Citation Nr: 1335754 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 10-31 411 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD A. Larson, Associate Counsel INTRODUCTION The Veteran had active service from June 1964 to September 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland Oregon, which denied service connection for PTSD. In June 2013, the Veteran, along with his wife, testified in support of his claim before the undersigned Veterans Law Judge at the RO (Travel Board hearing). The Board has characterized the issue on appeal in order to comport with Clemons v. Shinseki, 23 Vet. App. 1 (2009), which held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. The Board has reviewed the Veteran's electronic record (Virtual VA) prior to rendering a decision in this case. It does not contain any evidence not already in the claims folder or considered by the RO. FINDINGS OF FACT 1. The Veteran has a current diagnosis of PTSD. 2. The Veteran experienced several in-service stressors while on board the USS Yorktown. 3. The Veteran's PTSD relates back to his period of active service aboard the Yorktown. CONCLUSION OF LAW The criteria for service connection for PTSD have been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). In this decision, the Board is granting service connection for PTSD, and this represents a complete grant of the benefit sought on appeal. Thus, any deficiency in VA's compliance is deemed to be harmless error, and any further discussion of VA's responsibilities is not necessary. Merits of the Claim The Veteran asserts that he has PTSD that is the result of stressful experiences that he was subjected to during his military onboard the USS Yorktown. Service connection is established where a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection requires 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). A veteran may be granted service connection for any disease initially diagnosed after discharge, but only if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994)), (2) credible supporting evidence that the claimed in-service stressors actually occurred, and (3) a link, established by medical evidence, between the current symptomatology and the claimed in-service stressors. See 38 C.F.R. §3.304(f). A Veteran may succeed in establishing service connection for PTSD when the stressor related to a non-combat traumatic event. These include witnessing plane crashes or other vessel accidents or participating in body recovery. In this situation, a noncombat veteran's testimony alone is insufficient proof of a stressor. Moreau v. Brown, 9 Vet. App. 389 (1996). Also, credible supporting evidence of the actual stressor cannot consist solely of after-the-fact medical nexus evidence. Id. Thus, there must be further corroboration of the stressor. Additionally, the Board notes that, effective July 13, 2010, the regulations governing service connection for PTSD were amended to relax the adjudicative evidentiary requirements for determining what happened in service, specifically for establishing the occurrence of an in-service stressor for non-combat Veterans. The revised regulations pertaining to PTSD no longer require the verification of an in-service stressor if the Veteran was in a situation involving "fear of hostile military or terrorist activity." Lay testimony alone can be used to establish the occurrence of an in-service stressor in these situations. The new regulatory provision requires that: (1) A VA psychiatrist or psychologist, or contract equivalent, confirm that the claimed stressor is adequate to support a diagnosis of PTSD; (2) the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service; and (3) the Veteran's symptoms are related to the claimed stressor. 38 C.F.R. § 3.304(f). 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). Here, the Veteran has a current diagnosis of PTSD. He was first diagnosed by a VA physician in February 2008 and his record indicates continued treatment for the condition until at least December 2012. He competently and credibly reported several in-service stressors since first filing his claim in May 2008. These stressors include: 1) witnessing a missile tech get severely burned on deck from an inadvertent missile explosion, 2) witnessing the crash of a "Sea King helicopter," which resulted in the loss of its three member crew, 3) being directed to "general quarters," similar to "battle stations, when under the threat of attack from Soviet submarines in the Gulf of Tonkin, 4) experiencing the loss of a shipmate after he went overboard and could not be found, 5) witnessing the death of two crewmen after an arresting cable broke while a jet was landing on the flight deck, and 6) observing the bodies of two men on the ship who were "overcome with poisonous gas." None of the listed stressors have been completely corroborated outside of the Veteran's own lay testimony. However, the three men the Veteran reported as deceased as a result of the helicopter crash were confirmed as ship casualties in February 1965. The Veteran stated that his mental symptoms began while in-service following his experienced stressors. He testified that he went AWOL due to his worsened psychiatric symptoms and to be with his wife (then his girlfriend). His wife supported his version of events at his Travel Board hearing. There is also documentation in his personnel file that indicates a several periods of AWOL, but specifically one from April to July 1968-this period supports his and his wife's contentions. The Veteran received medical treatment for psychiatric treatment while in service. A notation from May 1965 in the Veteran's STRs state the Veteran has trouble sleeping and the physician assessed "anxiety, fatigue." In September 1968, while receiving treatment for a hemorrhoid condition, the physician noted, "[p]atient is presently being considered for administrative discharge for psychiatric reasons (schizoid personality and paranoid ideas)." Furthermore, the Veteran has submitted VA treatment records from May 1979 in support of his claim. Those records indicate the Veteran suffered from the depression at that time, which the examiner stated was an "intermittent problem for many [years]." The Veteran also stated at the examination that he felt suicidal and had become physically abuse towards his wife. While the Veteran has never received a VA Compensation and Pension examination regarding his PTSD, he has submitted an April 2008 letter from his VA psychiatrist in support of his claim. That letter states the Veteran has been diagnosed with Post-Traumatic Stress Disorder as a result of witnessing horrific events while he served on the USS Yorktown during the Vietnam War. After exposure to these incidents, he developed nightmares, increased startle response, anger, depression, irritability, difficulty being around others, hopelessness, and social isolation. These symptoms have persisted for many years and have directly impacted his ability to hold down a job and support his family. Two of the Veteran's claimed stressors are sufficient to establish service connection for PTSD under the regulations. Liberally construed, the Veteran's experience of moving to "general quarters" status under the possible threat of Soviet ships in the Gulf of Tonkin is an example of "fear of hostile military or terrorist activity" of § 3.304(f). The Veteran expressed fear that he was in danger in this situation and competently reported that the ship's superiors indicated an attack could be imminent. This type of situation is undoubtedly consistent with the experiences of those serving on Navy ships in the Vietnam War. Additionally, the Veteran's experience involving the downed helicopter and the loss of its three crew members is a general "traumatic event" that can be used to establish direct service connection. The deaths of those three men were independently confirmed by VA in a notation contained in the Veteran's claims file. The Board has weighed the evidence of record and finds that, at the very least, there exists an approximate balance of evidence for and against the claim. The Veteran has a current diagnosis and a credible medical opinion linking said diagnosis with the stressful events he experienced in service. He has also competently and credibly reported several in-service stressors, two of which can be used to establish service connection. He has received treatment for PTSD since 2008, but there is evidence of similar post-service symptoms in 1979. He was also treated for psychiatric conditions in service. When the evidence for and against the claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Therefore, the criteria for service connection for PTSD are met. ORDER Entitlement for an acquired psychiatric disorder, including PTSD, is granted. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs