Citation Nr: 0003635 Decision Date: 02/11/00 Archive Date: 02/15/00 DOCKET NO. 98-06 638 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Michelle L. Nelsen, Associate Counsel INTRODUCTION The veteran had active duty from April 1966 to July 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for the equitable disposition of the veteran's appeal. 2. The veteran is currently diagnosed as having PTSD. 3. The evidence is sufficient to establish that the veteran engaged in combat with the enemy. 4. There is evidence linking the veteran's PTSD to his alleged in-service stressors. CONCLUSION OF LAW The veteran incurred PTSD during or as a result of his period of active duty service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board finds that the veteran's claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.102 (1999). See Murphy v. Derwinski, 1 Vet. App. 78, 91 (1990); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). That is, the Board finds that the veteran has presented a claim which is not implausible when his contentions and the evidence of record are viewed in the light most favorable to the claim. The Board is also satisfied that all relevant facts have been properly and sufficiently developed to address the issue at hand. Service connection may be granted if the facts, as shown by the evidence, demonstrate that the current disability resulted from an injury or disease incurred in or aggravated coincident with service in the Armed Forces. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(a) (1999). Service connection for post-traumatic stress disorder requires medical evidence diagnosing the condition in accordance with VA regulations; 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) (as amended by 64 Fed. Reg. 32,807-32808 (1999)) (effective March 7, 1997) (implementing the decision in Cohen v. Brown, 10 Vet. App. 128 (1997)). See 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) (pertaining to combat veterans). Following VA's adoption of the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV) in 38 C.F.R. §§ 4.125 & 4.126, the sufficiency of a stressor to cause PTSD is a clinical determination for the examining mental health professional. Cohen, 10 Vet. App. at 153 (Nebeker, Chief Judge, concurring by way of synopsis). If there is an unequivocal diagnosis of PTSD by mental heath professionals, it is presumed that the diagnosis was made in accordance with the applicable DSM criteria as to both adequacy of symptomatology and sufficiency of the stressor (or stressors)." Id. If there is a question as to whether the report or examination is in accord with applicable DSM criteria, the report must be returned for a further clarification as needed. Id. The Board must make a specific finding as to whether the veteran engaged in combat. Gaines v. West, 11 Vet. App. 353, 359 (1998). As stated above, if VA determines that the veteran engaged in combat with the enemy and his alleged stressor is combat-related, then the veteran's lay testimony or statement is accepted as conclusive evidence of the stressor's occurrence and no further development or corroborative evidence is required, providing that such testimony is found to be "satisfactory," i.e., credible, and "consistent with the circumstances, conditions, or hardships of service." 38 C.F.R. § 3.304(f). The phrase "engaged in combat with the enemy" requires that a veteran has participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. Determining whether a veteran engaged in combat with the enemy requires evaluation of all pertinent evidence in each particular case. VAOPGCPREC 12-99. If, however, VA determines either that the veteran did not engage in combat with the enemy or that the veteran did engage in combat, but that the alleged stressor is not combat related, the veteran's lay testimony, by itself, is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain credible supporting evidence that corroborates the veteran's testimony or statements. Cohen, 10 Vet. App. at 147; Moreau v. Brown, 9 Vet. App. 389, 395 (1996); see Zarycki, 6 Vet. App. at 98. The final requirement of 38 C.F.R. § 3.304(f) is medical evidence of a nexus between the claimed in-service stressor and the current disability. However, such after-the-fact medical nexus evidence cannot also be the sole evidence of the occurrence of the claimed stressor. Moreau, 9 Vet. App. at 396. In addition, medical nexus evidence may not be substituted by application of the provisions of § 1154(b). Clyburn v. West, 12 Vet. App. 296, 303 (1999); Cohen, 10 Vet. App. at 138. In this case, the medical evidence reveals fairly consistent diagnosis and treatment of PTSD, such that the first element of service connection for PTSD is satisfied. In addition, the Board finds that there is sufficient evidence of a relationship between the veteran's PTSD and his period of active duty service, such that the third element required for service connection for PTSD is met. With respect to the second element, the Board must make an initial determination as to whether the veteran engaged in combat with the enemy. Service personnel records show that the veteran did have service in Vietnam from January 1967 to January 1968 and from January 1969 to January 1970, during which time his military occupational specialty was baker and cook. Although records indicate the veteran participated in various campaigns in Vietnam, his records fail to reveal any award of citation or medal denoting combat. However, a rating decision in January 1975 awarded the veteran service connection for residuals of a back injury. The basis of the award was injury to the back in 1969 while lifting ammunition. The record shows that the veteran was serving in Vietnam in 1969. The same rating action awarded service connection for defective hearing due to acoustic trauma from gunfire. These awards, combined with the January 1999 U.S. Armed Services Center for Research of Unit Records (USASCRUR) records make it more probable than not that the veteran engaged in combat with the enemy, despite his military occupational specialty of cook/baker, for purposes of establishing entitlement to PTSD. The Board emphasizes that the benefit-of-the-doubt rule applies in such determinations. VAOPGCPREC 12-99. The veteran's April 1998 statement indicates that, during his second tour in Vietnam, he was sent to the firebase at Ben Het, which came under heavy fire from the enemy. His May 1997 statement specifies that his claimed stressful experiences occurred about one month after his arrival in Vietnam. Service personnel records showed that the veteran was assigned to B Battery, 6th Battalion, 14th Artillery for most of this tour. Information received from the U.S. Armed Services Center for Research of Unit Records (USASCRUR) confirmed that the veteran's unit was stationed at Ben Het and that Battery B became a prime target for enemy artillery. Specifically, on March 3, 1969, the enemy launched a coordinated artillery and armor attack on Ben Het. The entries indicate that there were several friendly casualties and deaths, though these were not from within the 6th Battalion. Given the severity of the documented attacks on the veteran's unit, along with the veteran's statements that identify the proper time and location, the Board finds that, resolving doubt in his favor, the veteran engaged in combat with the enemy. In summary, the Board finds that each of the criteria has been met for establishing service connection for PTSD. 38 U.S.C.A. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.304(f). Accordingly, the veteran's appeal is allowed. ORDER Subject to the laws and regulations governing the payment of monetary benefits, entitlement to service connection for PTSD is granted. RENÉE M. PELLETIER Member, Board of Veterans' Appeals