A. Haddock, Associate Counsel



INTRODUCTION

The Veteran served on active duty from February 1966 to October 1968, with service in the Republic of Vietnam.  He died in April 2011.  The appellant is his surviving spouse.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2002 rating decision by the Oakland, California, Department of Veterans Affairs (VA) Regional Office (RO).  In June 2011, while the Veteran's claim was still pending before the Board, the Board received notice that he died in April 2011.  In accordance with established appellate practices, by a June 2011 decision, the Board dismissed the Veteran's pending appeal without prejudice.  

As a procedural matter, in a May 2011 statement submitted in conjunction with an application for accrued benefits pertaining to a then-pending claim for entitlement to service connection for ischemic heart disease, the appellant indicated her desire to continue the Veteran's pending appeal for entitlement to service connection for PTSD, as well as his claim for ischemic heart disease.  

The RO adjudicated the issue of entitlement to service connection for ischemic heart disease, implicitly substituting the Veteran's surviving spouse as the claimant/appellant in that matter.  See 38 U.S.C.A. § 5121A.  As such, the Board finds that she has been properly substituted and the Board can continue with appellate review on the matter of entitlement to service connection for PTSD without prejudice to the appellant.  

In his February 2004 substantive appeal, the Veteran requested a hearing before a member of the Board at a local RO.  Such a hearing was scheduled for April 2011; however, he requested that his hearing be rescheduled due to health reasons.  Before his hearing could be rescheduled, he died.  As the appellant has been substituted in his claim, she would be entitled to have the hearing requested by the Veteran.  However, as the full benefit sought on appeal has been granted herein, the Board finds that a remand for such a hearing is not necessary.  

The Board notes that it has not only reviewed the Veteran's physical claims file but also the file on the "Virtual VA" system to insure a complete review of the evidence.  A review of the documents in Virtual VA found that they are either duplicates of evidence in the claims file or are not relevant to the issue on appeal.


FINDING OF FACT

The Veteran had PTSD that was etiologically related to his active service.  


CONCLUSION OF LAW

PTSD was incurred during the Veteran's active duty service.  38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

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, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012).  

Service connection may be established under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes.  For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.

Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned.  The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013).

Finally, service connection may also 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).  

It is the Board's responsibility to evaluate the entire record on appeal.  See 38 U.S.C.A. § 7104(a).  In this case, the Board has thoroughly reviewed all the evidence in the record, to include records found in the electronic file through Virtual VA.  It is noted; however, that although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). 

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims (Court) held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail.  The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim."  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert.

In this case, the Veteran filed his claim for entitlement to service connection for PTSD in October 2001.  During the course of this appeal, an amendment was made to the regulation governing service connection for PTSD, 38 C.F.R. § 3.304(f).  Prior to the amendment, in order for service connection to be awarded for PTSD, the record had to show: (1) a current medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a); (2) combat status or credible supporting evidence that the claimed in- service stressor actually occurred; and (3) medical evidence of a causal nexus between diagnosed PTSD and the claimed in- service stressor.  38 C.F.R. § 3.304(f). 

However, effective July 13, 2010, VA amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor.  The amendment to 38 C.F.R. § 3.304(f) specifically adds the following: 

If a stressor claimed by a veteran is related to his or her 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 posttraumatic stress disorder 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 service, his or her lay testimony alone may establish the occurrence of the claimed in-service stressor.  38 C.F.R. § 3.304(f)(3).  

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.  Id.

The amendment to the regulation was made effective, in pertinent part, for all claims appealed to the Board before July 13, 2010, which had not been decided by the Board as of July 13, 2010.

In this case, the appellant contends that the Veteran suffered from PTSD as a result of in-service related stressors that occurred while he was serving in the Republic of Vietnam.  A review of the Veteran's DD Form 214 shows that his military occupational specialty (MOS) was a cook.  A July 2011 verification from the National Personnel Records Center (NPRC) shows that he served in the Republic of Vietnam from August 1967 to October 1968.  

A review of the Veteran's service treatment records are silent for any complaints or diagnoses related to PTSD.  On October 1968 separation examination, the Veteran's psychiatric evaluation was noted to be normal.  

In a November 2003 statement, the Veteran reported that in February 1968, while in the Republic of Vietnam, the base on which he was stationed was attacked and approximately 6 to 8 rockets exploded roughly 200 feet from the bunker he was in.  He reported he remained in the bunker with fellow soldiers through the remainder of the attack.  Following the attack, he reported that he saw 30 to 40 dead and dismembered enemy solders.  He further reported that since his time in the Republic of Vietnam he had experienced symptoms of alcohol abuse, distrust of authority, trouble sleeping, nightmares, feelings of guilt, trouble with his relationships, episodes of violence, and anger issues.  

In April 2004, the Veteran was afforded a psychiatric consultation.  At that time he reported that while serving in the Army, he was stationed in the Republic of Vietnam at a major rear base that received many rocket attacks.  He reported that he particularly recalled an attack from February 1968 and that he was afraid of where the rockets were landing.  He reported that he had some nightmares of that event.  No diagnosis was made at the time of the April 2004 psychiatric consultation.  

A January 2011 VA treatment record notes that the Veteran had a diagnosis of status post PTSD, suggesting to the Board that following the April 2004 psychiatric consultation, he was diagnosed with PTSD and began receiving treatment.  The Board notes that there are no records associated with the claims files indicating when he was initially diagnosed with PTSD or reflecting what type of treatment he may have received prior to his death.

The Board finds that the record, as it currently stands, contains both evidence for and against the appellant's claim.  Notably, the Veteran's own statements regarding his in-service stressor events and the January 2011 VA treatment record showing a diagnosis of status post PTSD tend to support the appellant's claim.  

The evidence against the claim consists of the lack of a PTSD diagnosis made at the time of the April 2004 psychiatric consultation and the lack of any medical records showing a PTSD diagnosis made by a mental health professional since that time.  However, the Board finds that the January 2011 VA treatment record noting a diagnosis of status post PTSD weighs strongly in the appellant's favor that prior to the Veteran's death, he had a current diagnosis of PTSD.  

Further, the Board notes that although the record contains only the Veteran's lay testimony that the reported in-service stressor events occurred, the revised PTSD regulations indicated that lay testimony alone may establish a 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.  

The Board finds that given the Veteran's confirmed presence in the Republic of Vietnam for approximately 14 months, his reported stressors are consistent with the circumstances, conditions, and hardships, of service.  The record contains no clear and convincing evidence to the contrary.  Therefore, based on his statements, his stressor event was related to his "fear of hostile military or terrorist activity"  and the Board concludes that no further evidentiary development is required to corroborate the occurrence of the alleged stressors.  38 C.F.R. § 3.304(f)(3)

As such, resolving reasonable doubt in favor of the Veteran, the Board finds that there is evidence sufficient to establish the in-service stressors, namely being stationed on a major rear base in the Republic of Vietnam that was subject to rocket and mortar attacks and witnessing death and injury as a result, occurred and that, at the time of his death, he was diagnosed with PTSD.  

Therefore, the Board finds that the evidence is at least in equipoise i.e., about evenly balanced for and against the claim.  In these situations, the Veteran is given the benefit of the doubt.  Consequently, resolving all reasonable doubt in the appellant's favor, the Board finds that the Veteran had PTSD that was etiologically related to his active service prior to his death.  As such, the Board the appeal is granted.  

Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the 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); 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 benefits 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.


ORDER

Service connection for PTSD is granted. 



____________________________________________
L. HOWELL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs