Citation Nr: 1807112 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 12-04 575 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an effective date earlier than August 23, 2010 for the award of service connection for post traumatic stress disorder (PTSD). 2. Entitlement to an initial rating for post-traumatic stress disorder (PTSD) in excess of 50 percent from August 23, 2010. 3. Entitlement to an initial rating for PTSD prior to August 23, 2010. REPRESENTATION Appellant represented by: Polly Murphy, Attorney WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The Veteran served on active duty from September 1967 to September 1969, including in the Republic of Vietnam. This appeal comes before the Board of Veterans' Appeals (Board) from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which among other things, granted service connection for PTSD and assigned a 30 percent disability rating, effective August 23, 2010. In July 2012, the Veteran and his wife testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of this hearing is associated with the claims file. In May 2014, the Board granted the Veteran an initial 50 percent rating for service-connected PTSD, effective August 23, 2010, but denied his claim for an effective date earlier than August 23, 2010 for the grant of service connection. The Veteran appealed the Board's May 2014 decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2016 Panel Decision, the Court set aside the Board's decision and remanded the matter to the Board. In a March 2016 rating decision, the RO denied entitlement to an earlier effective date for PTSD with major depression on the basis of a clear and unmistakable error (CUE) and continued the 50 percent disabling rating. In June 2017, the Board remanded the claims for further development. The issues of entitlement to an initial rating for PTSD prior to August 23, 2010 and a rating in excess of 50 percent from that date are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran initially submitted a claim of service connection for PTSD that was received by VA on September 18, 2000. 2. A claim of entitlement to service connection for PTSD was denied in February 2003; new and material evidence was not received within a year of the issuance of the rating decisions and the Veteran did file a notice of disagreement with the February 2003 decision; the Veteran filed a claim to reopen in August 2010. 3. Service personnel records was first received by the RO in July 2012 and had not been previously associated with the claims file when VA first denied the Veteran's claim for service connection for PTSD. 4. In June 2002, there was a confirmed diagnosis of PTSD resulting from an in-service stressor corroborated, in part, by service personnel records associated with the claims file in July 2012. CONCLUSION OF LAW The criteria for the assignment of an effective date of September 18, 2000, for the award of service connection for PTSD have been met. 38 U.S.C. § 5110 (West 2012); 38 C.F.R. §§ 3.156(c), 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION In a June 2011 rating decision, the RO granted service connection for PTSD. The RO assigned an effective date of August 23, 2010, corresponding to the service connection claim that was received on that date. The Veteran has argued that a prior attempt to obtain service connection for a PTSD remained pending after a February 2003 rating decision denying the claim. Although he does not contend that he appealed the February 2003 decision, he asserts that the July 2012 submission of official service department records, including relevant service personnel records, renders the February 2003 decision non-final under 38 C.F.R. § 3.156 (c) thus rendering his initial post-service claim of September 18, 2000, pending at the time of the June 2011 rating decision. See July 2012 hearing transcript and July 2012 statement. The Veteran appealed the June 2011 rating decision. In a May 2014 decision, the Board, inter alia, denied an effective date earlier than August 23, 2010, the date of the Veteran's construed request to reopen, for the grant of service connection for PTSD. The Veteran appealed the decision to the Court. In an August 2016 Panel Decision, the Court set aside the Board's decision, finding that 38 C.F.R. § 3.156(c) compelled reconsideration of the Veteran's claim for service connection for PTSD which was denied in February 2003 because there was no dispute that the Veteran submitted relevant service department records in July 2012 after VA had issued a decision on his claim for service connection for PTSD; such records existed at the time the claim was initially denied in February 2003 and subsequently granted in June 2011; and such records had not been associated with the claims file when VA first decided the claim in 2003. The Court determined that although the Veteran was granted service connection on the basis of liberalizing regulation (38 C.F.R. § 3.304(f), which altered the requirements regarding verification of in-service stressors) prior to VA's receipt of newly associated service department records, the language of § 3.156(c)(1) required consideration of his initial 2003 claim on the basis of those newly associated service department records. On review of the record, throughout the appeal period from when the Veteran filed his initial claim in September 2000, he reported that he developed PTSD due to stressful experiences in Vietnam. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2017). Service connection for PTSD requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a) (i.e., under the criteria of DSM-IV); (2) a link, established by medical evidence, between the veteran's current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304 (f) (2017). With respect to the first two elements, the June 2002 psychological evaluation as well as the January 2011 VA examination report includes a diagnosis of PTSD, based off of stressors involving Vietnam service, including being fired at and returning fire while serving as a door gunner and witnessing others being wounded, injured, or killed in Vietnam. More specifically, in a June 2002 psychological evaluation, Dr. R.T. Maxwell, a private psychologist, noted the Veteran's awarded service medals and added that his illness was a continuation of the emotional reactions to traumatic stressors encountered while serving in the US Army in Vietnam. Regarding a traumatic event, to support his diagnosis of PTSD, Dr. R.T. Maxwell noted the Veteran's reports of serving with the 45th Engineer Group in Vietnam from February 1968 to February 1969. He reported that he was assigned as an aircraft crewman and served as a door gunner on a UHID helicopter. During this time, he observed wounded or dead soldiers while they were medevaced. He reported seeing piles of Vietnamese and American bodies. He also saw tracers coming towards the helicopter and stated that it was life-threatening every time he got onboard the helicopter. Dr. R.T. Maxwell stated that there was no reason to suspect that the Veteran was not a reliable historian. He presented a believable picture of his life, situation, and experiences. Dr. R.T. Maxwell found that the Veteran was exposed to a traumatic event within the meaning of the DSM-IV in which the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or threat to the physical integrity of others. His diagnostic conclusion was PTSD related to his combat experiences in Vietnam. During his January 2011 VA examination, the Veteran reported continued combat nightmares; intrusive recollections of dead decomposing Viet Cong stacked like firewood, U.S. soldiers WIA/KIA, and seemingly unending bombing. During his war zone duty, he engaged in combat activities. The examiner noted the veteran's reports of having participated in combat as a helicopter door gunner. He served as a door gunner on a helicopter flying into hot landing zones where he could hear enemy fire ricocheting and penetrating his helicopter. He reported that he was directly responsible for killing many Viet Cong with his door gun from February 1968 to February 1969. While stationed at the Saigon DMZ, he was attached to the HHQ 45th engineer group. He reported that on a daily basis, he witnessed others being wounded, injured, or killed. He reported that the perpetrator threatened to injure or kill him. The Veteran reported that the symptoms began in 1968 as a result of war-time trauma secondary to in-service military activities against hostile enemy and/or terrorists. The examiner diagnosed the Veteran with PTSD, including sleep disorder and depression. The examiner reported that the Veteran had been exposed to a traumatic event which involved the actual death, threatened death, serious injury, threat to the physical integrity of self and threat to the physical integrity of other, in which the Veteran responded with intense fear, helplessness, and horror. However, for a grant of service connection, there must also be credible supporting evidence of the in-service stressor. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304 (f). Participation in combat requires that a veteran have personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. See VAOPGCPREC 12-99 (October 18, 1999). The evidence does not show any combat awards or decorations, or otherwise establish that the veteran personally participated in combat. For non-combat stressors, the veteran's assertions alone are insufficient to establish their occurrence. Rather, his alleged service stressors must be established by official service records or other credible supporting evidence. 