Citation Nr: 0723291 Decision Date: 07/30/07 Archive Date: 08/14/07 DOCKET NO. 03-08 575A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES Entitlement to service connection for post-traumatic stress disorder (PTSD). Entitlement to service connection for a bilateral foot disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD James A. DeFrank, Associate Counsel INTRODUCTION The veteran served on active duty from November 17, 1990 to June 17, 1991. His DD 214 indicates that he served in the Southwest Asia Theater of operations during the Persian Gulf War. His military occupational specialty was food service specialist. He also had active duty training from February to June 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2002 and March 2004 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In the September 2002 rating decision, the RO denied entitlement to service connection for a bilateral foot disorder. In the March 2004 rating decision, the RO denied entitlement to service connection for PTSD. In October 1999, the Board denied entitlement to service connection for tinea pedis (athlete's foot). Subsequent to that decision the veteran was found to have heel spurs. A claim based on a new diagnosis is a new claim decided without regard to the prior denial. Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996). In the March 2004 rating decision the RO also denied service connection for chronic obstructive pulmonary disease on the basis that evidence submitted was not new and material. In a June 2005 statement, the veteran sought to re-open this claim. He also submitted a claim for "Gulf War syndrome" and an increased (compensable) rating for a left wrist disability. The RO has indicated that it is in the process of adjudicating these claims. To the extent the RO is not currently adjudicating these claims; they are referred for such adjudication. The issue of entitlement to service connection for a bilateral foot disability is remanded to the RO via VA's Appeals Management Center (AMC). The veteran will be advised if further action is required on his part. FINDINGS OF FACT 1. The veteran engaged in combat with the enemy. 2. A diagnosis of PTSD related to combat has been given. CONCLUSIONS OF LAW PTSD was incurred in active service. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2006). Regarding the veteran's claim for entitlement to service connection for PTSD, the VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision in this appeal, further assistance is unnecessary to aid the appellant in substantiating his claim for PTSD. Applicable laws and regulations Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In order to establish service connection for a disability, the evidence must show that it resulted from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection for PTSD is subject to additional requirements, however. Service connection for PTSD also 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 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, his lay testimony-alone-may establish the occurrence of the claimed in-service stressor 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 his service. 38 C.F.R. § 3.304(f) (2006); see also Cohen v. Brown, 10 Vet. App. 128 (1997). Factual Background The veteran's records show that he served in the Southwest Asia Theater of operations during the Persian Gulf War. He took part in the Defense of Saudi Arabia, Liberation and Defense of Kuwait and Southwest Asia Cease-Fire Campaign. The veteran's official personnel file (OPF) reflects that he was assigned to the 1032d Transportation Company and had overseas service in Saudi Arabia as a part of Operation Desert Shield from January 1991 to May 1991. The veteran's service medical records reflect no relevant abnormality. At a psychology consultation in December 2001 at a VA Medical Center (VAMC), the veteran reported a history of anxious symptoms that were related to his experiences in the Persian Gulf War. The veteran had recurring nightmares specific to his involvement to the Persian Gulf. He reported seeing many refugees starving and was haunted by the memories of starving children. He also noted that his nightmares have increased since the events of September 11, 2001. In February 2002, the veteran completed a PTSD questionnaire. He stated that between February and March 1991, he watched children die on the border of Iraq and Saudi Arabia at Rafha. He followed the 2nd division infantry through Iraq and saw dead, scorched bodies in trucks. He also reported that in February 1991, he was in a mine field. In an April 2004 letter, the veteran's private psychiatrist stated that the veteran had been transferred to his care in April 2003. The veteran had been diagnosed with major depressive order, single episode, moderate and PTSD, chronic. In an April 2004 statement, a First Sergeant, C.C. stated that he served alongside the veteran during Operation Desert Storm. He reported that the veteran went on many missions with him into Iraq to help him with fuel haul missions. He stated that driving into unmarked mine fields or other hostile areas with only an M-16 for protection was very disturbing for the veteran. In a May 2004 statement, M.B., Staff Sergeant, 3rd Platoon, First squad leader, reported that the veteran assisted his platoon on several missions. He confirmed that the veteran was part of a convoy of 10 trucks and 20 drivers that were used for fuel support on the first day of the ground war. He stated that the convoy proceeded to another location and drove through black out conditions for 8 to 9 hours. During this travel, they saw many dead soldiers as well as surrendering Iraqi soldiers. They reached their location a few miles near Basra where they stayed for two days. When they left that location, his vehicle followed a truck that hit a land mine which blew off its rear tires. They were told to stay in their vehicles until the mines were cleared. During the night, they could hear large explosions from the mines detonating. In the morning, they were lead through the cleared mine field. Also in May 2004, G.B. stated that both he and the veteran were activated in 1990 for the Iraq War. He stated that the veteran would volunteer for every mission he could. In a May 2004 letter, the veteran's wife stated that there had been a major change in the veteran since returning home from Desert Storm. In a June 2004 statement, the veteran reported that on several occasions, he volunteered to go on missions as an assistant driver into Iraq. He stated that on two of these missions, he was in live mine fields. Additionally, he went on a mission that was about a mile away from Basra. He observed many dead Iraqi soldiers. On return from this site, a lead truck they were following took a wrong turn and hit a land mine. No one was hurt but they had to stay in the mine field overnight until it as cleared. He stated that exploding mines kept them wondering what was next during the night. The veteran also reported another occasion of being in a mine field as well as another occasion where the United States Air Force was dropping bombs on a mine field to clear it. VA outpatient treatment records dated from February to October 2005; report that the veteran became tearful when talking about his Desert Storm operating experiences. His reported symptoms of PTSD including nightmares, flashbacks, triggers, and autonomic hyperactivity. The diagnosis was consistently reported as PTSD with mixed emotions. In October 2005, the veteran continued to struggle with intrusive memories and nightmares related to his experiences in the military. The examiner stated that the veteran had a preoccupation with occasional nightmares about service related experience in the military. The veteran continued to experience residual symptoms in terms of nightmares, avoidance behavior, intrusive thoughts and anxiety with poor concentration. In an April 2007 statement, D.M., the company commander during the veteran's service in the Gulf War stated that the veteran went on numerous missions into Kuwait and Iraq prior to and after the surrender of Iraq. Analysis The evidence demonstrates consistent diagnoses of PTSD. That diagnosis has also been consistently attributed to in-service stressors. Two of the three elements for service connection are thus satisfied. The remaining question is whether there is credible supporting evidence of the claimed stressors, or whether the evidence shows that the veteran engaged in combat. VA's General Counsel has provided guidance at to what constitutes combat. VAOPGCPREC 12- 99. "The Board shall be bound in its decisions by the regulations of the Department, instructions of the Secretary, and the precedent opinions of the chief legal officer of the Department." Thus, GC opinions, like that cited above, are mandatory guidance that VA must follow. 38 U.S.C.A. § 7104(a), (c) (West 2002). According to VAOPGCPREC 12-99, the ordinary meaning of the phrase "engaged in combat with the enemy," is that a veteran participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. Nothing in the language or history of that statute or any VA regulation suggests a more specific definition. The determination as to what evidence may be satisfactory proof that a veteran "engaged in combat with the enemy" necessarily depends on the facts of each case. Determining whether evidence establishes that a veteran engaged in combat requires an evaluation of all pertinent evidence and an assessment of the credibility, probative value, and relative weight of the evidence. A veteran's lay testimony, alone, is sufficient to verify a claimed in-service stressor if the claimed stressor is related to a veteran's personal episode of engagement in combat with the enemy. However, a veteran's lay testimony, alone, is not sufficient to establish that he or she engaged in personal combat with the enemy. That factor must be established by objective, competent, and factual evidence of record. VAOPGCPREC 12-99, p. 4 (October 18, 1999). Engagement in combat is not necessarily determined simply by reference to the existence or nonexistence of certain awards or military occupational specialties (MOSs). Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). The fact that a veteran, who had a noncombatant military occupational specialty, but was stationed with a unit that was present while enemy attacks occurred, would strongly suggest that he was, in fact, exposed to such attacks. Pentecost v. Principi, 16 Vet. App. 124 (2002). In other words, the veteran's presence with the unit at the time such attacks occurred corroborates his statement that he experienced such attacks personally. A stressor need not be corroboration in every detail. Suozzi v. Brown, Vet. App. 307, 311 (1997). There must be some objective evidence (per Pentecost, "independent evidence") that the veteran participated in or was exposed to combat (buddy statements, notation in appellant's personnel record, contemporaneous letters from appellant to his family, etc.). The veteran reported that on several occasions, he volunteered to go on missions as an assistant driver into Iraq. He stated that on two of these missions, he was in live mine fields. The veteran has consistently included these stressors in his statements regarding his stressors. Various "buddy statements" from individuals who served alongside the veteran in Operation Desert Storm confirmed this duty and corroborated the veteran volunteering for a convoy that went through a mine field in Iraq. Although there are no official reports specifically documenting the veteran's travel in a convoy through a mine field, the veteran has provided a consistent history and the "buddy statements" corroborate the alleged stressors. Thus, even without a decoration such as a Purple Heart or a Combat Infantryman's Badge, the evidence of record is sufficient to place the issue of participation in combat in relative equipoise. Resolving reasonable doubt, in the veteran's favor the Board finds that the veteran did participate in combat. A PTSD diagnosis has been given. The PTSD diagnosis has been attributed to in-service combat. Service department records and "buddy statements" support a finding that the veteran involved in combat. Thus, the evidence supports the grant of service connection for PTSD. 38 C.F.R. §§ 3.304(f). Accordingly, service connection for PTSD is warranted. ORDER Entitlement to service connection for post-traumatic stress disorder (PTSD) is granted. REMAND Under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The veteran's reports of a constinuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, at 83. In this case, VA outpatient treatment records show current findings of heel spurs. Service comrades have reported that they were aware that the veteran had foot problems during his service in the Gulf War. The veteran has reported a continuity of symptomatology since service. An examination is needed to obtain a competent opinion as to whether any current foot problem is related to service. Accordingly, this case is remanded for the following: 1. Afford the veteran a VA orthopedic or podiatry examination to determine whether he has a current foot disability related to service. The examiner should review the claims folder. After examining the veteran, considering his statements, and reviewing the claims folder; the examiner should provide an opinion as to whether any current foot disability at least as likely as not (50 percent probability or more) had its onset during service, or is otherwise related to a disease or injury in service. The examiner should provide a rationale for the opinion. The examiner should also opine as to whether there are signs or symptoms of an undiagnosed illness involving the feet. If so, the examiner should describe all manifestations of that illness. 2. If any benefit sought on appeal remains denied, issue a supplemental statement of the case, before returning the case to the Board, if otherwise in order The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006). ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs