Citation Nr: 1337453 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 09-28 501 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from June 1965 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in St. Petersburg, Florida. FINDINGS OF FACT 1. The Veteran has a current diagnosis of PTSD rendered by a VA psychologist. 2. The Veteran's claimed in-service stressor is related to the threatened death or injury of himself and others from hostile military activity and his response to that event involved a psychological state of fear and helplessness. 3. A VA psychologist has confirmed that the claimed in-service stressor is adequate to support a diagnosis of PTSD, and that the PTSD symptoms are related to the claimed stressor. 4. The claimed in-service stressor is consistent with the places, types, and circumstances of service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for PTSD have been met. 38 U.S.C.A. §§ 1110, 1154(b), 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). Given the favorable decision by the Board (grant of service connection for PTSD), there is no further duty to notify or assist the Veteran or to explain how VA complied with the duties to notify and assist. Service Connection for PTSD Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); 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. See 38 C.F.R. § 3.304(f) (2013). If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of a veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f). As with any claim, when there is an approximate balance of positive and negative evidence regarding any matter material to the claim, the claimant shall be given the benefit of the doubt. 38 U.S.C.A. § 5107. Participation in combat, a determination that is to be made on a case-by-case basis, requires that a veteran personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. See VAOPGCPREC 12-99; Moran v. Principi, 17 Vet. App. 149 (2003); see also Sizemore v. Principi, 18 Vet. App. 264, 273-74 (2004). If a stressor claimed by a veteran is related to a 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 a veteran's symptoms are related to the claimed stressor, provided that the claimed stressor is consistent with the places, types, and circumstances of a veteran's service, then the requirement for corroborating the stressor is eliminated. "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) (as amended by 75 Fed. Reg. 39843 (effective July 12, 2010)). Pursuant to 38 U.S.C.A. § 1154(b), with respect to combat veterans, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions and hardships of such service. Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. See also 38 C.F.R. § 3.304(d). 38 U.S.C.A. § 1154(b), however, can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to the current disorder. See Libertine v. Brown, 9 Vet. App. 521, 522- 23 (1996). 38 U.S.C.A. § 1154(b) does not establish service connection for a combat veteran; it aids him or her by relaxing the adjudicative evidentiary requirements for determining what happened in service. See Wade v. West, 11 Vet. App. 302, 305 (1998) (holding that "a combat veteran who has successfully established the in-service occurrence or aggravation of an injury pursuant to § 1154(b), must still submit sufficient evidence of a causal nexus between that in-service event and his or her current disability"). A veteran (or in this case, the appellant) must still generally establish the claim by competent medical evidence tending to show a current disability and a nexus between that disability and those service events. See Gregory v. Brown, 8 Vet. App. 563, 567 (1996). The Veteran asserts he has PTSD as a result of his combat exposure during service, to include a tour of duty in Vietnam, during which, by his account, he was exposed to enemy fire on a frequent basis. The Veteran has claimed that he came under enemy fire on several occasions while serving in Vietnam. After a review of all the evidence, the Board finds that the Veteran's accounts of coming under enemy fire during such service to be credible and consistent with the circumstances of his service. The service personnel records have been obtained and reviewed. These records confirm the Veteran had several months service in Vietnam in 1967 as an aircraft electrician. As such, his assertions of combat exposure are accepted by the Board. The claimed in-service stressor is consistent with the places, types, and circumstances of service. The Veteran's claimed in-service stressor is related to the threatened death or injury of himself and others from hostile military activity and his response to that event involved a psychological state of fear and helplessness. The evidence is at least in equipoise on the questions of whether the Veteran has PTSD that is related to an in-service stressful event. The evidence shows a current diagnosis of PTSD rendered by a VA psychologist. In January 2007, the Veteran sought VA psychiatric treatment at an outpatient facility and was examined by a VA psychologist, and was diagnosed with PTSD. A combat veterans PTSD support group was also recommended. Subsequent VA treatment records also confirm a current diagnosis of PTSD, and the record does not contain competent evidence against a diagnosis of PTSD. The VA psychologist in January 2007 confirmed that the claimed in-service stressor is adequate to support a diagnosis of PTSD, and the PTSD symptoms are related to the claimed stressor. The psychologist noted the Veteran's exposure to combat during his service in Vietnam, and diagnosed PTSD. No other pre- or post-service stressors were noted by the examiner, or by subsequent examiners; thus, the Board concludes the diagnosis of PTSD rendered by the VA psychologist was based exclusively upon the Veteran's in-service stressors. Resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for PTSD are met. 38 U.S.C.A. §§ 1154(b), 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for PTSD is granted. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs