Citation Nr: 0727364 Decision Date: 08/31/07 Archive Date: 09/11/07 DOCKET NO. 04-40 934 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Catherine Cykowski, Associate Counsel INTRODUCTION The veteran had active duty service from March 1968 to March 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. FINDINGS OF FACT 1. The veteran has a current diagnosis of PTSD. 2. The veteran is shown as likely as not to have PTSD due to in-service stressors. CONCLUSION OF LAW The criteria for service connection for PTSD have reasonably been met. 38 U.S.C.A. §§ 1110, 1154, 5103, 5107 (West 2002 and Supp. 2006); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist On November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002), became law. Regulations implementing the VCAA were then published at 66 Fed. Reg. 45,620, 45,630-32 (August 29, 2001) and are now codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2006). The VCAA and its implementing regulations are applicable to this appeal. The duty to notify under the VCAA requires VA to notify the claimant and the claimant's representative, if any, of the information and medical or lay evidence that is necessary to substantiate the claim. In Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 119-20 (2004), the Court specifically held that the VCAA requires VA to provide notice that informs 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, and (3) that the claimant is expected to provide. In what can be considered a fourth element of the requisite notice, the Court further held that, under 38 C.F.R. § 3.159(b), VA must request the claimant to provide any evidence in his possession that pertains to the claim. Id. at 120-21. The Court has indicated that notice under the VCAA must be given prior to an initial unfavorable decision by the agency of original jurisdiction. Id. The VCAA and its implementing regulations provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. Under these provisions, VA is required to obtain service medical records and relevant VA healthcare records and must make reasonable efforts to help the veteran obtain other relevant medical records. The duty to assist also requires VA to provide the claimant with a medical examination or a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R § 3.159 (2006). The Court has mandated that VA ensure strict compliance with the provisions of the VCAA. Quartuccio v. Principi, 16 Vet. App. at 183 (2002). In this case, as explained below, VA has strictly complied with the VCAA by providing the veteran adequate notice and assistance with regard to the claims on appeal. Accordingly, the veteran is not prejudiced by the Board's decision to proceed with the disposition of this appeal. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). During the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA 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. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Dingess/Hartman at 488. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. A. Duty to Notify In a November 2002 letter, the RO notified the veteran of the evidence required to substantiate a claim for service connection for PTSD. This letter explained VA's duty to assist the veteran with the development of his claim and specified what evidence VA would be responsible for obtaining and what evidence VA would assist the veteran in obtaining. This letter advised the veteran to submit any pertinent evidence in his possession. This notice complied with the timing requirements set forth in Pelegrini, as it was provided prior to the initial unfavorable rating decision. The Board finds that the duty to notify has been satisfied. All the VCAA requires is that the duty to notify is satisfied, and that appellants be given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996). B. Duty to Assist The RO made reasonable and appropriate efforts to assist the veteran. The RO obtained the pertinent evidence identified by the veteran. The evidence that has been obtained and associated with the claims file includes service medical records and VA medical records. The veteran has been afforded a VA examination, from which a medical opinion was obtained. The veteran has not identified any outstanding evidence. Therefore, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the veteran in developing the facts pertinent to this claim. II. Analysis of Claim Service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in active service. 38 U.S.C.A. § 1110. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also 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). Generally, to prevail on a claim of service connection on the merits, there must be medical evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). Service connection for PTSD requires medical evidence establishing a diagnosis of the condition, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed in- service stressors. 38 C.F.R. § 3.304(f) (2006). 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 must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A report of a May 2005 VA examination reveals a diagnosis of PTSD according to DSM-IV criteria. The report reflects that the veteran reported stressful events during service including rocket attacks and witnessing a plane explosion which killed several crew members. The examiner opined that the veteran's PTSD was caused by traumatic events during service in Vietnam. The veteran had active duty service from March 1968 to March 1972. Personnel records reflect that the veteran was stationed at Da Nang Air Base in Vietnam from April 1970 to March 1971. The DD Form 214 indicates that the veteran's military occupational specialty (MOS) was one of airplane electrician. The veteran has submitted several statements regarding his claimed stressors. In a written statement dated in April 2005, the veteran wrote that there were many rocket attacks at Da Nang in which individuals were killed or wounded. The veteran also stated that he witnessed a refueling accident in which four Marines were killed. In Pentecost v. Principi, 16 Vet. App. 124 (2002), the Court held that a veteran need not corroborate his actual physical proximity to (or firsthand experience with) and personal participation in rocket attacks while stationed in Vietnam. The Court found in Pentecost that the veteran's unit records provided credible evidence that the attacks that the veteran alleged did, in fact, occur. Id. In Suozzi v. Brown, 10 Vet. App. 307 (1997), the Court found that a stressor need not be corroborated in every detail. A report from the Air Force History Office, entitled "Air Base Defense in the Republic of Vietnam 1961-1973," confirms that there were several rocket attacks on Da Nang Air Base between April 1970 and March 1971. Based on the historical records documenting rocket attacks at Da Nang during the veteran's service, the Board concludes that sufficient evidence of an in-service stressor has been established. The Board concludes that evidence corroborates the veteran's claimed stressor of rocket attacks, and the veteran has satisfied the requirements of credible evidence of an in- service stressor. There is evidence of a current diagnosis of PTSD and a medical opinion relating PTSD to stressors during the veteran's service in Vietnam. The Board therefore finds that service connection for PTSD is warranted. 38 C.F.R. § 3.304(f). ORDER Service connection for PTSD is granted. ____________________________________________ ROBERT E. O'BRIEN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs