Citation Nr: 1014497 Decision Date: 04/16/10 Archive Date: 04/29/10 DOCKET NO. 08-14 167 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The appellant had active service from August 1969 to April 1971, including service in the Republic of Vietnam from February 1970 to April 1971. This appeal comes before the Board of Veterans' Appeals (Board) from an August 2004 rating decision by the New Orleans, Louisiana, Regional Office (RO) of the Department of Veterans Affairs (VA). In July 2009, the appellant provided testimony before the undersigned Acting Veterans Law Judge (AVLJ) via a videoconference hearing. A transcript of that hearing was prepared and has been included in the claims folder for review. FINDINGS OF FACT 1. The appellant served with a transportation unit while in the Republic of Vietnam and he earned a Bronze Star Medal, a Vietnam Service Medal, a Vietnam Campaign Medal, and a National Defense Service Medal. 2. While performing his duties in Vietnam, he experienced repeated stressful situations including having his convoy ambushed, being fired upon by the enemy, and being in a location that was subjected to repeated rocket fire. 3. The appellant has been diagnosed as having PTSD. CONCLUSION OF LAW Resolving all reasonable doubt in the appellant's favor, PTSD was incurred in or aggravated by his military service. 38 U.S.C.A. §§ 1101, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this decision, the Board grants service connection for PTSD, which represents a complete grant of the benefit sought on appeal. As such, no discussion of VA's duty to notify and assist is necessary. The appellant reports that while stationed in Vietnam, he was constantly exposed to various stressors. He further says he was constantly worried that he would be killed through the performance of his duties as a driver and a member of his unit. He avers that this fear has produced nightmares and flashbacks that he continues to suffer therefrom. In summary, the appellant, along with his representative, has claimed that all of these factors were stressful situations which, in turn, led to the development of PTSD, from which the appellant now suffers. The record reflects that the appellant served in Vietnam with the 261st Transportation Company and the 233d Transportation Company (Light Truck). It is appears that the appellant's base camps were near DaNang, Quin Loa, Long Bin, and temporary camps located near the Cambodian border. The appellant's US Army military occupational specialty (MOS) while in Vietnam was 64B20 (heavy vehicle driver) and 64A10 (light vehicle driver). His service personnel records show that he was issued a Bronze Star Medal, National Defense Service Medal, a Vietnam Campaign Medal, and a Vietnam Service Medal. Of particular note is the write-up for the Bronze Star Medal which states, in part, the following: . . . who distinguished himself by outstanding meritorious service in connection with military operations against a hostile force . . . His rapid assessment and solution of numerous problems inherent in a combat environment greatly enhanced the allied effectiveness against a determined and aggressive enemy. . . . The official records do not show that the appellant was awarded a personal or unit valour award, such as a Bronze Star Medal for Valor, a Purple Heart Medal, or a Presidential Unit Citation. The record also does not show that the appellant fired his personal weapon at the enemy such that he might have been awarded a Combat Infantryman Badge or a similar award from the Army. Under 38 U.S.C.A. §38 U.S.C.A. §§ 1110, 1131 (West 2002) and 38 C.F.R. § 3.303(b) (2009), service connection may be awarded for a "chronic" condition when: (1) a chronic disease manifests itself and is identified as such in service (or within the presumption period under 38 C.F.R. § 3.307) and the service member presently has the same condition; or (2) a disease manifests itself during service (or during the presumptive period), but is not identified until later, and there is a showing of continuity of related symptomatology after discharge, and medical evidence relates that symptomatology to the service member's present condition. Savage v Gober, 10 Vet. App. 488, 495-98 (1997). To grant service connection, it is required that the evidence shows the existence of a current disability, an in-service disease or injury, and a link between the disability and the in-service disease or injury. Watson v. Brown, 4 Vet. App. 309, 314 (1993). This principle has been repeatedly reaffirmed by the United States Court of Appeals for the Federal Circuit, which has stated that ". . . a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability." Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). In addition, disability that is proximately due to or the result of a service-connected disease or injury shall be service-connected. 38 C.F.R. § 3.310 (2009). The United States Court of Appeals for Veterans Claims, hereinafter the Court, has held that when aggravation of a appellant's nonservice-connected disability is proximately due to or the result of a service-connected disease or injury, it too shall be service-connected. Allen v. Brown, 7 Vet. App. 439, 446 (1995). Moreover, service connection connotes many factors, but basically, it means that the facts, as shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service. A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease in service. See Pond v. West, 12 Vet. App. 341 (1999); Watson v. Brown, 4 Vet. App. 309, 314 (1993). Eligibility for a PTSD service connection award requires that three elements must be present according to VA regulations: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed inservice stressor actually occurred; and (3) a link, established by medical evidence, between the current symptoms and the claimed inservice stressor. 38 C.F.R. § 3.304(f) (2009). See Cohen v. Brown, 10 Vet. App. 128, 138 (1997). If the evidence establishes that the appellant engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the appellant's service, the appellant's lay testimony alone may establish the occurrence of the claimed in-service stressor. See also 38 U.S.C.A. § 1154(b) (West 2002). If the claimed stressor is related to combat, service department evidence that the appellant engaged in combat or that the appellant was awarded the Purple Heart, Combat Infantryman Badge, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed inservice stressor. 38 C.F.R. § 3.304(t) (2009). In Cohen, the Court took judicial notice of the mental health profession's adoption of the DSM-IV in May 1994 (first printing) and its more liberalizing standards to establish a diagnosis of PTSD, specifically, a change from an objective "would evoke. . . in almost anyone" standard in assessing whether a stressor is sufficient to trigger PTSD, to a subjective standard - would a person's exposure to a traumatic event and response involving intense fear, helplessness, or horror. Hence, the Court noted that a more susceptible person could have PTSD under the DSM-IV criteria given his or her exposure to a traumatic event that would not necessarily have the same effect on "almost everyone." Cohen, 10 Vet. App. 128, 140-41 (1997). Relative to PTSD, if the evidence shows that the appellant was engaged in combat with the enemy and the claimed stressor was related to combat, no further development for evidence of a stressor is necessary. If the claimed stressor is not related to combat with the enemy, a history of a stressor as related by the appellant is, in itself, insufficient. Service records must support the assertion that the appellant was subjected to a stressor of sufficient gravity to evoke the symptoms in almost anyone. Thus, the existence of a recognizable stressor or accumulation of stressors must be supported. It is important that the stressor be described as to its nature, severity, and date of occurrence. Manual M21- 1, Part VI, para. 7 .46( e ),( f) (Dec. 21, 1992). Additionally, as to the second criterion, the evidence necessary to establish that the claimed stressor actually occurred varies depending on whether the appellant "engaged in combat with the enemy." 38 U.S.C.A. § 1154(b) (West 2002). "Where it is determined, through recognized military citations or other supportive evidence, that the veteran was engaged in combat with the enemy and the claimed stressors are related to such combat, the veteran's lay testimony regarding claimed stressors must be accepted as conclusive as to their actual occurrence and no further development for corroborative evidence will be required, provided that the veteran's testimony is found to be 'satisfactory,' e.g., credible, and 'consistent with the circumstances, conditions, or hardships of [combat] service.'" Zarycki, supra; 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d), (f) (2009). The appellant's principal claimed stressors have nothing to do with combat per se or being fired upon by the enemy. The stressors are, however, related to the appellant being in a war zone or hostile territory. The stressors do involve the appellant being in an area that received rocket or mortar fire. It is noted that the appellant's service in a hostile area specifically led to his being awarded a Bronze Star Medal for his service against the enemy. Yet, he was not a recipient of a valour-type award which would indicate actual combat against the enemy. Nevertheless, the appellant may be deemed to have served in a war area if it is shown that the appellant was stationed in a location that subjected him to combat-type situations. See Pentecost v. Principi, 16 Vet. App. 124 (2004). The appellant has proffered numerous statements, both written and testimonial, that discuss his duties and observations while he was stationed in Vietnam. Given the time period during which he was assigned to South Vietnam, the write-up he received for his Bronze Star Medal, and the type of incidents he reported that were stressful, the Board finds this information is sufficient to corroroborate that the appellant was exposed to significant, life-affecting stressors. See Pentecost v. Principi, 16 Vet. App. 124 (2002). After review of the evidence the Board finds that service personnel records and the historical information concerning the appellant's unit, proffered by the appellant, establish that the appellant served in a hostile area. As his stressors are consistent with service and an individual stationed in a hostile territory, the Board finds no further verification of the appellant's stressors are necessary. During the course of this appeal, the appellant has been treated by VA medical providers, and they have concluded that he suffers from the symptoms and manifestations of posttraumatic stress disorder (PTSD). He has undergone treatment for this mental disorder. The medical treatment records suggest that the appellant's PTSD was and is the result of his service in Vietnam. In determining whether service connection is warranted, the VA must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the evidence is against the claim, in which case service connection must be denied. 38 U.S.C.A. § 5107 (West 2002 & Supp. 2009); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The record presents a valid diagnosis of PTSD related to stressful experiences the appellant reported he underwent during his service in Vietnam. Accordingly, after careful review of all the evidence of record, the Board finds that the appellant manifests PTSD that is the result of stressors he experienced while in Vietnam. The Board therefore concludes that service connection for PTSD is appropriate. ORDER Entitlement to service connection for PTSD is granted. ____________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs