Citation Nr: 1330922	
Decision Date: 09/26/13    Archive Date: 09/30/13

DOCKET NO.  06-16 398	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

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


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Michael Wilson, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1966 to July 1968.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which declined to reopen the Veteran's claim of entitlement to service connection for PTSD.  The claim had been denied in a March 1986 rating decision.

Generally, in order to adjudicate a previously denied and final claim on the merits, the Board must first determine whether new and material evidence has been received.  See 38 U.S.C.A. § 5108 (2013).  Since the time of the March 1986 rating decision, VA has amended 38 C.F.R. § 3.304 by adding subsection (f), to establish the extent of evidence required to establish service connection for PTSD.  

The regulatory change created a new factual basis for the Veteran's claim, and thus, requires that this claim be adjudicated on a de novo basis without the need for reopening based on the receipt of new and material evidence.  See Pelegrini v. Nicholson, 18 Vet. App. 112, 125-26 (2004).

A January 2005 response for a request of records from the National Personnel Records Center (NPRC) indicated that additional service personnel records had been mailed to the RO.  While the June 2005 rating decision acknowledged that service personnel records, to include the Veteran's DD Form 214 had been reviewed, it remains unclear whether additional personnel records were received.  Had additional relevant service department records been provided, the claim would have been considered without regard to the prior denial.  See 38 C.F.R. § 3.156(c) (2013).  This matter is referred to the RO for consideration in conjunction with the assignment of an effective date for PTSD when it implements the Board's decision.

In his May 2006 VA Form 9, the Veteran requested to appear for hearing before a Veteran's Law Judge of the Board at his local VA office.  The record reflects, however, that he failed to appear for his scheduled hearing in July 2013, and that he has not provided good cause for his absence.  His request for a Board hearing, therefore, is deemed to be withdrawn.  See 38 C.F.R. § 20.704(e) (2013).

The claims file contains additional relevant evidence, including medical evidence, which has not yet been considered by the RO.  Notably, this evidence includes a December 2010 VA contract psychological examination report.  The Veteran has not waived initial RO review of this evidence.  See 38 C.F.R. § 20.1304 (2013).  However, in light of the Board's favorable disposition of his claim, set forth herein, the Veteran is not prejudiced by the Board's review of this new evidence.


FINDING OF FACT

The Veteran has currently diagnosed PTSD linked by a VA contracted psychologist to reported in-service stressors related to his fear of hostile military action during his service in Vietnam.


CONCLUSION OF LAW

The criteria for entitlement to service connection for PTSD have been met.  38 U.S.C.A.  § 1110 (West 2002); 38 C.F.R. § 3.303, 3.304(f) (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

In this decision, the Board grants entitlement to service connection for PTSD.  As this represents a complete grant of the benefits sought on appeal with respect to his service connection claim, no further notice or assistance is required under the Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  

I.  Governing Law and Regulations

Service connection will 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 (2013).  

To establish entitlement to service connection for PTSD the evidence must show: (1) medical evidence diagnosing PTSD; (2) a link, established by medical evidence, between current symptoms of PTSD and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred.  See 38 C.F.R. § 3.304(f) (2013).  

The amendment to 38 C.F.R. § 3.304(f)(3) eliminates the requirement for supporting evidence of the claimed in-service stressor if it is related to "fear of hostile military or terrorist activity."  The new regulatory provision requires that: (1) A VA psychiatrist or psychologist, or contract equivalent, must confirm that the claimed stressor is adequate to support a diagnosis of PTSD and (2) that the Veteran's symptoms are related to the claimed stressor; and (3) the claimed stressor must be consistent with the places, types, and circumstances of the Veteran's service.

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.  See 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

II.  Analysis

The Veteran clearly has a current PTSD diagnosis.  A January 2005 VA psychiatric assessment diagnosed PTSD, provided that the Veteran's reported in-service stressors could be verified.  A PTSD diagnosis was subsequently confirmed multiple times, including during the Veteran's December 2010 VA contracted psychological examination.  Thus, the first requirement element is satisfied.  See 38 C.F.R. § 3.304(f) (2013). 

During his January 2005 VA psychiatric assessment the VA psychiatrist noted the Veteran's military history of serving in a Special Forces unit, and his contentions of seeing a man pushed out of a helicopter, seeing body parts, being involved in a fire fight, and undergoing mortar attacks on his base at night.  The psychiatrist diagnosed PTSD, provided that his stressors could be verified.  

As noted, the PTSD diagnosis was confirmed during the December 2010 VA contracted psychological examination.  The psychologist conducting the examination cited the Veteran's multiple in-service stressors and his report of feeling intense fear, helplessness, and horror during these traumatic events.  The examiner concluded that the Veteran had been exposed to a traumatic event which involved actual death, threatened death, threat to the physical integrity of self and/or others, and he responded with intense fear, helplessness and horror.  The diagnosis of PTSD was based on the in-service stressors, inasmuch as no other stressors were reported.  The examiner essentially confirmed that the Veteran's claimed in-service stressors were adequate to support a diagnosis of PTSD.  See 38 C.F.R. § 3.304(f)(3) (2013).  

The remaining question is whether the Veteran's claimed stressor are consistent with the places, types, and circumstances of his service.  The Veteran had confirmed service in Vietnam, with the 5th Special Forces Group.  He has credibly reported undergoing enemy fire, and enemy mortar attacks on his base, and he has reported seeing multiple dead or mangled bodies.  His reported stressors are consistent with the places, types, and circumstances of his service.  

Thus, all required elements for service connection for PTSD have been met.  38 C.F.R. § 3.304(f).  Accordingly, resolving reasonable doubt in the Veteran's favor, service connection for PTSD is granted.  38 U.S.C.A. § 5107(b) (West 2002).


ORDER

Entitlement to service connection for PTSD is granted.

____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs