Citation Nr: 0706871 Decision Date: 03/08/07 Archive Date: 03/20/07 DOCKET NO. 05-16 537 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Maine Veterans' Services ATTORNEY FOR THE BOARD L. A. Rein, Associate Counsel INTRODUCTION The veteran had active military service from August 1970 to August 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine. The veteran testified during a hearing before the RO's Decision Review Officer in June 2005. A transcript of that hearing is of record. FINDINGS OF FACT The veteran currently has PTSD due to a confirmed stressor he encountered in Vietnam. CONCLUSION OF LAW Resolving all reasonable doubt in the veteran's favor, PTSD was incurred in service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f) (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Board has considered the veteran's application to reopen his claim with respect to the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100 et. seq. (West 2003). Given the favorable outcome as noted above, no conceivable prejudice to the veteran could result from this adjudication. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993). The agency of original jurisdiction will be responsible for addressing any VCAA notice defect with respect to the rating and effective date elements when effectuating the award. Therefore, the Board finds that the veteran has not been prejudiced in the Board's favorable adjudication of his appeal. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). II. Analysis Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the in-service stressor occurred. 38 C.F.R. § 3.304(f). In adjudicating a claim for service connection for PTSD, the Board is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by the veteran's military records, and all pertinent medical and lay evidence. See 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.304(f); Hayes v. Brown, 5 Vet. App. 60, 66 (1993). The evidence necessary to establish the occurrence of a stressor during service to support a claim of entitlement to service connection for PTSD will vary depending on whether or not the veteran was "engaged in combat with the enemy." Id. In an opinion, the General Counsel stated that the term "combat" is defined to mean "a fight, encounter, or contest between individuals or groups" and "actual fighting engagement of military forces." VAOPGCPREC 12-99 (Oct 1999). That opinion further states that the phrase "engaged in combat with the enemy" requires that the veteran "have personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality." VAOPGCPREC 12-99. If VA determines that the veteran engaged in combat with the enemy and that his alleged stressor is combat related, then the veteran's lay testimony or statements are accepted as conclusive evidence of the occurrence of the claimed stressor, 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." See 38 U.S.C.A. § 1154(b); 38 C.F.R. 3.304(f); Cohen v. Brown, 10 Vet. App. 128 (1997); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). 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. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b) (West 2002). The veteran claims that his service stressor involves coming under enemy attack while stationed at Phu Bai. Service personnel records reflect that the veteran served in Vietnam beginning in December 1971 until late March 1972 with the 138th Aviation Company at Phu Bai. An August 1991 letter from the Deputy Chief of Staff of the U.S. Army Intelligence and Security Command indicates that the position of the veteran's unit, the 138th Aviation Company, in February 1972 was at Phu Bai and it was isolated, exposed to enemy fire, and was heavily defended. The letter also stated that during the first part of 1972, the Phu Bai compound was subjected to intermittent harassment from enemy rocket attacks. Upon review of these records, the Board notes that they establish that the veteran's unit was located in an area where the enemy was active and that he underwent rocket attacks. The veteran has provided buddy statements supporting his contentions that he was subject to rocket and mortar attacks and also experienced frequent enemy fire, and the Board finds these statements to be credible, particularly in light of the fact that the veteran was in Vietnam in early 1972. The Court has indicated that a rocket or mortar attack at a base in Vietnam may be a sufficient PTSD stressor, and a veteran's claimed personal exposure to the attack will be satisfactorily corroborated by his presence with his unit which was known to be generally exposed to the attack. Pentecost v. Principi, 16 Vet. App. 124 (2002). As indicated above, the veteran has claimed that one of his stressors includes experiencing rocket or mortar attacks, and service personnel records along with a letter from the Deputy Chief of Staff of the U.S. Army Intelligence and Security Command verify that his unit was located in areas where such attacks occurred. Although some of the veteran's other claimed Vietnam stressors have not been verified, the Board finds that the rocket/mortar attack stressor is corroborated. In the spirit of the holding in Pentecost, the Board finds there is sufficient credible supporting evidence that a service stressor has been established. A review of private and VA outpatient treatment records from November 1999 to August 2005 show multiple diagnosis of PTSD. The reports tend to suggest that the diagnosis were made in accord with DSM IV. Moreover, the diagnosis was made based on the veteran's service stressor of experiencing rocket and mortar attacks. In this regard, in an August 2005 letter, the veteran's private psychologist stated that the veteran met the criteria for PTSD based on a full range of DSM IV symptoms related to his service in Vietnam. Accordingly, by extending the benefit of the doubt to the veteran, service connection for PTSD is warranted. ORDER Service connection for PTSD is granted. ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs