Citation Nr: 1341289	
Decision Date: 12/16/13    Archive Date: 12/31/13

DOCKET NO.  10-27 571	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon


THE ISSUES

1.  Entitlement to service connection for residuals of hepatitis.

2.  Entitlement to service connection for post-traumatic stress disorder (PTSD).


REPRESENTATION

Veteran represented by:	Oregon Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

Veteran



ATTORNEY FOR THE BOARD

L. J. N. Driever


INTRODUCTION

The Veteran served on active duty from June 1969 to January 1972.

These claims come before the Board of Veterans Appeals (Board) on appeal of November 2009 and January 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon.  

The Veteran testified in support of his claim for service connection for PTSD during a hearing held at the RO before the undersigned Veterans Law Judge (VLJ) in June 2013.  


FINDINGS OF FACT

1.  On June 17, 2013, prior to the promulgation of a decision in this case, the Board received a request from the Veteran to withdraw the claim of entitlement to service connection for residuals of hepatitis.  

2.  The evidence is in relative equipoise regarding whether the Veteran has PTSD as a result of verified in-service stressors.  


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of a substantive appeal on the claim of entitlement to service connection for residuals of hepatitis are met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2013). 

2.  Resolving reasonable doubt in the Veteran's favor, PTSD was incurred in service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. 
§§ 3.303, 3.304 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Residuals of Hepatitis 

Under 38 U.S.C.A. § 7105 (West 2012), the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed.  A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision.  38 C.F.R. § 20.202 (2013).  Either an appellant or his or her authorized representative may request withdrawal.  38 C.F.R. § 20.204 (2013). 

On June 17, 2013, prior to the promulgation of a decision in this case, the Board received a request from the Veteran to withdraw from appeal the claim of entitlement to service connection for residuals of hepatitis.  With regard to that claim, there thus remain no allegations of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review this claim and it must be dismissed.

II.  PTSD

The Veteran seeks service connection for PTSD, a condition that allegedly developed secondary to in-service stressors that occurred while he was serving in Vietnam.  According to statements received in September 2009 and October 2010, such stressors include: (1) from April 1970 to November 1970 as part of the 124th Signal Battalion Headquarters, beginning days after arriving in North Vietnam and flying to Ankhe, experiencing mortar attacks and 120 mm rocket attacks nightly; 
(2) during the same time period and with the same battalion, pulling guard duty at night on Hon Cong Mountain, when the North Vietcong came through the wire and blew up barracks in the fog; (3) from December 1970 to March 1971, volunteering for Operation Lam Son 719, Dewey Canyon II, in Khe Son, around the perimeter of which air strikes were occurring; and (4) from January to March 1971, experiencing nightly rocket and mortar attacks hitting inside the compound at Khe Son, attacks that caused him to fear for his life.   

According to his June 2013 hearing testimony, while part of the 124th Signal Battalion, Headquarters Company, he was with 4th Infantry.  When he volunteered to participate in Operation Lam Son, however, he was not with 4th Infantry.  He further testified contrary to his September 2009 statement that, during the three weeks in Khe Son, he experienced no confrontations.  Allegedly, he nonetheless felt on edge there as they were located on the perimeter and were pulling shifts of 6 hours on and 6 hours off and witnessing constant air strikes in the distance.  He indicated that the mortar and rocket attacks and satchel charges occurred in 1970 at Camp Radcliffe, the headquarters of the 124th Signal Battalion. 

During his hearing, he identified another stressor he experienced in Vietnam, while serving in An Khe.  This stressor allegedly involved witnessing soldiers carrying another dead soldier out of the barracks after he overdosed on heroin.  

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service.  38 U.S.C.A. 
§ 1110 (West 2002); 38 C.F.R. § 3.303(a) (2013). 

To establish entitlement to service connection for PTSD, a claimant must submit medical evidence diagnosing PTSD in accordance with Sec. 4.125(a) of this chapter; 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. 38 C.F.R. § 3.304(f) (2012). 

On July 13, 2010, VA published a final rule that amended its adjudication regulations governing service connection for PTSD by relaxing, in certain circumstances, the evidentiary standard for establishing the occurrence of the required in-service stressor.  See 75 Fed. Reg. 39843 (July 13, 2010), and 75 Fed. Reg. 41092 (July 15, 2010) (correcting the effective and applicability dates from July 12, 2010 to July 13, 2010).  The revisions apply to, among others, claims appealed before July 13, 2010, but not yet decided by the Board. 

This revision adds to the types of claims VA will accept through credible lay testimony alone, as being sufficient to establish occurrence of an in-service stressor without undertaking other development to verify a veteran's account.  The PTSD regulation, § 3.304(f), previously only authorized VA to accept statements from veterans who served in combat, as denoted by combat-related awards or decorations or other evidence sufficient to establish participation in combat, as sufficient to accept the occurrence of the claimed in-service stressor.  VA later amended its PTSD regulations to also accept the statements of veterans who are former prisoners of war and those with an in-service diagnosis of PTSD sufficient to establish occurrence of an in-service stressor if consistent with the places, types, and circumstances of service. 

The amendment of 38 C.F.R. § 3.304(f) eliminates 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."  The new regulatory provision for this type of stressor 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. 

The record in this case satisfies all three elements of a PTSD claim.  First, VA and private medical reports include PTSD diagnoses rendered in August 2006 at VA and by a private clinical psychologist in September 2009 and May 2013.  

Second, the reports of the private clinical psychologist link the PTSD to the Veteran's reported in-service stressors, including, in part, sapper, mortar and rocket attacks.  

Third, information from Defense Personnel Records Information Retrieval System (DPRIS) and internet articles on Camp Radcliff, the headquarters of the 124th Signal Battalion, establish that, during the Veteran's service period with this battalion, there were mortar, rocket and sapper attacks at Camp Radcliff, one on August 7, 1970, which resulted in sapper and friendly deaths and damage to several buildings.  In any event, the RO has conceded verification of at least one of the Veteran's reported stressors or, in the alternative, a basis for his reported fear of hostile activity.  

There is an unfavorable opinion of a VA examiner dated in March 2011, which indicates that the Veteran has a personality disorder, not PTSD secondary to in-service stressors.  However, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA is to give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  

Inasmuch as the evidence is in relative equipoise regarding whether the Veteran has PTSD as a result of verified in-service stressors, the Board concludes that, resolving reasonable doubt in the Veteran's favor, PTSD was incurred in service.  


ORDER

The appeal on the claim of entitlement to service connection for residuals of hepatitis is dismissed.

Service connection for PTSD is granted.


____________________________________________
P. M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs