93 Decision Citation: BVA 93-16794 Y93 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 89-16 511 ) DATE ) ) ) THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for post-traumatic stress disorder. 2. Entitlement to service connection for schizophrenia. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD T. H. Tousley, Associate Counsel INTRODUCTION The veteran had active military service in the Army from December 1970 to February 1973 and in the Marine Corps from August 1973 to June 1976. In October 1986, the veteran submitted a claim for service connection for multiple disorders, including post-traumatic stress disorder. By a rating decision in June 1987, the Department of Veterans Affairs (VA) regional office (RO) in Seattle, Washington, denied the veteran's claim for service connection for post-traumatic stress disorder. The veteran was notified by a letter dated in July 1987 that service connection had been denied for post-traumatic stress disorder. The veteran did not appeal this decision. Subsequent to February 1988, service personnel records regarding the veteran's first period of active duty were included in the veteran's claims folder. The RO in May 1988 requested that the veteran provide additional evidence concerning his claimed post-traumatic stress disorder. His local service organization representative in August 1988 requested that the RO contact the United States Army and Joint Services Environmental Support Group to verify the veteran's alleged Vietnam stressor. By a rating decision in December 1988, the RO denied the veteran's claim for service connection for post-traumatic stress disorder on the basis that new and material evidence had not been submitted to reopen his claim. Received from the veteran in January 1989 was a notice of disagreement in which he also indicated he wanted his claim to be amended to include service connection for schizophrenia. The RO issued a statement of the case in January 1989. The issues listed were service connection for schizophrenia and the materiality of evidence to reopen a claim for post-traumatic stress disorder. Received in March 1989 was the veteran's substantive appeal. He testified at a hearing at the RO in May 1989. The hearing officer affirmed the denial by a written decision in May 1989. The case was received and docketed at the Board of Veterans' Appeals (Board) in June 1989. The veteran's representative, the Paralyzed Veterans of America, Inc., submitted additional written argument in September 1989. In December 1989 the Board remanded the case to the RO for additional development of the evidence. The RO issued a supplemental statement of the case in October 1990. The case was received at the Board at the end of December 1990 and docketed in January 1991. The veteran's representative submitted additional written argument in January 1991. In May 1991 the Board remanded the case to the RO for additional development of the evidence. The RO issued a supplemental statement of the case in September 1992. The case was returned and docketed at the Board in April 1993. His representative submitted additional written argument in April 1993. The Board issued a tentative decision in this case in May 1993. Because the Board relied upon evidence obtained subsequent to the Statement of the Case and the Supplemental Statement of the Case, the additional evidence was referred to the veteran's representative for review and comment in June 1993 pursuant to the holding in Thurber v. Brown, No. 92-172 (U.S. Vet. App. May 14, 1993). The veteran's representative in June 1993 indicated that he had no additional comment. The Board determines the RO reopened the veteran's claim for entitlement to service connection for post-traumatic stress disorder. In addition, the veteran submitted a claim in February 1991 for entitlement to service connection for a skin disorder due to exposure to Agent Orange. This issue has not been developed for review and is referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends he has post-traumatic stress disorder, as diagnosed by a VA psychiatrist, due to combat service in Vietnam during which the enemy overran his unit on several occasions. He asserts that, based on current VA guidelines, no further verification of a stressor is required based on his discharge certificate that shows the award of the Vietnam Service Medal with one Campaign Credit and his statements concerning his participation in combat. Concerning the issue of verifying the veteran's claimed stressor, he asserts the obtaining of only a few morning reports was useless and not in compliance with the Board's remand. He requests that the case be remanded to obtain the unit morning reports and any historical reports of unit operations during the entire period he spent in Vietnam. He avers that subsequent behavior problems in the military were caused by guilt and fear experienced in Vietnam. He requests that all reasonable doubt be resolved in his favor. 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 veteran has submitted new and material evidence to reopen his claim for entitlement to service connection for post-traumatic stress disorder, but the preponderance of the evidence is against entitlement to service connection for post-traumatic stress disorder and for schizophrenia. FINDINGS OF FACT 1. The veteran was administratively discharged from his second period of active military service due to unsuitability based on a diagnosed personality disorder. 2. The RO by a rating decision in June 1987 denied the veteran's claim for entitlement to service connection for post-traumatic stress disorder, and he did not appeal that decision. 