Citation Nr: 1819902 Decision Date: 04/04/18 Archive Date: 04/16/18 DOCKET NO. 13-32 683 ) 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 Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. Nelson, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from February 1968 to December 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran attended a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) in November 2017. A transcript of that hearing has been prepared and is associated with the file. FINDING OF FACT The competent and credible evidence of record reflects it is at least as likely as not the Veteran currently has PTSD as a result of stressors that occurred during his active service. CONCLUSION OF LAW The criteria for a grant of service connection for PTSD are met. 38 U.S.C.A. §§ 1110, (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); See also Caluza v. Brown, 7 Vet. App. 498 (1995). Establishment of service connection for PTSD requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. 3.303(f); see also Cohen v. Brown, 10 Vet. App. 128 (1997). 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 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. 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). Effective March 19, 2015, VA adopted an interim rule as a final rule which among other changes replaced outdated references with references to the Fifth Edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5). The rulemaking amended provisions of the Code of Federal Regulations, to include 38 C.F.R. 4.125. It was specifically noted that the Secretary did not intend for the provisions to apply to claims that were pending before the Board, i.e., certified for appeal to the Board on or before August 4, 2014. See 80 Fed. Reg. 14308 (March 19, 2015). In the instant case, the appeal was certified to the Board on March 5, 2014 and thus the amended 38 C.F.R. § 4.125 conforming to the DSM-5 is not applicable. Factual Background and Analysis The Veteran asserts that he has PTSD due to combat stressors experienced during his period of service in the Vietnam War. The Veteran's military personnel records confirm his presence in the Republic of Vietnam during active duty and his status as a combat veteran; see Vietnam Combat Certificate and DD-214. As a military policeman (MP) he accompanied convoys and engaged with the enemy (November 2017 hearing transcript). In December 2017, the Veteran submitted documentation which included a Certificate of Achievement awarded to the 18th Military Police Brigade, of which he served, for their exceptional degree of devotion to duty in support of military police operations in the Republic of Vietnam. In September 2010, VA received correspondence from a VA Readjustment Counseling Therapist who had been treating the Veteran since 2008. She noted the Veteran's stressors, and summarized her physical findings. She found that the Veteran appeared to suffer from PTSD which was chronic and severe and concluded by reporting that the Veteran's isolating tendencies and PTSD symptoms have led him to experience significant degrees of depression and anxiety. In December 2010, the Veteran underwent a VA PTSD examination. The examiner diagnosed the Veteran with adjustment disorder with anxiety. In his rationale he reported that the results of the examination did not support a diagnosis of PTSD and found that the Veteran's current anxiety level was likely influenced by recent stressors such as unplanned retirement, financial concerns, chronic pain, health concerns for his wife and associated issues. VA outpatient treatment notes dated from 2013 through 2016 show continuing treatment for PTSD. The Veteran has described his combat stressors as exposure to hostile fire (rockets, mortars, and small arms) at least 2-3 times a month and returning fire, as well as witnessing American and Vietnamese casualties. He described an incident when an F-4 jet, loaded with ammunition, hit a 3/4 ton truck on take-off, killing 3 soldiers and 12 Vietnamese instantly. He stated, "Air Force personnel were picking up body parts and piling dead people." At his hearing, he further elaborated that he was 30 feet away from the truck when it got hit by the jet. He also testified that, "I witnessed little kids get blown up and dumped in the middle of town." The Board notes that the law mandates resolving all reasonable doubt in favor of a claimant to include issues of service origin. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. In Alemany v. Brown, 9 Vet. App. 518 (1996), the Court noted that in light of the benefit of the doubt provisions of 38 U.S.C.A. § 5107 (b), an accurate determination of etiology is not a condition precedent to granting service connection; nor is "definite etiology" or "obvious etiology." Moreover, in Gilbert v. Derwinski, 1 Vet. App. 49 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." In Gilbert the Court specifically stated that entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. Under the benefit of the doubt doctrine established by Congress, when the evidence is in relative equipoise, the law dictates that the appellant prevails. In view of the foregoing, the Board finds the competent and credible evidence of record reflects it is at least as likely as not the Veteran currently has PTSD as a result of stressors that occurred during his active service. Therefore, service connection is warranted for this disability. ORDER Service connection for PTSD is granted. ____________________________________________ T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs