92 Decision Citation: BVA 92-22980 Y92 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 92-54 211 ) DATE ) ) ) THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for post-traumatic stress disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The veteran had active service from June 1964 until July 1969. Entitlement to service connection for an acquired psychiatric disorder, including post-traumatic stress disorder, was denied by the Board of Veterans' Appeals (the Board) in a decision dated January 4, 1990. This matter came before the Board from a rating decision of February 1990, of the Chicago, Illinois, Regional Office (RO) of the Department of Veterans Affairs (VA). A statement received in October 1990 was accepted as a Notice of Disagreement. After the veteran testified in support of his claim at a hearing in February 1991, the presiding hearing officer rendered a decision later that month confirming and continuing the denial. The statement of the case was issued in May 1991. The substantive appeal was received in August 1991. The case was received and docketed at the Board in January 1992. On file is an informal hearing presentation of March 1992 from the Disabled American Veterans, the accredited service representative that has represented the veteran throughout the appeal. The veteran's claim for service connection for a skin disorder as the result of exposure to Agent Orange was received in February 1991 and he was notified by letter in April 1991 that no action could be taken with respect to that claim pending promulgation of new regulations. This matter is referred to the RO for appropriate consideration. CONTENTIONS OF APPELLANT ON APPEAL It is asserted that the veteran first had symptoms of PTSD in 1975, prior to PTSD being a recognized psychiatric diagnosis. It is averred that additional clinical records reflect that he has continued to receive treatment for PTSD, which has been consistently diagnosed. It is contended that his statements and testimony of his experiences in Vietnam are sufficient evidence of stressful events to establish a predicate for a diagnosis of PTSD under 38 U.S.C.A. § 1154(b) (West 1991); 38 C.F.R. § 3.304(d) (1991); and the VA Adjudication Procedure Manual, M21-1, paragraph 50.45(e). DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of all evidence and material of record in the veteran's claims file, and for the following reasons and bases, it is the decision of the Board that the application to reopen the veteran's claim for service connection for post-traumatic stress disorder is denied. FINDINGS OF FACT 1. The veteran had active service from June 1964 until July 1969, including service in Vietnam from February to November 1968. 2. The veteran's military occupational specialty while in Vietnam was welder and he was awarded no badges or medals indicative of combat experience. 3. The decision of the Board of January 4, 1990, denied service connection for an acquired psychiatric disorder, including post-traumatic stress disorder, and is final. 4. The new evidence received since the January 4, 1990, decision of the Board is essentially cumulative of the evidence previously on file and, when considered with the evidentiary record as a whole, does not tend to establish that the veteran experienced stressful events during combat likely to result in a chronic psychiatric disorder. CONCLUSION OF LAW The January 4, 1990, decision of the Board which denied service connection for an acquired psychiatric disorder, including post-traumatic stress disorder, is final. New and material evidence sufficient to reopen the claim for service connection for post-traumatic stress disorder has not been submitted. 38 U.S.C.A. §§ 1154(b), 5108, 7104 (West 1991); 38 C.F.R. §§ 3.105(a), 3.156(a), 3.304(d) (1991); 57 Fed. Reg. 4126 (1992) (to be codified at 38 C.F.R. § 20.1104, 20.1105). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim is plausible and thus, "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That statute mandates a duty to assist the veteran in developing facts pertinent to his claim. At the RO hearing, the veteran's service representative raised the possibility of further development of this case in light of the veteran's testimony that the service comrade who died had served in the 8th Infantry Division and not the 4th Infantry Division which had been researched by the ESG (page 10 of the hearing transcript). However, inasmuch as the veteran twice testified (pages 2 and 3 as well as 7 and 8 of the transcript) that he did not witness the death of his service comrade nor had he even seen his service comrade's dead body, further development with respect to where or when or even the circumstances of his service comrade's death would have no bearing on the outcome of this case. In the veteran's May 1990 letter, he reported having been hospitalized for a nervous condition in 1969, shortly after service, at the Valdese General Hospital in Valdese, North Carolina. This had previously been reported in a January 1975 letter and two responses from that medical facility in February 1975 disclosed that he had never been admitted to that medical facility and had not been treated on an outpatient basis in 1969. Even if the veteran's reportedly having been given a sedative at a local hospital during military service when he had marital problems, as reported on VA neuropsychiatric examination in 1972, was in fact his reported treatment at the Valdese General Medical Hospital, those records were not obtainable after two attempts in 1975 by the VA. Similarly, in a January 1975 letter, he also reported having been treated at the St. Michael's Hospital in Milwaukee, Wisconsin, but correspondence in February 1975 from that facility indicates that he could not be identified. Additionally, in the veteran's May 1990 letter, he reported having been hospitalized at the Wood VA medical facility in Wisconsin in 1972 for a nervous condition. However, he reported in his January 1975 letter that he had been treated at that facility within a year after service for a seizure disorder. The evidence indicates that he was first hospitalized at that VA medical facility for psychiatric disability in January 1975, and not in 1972. Indeed, during his hospitalization in January and February 1975 at that VA medical facility it was noted that reports of prior hospitalizations could not be obtained because the dates and information appeared to be incorrect. In fact, the history related by the veteran at that time concerned treatment at those private medical facilities for a purported seizure disorder. The diagnoses of conversion reaction at discharge from VA hospitalization in January and February 1975 and on special VA neurological examination in March 1975 were based on hysteric-type responses on neurological evaluation and not upon complaints of a psychiatric nature. In summary, the reported treatment in the immediate postservice years and prior to VA hospitalization in February 1975 was for neurological disability, including a suspected seizure disorder and not for psychiatric disability. Accordingly, no further evidentiary development is warranted in this case. The veteran's service representative has cited Moore v. Derwinski, 1 Vet.App. 401, 405 (1991) in support of the contention that we are required to accept the testimony and statement of a combat veteran as to the incurrence of stressors in combat. In that case, the Court held that under 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d), such a statement or testimony is sufficient evidence of incurrence "...where the [service medical] records...were destroyed...." Moore at 405. Under that statute and enabling regulation satisfactory lay or other evidence of incurrence by a combat veteran of disease or injury (in this case stressor(s)) shall be accepted as evidence thereof if consistent with the circumstances, conditions or hardships of service, even if there is no official record thereof. The holding in Moore is distinguishable from the present case because in that case the service medical records were unavailable but in this case the service medical records are available. The service medical records reflect that the first symptoms of psychiatric disability were associated with situational emotional problems stemming from a marital separation after the veteran's service in Vietnam and were not symptoms commonly associated with post-traumatic stress disorder. Equally important, in Wood v. Derwinski, 1 Vet.App. 190, 192 (1991), the Court held that "...the BVA was not bound to accept [the veteran's] uncorroborated account of his Vietnam experiences..." or the unsubstantiated opinion of a psychiatrist that PTSD was of service origin. The Court further held that "This is especially true since there was a considerable passage of time between the putative stressful events recounted by the appellant and the onset of the alleged PTSD." Wood at 192. The Court also noted in that case that "...neither [the veteran's] military specialty...nor his service records, disclose that the nature of his duties exposed him to a more than ordinary stressful environment, even given the fact that service in a combat zone is stressful in some degree to all who are there...." In Hill v. Derwinski, U.S. Vet.App. No. 91-865, slip op. at 3 (June 22, 1992), the Court held that "In the absence of documentation of combat status, appellant's testimony is insufficient to establish the existence of combat stressors." Again, on reconsideration of Wood, the Court flatly stated that as to the contention that independent evidence of a stressor is unnecessary, reliance upon 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) was "misplaced." Wood v. Derwinski, 1 Vet.App. 406, 407 (1991). Giving further guidance, the Court held that "It is clear that two conditions must exist before the statute applies: (1) The appellant must have been engaged in combat with the enemy and (2) the injury (in this case the 'stressors' triggering the PTSD) must have been consistent with the circumstances, conditions or hardships of such [combat] service." Wood at 407. Moreover, the contention that M21-1, par.50.45(e) is binding on the Board as to a putative stressor(s) in combat begs the question of whether he was in fact in combat, inasmuch as that provision applies only when it is shown that the veteran engaged in combat. As indicated, it is not shown that he was in combat, either by the new or the old evidence, or by both together. With respect to the citation to Colvin v. Derwinski, 1 Vet.App. 171,175 (1991) requiring "independent medical evidence" in VA adjudication of claims, we construe this to be a contention that because the VA psychiatrists have not ruled out PTSD but, in fact, have repeatedly diagnosed PTSD, the Board is bound by those diagnoses, particularly since that diagnosis was rendered by a board of three VA psychiatrists in February 1989. However, this argument is refuted by the Court's holding in Wood. The Court's holding clearly implied that, while a diagnosis of PTSD is a medical determination and thus beyond the scope of the Board's appellate authority, such a diagnosis is predicated upon the existence of a stressor which is a factual and not a medical determination, particularly if the putative stressor is alleged to have occurred while in combat. Reference has also been made by the service representative to Hatlestad v. Derwinski, U.S. Vet.App. No. 90-103. The Court issued two decisions in that case, on March 6, 1991, and July 8, 1992. In each decision the issue was entitlement to a total rating based on individual unemployability due to service-connected disabilities. No specific reference been made to how either decision in Hatlestad decision is applicable to this case. Since the decision of the Board in January 1990, copies of VA outpatient treatment records from June to August 1987 and a copy of a special VA psychology report dated February 3, 1987, performed during VA hospitalization from December 1986 to March 1987 have been received. However, these were previously on file and are not new. The veteran' DD-214 reflects that his military occupational specialty was welder. It also reflects that he was awarded the Vietnam Service Medal with one Campaign Star. The service personnel records reflect that he served in Vietnam during the Tet counteroffensive. Nevertheless, he was not awarded any medals or decorations which would indicate that he had an active combat role in Vietnam. In a medical history questionnaire in conjunction with airborne examination in January 1965, prior to the veteran's tour of duty in Vietnam, he reported having or having had frequent trouble sleeping and depression or excessive worry. As noted in the Board's decision in January 1990, he first sought psychiatric treatment in February 1969 for a purported nervous breakdown when he complained of frustration and anxiety after a marital separation. There were impressions of anxiety reaction and situational stress reaction. This is consistent with his complaint of having or having had nervous trouble of some sort in the medical history questionnaire in conjunction with the service separation examination in June 1969. On VA neuropsychiatric examination in September 1970, the veteran had no psychiatric complaints or symptoms, and the diagnoses on discharge from VA hospitalization in January 1975 and on VA examination in March 1975 included excessive drinking (ethanol addiction) and conversion reaction. The latter diagnosis was based on a hysteric reaction on neurological evaluation of the sensory status of his right arm for the purpose of evaluating his service-connected residuals of right median and ulnar nerve neuropathy as residuals of a laceration which was not incurred in combat. He did relate on the March 1975 examination that he had first been nervous when he had come back from Vietnam and often had dreams of Vietnam. We acknowledge, as contended, that these symptoms were prior to the official recognition of PTSD as an acquired psychiatric disability. Nevertheless, he had none of the other symptoms of PTSD, much less any documented stressor during service. Treatment after March 1975 centered on treatment of alcohol addiction and other psychiatric complaints. The diagnoses were alcohol dependence, major depressive disorder, and PTSD. The veteran first related the reported stressful events that occurred in Vietnam in a letter of December 1986 and further details were related in a special VA psychology report of February 3, 1987. In substance, he related four stressful events. In the 1986 letter, he related that a service comrade named "Moralis" (more recently reported in his substantive appeal as "Morales") had been killed in Vietnam; that he had been part of a crew of an M-88 tank retriever and had been involved in a firefight in August 1968; that in September 1968, a dog dragged a human skull into his tent; that he had broken down and cried because of fear after seeing dead bodies; and that he had seen a sergeant get his head "shot off." In the psychology report, it was indicated he had seen an individual decapitated by the rotor of a helicopter. Although the veteran stated in his substantive appeal that "I repeat, I witnessed the death of my friend Morales at Kontum in November 1968," he twice stated at the hearing that he had not witnessed the death of his service comrade named Morales in August 1968 (pages 1 and 2 as well as 7 and 8 of the transcript). A review of the Vietnam Veterans' Memorial-Directory of Names (7th ed., January 1988) reveals that no individual by the name of "Moralis" was killed in Vietnam. Although there was an individual named "Morales" who died in Vietnam in July 1968, the pertinent point for observation is that the veteran did not witness that death or even see that individual's body, as opposed to merely seeing the body bag in which the body of his service comrade had been placed (pages 7 and 8 of the transcript). The decision of the Board in January 1990 specifically stated, at page 5, that "The information provided [by the veteran] was general in nature and due to the lack of detailed information in the veteran's statement, any further meaningful search could not be conducted on behalf of the veteran." Since then the veteran has provided no further detailed information, including his testimony before a hearing officer in February 1991. Rather, his testimony consisted of a recapitulation of the letter of December 1986 and the psychology report of February 1987. Additionally, in his substantive appeal, he reported that the very thought of being unable to use his right hand normally due to his service-connected residuals of median and ulnar neuropathy in a combat situation was life threatening in itself. Again, this presumes that he was in combat which is not shown. New clinical records have been received which include a VA outpatient treatment record of October 1987 reflecting treatment for disability not herein pertinent and which is thus not relevant. Discharge summaries of VA hospitalization from August to October 1989 and in February 1991 reflect continued treatment for alcohol abuse as well as for psychiatric complaints and discharge diagnoses which include PTSD. However, as indicated earlier, we are not bound by these unsubstantiated diagnoses. Records reflecting diagnoses of PTSD, psychiatric treatment and treatment for alcohol abuse were previously on file at the time of the decision of the Board in January 1990. A February 1991 statement from Cynthia Hawkins (the veteran's girl friend as related at page 7 of the transcript) reflects that she had known the veteran for five years and that he often spoke of war-related experiences and had had psychiatric problems. However, this statement, as well as the clinical records and the veteran's uncorroborated testimony, even when viewed in conjunction with the evidence previously on file, do not give rise to a reasonable possibility that the veteran was exposed to combat experiences in Vietnam of such a nature as to be likely to give rise to PTSD in almost anyone. In other words, the evidence now, as before, does not provide any substantiation of stressors, in this case combat stressors, which are the predicate for a diagnosis of PTSD. For the reasons expressed above, it is our determination that the evidence preponderates against concluding that new and material evidence has been submitted which is sufficient to reopen the veteran's claim for service connection for PTSD. ORDER The application to reopen the claim for service connection for post-traumatic stress disorder is denied. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 GARY L. GICK H. STERLING, M.D. * (MEMBER TEMPORARILY ABSENT) *38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of Veterans' Appeals Section, upon direction of the Chairman of the Board, to proceed with the transaction of business without awaiting assignment of an additional Member to the Section when the Section is composed of fewer than three Members due to absence of a Member, vacancy on the Board or inability of the Member assigned to the Section to serve on the panel. The Chairman has directed that the Section proceed with the transaction of business, including the issuance of decisions, without awaiting the assignment of a third Member. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed CONTINUED ON NEXT PAGE with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.