Citation Nr: 1643480 Decision Date: 11/15/16 Archive Date: 12/01/16 DOCKET NO. 12-08 278 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Rothstein, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1968 to March 1970, to include service in the Republic of Vietnam (Vietnam). This matter comes before the Board of Veterans' Appeals (Board) from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland, which, inter alia, denied service connection for PTSD. In an April 2015 statement, prior to the transfer of the appeal to the Board, the Veteran withdrew from the appeal the issues of an increased rating for tinea corporis and service connection for tinnitus, lung bullae, and degenerative joint disease of the lumbar spine. Consequently, these issues were not certified for appeal, and therefore, are not before the Board. See 38 C.F.R. § 20.204(b)(3) (2015). In a March 2012 substantive appeal (VA Form 9), the Veteran requested a Decision Review Officer hearing at the RO. However, the Veteran withdrew this hearing request in an April 2015 statement. In a December 2013 substantive appeal (VA Form 9), the Veteran requested a Board hearing. In February 2016, the Board remanded the claim to the Agency of Original Jurisdiction to afford the Veteran a Board hearing. In September 2016, the Veteran testified at a video-conference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT A psychologist with whom VA has contracted confirmed that the Veteran's claimed stressor, which was related to his fear of hostile military activity, was adequate to support a diagnosis of PTSD, and this claimed stressor is consistent with the places, types, and circumstances of his service. CONCLUSION OF LAW With reasonable doubt resolved in the favor of the Veteran, PTSD was incurred in service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection for PTSD requires medical evidence diagnosing this disorder based on examination findings and in accordance with the DSM-5 (where, as here, certification was after August 4, 2014); 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), 4.125(a). If a stressor claimed by a veteran is related to the veteran's fear of hostile military 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, a veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor, as long as the claimed stressor is consistent with the places, types, and circumstances of the veteran's service and there is no clear and convincing evidence to the contrary. 38 C.F.R. § 3.304(f)(3). "Fear of hostile military activity" is defined to mean 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, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. Id. An example of such an event or circumstance is incoming artillery, rocket, or mortar fire. See id. Personnel records reflect that the Veteran served under B Battery, 1st Battalion, 92nd Artillery and was deployed to Vietnam from March 1969 to March 1970. His DD Form 214 reflects that his military occupational specialty was unit organization supply specialist. The Veteran recounted a number of stressors in his written statements and testimony in support of his claim. However, in particular, the Veteran has stated that his unit was attacked by sappers, while stationed at Fire Base 6 in Kontum Province. See October 2008 Statement in Support of Claim for PTSD. In an October 2014 VA-authorized examination, the contract psychologist concluded that the Veteran had PTSD in accordance with the DSM-5 and based on a stressor involving incoming artillery fire while serving in Vietnam (i.e., the Fire Base 6 sapper attack). The Board notes that the RO was unable to definitively verify the stressor via its Joint Services Records Research Center (JSRRC) Coordinator in February 2009. However, the JSRRC Coordinator did conclude that there were several attacks on Fire Bases throughout Kontum Province. Accordingly, he stated that the Veteran's unit records and information were "clearly credible evidence that the stressor the veteran alleges may have occurred." He further stated that "[a]lthough the unit records do not specifically state that the veteran was present during the attacks, the fact that he was stationed with a unit that was present while such attacks occurred would strongly suggest that he was, in fact, exposed to the attacks." Moreover, 38 C.F.R § 3.304(f)(3) was promulgated in order to reduce the evidentiary burden of establishing a stressor when it is related to a fear of hostile military activity. See 75 Fed. Reg. 39843-01 (July 13, 2010). Furthermore, the regulation specifically defines fear of hostile military activity to include not only an event that involved actual death or serious injury, but also threatened death or serious injury. Here, the Board finds that the Veteran's statements are competent, credible, and consistent with the circumstances of his service, and there is no clear evidence to the contrary. As a VA contract psychologist has confirmed that the claimed stressor is adequate to support a diagnosis of PTSD based on the Veteran's fear of hostile military activity, entitlement to service connection for PTSD under 38 C.F.R. § 3.304(f)(3) is warranted. Although the VA psychiatrist who performed the March 2009 and October 2010 VA examinations concluded that the Veteran's PTSD was not at least as likely as not linked to his service in March 2009 and that the Veteran did not have PTSD in October 2010, the VA psychiatrist failed to clearly identify the stressor(s) associated with his PTSD diagnosis in March 2009 and reconcile his contrary finding of no PTSD in October 2010. Additionally, the DSM-IV was applied instead of the DSM-5. In any event, the evidence is at least evenly balanced on these questions. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, and each of the criteria of 38 C.F.R. § 3.304(f)(3) have been met, entitlement to service connection for PTSD is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 3.304(f). ORDER Entitlement to service connection for PTSD is granted. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs