Citation Nr: 0002555 Decision Date: 02/02/00 Archive Date: 02/10/00 DOCKET NO. 93-28 376 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Wilmington, Delaware THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Joseph W. Spires, Associate Counsel INTRODUCTION The veteran served on active duty from July 1970 to February 1972, including service in the Republic of Vietnam. This matter originally came to the Board of Veterans' Appeals (Board) on appeal from a September 1991 rating decision of the RO. The Board remanded the case in November 1995 and January 1997 for further development. The Board notes that, in a December 1999 brief on appeal, the veteran's representative indicated that a claim of service connection for tinnitus was raised in a January 1995 brief on appeal by the veteran's representative. This additional claim is referred to the RO for appropriate action. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. The veteran is shown as likely as not to have PTSD as a result of experiences during service in the Republic of Vietnam. CONCLUSIONS OF LAW The veteran has PTSD due to disease or injury which was incurred in his military service. 38 U.S.C.A. §§ 1110, 1154(b), 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board finds that the veteran's claim is plausible and capable of substantiation, and thus well grounded within the meaning of 38 U.S.C.A. § 5107(a). When a veteran submits a well-grounded claim, VA must assist him in developing facts pertinent to that claim. 38 U.S.C.A. § 5107(a). The Board is satisfied that all available relevant evidence has been obtained regarding the claim, and that no further assistance to the veteran is required to comply with 38 U.S.C.A. § 5107(a). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The regulations concerning the adjudication of claims involving entitlement to service connection for PTSD have changed. In June 1999, revised regulations concerning PTSD were published in the Federal Register which reflected the decision of the Court in Cohen v. Brown, 10 Vet. App. 128 (1997). The changes to 38 C.F.R. § 3.304(f) were made effective as of the date of the Cohen decision. Service connection for PTSD requires: (1) medical evidence establishing a diagnosis of the condition in accordance with the provisions of 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 64 Fed. Reg. 32,807-32808 (1999) (codified at 38 C.F.R. § 3.304 (f)); Cohen v. Brown, 10 Vet. App at 138 (1997). Where it is determined 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 occurrence and that no further development for corroborative evidence will be required, provided that the veteran's testimony is found to be satisfactory and consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f). The Board notes that there are numerous medical diagnoses by VA mental health care providers which establish that the veteran currently suffers from PTSD (element 1). Furthermore, the diagnoses of PTSD are based on stressors related to his service in the Republic of Vietnam as recounted by the veteran (element 3). The RO's decision to deny service connection for PTSD was based entirely on its inability to verify the veteran's alleged stressors (element 2). Thus, the Board's analysis will address the second element discussed in Cohen-that is, whether the in-service stressors actually occurred. The veteran contends that he served in Vietnam from March 1971 to January 1972 as a member of various artillery units. He stated that his duties involved driving, loading, firing "SP's" and "155 Howitzers" and defending "fire bases." He alleged that he experienced armed combat with the enemy and daily rocket attacks. He also stated that he was wounded in his left ring finger when a "mortar or AK round" struck a fence. Additionally, the veteran indicated that, sometime between September and December 1971, when returning from "Benwah," the helicopter on which he was riding was attacked and the person next to him was wounded through the jaw and cheek. He stated that the helicopter had been disabled in the attack and crash-landed at his "fire base." Furthermore, the veteran stated that, on a separate occasion, he had heard a gunshot and discovered that a person had committed suicide by shooting himself through the mouth. He also stated that he witnessed the return of dead bodies on several occasions and that, when he initially arrived in Vietnam, he had been stationed near the Cambodian boarder and in the "3rd quarter region, Vietnam." The veteran's service medical records include a June 1971 entry which noted that the veteran received a puncture wound between the thumb and forefinger of his left hand. The veteran's organization was reported as "A Btry 6/27 Arty." The veteran's service personnel records show that, while in the Republic of Vietnam, the veteran