38 C.F.R. § 3.304 (f); Moran v. Principi, 17 Vet. App. 149 (2003); Cohen v. Brown, 10 Vet. App. 128 (1997). Effective from July 13, 2010, 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. See 38 C.F.R. § 3.304 (f)(3). As previously mentioned, in a June 2011 rating decision, the RO granted service connection for PTSD, effective August 23, 2010, finding that the Veteran's DD Form 214 showed that he received the Vietnam Service Medal. The RO stated that this record showed that the Veteran served in a location involving hostile military or terrorist activity and his statement was adequate to establish a stressor as it was consistent with the place, type, and circumstance of his service. The RO referred to recently changed requirements regarding verification of in-service stressors in PTSD claims as codified at 38 C.F.R. 3.304(f)(3). The RO also referred to the January 2011 examiner's opinion linking PTSD to the Veteran's fear of hostile military or terrorist activity in Vietnam. Generally, a claimant can only receive retroactive payments based on a liberalizing law or liberalizing VA issue if: (1) the evidence establishes that "the claimant met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue and [(2)] that such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement." 38 U.S.C. § 5110 (g) (West 2002); 38 C.F.R. § 3.114 (a) (2017); see McKay v. Brown, 9 Vet. App. 183, 188 (1996) (purpose of one-year grace period is to give claimants time to react after a change in the law). In such cases, the effective date of the award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the liberalizing law or VA issue. 38 C.F.R. § 3.114 (a). If a claim is reviewed on the initiative of VA within one year from the effective date of the law or VA issue, or at the request of a claimant received within one year from that date, benefits may be authorized from the effective date of the law or VA issue. 38 C.F.R. § 3.114 (a)(1). If a claim is reviewed on the initiative of VA more than one year after the effective date of the law or VA issue, benefits may be authorized for a period of one year prior to the date of administrative determination of entitlement. 38 C.F.R. § 3.114 (a)(2). If a claim is reviewed at the request of the claimant more than one year after the effective date of the law or VA issue, benefits may be authorized for a period of one year prior to the date of receipt of such request. 38 C.F.R. § 3.114 (a)(3). Thus, entitlement to an effective date of July 13, 2010, is warranted for the grant of entitlement to service connection for PTSD, pursuant to changes to 38 C.F.R. § 3.304 (f)(3) effective that date. As to whether a date earlier than July 13, 2010 is warranted, the Board must determine whether there is credible supporting evidence of the in-service stressor. In July 2002, VA requested service medical records and verification of "only the unverified periods of service shown." A DD Form 214 was associated with the claims file in July 2002 and revealed that the Veteran's military occupational specialty (MOS) was heavy vehicle mechanic. He served in Vietnam and was awarded the National Defense Service Medal, Vietnam Service Medal, Vietnam Campaign Medal, Air Medal, Aircraft Crewman Badge, and Sharpshooter Badge. Service treatment records associated with the claims file in August 2002 show that the Veteran received medical clearance to perform duty as an aerial gunner in May 1968. An August 2002 Deferred Rating Decision instructed further development, namely, that VA send the Veteran a stressor statement form, request a photocopy of his Air Medal Certificate; and, obtain his service personnel file for the purpose of determining his combat status. In a February 2003 rating decision, the RO denied service connection for PTSD, including sleep disorder and depression because the Veteran's service treatment records did not show any complaints or treatment for PTSD and he did not respond to the stressor request letter. There is no indication that VA attempted to obtain a photo copy of his Air Medal or his service personnel file before this decision. The Veteran submitted military personnel records in July 2012, which included an Air Medal Worksheet that listed the date and duration of completed helicopter missions, with the letter "C" written next to each under "Mission Type." He also submitted a Department of the Army Form 20 that documented personnel information, assignments, duties, awards, and campaigns; that form listed the Tet Counter Offensive. An addendum to DA Form 1577 that noted that the Veteran was entitled to the Republic of Vietnam Gallantry Cross with Palm Unit Citation Badge and the Republic of Vietnam Campaign Medal with Device. In a July 2012 statement, F.M.F., reported that although his MOS was listed as mechanic, he was a crew chief and a left side door gunner and the Veteran was part of his crew and was a right side door gunner. He stated that they flew various missions, including medical evacuation (dead and wounded), re-supply, reconnaissance, combat assault, and anything else as needed. He recalled one night during the "1968 TET" that they had received fire, but were not hit. He referred to incidents in which they returned fire and explained that they wore harnesses that allowed for maneuverability for them to get out onto the skids to return fire. He reported that the Veteran flew with him regularly. In a June 2017 administrative decision, the MRS/JSRRC coordinator noted the Veteran's contentions that the award of his Air medal and Aircraft Crewman Badge indicated that he served in combat activity. The Veteran also submitted an Air Medal Worksheet, which was the basis for him being awarded the Air Medal. The coordinator indicated that the "C" marked on the worksheet likely indicated a combat-type mission; however, he or she was unable to confirm if this indicated that he engaged the enemy on each mission or flew in a combat zone. The coordinator reported that the Veteran's personnel records confirmed that he was an Aerial Gunner and participated in the Tet Counter Offensive; however, the capacity of his participation was not indicated. The coordinator indicated that the evidence was no sufficient enough to say whether or not the Veteran physically engaged the enemy in combat. However, the coordinator also added that it was unclear why the Veteran's personnel file was not requested when he originally filed a claim for PTSD, which would have confirmed his service in Vietnam and his involvement in the Tet Offensive. In August 2017, the Veteran submitted excerpts from a Camp Holloway Discussion Forum, which discussed the criteria for the US Army Air Medal from 1947-1968 as follows: One award was credited per every 25 hours of combat assault flights (any flight in which the aircraft was directly involved in combat), 50 hours of combat support flights (Visual Reconnaissance or Resupply), or 100 hours of non-combat service flights (Administrative or VIP flights). Flight hours were calculated in 6-minute blocks. Oak Leaf Clusters were awarded on the Air Medal's ribbon for additional awards. Additionally, the Veteran submitted information regarding Bell UH-1 Iroquois noting that the UH-1 first saw service in combat operations during the Vietnam War, with around 7,000 helicopters deployed. The court decision in Pentecost, held that a rocket attack at a large base may be a sufficient PTSD stressor, and a veteran's claimed personal exposure to the rocket attack will be satisfactorily corroborated by his presence with his unit which was known to be generally exposed to the rocket attack. See Pentecost v. Principi, 16 Vet. App. 124 (2002). In this case, the Veteran's recently associated service personnel records confirm that he was an aerial door gunner in Vietnam, earned an Air Medal based on numerous combat-type missions, and participated in the Tet Counteroffensive. Additionally, according to a statement from the Veteran's crew chief, the Veteran did engage in combat assault, received and returned fire, and medically evacuated the dead and wounded while serving as a door gunner in Vietnam during the "1968 TET". If sufficiently credible and probative, "buddy" statements may serve to corroborate in-service stressors alleged by veterans. See Sizemore v. Principi, 18 Vet. App. 264 at 274 (2004). The Board finds F.M.F.'s statements, which are consistent with the Veteran's statements as well as the Veteran's service personnel records to be credible. In view of these corroborating factors, the Board finds that the evidence is sufficient to establish that it is at least as likely as not that the veteran was exposed to one or more stressors during his Vietnam service, including being fired at and returning fire while serving as an aerial door gunner and witnessing others being wounded, injured, or killed in Vietnam during the Tet Counter Offensive. In sum, the medical evidence shows an acceptable diagnosis of current PTSD, which is medically linked to in-service stressors, and the other evidence shows sufficient corroboration of at least one of these stressors as to place the evidence in equipoise. With application of the benefit-of-the-doubt rule, the Board concludes that PTSD was incurred in service and warrants grant of service connection. 38 U.S.C. § 5107 (b) (West 2002); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Regarding the effective date, in the August 2016 Panel Decision, the Court noted that generally, a claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 C.F.R. § 3.156(a)(2017). The effective date for an award on a claim reopened on this basis is usually the date of receipt of the claim or request to reopen or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i), (r)(2017). However, subsection(c) establishes an exception to these rules, the purpose of which is "to place a veteran in the position he [or she] would have been had . . . VA considered the relevant service department record before the disposition of [the] earlier claim." Blubaugh v. McDonald, 773 F.3d 1310, 1313 (Fed. Cir. 2014); New and Material Evidence, 70 Fed.Reg. 35,388, 35,389 (June 20, 2005) (proposed rule) (stating that revised § 3.156(c) will "allow VA to reconsider decisions and retroactively evaluate disability in a fair manner, on the basis that a claimant should not be harmed by an administrative deficiency of the government"); see also Pachecov. Gibson, 27 Vet.App. 21, 32-33 (2014) (en banc)(Pietsch, J., concurring) (noting that subsection (c) "is an exception to finality"). Subsection (c) begins: § Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph(a) of this section. 