3. Since the RO's June 1987 decision, new evidence has been received that provides a reasonable possibility of a change in outcome of the previous denial of service connection for post-traumatic stress disorder. 4. The RO has obtained the necessary evidence for an equitable disposition of the veteran's appeal. 5. The veteran did not experience an event outside the range of usual human experience during service which would be markedly distressing to almost anyone to support a diagnosis of post-traumatic stress disorder. 6. Schizophrenia was initially manifested many years after service and is not related to service. CONCLUSIONS OF LAW 1. The evidence received since the RO's decision in June 1987 is new and material so as to reopen the veteran's claim for entitlement to service connection for post-traumatic stress disorder. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. §§ 3.156, 20.302, 20.1103 (1992). 2. Post-traumatic stress disorder was not incurred in or aggravated by active military service and is not due to such service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303, 3.304 (1992). 3. Schizophrenia was neither incurred in nor aggravated by active military service, nor may it be presumed to have been incurred in active military service. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (1992). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The RO in June 1987 denied the veteran's claim for entitlement to service connection for post-traumatic stress disorder. An unappealed determination on a claim by the RO becomes final in the absence of clear and unmistakable error. 38 C.F.R. §§ 20.302, 20.1103 (1992). Thereafter, a veteran must submit new and material evidence to reopen a claim. 38 U.S.C.A. § 5108 (West 1991). Before that determination is made, though, it must be determined if the veteran has submitted a well-grounded claim. Ivey v. Derwinski, 2 Vet.App. 320, 322 (1992). Based on the veteran's service in Vietnam with an infantry battalion and a diagnosis of post-traumatic stress disorder by two psychiatrists, the Board determines he has submitted a well-grounded claim for service connection for post-traumatic stress disorder within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). Also, based on his psychiatric hospitalizations during service and the subsequent diagnosis of schizophrenia, we find his claim for service connection for this disorder is also well-grounded. Once a veteran has submitted a well-grounded claim, the VA has a duty to assist him in development of facts pertinent to his claim. Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). In this regard, this case has been remanded twice to obtain service medical records, service personnel records, and verification of the veteran's claimed stressors. In response to the RO's request on more than one occasion for specific details concerning his alleged stressful experiences during service in Vietnam, the veteran has provided testimony at the RO and statements to the effect he engaged in intensive combat which resulted in the deaths of at least 42 enemy soldiers while working as a cook. He reported the enemy overran his unit on 4 or 5 occasions. In his statements to the RO and in his testimony at the RO in May 1989, he provided no specific dates, locations, names of operations, or names of fellow soldiers killed or wounded during the alleged intensive combat. As a result, the Director of the United States Army and Joint Services Environmental Support Group indicated in a September 1990 letter that the agency could not conduct meaningful research in response to the RO's request because the veteran had not provided enough "who, what, where, and when" of each claimed stressor. As noted by the United States Court of Veterans Appeals in a case also dealing with the issue of sufficiency of information provided by a veteran concerning claimed stressors: The factual data required, i.e., names, dates and places, are straightforward facts and do not place an impossible or onerous task on appellant. The duty to assist is not always a one-way street. Wood v. Derwinski, 1 Vet.App. 190, 193 (1991). The Director suggested unit morning reports could be obtained to verify unit casualties. While the veteran's DD 214 shows 2 months and l2 days of Vietnam service, the more detailed personnel records which have been obtained show that he arrived in Vietnam on July 23, l97l, and departed to Camp Zama, Japan on August 20, l97l. Pursuant to the Board's latest remand, the RO requested unit morning reports for the approximately four weeks the veteran served in Vietnam. As pointed out by the veteran's representative, the National Personnel Records Center (NPRC) apparently sent only the morning reports that made a reference to the veteran. In this case, that would be the references to his assignment to the unit, his promotion to private first class, and his reassignment from his unit. His representative asserts these reports are somewhat useless and requests a remand to obtain the remaining morning reports. The representative also requests the reports of "lessons learned" be obtained regarding the veteran's unit operations during that time. For reasons to be discussed later in more depth, the Board finds the evidence is more than adequate to evaluate the credibility of the veteran's claimed stressors and that a remand would not yield the type of relevant and probative evidence necessary to change the Board's determination. The Board finds the VA has fulfilled its duty to assist the veteran and the RO has obtained the necessary evidence for an equitable disposition of his claims. Gilbert v. Derwinski, 1 Vet.App. at 55 (1990). Concerning the type of evidence required to reopen a claim, new and material evidence is evidence that is not merely cumulative, but which establishes "a reasonable possibility that the new evidence, when viewed in context of all the evidence, both new and old, would change the outcome." Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). Furthermore, in determining the credibility to be given to evidence submitted as new and material evidence to reopen a claim, it will be presumed to be credible. Justus v. Principi, 3 Vet.App. 510, 513 (1992). Based on a VA psychiatrist's diagnosis of post-traumatic stress disorder in October 1988, the veteran's testimony at the RO in May 1989, and his subsequent statements regarding his claimed stressors, the Board finds this evidence provides a reasonable possibility of a change in the outcome of the RO's previous denial of his claim for service connection for post-traumatic stress disorder so as to reopen his claim. Colvin v. Derwinski, 1 Vet.App. at 174 (1991). We note the RO, during the course of the veteran's current appeal, also treated the veteran's claim for post-traumatic stress disorder as reopened. Thus, all the evidence will be considered concerning both service connection issues. Service connection may be accomplished by affirmatively showing inception during service or through the application of statutory presumptions. 38 C.F.R. § 3.303(a) (1992). The statutory presumption applies to psychoses manifested to a degree of 10 percent within one year after separation from service. 38 C.F.R. §§ 3.307, 3.309 (1992). Furthermore, for a veteran who engaged in combat, satisfactory lay or other evidence that a disorder began in service shall be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions, or hardships of service even though there is no official record of such incurrence. 38 U.S.C.A. § 1154(b) (West 1991); 38 C.F.R. § 3.304(d) (1992). The statements and testimony of a veteran may provide the basis to establish service connection. Cartright v. Derwinski, 2 Vet.App. 24, 25 (1991). The Board must assess the credibility of a veteran's testimony when it is one of the bases for the benefit he seeks. Ashmore v. Derwinski, 1 Vet.App. 580, 583 (1991). The veteran's representative asserts that according to current VA guidelines, no further verification of the veteran's claimed stressors is required because the veteran's discharge certificate shows the veteran was awarded the Vietnam Service Medal with one Campaign Credit, and his claimed stressors relate to combat. However, current VA guidance for adjudication of a claim for post-traumatic stress disorder still requires that there be evidence the veteran engaged in combat. Veterans Benefits Administration Manual M21-1, Part VI, paragraph 7.46e (Change 2; May 28, 1992). The veteran's representative notes a VA psychiatrist diagnosed post-traumatic stress disorder and asserts the diagnosis is credible in light of all the evidence, including the veteran's behavior during his second period of active military service. In this regard, in addition to the VA's psychiatrist's diagnosis in October 1988, another psychiatrist diagnosed post-traumatic stress disorder in May 1987. A conclusion of examining psychiatrists is a medical conclusion the Board is not free to ignore. Willis v. Derwinski, 1 Vet.App. 66, 70 (1991). However, neither psychiatrist reviewed the veteran's service personnel records or his service medical records to verify the existence of a stressor. Psychiatric disorders will be diagnosed in accordance with the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, 3rd ed. Revised (DSM-III-R), and a diagnosis not in accord with that manual is not accepted for rating purposes. 38 C.F.R. § 4.126 (1992). The manual provides the existence of a recognizable stressor is an essential diagnostic criterion for post-traumatic stress disorder. Quick Reference to the Diagnostic Criteria From DSM-III-R (1989) at 146. The Board is not required to accept the diagnosis of post-traumatic stress disorder by the two psychiatrists if it is not substantiated by the evidence. Wood v. Derwinski, 1 Vet.App. at 192 (1991). The issue of entitlement to service connection for post-traumatic stress disorder is a question of fact to be determined by the Board. Id. The veteran's service personnel records show the veteran held the military occupational specialty of cook and was assigned as a cook to an air mobile infantry battalion of a separate brigade that was left in Vietnam after the parent division left in the spring of 1971. See, Shelby L. Stanton, Vietnam Order of Battle, 73, 128 (United States Newsbook 1981). He was in Vietnam from July 23, 1971, to August 20, 1971, when he was evacuated to Japan, according to his service medical records, because he contracted malaria. Although the previously mentioned unit morning reports listed him as a rifleman, the veteran testified at the RO in May 1989 that he worked in Vietnam as a cook. All the service records do not show any reference to any awards or decorations for participation in combat or any wounds as a result of combat. The veteran's representative points out the veteran's discharge certificate shows he was awarded the Vietnam Service Medal with one campaign credit. However, the Vietnam Service Medal was awarded to all members of the Armed Forces who served in Vietnam between 1965 and 1973 in a unit participating in or supporting military operations. Army Regulation 672-5-1, Military Awards, paragraph 4-29 (April 12, 1984). A unit that was eligible to receive campaign participation credit "if it actively engaged the enemy in combat, was stationed in the combat zone, or performed duty either in the air or on the ground in any part of the campaign zone during the time limitation of the campaign." Id. at paragraph 9-4. The "Consolidation I" campaign was conducted from July 1971 to November 1971. Id. at Appendix C. Thus, the service personnel records and the service medical records merely show the veteran performed as a cook for a short period of time with a combat unit that participated in or supported a military campaign. Thus, his statements and testimony concerning his alleged participation in combat are critical to his claim. The VA psychiatrist who diagnosed post-traumatic stress disorder in October 1988, without benefit of review of the veteran's claims folder, also indicated the level of the veteran's stressors was severe "per the veteran's report." The psychiatrist recognized it was "somewhat difficult to fully ascertain [the diagnosis of post-traumatic stress disorder] due to the veteran's problems with memories; recollecting even the unit that he was in while in Vietnam was difficult for him." The psychiatrist attributed the lack of memory to psychogenic amnesia. However, when the veteran was hospitalized in November 1975 while in the Marine Corps after jumping out a second story window because, as the veteran reported, the sounds of water pipes in a friend's apartment reminded him of Vietnam, he had no difficulty in relating to the examiner that he saw significant combat in Vietnam at a post that was overrun 14 times in one night near the Cambodian border. His battalion, though, from April 1971 to June 1972 was located in Bien Hoa, an area located just northeast of Saigon and not along the Cambodian border. Vietnam Order of Battle at 128-129, 379. The veteran was hospitalized again shortly thereafter after he reported he had lost consciousness after he thought he heard small arms fire. He reported that during his prior Army service he completed infantry and airborne schools, made 42 "kills," earned two Bronze Stars and two Purple Hearts, and was evacuated from Vietnam because of extensive injuries. He also indicated he was honorably discharged after completing his enlistment. Further review of Army service records by Navy personnel revealed to them that he had never attended the claimed combat schools, he had never received the claimed combat-related medals, and that he had been administratively discharged prior to his expiration of term of service and given a general discharge because of unsuitability. Based on the veteran's reported falsehoods, evidence of his maladaptive behavior during his Marine Corps service which included receipt of nonjudicial punishment and a summary court-martial, and no evidence of psychosis during his hospitalization, the primary diagnosis of traumatic war neurosis was dropped and became one of a passive-aggressive personality disorder. He was again administratively discharged with a general discharge. He falsely told the two different psychiatrists in 1987 that he had been honorably discharged from service. The Board is not required to accept every bald assertion by the veteran concerning service incurrence. Smith v. Derwinski, 2 Vet.App. 137, 140 (1992). Since the veteran has related numerous falsehoods concerning his Army service, and service personnel records and service medical records fail to document that he was in a combat status, the Board does not find his testimony and statements concerning his alleged participation in combat to be credible. Ashmore v. Derwinski, 1 Vet.App. at 582 (1991). In short, the Board does not accept his uncorroborated account of his Vietnam experiences. Wood v. Derwinski, 1 Vet.App. at 192 (1991). Thus, 38 U.S.C.A. § 1154(b) (West 1991) is not applicable, and more importantly, there is a lack of evidence of a stressor to support the diagnosis of post-traumatic stress disorder. 38 C.F.R. § 3.303 (1992). In addition, the first documented diagnosis of schizophrenia was in 1987, more than 10 years after separation from service. The psychiatrists who have diagnosed schizophrenia have not related it to service. The veteran has related that he had undergone previous psychiatric hospitalizations after separation from service, but he made no mention of a psychiatric disorder in 1981 while pursuing entitlement to service connection for a back disorder. In view of the initial diagnosis of schizophrenia many years after separation from service, the Board determines that service connection has not been established for this disorder on a direct or presumptive basis. 38 C.F.R. §§ 3.303, 3.307, 3.309 (1992). The veteran's passive-aggressive personality disorder diagnosed during his second period of active military service is a type of psychiatric disorder for which service connection may not be established. 38 C.F.R. §§ 3.303(c), 4.127 (1992). The psychiatrist who diagnosed post-traumatic stress disorder in May 1987 also diagnosed "secondary alcoholism since Vietnam." Since the diagnosis of post-traumatic stress disorder is not supported, service connection may not be granted for secondary alcoholism. 38 C.F.R. § 3.310 (1992). The Board finds that the preponderance of the evidence is against establishment of service connection for post-traumatic stress disorder and schizophrenia. As a result, there is no reasonable doubt to be resolved in the veteran's favor. 38 C.F.R. § 3.102 (1992); Gilbert v. Derwinski, 1 Vet.App. at 58 (1990). ORDER Entitlement to service connection for post-traumatic stress disorder and for schizophrenia is denied. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 * WARREN W. RICE, JR. (Member temporarily absent) CHARLES E. HOGEBOOM *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 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.