was a cannoneer assigned to the A Battery, 6th Battalion, 27th Artillery from March to November 1971 and to the C Battery, 5th Battalion, 42nd Artillery from November 1971 to January 1972. The veteran's service personnel records also indicate that the veteran participated in an "unnamed" campaign. A February 1999 stressor confirmation report from the U.S. Armed Services Center for Research of Unit Records (USASCRUR) included an extract of a unit history of the 6th Battalion, 27th Artillery which indicated that, in July 1971, it had divided Battery A into two firing platoons and supported "ARVN forces and the only US maneuver units located in Military Region III." The report described several personnel reductions and reassignments in 1971 and indicated that the battalion had supported various operations, including "ARVN" cross-border operations near Cambodia. The report noted that "[a] number of hard fought engagements between NVA and ARVN units occurred during that period." The report also noted continued artillery fire from August to October 1971 and that, through October 1971, Battery A had completed 762 "fire missions" and expended 3,913 rounds of 8 inch shells and 264 of 175mm rounds. Additionally, a November 1971 Battalion Operational Report noted the details of 14 confirmed artillery attacks against the enemy, 7 of which had been conducted by Battery A. The February 1999 USASCRUR report also included a March 1972 Operational Report from the 5th Battalion, 42nd Artillery which noted that Battery C had been moved in November 1971 "to support a one day raid for the 18th ARVN Division." Additionally, a January 1972 Operational Report-Lessons Learned (OR-LL) of the 23rd Artillery Group, the higher headquarters of the veteran's assigned units in Vietnam, indicated that from November 1971 to January 1972 there had been 1,273 "sightings" and 446 "engagements." The report also indicated that the veteran's original unit had been deactivated in approximately November 1971 and that the 5th Battalion, 42nd Artillery continued operations in the eastern half of Military Region III. The OR-LL also indicated that the group had suffered 8 non-battle casualties, 1 reportable vehicle accident from Battery C and 2 reportable personnel accidents from Battery C. Additionally, the record also contained two photographs submitted by the veteran which depicted a partially constructed military facility, several military personnel and a few military helicopters, all against a heavily wooded background. The veteran indicated that these were pictures of a "fire base" he had been assigned to while in Vietnam. A December 1992 written statement from a person who claimed to have served in Vietnam with the veteran in the 5th Battalion, 42nd Artillery, recounted the details of a helicopter crash which he had witnessed. The statement indicated that the veteran had been in the crash and that the crash occurred in December 1971. The unit records provided by USASCRUR can be read to support the veteran's allegations concerning his alleged stressors, especially activities near the boarder of Cambodia. Additionally, there is written lay evidence supporting the veteran's contention regarding a helicopter crash. Furthermore, the veteran's service medical records support the veteran's assertions that he was wounded in his left hand while in Vietnam, although the cause of the wound was not recorded. Finally, the veteran provided original photographs which depict scenes congruent with the context of the veteran's alleged service stressors. The Board observes that there is no specific corroboration of the veteran's participation in the alleged events. However, the Court has held that VA, by requiring corroboration of every detail, including the veteran's personal participation, defines "corroboration" far too narrowly. Suozzi v. Brown, 10 Vet. App. 307, 311 (1997). In Suozzi, the Court found that a radio log which showed that the veteran's company had come under attack was new and material evidence to warrant reopening a claim of service connection for PTSD, despite the fact that the radio log did not identify the veteran's participation. Id. Furthermore, the Court stressed that the evidence favorably corroborated the veteran's alleged in- service stressor. Id. The veteran's descriptions regarding his alleged stressors have, for the most part, been consistent over the years. Furthermore, the corroborative evidence appears to comport with the context in which the veteran's claimed service stressors occurred. As in Suozzi, the evidence shows that the veteran's units were involved in combat operations. These are the types of stressors to which the mental health professionals have attributed the diagnosed PTSD. ORDER Service connection for PTSD is granted. STEPHEN L. WILKINS Member, Board of Veterans' Appeals