Citation Nr: 0002412 Decision Date: 01/31/00 Archive Date: 02/02/00 DOCKET NO. 98-10 367 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL The veteran and his mother ATTORNEY FOR THE BOARD Marisa Kim, Associate Counsel INTRODUCTION The veteran had active military service from December 1970 to April 1972. This appeal arises from an April 1996 rating decision from the Los Angeles, California, Department of Veterans Affairs (VA) Regional Office (RO), that reopened the claim and denied service connection for PTSD. FINDINGS OF FACT 1. The veteran served in a combat zone in Vietnam in 1971 and 1972. 2. The medical evidence includes a current diagnosis of PTSD and an opinion of a nexus between the current PTSD and active service. 3. The lay evidence is consistent with the circumstances, conditions, and hardships of combat. CONCLUSION OF LAW PTSD was incurred in active military service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.304(f) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background The December 1970 induction examination report stated that the veteran's psychiatric health was normal, and he denied a history of nervous trouble of any sort. DD Form 214 shows that the veteran served as a quarry machine operator with the 36th Engineering Company in Vietnam from August 1971 to March 1972. Thereafter, he served with the 16th Cavalry. He qualified to operate an M-16, and he earned the National Defense Service Medal and the Vietnam Service Medal. Records obtained from the service department reflect that the 36th Engineering Battalion received the Meritorious Unit Commendation with Second Oak Leaf Cluster. Unlike the engineering units assigned to the South Vietnam Delta, the 36th Engineering Battalion performed construction and engineering support of counterinsurgency operations in the IV Corps Tactical combat zone throughout 1971. Seven soldiers of the 36th Engineering Battalion were wounded in action in 1971. After January 1972, the Battalion was selected as the only engineering unit to remain in the IV Corps Tactical zone. The veteran testified that, as the lead quarry truck driver, he ran over 2 Vietnamese children because the truck caravan was under fire from both sides and the sergeant ordered him not to stop. He heard the front bumper hit the children and bones crunching as the back wheels of the truck rolled over the bodies. Transcript (February 1997), pages 3-4; Transcript (November 1998), pages 6-7. He testified that, in 2 separate incidents, he saw a Vietnamese man shot in the leg and a screaming Viet Cong woman shot in the head while taking photos of the compound, presumably for the enemy. Transcript (November 1998), pages 3 and 9. He testified that he had to clean up dismembered body parts of fellow soldiers after an ammunition explosion. Transcript (November 1998), page 5. The April 1972 separation examination report stated that the veteran's psychiatric health was normal. The veteran testified that, since service, he was tense and extra cautious while driving, especially if he saw children nearby. Transcript (November 1998), pages 9-10. He disliked crowds or having people walk behind him. Transcript (November 1998), page 9. He started having nightmares, intrusive thoughts, and flashbacks some time prior to 1993 when his daughter was raped and mutilated. The rape of his daughter brought everything to the forefront because he thought God was getting revenge for what he did in Vietnam. Transcript (November 1998), page 8. The veteran's mother testified that the veteran was very different after service. He was quieter than usual and moved slowly. He talked to and answered himself. When he watched television, he seemed to look through the television. She was frightened because he had become another person. When asked why, the veteran told his mother about running over and killing some children in Vietnam. Transcript (February 1997), pages 5-6. The veteran was hospitalized from June 1993 to July 1993 and again from July 1993 to August 1993. The veteran admitted to drug and alcohol abuse prior to admission. He complained of nightmares and difficulty sleeping. He described difficulty dealing with his daughter's rape. The veteran admitted to nightmares of Vietnam in which he relived the traumatic experience of hitting children with his truck. He was admitted to the crisis program recently due to the mugging of his sister, which exacerbated his symptoms. The examiner stated that the veteran had strong PTSD symptoms about combat-related experiences, and more recently, his daughter's rape and mutilation exacerbated these symptoms. The veteran felt he was being punished for things he did in Vietnam. Since his sister's mugging, he had been angry and frustrated. He fought with and hit his girlfriends. He still had intrusive thoughts of Vietnam, nightmares, difficulty sleeping, anger attacks, increased startle, hypervigilence, depressed mood, suicidal ideation, decreased appetite, anhedonia, anxiety, and excessive feelings of guilt, but without any psychotic features. The discharge diagnoses included PTSD. The veteran was again hospitalized from June 1995 to November 1995. The admission and discharge diagnoses included PTSD. The veteran reported that he was happy and had no psychiatric problems before he went into the military. After returning from his tour of duty, he became socially isolated, had nightmares, and used cocaine, marijuana, and intravenous heroin. He was unable to work and suffered bouts of depression. In 1993, when his daughter was beaten and raped, he began to have intrusive thoughts and feelings of intense guilt because he had harmed children in Vietnam. In August 1995, the veteran's score of 38 on the Mississippi PTSD Scale suggested significant PTSD symptomatology, and his score on the Combat Exposure scale fell in the moderate to heavy range. The diagnoses included PTSD. In September 1995, the VA psychiatrist stated that the veteran had moderate to severe chronic PTSD manifested by nightmares, insomnia, difficulties in interpersonal relationships, anxiety, hypervigilance, emotional numbing and detachment, memory problems, and avoidance. The veteran's September 1995 statement alleged that the veteran experienced suicidal thoughts, waking during the night, depression, panic attacks, tension, anxiety, problems with the police, trouble trusting others, a loss of interest in his usual activities, self consciousness, and an inability to form and maintain relationships. The February 1996 diagnosis was PTSD. In January 1997, the veteran was hospitalized for 10 more days. The veteran reported nightmares in which he re-experienced the war and heard the sound of crushing bodies under the tires of his truck. He felt significant guilt because he chose to save his own life rather than stop in an attempt to save others. He dealt with the symptoms until 1992 when the rape and mutilation of his 10-year-old daughter brought back all the feelings of terror about Vietnam. The diagnoses included PTSD. In February 1997, the Social Security Administration (SSA) found that the veteran was disabled due to PTSD and polysubstance dependence in tenuous remission. The February 1998 diagnosis was PTSD. The March 1998 letter from the Department of the Army stated that incidents involving civilians, unless reported, were not normally found in combat records. Criteria The Court has held that a well-grounded claim is "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 § [5107(a)]." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The Court has held that a well-grounded claim requires competent evidence of current disability (a medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the in-service injury or disease and the current disability (medical evidence). See Epps v. Brown, 126 F.3d. 1464, 1468 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Service connection may be established where the evidence demonstrates that an injury or disease resulting in disability was contracted in the line of duty coincident with military service, or if pre-existing such service, was aggravated therein. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). Service connection for post-traumatic stress disorder requires medical evidence diagnosing the condition in accordance with Sec. 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. 38 C.F.R. § 3.304(f) (1999) When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis The claim of entitlement to service connection for PTSD is well grounded because there has been a medical diagnosis of a current PTSD disability, lay evidence of traumatic events under combat conditions in active military service, and a medical opinion of a nexus between the current PTSD disability and active service. The medical evidence included a current diagnosis of PTSD because the hospitalization diagnoses in 1993, 1995, and 1997 included PTSD. Although service medical records did not show treatment or examination for a mental disorder, lay statements show that the veteran experienced traumatic events in service. Initially, the veteran was presumed sound at enlistment because the December 1970 induction examination report stated that the veteran's psychiatric health was normal, and the veteran denied having psychiatric problems prior to service. There was also no clear and unmistakable evidence demonstrating that a mental disorder preexisted service. The provisions of 38 U.S.C. § 1154(b) apply because the Meritorious Unit Commendation clearly stated that the veteran's engineering battalion served in the IV Corps Tactical combat zone. The stated purpose of 38 U.S.C. § 1154(b) was "to overcome the adverse effect of a lack of official record of incurrence or aggravation of a disease or injury and treatment thereof." Kessel v. West, 13 Vet. App. 9, 17 (1999)(en banc); Caluza, 7 Vet. App. at 507. In this case, although there was no official record of the incurrence of a mental disorder in service, the lay statements describing the circumstances, conditions, and hardships of combat are credible evidence of traumatic events in service. Recitation of the traumatic incident in which the veteran sacrificed 2 Vietnamese children while evacuating a caravan under gunfire is credible evidence, more so because he consistently recited the same version of the event to his mother soon after service and to VA examiners since 1993. In addition, the veteran did not seek treatment in service because he could not know that he would experience PTSD in the future. In combat conditions, the injured are not likely or expected to fill out forms; front line medics are too involved with saving lives to document injuries and file reports; and what medical records might be generated are liable to be misfiled, lost, or destroyed. See Kessel, 13 Vet. App. at 17. Therefore, the standard of proof provided by 38 U.S.C. § 1154(b) is applicable to the veteran's claim of entitlement to service connection for PTSD. In any event, the Department of the Army confirmed that incidents involving civilians, such as the 2 Vietnamese children, are not normally recorded in combat records. The medical evidence included opinions providing a nexus between the veteran's current PTSD and active service. The 1993 examiner stated that the veteran had strong PTSD symptoms due to combat-related experiences, and the August 1995 examiner noted that the veteran's Combat Exposure scale fell in the moderate to heavy range. In addition, the veteran's lay statements alleged that he experienced PTSD symptoms due to events in Vietnam because he attested to experiencing guilt, flashbacks, and nightmares about violent events in service. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1992). Therefore, the claim of entitlement to service connection for PTSD is well grounded. When the claim is well grounded, the case will be decided on the merits, but only after the Board has determined that VA's duty to assist under 38 U.S.C.A. § 5107(a) has been fulfilled. The record shows that the RO requested and obtained VA medical records from several different locations. The veteran received two hearings and several VA examinations and filed numerous lay statements with the RO. The record does not show that the RO requested or obtained medical records from the private examiners listed on the February 1997 SSA letter. However, the RO did request evidence from the veteran in September 1993, August 1995, October 1996, November 1996, and December 1996, and the veteran was instructed to bring any additional evidence to his two hearings. The duty to assist is not a one-way street. If the veteran wishes help, he cannot passively wait for it. See Wood v. Derwinski, 1 Vet. App. 190 (1991). Since the veteran was provided the opportunity to submit any additional relevant evidence, the VA has fulfilled its duty to assist under 38 U.S.C.A. § 5107(a), and the Board will adjudicate a decision on the evidence of record. The veteran will receive the benefit of the doubt because the evidence in support of and against incurrence of PTSD in service is in approximate balance. Against service connection, the veteran admitted to having drug and alcohol problems, and at least one examiner opined that symptoms of PTSD were exacerbated by the rape of the veteran's daughter and the mugging of his sister. In support of service connection, the veteran's combat status, lay statements, and the November 1995 and January 1997 medical opinions stated that the veteran experienced PTSD because he ran over and killed 2 Vietnamese children while escaping gunfire. This evidence is consistent with the circumstances, conditions and hardship of combat, and there is no clear and convincing evidence to the contrary. The regulations provide that satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted will be accepted as sufficient proof of service connection if the evidence is consistent with circumstances, conditions or hardships of such service even though there is no official record of such incurrence or aggravation. 38 U.S.C.A. § 1154(b) (West 1991); 38 C.F.R. § 3.304(d)(1999); Kessel v. West, 13 Vet. App. 9, 17 (1999). According, PTSD was incurred in service. ORDER The claim of entitlement to service connection for PTSD is granted. V. L. Jordan Member, Board of Veterans' Appeals