Interesting Case Verifying Combat Stressor

[Hoppy]

Citation Nr: 0722764

Decision Date: 07/25/07 Archive Date: 08/02/07

DOCKET NO. 04-37 979 ) DATE

..............In the present case, the veteran has alleged he served in

combat and reported stressors related to his service in the

Persian Gulf and Somalia.............. Most

significantly, a search performed by the Department of the

Army Center for Unit Records Research (CURR)(now the U.S.

Army and Joint Services Records Research Center or JSRRC)

explained that while it was unable to obtain the combat unit

records for the veteran's specific battalion, other combat

unit records submitted by units deployed to Somalia during

that period mentioned attacks against convoys, base camps

receiving fire, and local nationals attempting to break into

bases to steal food and equipment.

Therefore, although the veteran's military occupational

specialty was that of unit supply specialist, and he is not

the recipient of any awards or decorations that are

conclusive proof of combat service, the Board finds the

record is at an approximate balance as to whether the veteran

service in combat. Under the law, where there exists "an

approximate balance of positive and negative evidence

regarding the merits of an issue material to the

determination of the matter," the veteran shall prevail upon

the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see

also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). The

phrase "engaged in combat with the enemy" requires that the

veteran have personally taken part in a fight or encounter

with a military foe or hostile unit of instrumentality and

the Board finds the veteran's statements combined with the

statement of J.A. and the response from CURR to be sufficient

proof of such a hostile encounter while stationed in Somalia.

Based upon this evidence, the Board finds the veteran engaged

in combat with the enemy during his active service and is

entitled to the presumption of 38 U.S.C.A. § 1154(:). See

VAOPGCPREC 12-99 (Oct. 18, 1999).

Another interesting point about this is, why did the Army and Joint Services Records Research Center or JSRRC) provide the information on the other units? Did they do this on their own accord or did the veterans POA argue that this type of information would validate the veteran's claims?

[mobie16r]

Hoppy,i thank the va is changing the way ptsd is awarded,ptsd is based mostley on what veteran report,I see Archive date is 8/02/07

mobie

[Hoppy]

mobie,

One of the first PTSD claims I was familiar with ten years ago involved a veteran who only had his statement that he suffered an personal assault and a statement from his wife that he was acting funny. They SC'd the guy. Since then I have seen big battles over stressor verification.

I found this current case to help a veteran who was denied this year even though he had a letter from his COMMANDING OFFICER that duplicated the exact statements that his units convoys and base camps were being attacked in Somalia. The case I am working on was denied.

So in response to you statement I respectfully disagree. Notice that in the case I posted the author of the decision used the term "MOST SIGNIFICANTLY" when addressing the report from the JSRRC. When ever they use the terms "most significantly" they are giving great weight to that report compared to the other evidence in the case.

I think in the case I posted had the JSRRC not supplied the info about the other units the veteran would have been denied just like the current case I am helping on was denied. The case I am helping on had better evidence with the exception that in his case the JSRRC provided no information regarding his units day reports or any other units day reports.

[Hoppy]

mobie,

To clarify these cases.

The veteran had not been determined to be a combat veteran due to a purple heart or CIB. In cases where the veteran has been determined to be in combat they do infact go by what the veteran says.

Both the case I posted and the case I am working on the veterans have Bronze service stars and Expeditionary medals. However, they are still required to to prove they were in combat. When determing a veteran was in combat they cannot use the veterans testimony alone. I could post the CFR's if you want to see this. Or better yet use the BVA search and use the docket number I posted to find the case I posted. It explains in detail why and when they are allowed to use the veterans testimony alone in a PTSD claim.

[yoggie2]

So what does this mean for the VETnow?

[Hoppy]

It means that if you were in Somalia that the RO should use reports from other units in the area as the BVA did in this case. Considering the events in Somalia the BVA's decision would make sense. When things make sense fight them all the way to COVA.

I have not found any regulation that states that determintion of whether a veteran was in combat or not MUST be verified by unit reports. I think they put way to much emphasis on the unit reports. There is a reg. that the veterans statements alone cannot be used for the verification of combat. Why they did not use the COMMANDING OFFICERS statement is still a mystery to me. I think they failed to apply the law properly. That is, their criteria for verification was too narrow as identified in other case laws. Keep fighting them.

[Berta]

"unit supply specialist" that could mean he supplied ammo--and maybe this is what helped get him an award.