Citation Nr: 0003063 Decision Date: 02/08/00 Archive Date: 02/15/00 DOCKET NO. 95-01 889 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Military Order of the Purple Heart WITNESSES AT HEARINGS ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD T. Mainelli, Associate Counsel INTRODUCTION The appellant served on active duty with the U.S. Army from July 1967 to July 1970. During service, he was stationed in the Republic of Vietnam from October 1968 to October 1969. This appeal arises from a June 1994 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) at Detroit, Michigan, which denied service connection for PTSD. The Board remanded this case to the RO for further development in December 1996. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the RO. 2. The appellant's PTSD stems from his exposure to combat stressors during his tour of duty in the Republic of Vietnam. CONCLUSION OF LAW PTSD was incurred as a result of active service. 38 U.S.C.A. §§ 1110, 1154(b), 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board finds that the appellant's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented a claim which is not inherently implausible when his contentions and the evidence of record are viewed in the light most favorable to his claim. See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Furthermore, the evidence is sufficient to decide the case. The Board accordingly finds the duty to assist him, mandated by 38 U.S.C.A. § 5107, has been satisfied. The appellant contends that his PTSD stems from his exposure to combat stressors during his overseas service in the Republic of Vietnam. According to his various statements of record, to include his testimony before the RO in January 1995 and the undersigned in August 1996, he served as a helicopter repairman with the B Company, 5th Transportation Battalion, 101st Air Borne located at Phu Bai from approximately October 1968 to April 1969. During this time period, his duties involved repairing helicopters at Phu Bai and Camp Eagle (a facility located 4 miles north of Phu Bai). He performed perimeter guard duties on a weekly basis during which times he was exposed to sniper, rocket and mortar fire. Several times a month, he was sent into combat conditions for field repairs of downed helicopters at which time he was involved in firefights with the enemy and witnessed casualties. He continued to perform perimeter guard duties during his assignment with the "160th of the 159th Helicopter Air Assault Support Group from approximately April 1969 to October 1969. In an effort to verify his allegations, the appellant has provided the RO with specific details relating to some of his claimed stressors. For example, he indicates that he witnessed a helicopter from "MAG 36" being hit by a rocket on or about October 30, 1968. He believes that 3 Marines were killed as a result of this incident. On or about November 10, 1968, he witnessed 3 men killed and 3 men wounded due to a rocket blast while performing sandbag duty. He was fired upon by snipers on or about December 20, 1968. Two days later, he was involved in a firefight while repairing a helicopter in "LZ Nancy." On or about December 15, 1968, he witnessed a servicemate being "cut to pieces" when a tail rotor from a LOCH helicopter chopped through the fuselage. On or about January 4, 1968, he was involved in a firefight while repairing a helicopter in "LZ Sally." On or about January 15, 1969, he witnessed "SFC Cummins" being shot in the leg by sniper fire. On or about February 10, 1969, he was involved in a firefight while performing perimeter guard duty. Finally, he recalled being subjected to mortar fire and nearly being hit by debris while in a perimeter bunker on or about October 15, 1969. The appellant's military records establish that he served in the Republic of Vietnam from October 1968 to October 1969. He served as a aircraft rotor repairman with Company B, 5thTransportation, 101st Airborne Division from November 1968 to November 1969, the "HHC 160th Avn Gp" from November 1969 to June 1969, and the "HHC 101st Avn Gp" from June 1969 to October 1969. He served during Vietnam Counter Offensive Phases V and VI, Vietnam TET/69 Counter Offensive and an unnamed campaign. He is the recipient of the National Defense Service Medal, 2 O/S Bars, the Vietnam Service Medal with 3 Bronze Service Stars, and the Vietnam Campaign Medal with 60 device. He was certified for firing M- 14 and M- 16 rifles. His service medical records reveal a January 1969 dispensary visit for sleepwalking and nightmares which he reported began in Advanced Infantry Training and became more frequent in Vietnam. VA PTSD examinations in May 1994 and October 1994 indicated that the appellant had failed to allege any particular stressful events, as opposed to complaint of general military stresses, which would corroborate a diagnosis of PTSD. However, VA inpatient treatment records dated in April of 1994 and 1998, as well as recent outpatient treatment records, record a diagnosis of PTSD. A May 1998 VA PTSD examination, which had benefit of review of the claims folder, also indicated a PTSD diagnosis. Research conducted by the Director of the U.S. Armed Services Center for Research of Unit Records (USASCRUR) confirms that enemy attacks occurred at Camp Eagle, the main base area of the appellant's units in Vietnam, Landing Zones (LZ) Nancy and Sally, and Phu Bai during the time period in question. In support of it's findings, USASCRUR submitted to the RO an extract of the unit history of the 5th Transportation Battalion from August to February 1969. These records show that Camp Eagle and Phu Bai had indeed been subject to sniper fire, small arms fire, "RPG" rounds, "B40" rockets, automatic weapons fire and "friendly" fire. For example, on February 10, 1969, the unit received "RPG rounds and SA fire," and one individual was evacuated for medical attention after being hit by an "M79 HE rd." There were several instances of downed helicopters in the field and near the main bases with casualties being reported. A briefing of the 101st Airborne Division Headquarters at Camp Eagle shows that, from November 1968 to March 1969, the company was involved in clearing the vicinity of enemy forces during a campaign dubbed Operation Nevada Eagle. A claim for service connection for PTSD is well grounded where an appellant submits (1) medical evidence of a current diagnosis of PTSD; (2) evidence, lay or otherwise, of an in- service stressor; and (3) medical evidence of a nexus between service and the current PTSD disability. Cohen v. Brown, 10 Vet. App 128 (1997). In this case, the appellant has been diagnosed with PTSD and, for purposes of a well grounded analysis, the truthfulness of his assertions of exposure to in- service combat stressors is presumed. See King v. Brown 5 Vet. App. 19 (1993). Thus, the Board finds that the appellant's claim for service connection for PTSD is well grounded. However, entitlement to service connection for PTSD requires (1) medical evidence establishing a clear diagnosis of the condition; (2) credible supporting evidence that the claimed in- service stressor actually occurred; and (3) a link, established by medical evidence, between current symptomatology and the claimed in- service stressor. Cohen, 10 Vet. App. at 138. In response to concerns raised by Cohen, VA has made substantive revisions to 38 C.F.R. § 3.304(f), which is the regulatory provision which governs the type(s) of evidence required to establish service connection for PTSD. See 64 Fed.Reg. 32807-32808 (June 18, 1999). This provision now holds that, 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 veteran's service, the lay testimony alone may establish the occurrence of the claimed in- service stressor. The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (Court) has made it clear that, where a claimed stressor is alleged to have occurred during combat, VA must make a specific finding as to whether or not the claimant was involved in combat. Gaines v. West, 11 Vet. App. 353, 359 (1998). Combat status may also be established by service records or "other supportive evidence." See West v. Brown, 7 Vet. App. 70, 76 (1994). VA is not required to accept the appellant's assertions that he was engaged in combat but, in arriving at its findings of fact, the credibility of the veteran's testimony and statements of record must be addressed. Cohen, 10 Vet. App. at 145-46. "Credible supporting evidence" of a non- combat stressor may be obtained from service records or other sources, to include lay testimony. Gaines, 11 Vet. App. at 353; Moreau v. Brown, 9 Vet. App. 389 (1996). However, the Court has held that the regulatory requirement for "credible supporting evidence" means that the appellant's testimony, or the medical opinion based upon post-service examination, alone cannot, as a matter of law, establish the occurrence of a non- combat stressor. Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996); Moreau, 9 Vet. App. at 396-96. Examples of "other supportive evidence" includes, but is not limited to, incidents of a plane crash, ship sinking, explosion, rape or assault, or duty in a burn ward or graves registration unit. See Veterans Benefits Administration (VBA) Adjudication Procedure Manual M21-1 (M21-1), Part VI (1998). The evidence of record clearly documents that the appellant served as a helicopter repairman during his service in Vietnam. There are reports of helicopters downed by enemy fire in the field and near the main bases, and his allegations of encountering and engaging the enemy during field repairs are consistent with his job classification. Additionally, his reports of being subjected to enemy fire during perimeter duty are consistent with the documented enemy attacks at both Camp Eagle and Phu Bai. Furthermore, his January 1969 dispensary visit, which noted his history of nightmares becoming more frequent while in Vietnam, tends to support his claim of exposure to stressors during service. With application of the benefit of the doubt rule, the Board finds that the appellant engaged in combat during service. In the absence of clear evidence to the contrary, the Board finds that the appellant's statements of record establish the occurrence of his claimed in- service stressors. 38 C.F.R. § 1154(b) (West 1991); 38 U.S.C.A. § 3.304(f), as amended by 64 Fed.Reg. 32807-32808 (June 18, 1999). As stated above, VA has diagnosed the appellant with PTSD by formal Compensation and Pension Examination dated in May 1998. There are also clear diagnoses of PTSD indicated on inpatient discharge summaries dated in April of 1994 and 1998. The earlier VA PTSD examinations in May and October of 1994, which failed to clinically corroborate the diagnosis of PTSD, are of limited probative value as they were conducted at time when the appellant's report of combat stressors had only been described in vague terms. Thus, the medical evidence of record establishes that the appellant has PTSD. Upon review of the May 1998 examination report, which noted review of the claims folder, the Board finds that the stressors which the examiner found productive of PTSD are the same stressors which have been accepted by the Board in this decision. As such, the appellant has provided the necessary medical evidence of a nexus between service and his PTSD disability, see Cohen, 10 Vet. App at 128, and the Board concludes that service connection for PTSD is warranted. ORDER Service connection for PTSD is granted. CONSTANCE B. TOBIAS Member, Board of Veterans' Appeals