Citation Nr: 0729024 Decision Date: 09/14/07 Archive Date: 09/25/07 DOCKET NO. 01-06 911A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to service connection for post traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Paul T. Hourihan, Attorney ATTORNEY FOR THE BOARD John Z. Jones, Counsel INTRODUCTION The veteran served on active duty from February 1978 to August 1980. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a February 2000 rating decision and a January 2001 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In the February 2000 rating decision, the RO denied the veteran's claim of entitlement to service connection for PTSD, and in the January 2001 administrative decision, the RO determined that the injuries sustained by the veteran, alleged as stressors in support of his PTSD, were not incurred in the line of duty. In a decision issued in November 2004, the Board determined that the veteran's PTSD was due to his own willful misconduct. By an August 2006 Order, the United States Court of Appeals for Veterans Claims (Court) granted an August 2006 Joint Motion and vacated the Board's November 2004 decision. The Board notes that its November 2004 decision recharacterized the issue on appeal as whether the veteran's PTSD is due to his willful misconduct while on active duty. However, upon review, the Board feels that the issue is most properly phrased as on the initial rating decision in February 2000 - that is, entitlement to service connection for PTSD. FINDINGS OF FACT 1. The veteran did not engage in combat with the enemy. 2. The veteran has a diagnosis of PTSD based on two stressful events in service - (1) when he was assaulted by another serviceman he was drinking with, sustaining a broken nose, and (2) when two servicemen held him upside down out of a third-story window. 3. Service medical and personnel records confirm that on February 3, 1980, the veteran incurred a broken nose in a fight with another soldier; however, the February 1980 fight was the result of the veteran's abuse of alcohol and may not be considered to have occurred in the line of duty. 3. The record reasonably supports the veteran's claim that while in service two servicemen held him upside down out of a third-story window. 4. It is just as likely as not the veteran has PTSD from a stressor he experienced in service. CONCLUSION OF LAW Resolving all reasonable doubt in his favor, the veteran's PTSD was incurred in active service. 38 U.S.C.A. §§ 105, 1131 (West 2002); 38 C.F.R. §§ 3.1, 3.301, 3.303, 3.304 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initial comment As has been discussed in the Introduction above, the Court's August 2006 Order, based on a Joint Motion, vacated the Board's November 2004 decision which found that the veteran's PTSD was due to his own willful misconduct. The Board wishes to make it clear that it is aware of the Court's instructions in Fletcher v. Derwinski, 1 Vet. App. 394, 397 (1991), to the effect that a remand by the Court is not "merely for the purposes of rewriting the opinion so that it will superficially comply with the "reasons or bases" requirement of 38 U.S.C. § 7104(d)(1). A remand is meant to entail a critical examination of the justification for the decision." The Board's analysis has been undertaken with that obligation in mind. The Veterans Claims Assistance Act of 2000 (VCAA) There has been a significant change in the law during the pendency of this appeal. The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), now codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West Supp. 2001). The legislation has eliminated the well- grounded claim requirement, has expanded the duty of VA to notify the veteran and the representative, and has enhanced its duty to assist a veteran in developing the information and evidence necessary to substantiate a claim. See generally VCAA. Given the disposition reached in this case, the Board finds that VA has met its duty to assist the veteran in the development of the claim on appeal under VCAA. Pertinent Law and Regulations According to applicable law and regulations, service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2006). Notwithstanding the lack of a diagnosis of a disability during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2006); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). Service connection for PTSD, in particular, requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), (2) credible supporting evidence that the claimed in- service stressors actually occurred, and (3) a link, established by medical evidence, between the current symptomatology and the claimed in-service stressors. 38 C.F.R. § 3.304(f) (2006). If the claimed stressor is unrelated to combat, as is the case here, a veteran's lay testimony regarding the inservice stressor is insufficient to establish the occurrence of the stressor and must be corroborated by "credible supporting evidence." See Cohen v. Brown, 10 Vet. App. 128, 142 (1997). If a PTSD claim is based on in-service personal assault, evidence from sources other than the veteran's service records may corroborate the veteran's account of the stressor incident. 38 C.F.R. § 3.304(f) (2006). Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2006). An injury incurred during active military, naval, or air service will be deemed to have been incurred in the line of duty unless such injury or disease was the result of the veteran's own willful misconduct or, for claims filed after October 31, 1990, was a result of his or her abuse of alcohol or drugs. 38 U.S.C.A. § 3.1(m) (West 2002); 38 C.F.R. § 3.301 (2006). Analysis The veteran contends that he is entitled to service connection for PTSD because it was caused by stressors incurred during his military service. Indeed, a January 2003 VA examiner diagnosed the veteran with PTSD as a result of "two episodes of assault" during service - (1) when he was assaulted by another serviceman he was drinking with, sustaining a broken nose, and (2) when two servicemen hung him out of a third story window because they thought he was an informant with the Criminal Investigation Division (CID). The Board will address each of the claimed stressors separately. Assault 1 Service medical records show that in February 1980 the veteran, characterized as an assault victim, was seen with a fractured nose and laceration to the nose, and multiple facial bruises. The laceration was sutured and he was released to military police. While it is clear that the veteran currently has PTSD as a result of the February 1980 inservice incident, this matter hinges on whether or not such incident occurred in the line of duty. In a statement regarding the incident signed in April 1980, the veteran's company commander described the incident as follows: I had been called from home by the Charge of Quarters concerning a disturbance between [the veteran] and [fellow serviceman]. When I and the 1SG (First Sergeant) arrived [the veteran] and [fellow serviceman] were both drunk and verbally combative towards each other. The situation was resolved with on the spot counseling. [The veteran] was intoxicated to the point that he was not rational. [The veteran] does not control himself when he is under the influence of alcohol. He needs medical treatment and professional counseling and his present environment will not readily permit either. Two days later, the company commander wrote another report: [The veteran] was taken to 188th General Dispensary with a broken nose he suffered from a fight with [fellow serviceman]. [The veteran] had been drinking heavily prior to the incident which took place in [fellow serviceman's] room. [The veteran] had a portion of his suspended sentence on a previous article 15 lifted for his misconduct. He realizes that he has a drinking problem. [The veteran] was placed on CDAAC (Community Drug and Alcohol Assistance Center) following this incident. He stated he had no problems which was causing his drinking. The veteran's representative has argued that the record does not support a finding that the veteran's confirmed inservice PTSD stressor (the February 1980 incident) was the result of his willful misconduct. It is undisputed that the veteran was on active duty at the time of the February 1980 fight. By operation of 38 U.S.C. § 105(a), the inservice stressor is therefore deemed to have been incurred in line of duty unless it is shown that the incident was the result of the veteran's willful misconduct, and that such misconduct proximately caused his injuries or, since his service connection claim was filed after October 31, 1990, the result of his abuse of alcohol. Upon review of the file, the Board agrees that there is insufficient evidence to support a finding that the February 1980 incident was the result of the veteran's willful misconduct. However, because the February 1980 fight was the result of the veteran's abuse of alcohol it may not be considered to have been incurred in the line of duty. That is, there is sufficient evidence to overcome the presumption that the veteran inservice stressor (the February 1980 fight) was incurred in the line of duty. In so deciding, the Board looks initially to the content of the veteran's actions. In this regard, the Board finds extremely significant the description of the incident by the veteran's company commander. The Board also rests heavily on the RO's January 2001 administrative decision finding that the veteran was not in the line of his duty on February 3, 1980 when his nose was broken. The veteran's attorney argues that there is evidence of record to dispute the commanding officer's description of events. The attorney points out that the commander was not a witness to the incident and that his report was written over two and a half months after the incident. In addition, he argues that one of the key assertions in the statement, that the veteran had been "drinking heavily," is flatly contradicted by contemporaneous medical evidence - specifically, the February 3rd medical intake note which makes no mention of alcohol and states that the veteran was oriented as to time, place, and person and had a good gait, without a stagger. See Statement of Additional Argument, dated in June 2007, pages 12-13. In response, the Board acknowledges that the commanding officer's statements were written over two months after the incident; however, there is no indication that they do not accurately describe the events surrounding the February 1980 incident. In this regard, the Board notes that the officer specifically indicated that he had "been called from home" which would suggest that the circumstances required his immediate attention and thus would stand out in his mind. The fact that he arrived at the scene with the First Sergeant, a person who could independently verify his recollection of events if needed, further bolsters the commanding officer's believability as to this matter. Most significant, however, is the fact that the commanding officer's description of the February 1980 incident coincides with the veteran's behavior as shown in the evidence of record. Specifically, the commanding officer noted that he had been "called from home" concerning a "disturbance" and that when he arrived at the scene the veteran and another soldier were "drunk" and "verbally combative towards each other." The commanding officer went on the state that the veteran "does not control himself when he is under the influence of alcohol." The veteran's personnel and service medical records clearly document his struggles with alcohol and pattern of similar behavior. In January 1979, he was cited for striking a fellow serviceman. In January 1980, he received an Article 15 for being drunk and disorderly in command. When seen in the medical clinic in February 1980, following the fight, he denied sustaining an injury to his nose, but was noted to have had odor of alcohol on his breath. An entry dated the following day reflects that an examiner again noted alcohol on his breath (albeit not as strong the day before) and diagnosed him as having probable alcoholism. In April 1980, the veteran received another Article 15 for being drunk and disorderly in command. After failed attempts to rehabilitate the veteran (for alcohol abuse) the military ultimately determined that in the best interest of the Army he be discharged. These records show that his drinking problem was highlighted by the fact that he involved himself in verbal and/or physical confrontations with others nearly every time he drank too much. The Board does not find dispositive the fact that the February 3rd medical record does not mention alcohol or otherwise suggest that the veteran was intoxicated. There may be any number of valid reasons why the medical record does not contain such information (i.e., not relevant for treatment purposes). Nonetheless, the simple fact that the document, itself, does not state that the veteran was intoxicated does not mean that he was not. In statements dated in July 1980 by the veteran's First Sergeant (NCO) and two direct superior officers, each reported that the veteran had been involved in instigating several fights in the billets during after duty hours and that he had a serious alcohol problem. Although the records indicate that the veteran's job performance was fair and consistent, his off duty behavior was a serious problem and these superior officers recommended that he be discharged; indeed, his commanding officer recommended that he be discharged because he was a rehabilitation failure. The totality of the evidence clearly shows that the veteran had a drinking problem while he was in service. He does not dispute this point. The Board finds that the evidence also shows that he had a propensity to engage in physical confrontations when drinking. The veteran does not dispute this fact either. Therefore, the commanding officer's description of the events surrounding the February 1980 incident - that the veteran's broken nose was sustained in a fight as opposed to an unprovoked attack - is more believable. In this regard, the Board notes that the veteran has given somewhat inconsistent and wholly unsubstantiated accounts of the February 1980 incident. Specifically, at one point he alleged that he was attacked by two servicemen, while at other times he has indicated that he was attacked by a single serviceman. In addition, he has indicated that he was attacked in or while leaving his room. Moreover, although the veteran testified in July 2000 that his teeth were knocked out, the service medical records are completely negative regarding missing teeth. In any event, giving more weight to these unsubstantiated and inconsistent accounts proposed would require the Board to engage in speculation. In sum, there is no basis in the record to question the reliability of the commanding officer's statement regarding the events surrounding the veteran's broken nose. There is, however, ample basis to question the reliability of the veteran's version. Given the inconsistencies of the veteran's statements and the fact that he was reported to have been drinking heavily at the time of the fight and at many other times during service, (indeed, he was involuntarily referred to CDAAC for counseling and alcohol rehabilitation), the Board does not find the veteran's statements with respect to the February 1980 incident to be credible. Although a VA psychiatrist has diagnosed the veteran as having PTSD related, in part, to the February 1980 fight while he was on active duty, because the stressor was the result of the veteran's abuse of alcohol, it may not be considered to have been incurred in the line of duty, and therefore cannot support a claim of service connection for PTSD. Assault 2 The veteran's PTSD diagnosis is also based on his claim that two fellow serviceman held him upside down out a third-story window because they thought he was a "narc" working for the CID. As noted above, if a PTSD claim is based on an in-service personnel assault, evidence from sources other than the veteran's service records may corroborate the veteran's account of the stressor incident. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor incident include, but are not limited to: a request for a transfer to another military duty assignment; substance abuse. . . . or unexplained social behavior changes. 38 C.F.R. § 3.304(f)(3). During a July 2000 hearing (regarding an unrelated claim), the veteran reported that he was transferred to a different unit because his life was threatened by fellow soldiers who thought he was an informant for the CID. They held him upside down out a third-story window. He indicated that his commanding officer was aware of the threats. The veteran's service personnel records include a "Record of Informal Counseling Session" dated in December 1979 wherein his company commander noted that the veteran was transferred to the 82nd Engineer Battalion because of a threat to his life in his previous unit. While the record contains no information regarding the nature of the threat, a plain reading of the document clearly suggests that the threat was of such severity that a transfer to another unit was necessary. In addition, the record reflects that after the transfer the veteran engaged in a pattern of disruptive behavior, fueled in large part to his problems with alcohol, which ultimately led to his dismissal from the military. The Board notes that behavior changes may constitute credible evidence of the in-service stressor. All things considered, and resolving all reasonable doubt in his favor, there is sufficient evidence in the file confirming the veteran's claimed stressor. See 38 C.F.R. § 3.102; see, too, Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). The Board notes that while there is no specific documentation of the alleged incident, there is enough circumstantial evidence to raise a reasonable doubt as to whether the incident actually occurred. Therefore, service connection for PTSD is warranted. ORDER Entitlement to service connection for PTSD is granted. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs