Citation Nr: 1400029 Decision Date: 01/02/14 Archive Date: 01/16/14 DOCKET NO. 10-16 586
FINDINGS OF FACT …
5. The Veteran’s lay account of exposure to enemy mortar and gunfire attacks in Vietnam are credible and consistent with the places, types, and circumstances of the Veteran’s service to include his military occupational specialty (MOS), unit, and assignment and duties, without clear and convincing evidence to the contrary.
6. The most probative evidence establishes that the Veteran does not have a current diagnosis of PTSD in accordance within the applicable VA regulation.
CONCLUSIONS OF LAW …
5. PTSD was not incurred in active service. 38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 4.125 (2013).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS …
Initially, the Veteran’s service personnel records and Report of Separation from the Armed Forces (DD Form 214) do not reflect receipt of medals, badges, or decorations that specifically denote combat with the enemy. His service personnel records and DD Form 214 do document that he received medals and awards, such as the Vietnam Service Medal, Vietnam Campaign Medal, and the National Defense Service Medal among others, but there is no award that establishes that he engaged in combat. Moreover, his military occupational specialty (MOS) was an armorer/unit supplier, which is not indicative of combat. He has also never stated that he actually engaged in combat with the enemy. Thus, the combat provisions are not for application. 38 C.F.R. § 3.304(f)(2). See also 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) (pertaining to combat Veterans).
Nevertheless, under the July 13, 2010, liberalizing amendments to the PTSD regulation, the Veteran’s lay testimony alone may establish the occurrence of claimed in-service stressors that are the result of “fear of hostile military or terrorist activity” in certain instances. 38 C.F.R. § 3.304(f)(3). In this regard, the September 2011 VA psychological examiner indicated that the Veteran’s alleged stressors of enemy mortar, artillery, and gunfire attacks while travelling in supply convoys and while assigned to his base are related to the “fear of hostile military or terrorist activity.” In addition, the Board finds that the Veteran’s descriptions of the claimed enemy attack stressors are consistent with the places, types, and circumstances of the Veteran’s service in the U.S. Army in Vietnam at that time. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). The Veteran’s DD Form 214 and service personnel records confirm that he served in Vietnam from September 1970 to May 1971 with the 597th Transportation Company in the U.S. Army. His MOS as an armorer/unit supplier is also supportive of his assertions that he travelled in supply convoys in Vietnam on occasion, with the possibility of being subject to enemy attack on occasion. There is no clear and convincing evidence to the contrary that he was not involved in these incidents. Thus, under the amended PTSD regulation, the Veteran’s lay testimony and statements alone establish the occurrence of the claimed in-service stressors of enemy mortar, artillery, and gunfire attacks while travelling in supply convoys and while assigned to his base. See 38 C.F.R. § 3.304(f)(3).
The Veteran’s service treatment records do not reveal complaints, treatment, or diagnosis of PTSD or any other acquired psychiatric disorder. However, as to PTSD, an in-service diagnosis is not required. See 38 C.F.R. § 3.304(f). Post-service, the Veteran did report symptoms of nervousness and anxiety in August 1971, which was several months after his discharge from service. However, VA psychological testing was normal at that time and did not reveal any mental health disorder.