Citation Nr: 0003061 Decision Date: 02/08/00 Archive Date: 02/15/00 DOCKET NO. 94-48 043 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to service connection for post-traumatic stress disorder. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. A. Saadat, Associate Counsel INTRODUCTION The veteran had active military service from August 1967 to May 1969 and from January 1971 to January 1974. The issue on appeal arises from a July 1994 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which denied service connection for post-traumatic stress disorder (PTSD). In February 1997 the veteran testified before a local hearing officer. In July 1997 and June 1998, the Board of Veterans' Appeals (Board) remanded the veteran's claim for additional development. In a March 1999 supplemental statement of the case, the RO continued to deny service connection for PTSD. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained by the RO. 2. The veteran has a clear diagnosis of PTSD, medically linked to an event in service. 3. The occurrence of at least one alleged stressor is supported by credible evidence. 4. The evidence establishes that the veteran currently suffers from PTSD resulting from his wartime experience. CONCLUSION OF LAW PTSD was incurred in service. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 1991); 38 C.F.R. § 3.304 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background The veteran was examined for induction purposes in June 1967. There were no neurologic or psychiatric abnormalities noted. The veteran underwent an examination in February 1968. Prior to the examination, the veteran denied any history of frequent trouble sleeping, frequent or terrifying nightmares, depression or excessive worry, loss of memory or amnesia, or nervous trouble of any sort. Upon examination, no neurologic or psychiatric abnormalities were noted. A service medical record entry dated in October 1968 read as follows: "Seen at MHCS No psy illness." Another entry dated in October 1968 noted that a psychiatric examination prior to discharge had revealed an organic mental disability but that the veteran was to be sent back to active duty. In May 1969, the veteran was noted to have had shrapnel in his left shoulder. Dressing was applied and he was given medication. Subsequently in May 1969 and in January 1971, the veteran underwent examinations. Prior to both examinations, the veteran denied any history of painful or "trick" shoulder, frequent trouble sleeping, frequent or terrifying nightmares, depression or excessive worry, loss of memory or amnesia, or nervous trouble of any sort. Upon each examination, no neurologic or psychiatric abnormalities were noted, nor were there any abnormalities noted regarding the veteran's left shoulder. The veteran's Form DD-214 from his first period of service indicates that his specialty was unit and organization support specialist and that he received, in part, a National Defense Service Medal, a Vietnam Service Medal and a Vietnam Campaign Medal. The Form DD-214 from the veteran's second period of service indicates that his specialty was communications electronics repair part specialist. The veteran's Form DD-20 from his first period of service indicates that he served as a rifleman in Vietnam between May 1968 and August 1968 and as an "armorer" from August 1968 through November 1968, and that he had participated in an unnamed campaign. The veteran's Form DA-20 from his second period of service indicates that he had served as a communications electronic repair part specialist in the United States. This Form does indicate, however, that the veteran had participated in four Vietnam counteroffensive campaigns, as well as the 1969 Tet counteroffensive. In November 1993, the veteran filed a claim concerning, in part, service connection for PTSD. The veteran underwent a VA psychiatric evaluation in March 1994. The veteran reported experiencing intrusive recollections of Vietnam several times every week, involving situations such as the first time he experienced combat in Vietnam while on guard duty in bunkers. The veteran reported that he had been drafted into the Army in 1967 when he was 19. He remained in the Army until his honorable discharge in 1974. He reported minor problems but eventually adapted to the military and was trained as a supply specialist, including weapons repair and communications. During his one year in Vietnam, the veteran primarily performed his duties on bases, though sometimes he performed repairs in the field. He spent his last four and one half months in Vietnam working in hospital security. He reported "not much" direct combat experience, but stated that he did fire his weapon and was also fired upon. He indicated that he "saw some people hit," but was unaware if any of his rounds hit the enemy, and reported only superficial wounds on one occasion from grenade shrapnel. No treatment was required. The veteran reported that his worst experiences in Vietnam occurred "downtown" when he was shot at by Vietcong, and another occasion in which a "gung ho" officer attempted to persuade the veteran to enter an exploding ammunition dump, which he declined. The veteran denied having received any unusual awards or honors during his service. He noted that his only stress symptom in Vietnam was that he "did a lot of praying," and reported that he had felt "the load off of me" when he left Vietnam. During his examination, the veteran stated that his unit had been stationed in several areas, including LZ English, Qui Nhon, An Khe and Phu Bai. Despite his report of relatively light combat experience during the interview, the veteran's response to the Combat Exposure Scale produced a score of 29, suggesting moderate to heavy combat exposure including being under enemy fire more than 6 months, being in danger of death or injury "all the time," and being surrounded by the enemy 26 or more times. In his conclusion, the VA examiner noted that the veteran could not be definitively diagnosed as suffering from PTSD at that time, due in part to the lack of a clearly traumatic stressor which would have been outside the range of usual human experience. In May 1994, medical records from the Veterans Administration Medical Center (VAMC) in Salisbury, North Carolina. These records reflect treatment for conditions unrelated to the veteran's claim concerning service connection for PTSD. In July 1994, medical records from the Gaston-Lincoln Mental Health Center were associated with the claims file. These records reflect that the veteran underwent psychiatric treatment in April and May 1994. By a July 1994 rating action, the RO denied service connection for PTSD. In October 1994, additional medical records from the Salisbury VAMC were associated with the claims file. These records indicate that the veteran sought outpatient treatment for anxiety disorder and possible PTSD in May 1994, and for anxiety in July 1994. By an October 1995 rating action, the RO determined that new and material evidence had not been submitted to "reopen" the veteran's claim concerning service connection for PTSD. In December 1995, additional medical records from the Salisbury VAMC were associated with the claims file. These records reflect that in May 1994, the veteran had been referred for psychiatric consultation. The consulting psychiatrist noted that the veteran had served one year in Vietnam, as a paratrooper during the Tet offensive. Following an examination, the veteran was diagnosed as having, in part, rule out PTSD. These records also reflect that in July 1994, the veteran was treated at the VA's Mental Health Clinic. The veteran reported that while in Vietnam, he had served as a paratrooper and later in security duty at a military hospital. In August 1994, the veteran reported that while in Vietnam, he was choppered out into the field to fix weapons, and would return the same day or two days later. He would thus be forced to stay out in the bush with the infantry. The veteran recalled duty with the 173 Airborne Brigade, Bon Son; with the 1st Air CAV, LZ English; and with the 76th EVAC, Phu Bai. In June 1996, medical records from the VAMC in Asheville, North Carolina, were associated with the claims file. These records reflect that in August 1995, the veteran was examined and noted to have a diagnosis of PTSD. In April 1996, the veteran underwent a consultation at the Mental Health Clinic. He reported that he had served with the 173rd Airborne, at one time protecting the 76th EVAC hospital in the south. He was later a "fixer" of weapons and as such was flown into combat areas to repair weapons. Sometimes he was not picked up for "a couple of days," and was under attack for a lot of nights. He reported seeing people killed and injured. He reported making one combat jump in Vietnam during which Americans were killed; these jumps were subsequently discontinued. Following the examination, the diagnostic impressions included PTSD. The veteran testified before a local hearing officer in February 1997. He stated that whenever a weapon broke down in the field in Vietnam, he had to go out and fix it. The helicopter would drop him off and would not come back until at least 30 minutes later. The veteran had to "walk the clicks just like everybody else" until the helicopter came back. One time, when he was hit with shrapnel in the shoulder, the veteran did not tell his leader. He just pulled it out and kept going. The veteran further testified that when he was with the 173rd, on his first night in Vietnam at Cam Ranh Bay, "they shot us on bunker guard." The veteran also reported seeing incoming mortar rounds while he was with the 173rd . The veteran was later transferred to the 76th Evac Hospital, where he worked on a "dusting crew" which helped secure the hospital. The veteran testified that he also helped secure ammunition that came off the ocean from the United States, and during this time, "Charlie used to mess with us a lot . . . trying to blow it up and everything like that." The veteran also described an incident in which the Viet Cong attacked one night while he had a foot locker filled with ammunition. During the ensuing fire fight, the veteran apparently pulled the foot locker from the bunker and distributed the ammunition to his fellow soldiers. The veteran also saw several bodies laying on the side of the road, and experienced a Viet Cong attack after he assisted in blowing up old accessories ammunition. The Board remanded the veteran's claim for additional development in July 1997. In July 1997, the RO sent a letter to the veteran, asking for further details about the stressor incidents he alleged, including specific locations, dates, and names of officers and fellow soldiers involved. The veteran did not respond to this request for additional information. In October 1997, additional medical records from the Salisbury VAMC were associated with the claims file. These records reflect, in part, that the veteran sought outpatient psychiatric treatment in January, March, August and November of 1995. In November 1997, the U.S. Armed Services Center for Research of Unit Records (USASCRUR) advised the RO in writing that additional information about the veteran's alleged stressors would be necessary in order to verify specific incidents. In a November 1997 supplemental statement of the case, the RO continued to deny service connection for PTSD. In June 1998, the Board remanded the veteran's claim again for additional development. Subsequently in June 1998, the RO wrote to the veteran and asked for his assistance in obtaining updated psychiatric treatment records. In June 1998, the veteran submitted a number of private medical records, none of which relate to his claim concerning PTSD. In July 1998, medical records from the VAMC in Asheville were associated with the claims file. These do not specifically relate to the veteran's claim concerning service for PTSD. In February 1999, the veteran underwent a PTSD examination for VA purposes. It was noted that the claims file was reviewed prior to this examination. The veteran reported that during his second period of active duty, his duties and experiences during the Vietnam War included "whatever they threw at me." This included guard duty, going out into the field and fixing weapons, and serving the last six months as part of a "duster group" whose job it was to secure a military hospital. The veteran stated that in the evenings he would go up to the mountains and secure ammunition dumps. He felt more secure during the second part of his Vietnam service because "they had more fire power to fight back." He characterized his worst experience during the Vietnam War as his initial day when given a weapon and told to fire at anything that moved. He also recalled viewing dead American and Vietnamese soldiers, being shot at, and shooting the enemy. The veteran also reported that he had received a minor shrapnel wound toward the end of his tour, when a group of American soldiers came across a manmade hole while scouting around. The group threw a grenade into the hole in case there might "have been VC in it." The veteran stated that he stood too close to the hole and received a shrapnel wound in the shoulder. The veteran stated that he pulled a piece of shrapnel out himself and the wound was cleaned and dressed in May 1968. The veteran brought photos from Vietnam with him to the clinical interview and showed a picture of himself with what he said was a "Combat Infantry Badge." The veteran could not find in the record where it was issued, but he said that a Major in the 173rd Battalion at Headquarters gave him this badge in 1968 after he had been in Vietnam for "a while." The veteran stated that he had complained so much about being in the field and falling under direct fire repairing weapons, that the commander had given him this badge. After examining the veteran and thoroughly reviewing the claims file, the examiner included the following text in his report: The psychometric testing, clinical interview, observations, and review of c- file support a diagnosis of Combat- related PTSD. The primary question of this remand case revolves around the establishment of a salient military [stressor]. The [veteran] identifies the primary [stressor] as that of being in a war zone, being shot at, witnessing dead and disfigured bodies. When the [veteran] was questioned about his injury by shrapnel, the [veteran] does not place undue emphasis on this one experience but presents this as one [example] of a [cumulative] effect of living under daily stress of life threatening situations. . . . Due to the [veteran's] difficulty in expressing himself due to his low average to borderline intellectual functioning it is the suggestion of this examiner that if the [veteran's] military stressor continues to be in question, that the daily reports for the months of service from May 28, 1968 to September 1968 during the first part of his military service in Vietnam and from October 28 through May 1969 be obtained. This would comply with the request from the Dept. of the Army that a more limited time frame and more specific data be sought. The examiner concluded by diagnosing the veteran as having severe PTSD. In a March 1999 supplemental statement of the case, the RO continued to deny service connection for PTSD. II. Analysis Section 5107(a) of title 38, U.S. Code, provides in pertinent part: "[A] person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded." The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter "the Court") has defined a well- grounded claim as follows: "a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of [section 5107(a)]." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). In Tirpak v. Derwinski, the Court held that to be well grounded a claim must be accompanied by supportive evidence and that such evidence "must 'justify a belief by a fair and impartial individual' that the claim is plausible." Tirpak, 2 Vet. App. 609, 611 (1992) (quoting section 5107(a)). For a service-connection claim to be well grounded, there generally must be (1) medical evidence of current disability; (2) medical or, in certain circumstances, lay evidence of in- service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the in-service injury or disease and current disability. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Heuer v. Brown, 7 Vet. App. 379, 384 (1995) (citing Grottveit, supra); Magana v. Brown, 7 Vet. App. 224, 227-28 (1994); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Where the determinative issue involves either medical etiology (such as with respect to a nexus between a current condition and an in-service disease or injury) or a medical diagnosis (such as with respect to a current disability), competent medical evidence is required to fulfill the well-grounded-claim requirement of section 5107(a) that the claim be "plausible" or "probable", Grottveit, supra (quoting Murphy, supra); where the determinative issue does not require medical expertise, lay testimony may suffice by itself (such as in the recounting of symptoms or, in certain circumstances, as to in-service incurrence or aggravation of a disease or injury). As to a PTSD claim, the Court has held that such a claim is well grounded where the veteran "submitted medical evidence of a current disability; lay evidence (presumed to be credible for these purposes) of an in-service stressor, which in a PTSD case is the equivalent of in-service incurrence or aggravation; and medical evidence of a nexus between service and the current PTSD disability". Cohen (Douglas) v. Brown, 10 Vet. App. 128, 136-37 (1997); see also Caluza, supra. In the instant case, the Board concludes that the veteran's claim is well grounded. The veteran has adduced (1) medical evidence of a diagnosis of PTSD, concurrent with his claim; (2) evidence of in-service incurrence, and (3) a medical nexus evidence linking PTSD to his service. See Cohen, supra. Even though a PTSD claim is well grounded, "eligibility for a PTSD service-connection award requires . . . (1) [a] current, clear medical diagnosis of PTSD . . . ; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in- service stressor." Cohen, 10 Vet. App. at 138. Section 1154(b) of Title 38 U.S.C.A. provides a benefit for a combat veteran in that it relaxes the evidentiary requirement regarding service incurrence, or aggravation, of a disease or injury in service. Once the claim is at the merits adjudication stage, the combat-veteran will be found to have established sufficient evidence of service incurrence or aggravation by his or her own testimony unless there is clear and convincing evidence that the disease or injury was not incurred or aggravated in service. The Court has held that the "clear and convincing evidence to the contrary" provision of section 1154(b) applied only to the service incurrence element of a claim, and that it is inapplicable to the current disability and nexus elements. Kessel v. West, No. 98-772 (U.S. Vet. App. Sep. 20, 1999). In June 1999, 38 C.F.R. § 3.304(f) was revised effective March 7, 1997 to reflect the decision in the Cohen v. Brown case. § 3.304 -- Direct service connection; wartime and peacetime. (f) Post-traumatic stress disorder. Service connection for post-traumatic stress disorder requires medical evidence diagnosing the condition in accordance with § 4.125(a) of this chapter; 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. If the evidence establishes that the veteran 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 veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. If the evidence establishes that the veteran was a prisoner-of-war under the provisions of § 3.1(y) of this part and the claimed stressor is related to that prisoner-of- war experience, 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 veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f) (1999). In the case at bar, a current, clear medical diagnosis of PTSD is shown from the February 1999 VA examination. Moreover, a VA physician has linked the veteran's shrapnel injury (which is verified in the service medical records) as one of a number of stressors responsible for his PTSD. Finally, the Board finds that the evidence presented fulfills the third requirement to establish a claim of service connection for PTSD, which is a link between the current symptoms and the in-service stressors. As noted above, the VA examiner in February 1999 related the veteran's PTSD to Vietnam combat stressors, although there was some concern expressed as to whether these stressors had been verified. The objective evidence of in-service treatment for a shrapnel wound is sufficient to verify at least one of these stressors, and therefore, in view of the discussion above, the Board finds that the evidence supports the veteran's claim. The evidence demonstrates that all three requirements to establish a claim of service connection for PTSD have been met. ORDER Entitlement to service connection for PTSD is granted. Iris S. Sherman Member, Board of Veterans' Appeal