38 C.F.R. § 3.156(c)(1). As relevant here, official service department records include "service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name." § 3.156(c)(1)(i). Subsection (c)(3) specifies that the effective date for "[a]n award made based all or in part on the records identified by paragraph (c)(1) of this section" may be as early as "the date VA received the previously decided claim." § 3.156(c)(3). Here, the record at the time of the February 2003 rating decision denying service connection for PTSD, included a psychiatric diagnosis of PTSD that was made on the basis of the stressor that was corroborated, in part, by the newly discovered service personnel records that were added to the claims file. Prior to the decision, in July 2002, VA requested service medical records and verification of "only the unverified periods of service shown." An August 2002 Deferred Rating Decision instructed further development including a request to obtain a photocopy of his Air Medal Certificate and his service personnel file for the purpose of determining his combat status; however, such records were not associated with the Veteran's claim file until July 2012. Additionally, in a June 2017 administrative decision, the MRS/JSRRC coordinator noted that it was unclear why the Veteran's personnel file was not requested when he originally filed a claim for PTSD, which would have confirmed his service in Vietnam and his involvement in the Tet Offensive. As such, it is found that the Veteran had a confirmed diagnosis of PTSD at the time of the February 2003 rating decision and is entitled to an effective date as early as the date of his original claim, September 18, 200. To this extent, the appeal is allowed. ORDER An effective date of September 18, 2000, for an award of service connection for PTSD, is granted. REMAND Given that the Board has granted the Veteran an effective date of September 18, 2000, for an award of service connection for PTSD, there remains an issue on appeal regarding the proper rating that is to be assigned from that date until August 23, 2010. The AOJ has not yet rated the Veteran's PTSD for this time period. The Veteran was most recently afforded VA examinations relating to his PTSD in January 2012. The most recent VA examination for PTSD, in January 2012, is inadequate for evaluation purposes. For example, there is no indication that a mental status examination were performed at the time and the examiner reported that the Veteran's social/marital/family history; relevant occupation; relevant mental health history were not applicable. Additionally, the examiner indicated that the Veteran had other symptoms attributable to PTSD, but did not provide any further description. Furthermore, it has been more than six years since the last PTSD examination. Therefore, the Veteran should be provided with a new VA examination to address the severity of his PTSD. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask that he identify any outstanding VA and non-VA records pertaining to his psychiatric disorder that are not already of record. 2. Schedule the Veteran for a VA psychiatric examination to determine the current nature and severity of his PTSD. The claims file should be made available to the examiner in conjunction with the examination, and the examiner should indicate that the claims file was reviewed. All tests deemed necessary by the examiner should be performed, and all findings set forth in detail. The examiner should review the record, identify, and comment on the nature, frequency and/or severity (as appropriate), of all psychiatric symptoms found to be present, to include comment on the impact of such on the Veteran's occupational and social functioning. He or she should discuss those findings in relation to the pertinent evidence of record, including the June 2002 record from Dr. R.T. Maxwell and VA examinations in January 2011 and 2012, and any associated treatment records, as well as any lay and clinical evidence. The examiner must provide a complete rationale for each opinion given. 3. The AOJ should adjudicate the matter of the rating of the Veteran's PTSD from the effective date now awarded, September 18, 2000, until August 23, 2010, when a 50 percent rating became effective. 4. If any benefit sought is denied, in whole or in part, the AOJ should furnish the Veteran and his representative a Supplemental Statement of the Case and a reasonable opportunity to respond before returning the record to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2012). ______________________________________________ MAJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs