Citation Nr: 1524061 Decision Date: 06/05/15 Archive Date: 06/16/15 DOCKET NO. 13-25 332 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Michael T. Sullivan, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Jenkins, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1967 to February 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In November 2014, the Veteran testified at a hearing before the undersigned Veterans' Law Judge. A transcript of that hearing is of record. FINDING OF FACT The evidence is in equipoise that the Veteran's PTSD stressor is related to his fear of hostile military activity during his service at U-Tapao Royal Thai Air Force Base; it is consistent with the places, type, and circumstances of the Veteran's service; and a VA psychiatrist has confirmed that the stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related, at least in part, to that stressor. CONCLUSION OF LAW The criteria for service connection for PTSD have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310, 4.125 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Given the favorable disposition of the action here, which is not prejudicial to the Veteran, the Board need not assess VA's compliance with the VCAA. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110, (West 2014); 38 C.F.R. § 3.303 (2014). In order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board notes that eligibility for a PTSD service connection award requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (2014); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) a link, established by medical evidence, between the current symptoms and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2014). Section 3.304(f)(3) states if a stressor claimed by a Veteran is related to the 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 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 the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For the purposes of section 3.304(f)(3), "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. The Veteran claims that his PTSD related to his period of active service, to include his fear of hostile military or terrorist activity. There is conflicting evidence regarding whether the Veteran meets the diagnostic criteria for a diagnosis of PTSD. Specifically, VA treatment records indicate that the Veteran meets the diagnostic criteria for a diagnosis of PTSD. By contrast, the November 2012 examination report indicates that the Veteran did not meet the full criteria for a diagnosis of PTSD. Affording all benefit of the doubt to the Veteran, the Board finds the Veteran is currently diagnosed with PTSD. The Veteran's service treatment records do not reveal any diagnosis of, or treatment for, any acquired psychiatric disorder during service. With regard to an in-service event, the Veteran has reported various in-service traumatic events including being in the vicinity of a bomb dump explosion during a mortar attack at U-Tapao airbase, witnessing two aircraft crashes, and witnessing crewmembers escaping from one of those crashes killed in an explosion. A March 2012 VA PTSD residential PTSD treatment discharge summary, signed by the Veteran's VA social worker and VA psychiatrist, noted that the Veteran was initially admitted for residential substance abuse treatment in December 2011, but was transferred to the Residential PTSD program after he exhibited symptoms of PTSD. The Veteran's symptoms were noted to include sleep disturbance, nightmares, chronic anxiety, chronic depression, flashbacks, recurrent intrusive memories, hypervigilance, avoidance of crowds, exaggerate startle response, social isolation, withdrawal, and irritability with physical outburst. The discharge summary noted that upon admission the Veteran was diagnosed with PTSD by VA psychiatrist, Dr. Levy. It was noted that the Veteran had multiple in-service stressors, including witnessing a plane crash in which the aircrew was killed and being in close proximity to a bomb dump explosion during a mortar attack. With regard to the bomb dump explosion, Dr. Levy noted that the Veteran stated that witnessing the bomb dump explosion had a profound impact upon him and that he continued to have a high level of arousal attached to this memory, as well as intrusive thoughts and nightmares. The Veteran noted that he also had nightmares about the plane crash he witnessed. In his March 2012 stressor statement, the Veteran reported that his first in-service trauma was a mortar and zapper attack on the bomb dump he was assigned to. He noted approximately 750 bombs exploded. He also reported that he witnessed a fully armed B-52 bomber crash on takeoff and the entire crew killed in the ensuing explosion. An April 2012 VA psychology record noted that the Veteran had a history of ongoing PTSD symptoms since in-service trauma that occurred while he was serving in Thailand during the Vietnam War. The November 2012 VA examination report indicated that while the examiner opined that the Veteran did not meet the full criteria for PTSD, it was the examiner's opinion that the Veteran's reported stressor regarding the mortar attack and ensuing bomb dump explosion was related to a fear of hostile military or terrorist activity. The Board notes that the Veteran's DD Form 214 indicates that his military specialty was as a munitions maintenance. Accordingly, the Board finds that being in close proximity to the U-Tapao Royal Thai Air Force Base bomb dump is consistent with the places, type, and circumstances of the Veteran's service. At his November 2014 hearing, the Veteran testified that shortly after arriving at the U-Tapao Air Force Base, 750 bombs exploded during a mortar attack. The Veteran reported that after the explosion he had significant anxiety working around explosives. After reviewing all the relevant evidence of record, and after assessing the probative value of that evidence, the Board finds that service connection for PTSD is warranted. VA treatment records document diagnoses of PTSD that are supported by detailed examination findings. Additionally, while none of the Veteran's reported stressors have been confirmed, his reported stressors involving being in close proximity to a bomb dump explosion during a mortar attack is related to a "fear of hostile military or terrorist activity." Moreover, the Veteran's stressors related to fear of hostile military activity were cited in the VA treatment records as stressors related to the Veteran's PTSD diagnosis. Based on the forgoing, the Board finds that the evidence is at least in equipoise as to whether the Veteran has PTSD that is related to his fear of hostile military and terrorist activity. Accordingly, the Board finds that entitlement to service connection for PTSD is warranted. 38 U.S.C.A. § 5107(b) (West 2014). ORDER Entitlement to service connection for PTSD is granted. ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs