Citation Nr: 0803722 Decision Date: 02/01/08 Archive Date: 02/12/08 DOCKET NO. 05-23 631 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran (Appellant) INTRODUCTION The veteran served on active duty from April 1972 to July 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The veteran appeared and testified at a personal hearing in November 2007 before the undersigned Acting Veterans Law Judge. A transcript of that hearing has been made a part of the record. FINDINGS OF FACT 1. The veteran did not engage in combat with the enemy. 2. The evidence is at least in relative equipoise on the question of whether there is credible supporting evidence of the occurrence of in-service stressful events; the competent medical evidence establishes a current diagnosis of PTSD; and the weight of the competent medical evidence is at least in relative equipoise on the question of whether the currently diagnosed PTSD is related to the stressful events in service. CONCLUSION OF LAW Resolving reasonable doubt in the veteran's favor, the veteran's PTSD was incurred in service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f), 4.125(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Pelegrini v. Principi, 18 Vet. App. 112 (2004). Collectively, VA notice and duty to assist letters dated in September 2004, January 2006, and June 2007 satisfied VA's duty to notify under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159, as they informed the appellant of what evidence was needed to establish the underlying benefits sought (service connection for PTSD), of what VA would do or had done, and what evidence the appellant should provide, informed the appellant that it was the appellant's responsibility to make sure that VA received all requested records that are not in the possession of a Federal department or agency necessary to support the claim, and asked the appellant to send to VA any evidence in his possession that pertained to the claim. During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the degree of disability and the effective date of an award. In this case, the veteran was provided with such notice in December 2007. VA has also fulfilled the duty to assist the veteran, including by obtaining evidence and affording the veteran a VA examination and medical opinion. Because the full benefits sought on appeal (service connection for PTSD) are being granted by this Board decision, no further notice or assistance to the appellant is required. The appellant has been afforded a meaningful opportunity to participate effectively in the processing of the claim, including by personal hearing testimony and submission of statements and arguments presented by the representative organization. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide the appeal. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Sutton v. Brown, 9 Vet. App. 553 (1996); Bernard v. Brown, 4 Vet. App. 384 (1993). Service connection for PTSD Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a) (2007). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b) (2007). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2007). Service connection for PTSD requires: medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (conforming to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)); 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. 38 C.F.R. § 3.304(f). In adjudicating a claim for service connection for PTSD, the evidence necessary to establish the incurrence of a stressor during service will vary depending on whether or not the veteran was "engaged in combat with the enemy." See Hayes v. Brown, 5 Vet. App. 60, 66 (1993). If it is determined through military citation or other supportive evidence that a veteran engaged in combat with the enemy, and the claimed stressors are related to combat, the veteran's lay testimony regarding the reported stressors must be accepted as conclusive evidence as to their actual occurrence and no further development or corroborative evidence will be necessary, provided that the testimony is found to be satisfactory, that is, not contradicted by service records and "consistent with the circumstances, conditions, or hardships of such service." 38 U.S.C.A. § 1154(b) (West 2002 & Supp. 2007); 38 C.F.R. § 3.304(d),(f) (2007); Doran v. Brown, 6 Vet. App. 283, 289 (1994). If it is determined that a veteran did not engage in combat with the enemy, or the claimed stressor is not related to combat, the veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. In such cases, the record must contain service records or other corroborative evidence which substantiates or verifies the veteran's testimony or statements as to the occurrence of the claimed stressors. See Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). The phrase "engaged in combat with the enemy" requires that the veteran have personally taken part in a fight or encounter with a military foe or hostile unit or instrumentality. In this case, the evidence does not show that the veteran actually engaged the enemy in combat. VAOPGCPREC 12-99. The veteran's DD Form 214 reflects that the veteran was a builder, and does not reflect that he received any awards, citations, or decoration denoting having served in combat during service. The evidence does not show that the veteran personally participated in combat with the enemy. The veteran contends that he has PTSD that is related to in- service stressful events during his active duty service, that included about 10 to 12 days in Vietnam, and service in Thailand. He contends that he saw mutilated dead bodies, and was aware of Pol Pot soldier activity in Cambodia, Laos, and Thailand; that he got lost in the jungle when his jeep got stuck one night during monsoon season in 1972, and he had to spend the night alone in the jungle in Thailand; and that there was some hostile local activity near the Nam Phong base in Thailand. The service connection regulations provide that each disabling condition for which a veteran seeks service connection must be considered on the basis of he places, types, and circumstances of service as shown by service records, the official history of each organization in which he service, his medical records, and all pertinent medical and lay evidence. After a review of the evidence, it is the policy of VA to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 C.F.R. § 3.303(a). In this veteran's case, the DD Form 214 reflects that the veteran was a builder, earned the M-16 Sharpshooter Ribbon, and had 10 months and 19 days of foreign and/or sea service. Service personnel records show that the veteran worked with the U.S. Naval Mobile Construction Battalion Five (NMCB Five). Service personnel records also show that on July 6, 1972 the veteran was placed on temporary sea duty and transferred, reported at Port Hueneme, California, on July 23, 1972, and departed on August 14, 1972, then reported to the U.S. Naval Mobile Construction Battalion Five (NMCB Five) on August 18, 1972, until he was transferred on July 6, 1973. The evidence of record shows that service members in the veteran's military occupational specialty of builder were trained in ambush countermeasures, survival, evasion, resistance, and escape procedures, how to perform the duties of a grenadier, how to perform the duties of tire team automatic riflemen, how to place trip flares and other early warning devices, how to conduct booby trap countermeasures, how to transport personnel injured in combat, how to conduct patrols, how to perform land navigation procedures, and how to operate night vision equipment. The evidence of record also reflects that, regardless of their unit, construction battalions were given infantry training by the Marines, members of construction battalions had been wounded in action, every member of a construction battalion would serve in Vietnam, and that few military units saw more duty in Vietnam than those of construction battalions. Service medical records show that the veteran was noted and found to be psychiatrically normal at service entrance. In June 1973, after return from overseas service, the veteran was referred to the service psychiatric clinic, where he reported that he felt his attitudes were not compatible with military life, that there were many pressures to make something of himself, and he was experiencing a number of family difficulties. The in-service psychiatric symptoms were assessed as passive-aggressive personality disorder. Deployment Completion Report and Monthly Operations Reports from the NMCB Five for the period from April to December 1972 reflect deployment of NMCB Five units to Nam Phong base in Thailand during this period; that there were heavy rains in August 1972; and that liberty was cancelled due to the onset of hostile activity in August 1972. In written statements, the veteran wrote that he served in Southeast Asia from July 1972 through May 1973; he was assigned to NMCB Five; he was flown to Da Nang, Vietnam, where he spent a few weeks because his orders were lost; he was then flown to Nam Phong, Thailand; his rating was a builder (BU-2 and BU-3); he drew combat and hazardous duty pay during this time; his job required him to travel to several construction site outposts to collect time cards; during monsoon season his jeep stalled, so he was forced to continue on foot, got lost, and spent the night in the jungle; and he was afraid to call for help because of fear that Khmer Rouge rebels may hear him, as he had previously seen mutilated bodies hanging on fences near the Cambodia- Thailand border; and in the area near Spong, Cambodia, where they built a temporary bridge over the Mekong River, he saw dead bodies from U.S. bombing of Pol Pot soldiers. At the personal hearing in November 2007, the veteran testified that in service he spend about 10 to 12 days in Bin Hoa in Vietnam in about July 1972 before being flown to his station at Nam Phong Air Base in Thailand; his job there was a builder assigned to the battalion time keeper, and his job involved going out to outposts from the base; he received combat and hazardous duty pay while in Thailand; in about August 1972 during monsoon season while it was raining, while driving a jeep, he got lost and got stuck in the jungle, so he had to spend the night alone in the jungle, and this was a frightening experience for him; he was stationed about 100 miles from the Vietnam border; he had spent time in Cambodia and Laos where he saw bodies, including bodies floating in the Mekong River; the Pol Pot was active in Cambodia, Laos, and Vietnam, and Pol Pot soldiers were active in Thailand; while he was lost in the jungle he was thinking about the possibility of being captured or killed; and when he returned from Thailand in 1973 he requested to see a psychiatrist. The Board finds the veteran's report and personal hearing testimony of being lost during monsoon season and having to spend the night alone in the jungle away from the base to be credible and consistent with the other evidence of record. The veteran is competent to testify as to the occurrence of this incident. The Board has also observed the veteran's demeanor during the personal hearing testimony, as well as the consistency of his reports of in-service stressful events, and finds the veteran's testimony regarding in- service stressful events to be forthright and credible. With regard to the requirement that there be credible supporting evidence that the claimed in-service stressor occurred, this incident of being lost during monsoon season and having to spend the night alone in the jungle away from the base occurred in the context of Pol Pot insurgency in the neighboring country and Khmer Rouge atrocities that included mass killings, with some of the refugees fleeing into Thailand. The veteran had been trained for enemy ambush and capture, weaponry, base perimeter protection from enemy attack, combat transportation, and patrols. The evidence shows that members of the construction battalion unit had historically had been wounded in action. The veteran's in- service stressful incident is corroborated by evidence that shows a context of atrocities within 100 miles, the possibility of conflict reaching into Thailand, actual local hostile activity near the Nam Phong base in Thailand in August 1972, and that the veteran had been trained to be prepared for possible enemy attacks on the base. In addition, the evidence of record corroborates that there was hostile activity in the area of the Nam Phong base in Thailand in about August 1972 that caused liberty of service members to be restricted. This unit history entry alone is some credible supporting evidence of an in-service stressor, as well as additional evidence that tends to show the context for the veteran's reported in-service stressful event of being lost during monsoon season and having to spend the night alone in the jungle away from the base. Based on this evidence, the Board finds that the evidence is at least in relative equipoise on the question of whether there is credible supporting evidence of the occurrence of in-service stressful events. In so finding, the Board has considered Pentecost v. Principi, 16 Vet. App. 124 (2002), wherein the Court pointed out that corroboration of every detail of a stressor under such circumstances, such as the claimant's own personal involvement, is not necessary. See also Suozzi v. Brown, 10 Vet. App. 307 (1997). The service connection regulations provide that each disabling condition for which a veteran seeks service connection must be considered on the basis of he places, types, and circumstances of service as shown by service records, the official history of each organization in which he service, his medical records, and all pertinent medical and lay evidence. 38 C.F.R. § 3.303(a). Resolving reasonable doubt in the veteran's favor, the Board finds that there is credible supporting evidence of the occurrence of in-service stressful events. The competent medical evidence establishes a current diagnosis of PTSD. For example, a February 2004 staff psychologist report reflects a diagnosis of PTSD, indicated to be based on DSM-IV criteria, based on reported in-service stressful events of a jeep breaking down in Thailand and being lost in the jungle, and seeing badly mutilated corpses of soldiers and civilians. A May 2003 VA clinical psychologist report reflects provisional diagnostic impressions of PTSD and depression (not otherwise specified), indicated to be based on reported in-service stressful events of a jeep breaking down in Thailand and being lost in the jungle, and seeing dead bodies that were blown up or hanging from trees. A June 2004 note from the VA staff psychologist reflects diagnoses of PTSD and depression (not otherwise specified), and indicates that a VA psychiatrist concurred with the PTSD diagnosis. The Board finds that the weight of the competent medical evidence is also at least in relative equipoise on the question of whether the currently diagnosed PTSD is related to the verified in-service stressful events. For these reasons, and resolving reasonable doubt in the veteran's favor, the Board finds that the veteran's PTSD was incurred in service. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for PTSD is granted. ____________________________________________ J. Parker Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs