Citation NR: 9730407	
Decision Date: 09/03/97		Archive Date: 09/11/97
DOCKET NO.  94-27 879	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in 
Buffalo, New York


THE ISSUES

1.  Whether there is new and material evidence to reopen a 
claim for service connection for post-traumatic stress 
disorder (PTSD), and if so whether the claim may be granted.

2.  Whether there is new and material evidence to reopen a 
claim for service connection for back disability.


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

G. Wm. Thompson, Counsel



INTRODUCTION

The veteran had verified active military service from 
February 1967 to August 1971. 

The Board, in a decision in August 1987 denied service 
connection for chronic back and neck disorders, claimed as 
residuals of injuries.  The Board found that the back injury 
in service was acute and resolved, and that the lumbar spine 
and neck problems after service were unrelated.  

The Board denied service connection for PTSD in an August 
1990 decision.  The Board found that a psychiatric disorder 
was not manifest in service, a psychosis was not shown within 
one year of separation from service and that the veteran did 
not have a psychiatric disorders, including PTSD, related to 
service.  With respect specifically to the PTSD claim, the 
Board provided two reasons for the denial of the claim.  
First, the Board cited to the clear and numerous 
inconsistencies in the appellant’s accounts of his 
experiences in Vietnam.  Second, the Board pointed out the 
appellant’s exposure to stressful events post-service and 
that the Board did not find any incident in service, 
specifically an assault by fellow servicemen, that was of the 
quality to support a diagnosis of PTSD.  The Board pointed 
out that the current diagnoses of PTSD were based upon 
accounts of participation in combat which were proven to be 
“inaccurate.”

The claimant applied to reopen his claim for service 
connection for low back and PTSD disorders in January 1991.  
He was notified by letter in February 1991 of a rating 
determination denying this claims.  His representative filed 
a Notice of Disagreement in March 1991.  Following a 
Statement of the Case in June 1991, a substantive appeal was 
filed in October 1991.  Subsequently, there have been further 
Supplemental Statements of the Case.  

[W]hen a veteran seeks to reopen his or her claim under 
[38 U.S.C.A.] section 5108, the BVA must conduct a two-step 
analysis.  First, the Board must determine whether the 
evidence submitted since the previous BVA decision is "new 
and material".  Second, if the evidence is found to be new 
and material, the claim is to be reopened and the Board must 
then "assess the new and material evidence in the context of 
the other evidence of record and make new factual 
determinations." Masors  v. Derwinski, 2 Vet.App. 181, 185 
(1992) (quoting Godwin v. Derwinski, 1 Vet.App. 419, 425 
(1991), and Jones v. Derwinski, 1 Vet.App. 210, 215 (1991)

In determining whether evidence is “new and material,” a 
three step inquiry is required.  First, is the additional 
evidence actually “new” in the sense that it was not of 
record a the time of the last final disallowance (on any 
basis, merits or otherwise) of the claim and not merely 
cumulative of the other evidence that was then of record.  
Evans v. Brown, 9 Vet.App. 273, 283 (1996); Struck v. Brown, 
9 Vet.App. 145, 151 (1996).  Second, is the “new” evidence 
“probative” of the “issue at hand.”  Evans, 9 Vet.App. at 
283.   Evidence is probative when it “tends[s] to prove, or 
actually prov[es] an issue.”  Black’s Law Dictionary 1203 
(6th ed. 1990) (as cited in Evans, 9 Vet.App. at 283.)  
Third, if the evidence is new and probative, then, in light 
of all the evidence of record, is there a reasonable 
possibility that the outcome of the claim on the merits would 
be changed.  Dolan v. Brown, 9 Vet.App. 358, 361 (1996); 
Evans, 9 Vet.App. at 283.  Affirmative answers to both 
materiality questions are required in order for “new” 
evidence to be “material.”  Blackburn v. Brown, 8 Vet.App. 
97, 102 (1995), Dolan, 9 Vet.App. at 361; Evans v. Brown, 9 
Vet.App. at 283.

Further, the Court has held that in determining the two 
“materiality” components, the credibility of the evidence is 
to be presumed.  This presumption is made only for the 
purpose of determining whether the case should be reopened.  
Once the evidence is found to be new and material and the 
case is reopened, the presumption that it is credible no 
longer applies.  In the adjudication that follows the 
reopening, the Board . . . then must determine, as a question 
of fact, both the weight and credibility of the new evidence 
in the context of all the evidence, new and old.  (Italics in 
the original.)  Justus v. Principi, 3 Vet.App. 510, 513 
(1992); Routen v. Brown, No. 95-673 (U.S. Vet.App. Apr. 9, 
1997), slip op. 3.  

In this case, however, one of the clearly articulated bases 
for denying the original claim for service connection for 
PTSD was the lack of credibility of the appellant.  The Board 
has not been able to locate any case from the Court that 
squarely addresses these circumstances: i.e. where a prior 
denial has been predicated on lack of credibility, does the 
presumption or credibility provided by Justus still apply as 
to evidentiary assertions made by the appellant in support of 
the application to reopen?
The Board can not find any sound policy that would be served 
by carrying the Justus presumption to such a questionable 
result, however, in the absence of express authority to the 
contrary, the Board will apply Justus. 

In hearing testimony in March 1997 the veteran reported 
engaging in combat while in Vietnam, and described at least 2 
patrol incidents, one of which included the death of a 
lieutenant about 50 feet away.  It was also reported that 
under hypno-therapy, the veteran reported being sent on 
combat patrol, being ambushed and seeing soldiers killed.  
Here, in light of Justus, and solely for the purpose of 
determining whether new and material evidence has been 
submitted, the Board finds that the veteran's testimony is 
credible, and sufficient to reopen his claim for service 
connection for PTSD on the basis of a purported combat 
stressor.  Since this would change one of the specified bases 
for the prior denial, it appears that under Evans the case 
should be reopened.  

The fact that the RO denied the this claim on the basis of a 
lack of new and material evidence does not limit the scope of 
the Board's review of the matter on appeal.  Since the Board 
is not barred from reaching the merits, the question is 
whether the veteran would be prejudiced by the fact that the 
Board resolved the case on the merits.  Bernard v. Brown, 4 
Vet.App. 384 (1993).  In this regard it must be considered 
whether (1) the veteran was given adequate notice of the need 
to submit evidence or argument on that question, and (2) an 
opportunity to submit such evidence and argument, and (3) to 
address that question at a hearing, and (4) whether the 
veteran would be prejudiced thereby.  

The veteran's whole approach in his application to reopen has 
been the pursuit of the claim "on the merits."  He reports 
submitting evidence showing that he was in combat, and that 
he has PTSD related to his Vietnam experiences.  His 
testimony in the March 1997 hearing was directed to the 
merits of his case and not limited to whether he had 
submitted new and material evidence.  The Statement of the 
Case, issued in June 1991, included laws and regulations on 
service incurrence as well as finality.  The brief presented 
by his representative in March 1997 ran to 20 pages covering 
the two issues on appeal, of which only about two pages 
lingered over the question of whether new and material 
evidence has been submitted to reopen the claim for service 
connection for PTSD.  The Board finds that Bernard has been 
satisfied, and the veteran will not be prejudiced by the 
Boards review of this case on the merits.

The Board notes that the veteran's current representative was 
appointed in June 1996.


CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends, in essence, that he RO erred in not 
finding that the evidence of record supports service 
connection for post-traumatic stress disorder, and that he 
has submitted new and material evidence to reopen his claim 
for service connection for neck and back disability.


DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A. 
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered 
all of the evidence and material of record in the veteran's 
claims files.  Based on its review of the relevant evidence 
in this matter, and for the following reasons and bases, it 
is the decision of the Board that new and material evidence 
has been submitted to reopen the claim for service connection 
for PTSD, but that the preponderance of the evidence does not 
provide a basis to support the grant of service connection 
for PTSD.  It is also the decision of the Board that new and 
material evidence has been submitted to reopen a claim for 
service connection for a back disability.  


FINDINGS OF FACT

1.  Service connection for PTSD was denied by the Board in 
August 1990.

2.  The evidence submitted in support of the application to 
reopen the claim for service connection for PTSD is new, 
probative of the issue at hand and raises a reasonable 
possibility that the outcome on the merits would change.

3.  The veteran served in Vietnam from February 1970 to 
August 1971; he received no awards or decorations denoting 
that he “engaged in combat with the enemy.”

4.  The veteran has reported stressors in service; service 
records or other credible supporting evidence does not verify 
any of the claimed stressors; he did not “engage in combat 
with the enemy.”

5.  The veteran is not a credible historian as to alleged 
stressful events in service; he is not a credible witness on 
his own behalf in his claim for benefits in light of 
multiple, material inconsistencies in his statements provided 
in the context of a claim for benefits.

6.  The Board, in a decision in August 1987 denied 
entitlement to service connection for chronic back and neck 
disorders.

7.  The March 1997 report from Dr. Rosien is new and material 
evidence as to the claim for service connection for a back 
disorder.




CONCLUSIONS OF LAW

1.  The decision of the Board denying a claim for service 
connection for PTSD in August 1990 is final; new and material 
evidence has been submitted in support of the application to 
reopen and the claim is reopened.  38 U.S.C.A. §§ 5108, 
7104(b) (West 1991); 38 C.F.R. §§  3.156, 20.110 (1996). 

2.  Post-traumatic stress disorder was not incurred in or 
aggravated by active military service.  38 U.S.C.A. §§ 1110, 
1154(b), 5107(a) (West 1991); 38 C.F.R. §§ 3.303, 3.304 
(1996).

3.  The August 1987 Board decision is final as to the claim 
for entitlement to service connection for chronic back and 
neck disorders.  38 U.S.C.A. § 7104(b) (West 1991); 38 C.F.R. 
§ 20.110 (1996).

3.  Evidence submitted since the August 1987 denial is new 
and material and the claim for entitlement to service 
connection for back disability is reopened.  38 U.S.C.A. 
§§ 5108, 5110 ( West 1991 & Supp. 1997); 38 C.F.R. §§ 3.156, 
20.1105 (1996).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Generally Applicable Law

Basically, the applicable law and regulations provide that 
service connection can be established if a particular disease 
or injury, resulting in disability, is incurred coincident 
with service, if a disability is found to be proximately due 
to or the result of a service-connected disease or injury, or 
if a chronic disease, as specified in 38 U.S.C.A. § 1101, is 
manifested to a compensable degree within one year 
thereafter.  Presumptive periods are not intended to limit 
service connection to diseases so diagnosed when the evidence 
warrants direct service connection.  Determinations as to 
service connection will be based on review of the entire 
evidence of record, with due consideration of the policy of 
the VA to administer the law under a broad and liberal 
interpretation consistent with the facts in each individual 
case.  38 C.F.R. §§ 3.303(a)(b)(c)(d), 3.307, 3.309, 3.310.

A determination of service connection for post-traumatic 
stress disorder (PTSD) requires medical evidence establishing 
a clear diagnosis thereof, credible supporting evidence that 
the claimed service stressors actually occurred, and a link, 
established by medical evidence, between current 
symptomatology and the claimed service stressor.  If the 
claimed stressor is related to combat, service department 
evidence that the veteran engaged in combat or that he was 
awarded the requisite combat citations will be accepted, in 
the absence of evidence to the contrary, as conclusive 
evidence of the claimed in service stressors.  38 C.F.R. 
§ 3.304(f) (1995).  

The Court in Zarycki v. Brown, 6 Vet.App. 91 (1993) set forth 
the foundation for the framework now established by the case 
law for establishing the presence of a recognizable stressor, 
which is the essential prerequisite to support the diagnosis 
of PTSD.  The Court noted that the evidence necessary to 
establish the existence of the recognizable stressor during 
service will vary depending on whether or not the veteran was 
“engaged in combat with the enemy” under 38 U.S.C.A. 
§ 1154(b) (West 1991) and 38 C.F.R. § 3.304 (1996).  Whether 
or not a veteran "engaged in combat with the enemy" must be 
determined through recognized military citations or other 
service department evidence.  In other words, the claimant's 
bare assertions that he "engaged in combat with the enemy" 
are not sufficient, by themselves, to establish this fact.  
The record must first contain recognized military citations 
or other supportive evidence to establish that he "engaged in 
combat with the enemy."  If the determination with respect to 
this step is affirmative, then (and only then), a second step 
requires that the veteran's lay testimony regarding claimed 
stressors must be accepted as conclusive as to their actual 
occurrence and no further development or corroborative 
evidence will be required, provided that the veteran's 
testimony is found to be "satisfactory," e.g., credible, and 
"consistent with the circumstances, conditions, or hardships 
of such service."  Zarycki at 98 (emphasis added).

In an elaboration and clarification of Zarycki, the Court 
noted in Moreau v. Brown, 9 Vet.App. 389 (1996), that 
38 C.F.R. § 3.304(f)(1995) requires three elements to support 
and award of service connection for PTSD:  (1) a current 
medical diagnosis of PTSD; (2) medical evidence of a causal 
nexus between current symptomatology and the claimed in-
service stressor; and (3) credible supporting evidence that 
the claimed in service stressor occurred.  The Court pointed 
out that since Zarycki, as well as Doran v. Brown, 6 Vet.App. 
283 (1994) and West v. Brown, 7 Vet.App. 70 (1994), changes 
in VA ADJUDICATION PROCEDURE MANUAL M21-1 [hereafter MANUAL 
M-21-1] had rendered certain portions of those decisions no 
longer operative insofar as they were grounded in 
subsequently revised manual provisions.  Further, the Court 
had held in Dizoglio v. Brown, 9 Vet.App. 163, 166 (1996) as 
a matter of law that “if the claimed stressor is not combat-
related, [the] appellants lay testimony regarding the in-
service stressors is insufficient to establish the occurrence 
of the stressor.”

 In Moreau, the Court, citing the MANUAL M21-1 Part VA,  
7.46.c (Oct. 11, 1995) held that “credible supporting 
evidence” of a noncombat stressor “may be obtained from” 
service records or “other sources.”   The Court, however, 
also held that while the MANUAL M21-1 provisions did not 
expressly state whether the veteran’s testimony standing 
alone could constitute credible evidence of the actual 
occurrence of a noncombat stressor, the Court’s holding in 
Dizoglio mandated that the veteran’s testimony by itself 
could not constitute “credible supporting evidence” of the 
actual existence of the noncombat stressor.  Further, the 
Court held in Moreau, the fact that a medical opinion was 
provided relating PTSD to events the veteran described in 
service could not constitute “credible supporting evidence” 
of the existence of the claimed noncombat stressor.

In West v. Brown, 7 Vet.App. 70 (1994), the Court further 
elaborated on an essential element in establishing the 
adequacy of the verified event (stressor) to produce PTSD.  
In Zarycki, the Court held that in addition to demonstrating 
the existence of a stressor, the facts must also establish 
that the alleged stressful event was sufficient to give rise 
to PTSD.  Id. at 98-99.  In West, the Court held that the 
sufficiency of the stressor is a medical determination, and 
therefore adjudicators may not render a determination on this 
point in the absence of independent medical evidence.  The 
Court also held in West that a psychiatric examination for 
the purpose of establishing the existence of PTSD was 
inadequate for rating purposes because the examiners relied, 
in part, on events whose existence the Board had rejected.

In Cohen v. Brown, 10 Vet.App. 128 (1997), the Court noted 
that the VA had adopted a final rule in October 1996, 
effective November 7, 1996, revising 38 C.F.R. §§ 4.125 and 
4.126 (1996).  The effect of these revisions was to change 
the diagnostic criteria for mental disorders from the 
Diagnostic and Statistical Manual for Mental Disorders (DSM), 
third edition and the third edition, revised, to the fourth 
edition (DSM-IV).  The Court found that DSM-IV altered the 
criteria for assessing the adequacy of the stressor from an 
objective to a subjective basis.  The Court further found 
that where there was “undisputed, unequivocal” diagnoses of 
PTSD of record, and the Board did not make a finding that the 
reports were incomplete, the adequacy of the stressor had to 
be presumed as a matter of law.  The Court noted that 
“although it is not necessary to its decision here,” the 
diagnoses of PTSD appeared to comport with the diagnostic 
criteria for PTSD.  Id. at 144.  (The concurring opinion goes 
further and states that the case also holds that where there 
is an “unequivocal” diagnosis of PTSD, the adequacy of the 
symptoms to support the diagnosis, as well as the sufficiency 
of the stressor, are presumed.  Id. at 153)  The governing 
regulation provides that if the Board, or other adjudicators, 
doubts whether the diagnosis of a mental disorder is 
substantiated, including as to whether the diagnostic 
criteria are met, or indeed rejects the diagnosis shown on 
examination, the case should be returned to the examiner for 
clarification.  38 C.F.R. § 4.126 (1996).

The Board finds that, upon review of Zarycki, Moreau, West, 
and Cohen it is clear that, in approaching a claim for 
service connection for PTSD, the question of the existence 
and character of an event claimed as a recognizable stressor 
is a matter solely within the providence of adjudicatory 
personnel.  If the adjudicators, having given due 
consideration to all matters of credibility raised by the 
record, conclude that the record establishes the existence 
and character of such an alleged stressor or stressors, then 
and only then, the resolution of a claim for service 
connection for PTSD moves forward to the questions of whether 
the event (or events) was sufficient to constitute a stressor 
for purposes of causing PTSD, and whether the remaining 
elements required to support the diagnosis of PTSD have been 
met.  The adequacy of the event claimed as a stressor and the 
question of whether the diagnostic criteria for PTSD have 
been met are matters that require the input of competent 
medical evidence.

The Board further notes that under Collette v. Brown, 82 F.3d 
389 (Fed.Cir. 1996) and Caluza v. Brown, 7 Vet.App. 498 
(1995), the correct application  38 U.S.C.A. § 1154(b) 
requires a three-step, sequential analysis:

(1)  Has the claimant produced “satisfactory lay or other 
evidence of such injury or disease.”  “Satisfactory evidence” 
is defined as “credible evidence that would a allow a 
reasonable fact finder to conclude that the alleged injury or 
disease was incurred in or aggravated by the veteran’s combat 
service.”
(2)  Is the proffered evidence “consistent with the 
circumstances, conditions, or hardships of such service.”  
(3)  Once these the first two steps are met, the Secretary 
“shall accept” the veteran’s evidence as “sufficient proof of 
service connection,” even if no official record of such 
incurrence exists, unless the government can met the burden 
of showing “clear and convincing evidence to the contrary.”  

In Collette, it was expressly held that during the first two 
steps of this sequential analysis, the credibility 
determination must be made as to the veteran’s evidence 
standing alone, not weighing the veteran’s evidence with 
contrary evidence.  Only in the third step may contrary 
evidence, such as a Report of Medical Examination at 
Separation, be brought into play.  Collette, 82 F.3d at 393.

PTSD

Ultimately, the claim for service connection for PTSD in this 
appeal must be denied based upon the question of the 
occurrence of the in-service stressor(s), and the related 
credibility issues tied to that question.  Accordingly, the 
Board will first address evidence related to this question 
and then analyze that evidence.  In setting forth that 
evidence, the Board will set out the record with respect to 
areas that bear upon both the existence of an in-service 
stressor and those that also are relevant to the credibility 
questions raised on this record.  As the Court has held, "It 
is the duty of the BVA as the fact finder to determine 
credibility of the testimony and other lay evidence."  
Culver v. Derwinski, 3 Vet.App. 292, 297 (1992).

1976 Claim for Benefits

The record shows that the appellant filed an application for 
education benefits that was received by VA on September 21, 
1976.  A VA Form 07-7213, Index and Locator Master Record 
File Maintenance Input Sheet was prepared on “9-21,” and 
shows by a hand written annotation on an attached message, 
that the appellant’s “C” number was established by September 
27, 1996.  Associated with the veteran’s application are a 
number of records date stamped as also received by VA on 
September 21, 1976.  These include birth records and a copy 
of a divorce.  With these records, although not individually 
date stamped, is a copy of a DA Form 214 covering service 
from December 1967 to August 1971.  The record contains no 
evidence that the VA had requested a copy of the DD Form 214 
from the service department at or proximate to this time and 
there is no evidence indicating the record could have come 
from any source other than the claimant.  In block 25 of this 
form, concerning “Education and Training completed”, there is 
reported that the appellant underwent “Fuel Elect Sys Rep 
653G20 12 Wks 68.”  Below this entry in a typeface of a 
different quality is entered “Special Forces Training 13 MOS 
69-70” and “Airborn (sic) Qualify 4 WKS 70.”  The other 
administrative records concerning the veteran’s service 
itemize his duties and assignments and show neither Special 
Forces nor airborne training for the claimed periods.  A 
second copy of this DD Form 214 is of record.  It does not 
contain the annotations referring to the Special Forces or 
the airborne training.

Social History

When examined by the VA in April 1986, the claimant reported 
four older brothers and four older sisters.  In a VA Social 
Work Service report and summary, dated in April 1989, it was 
noted that the veteran was the youngest of 12 children, and 
that he had been knocked unconscious for 6 hours at age 13.  
It was recorded that the veteran had disciplinary problems at 
school and with his mother.  He was placed on probation for 
stealing wallets and purses from a women's washroom at age 
13.  He quit school in 9th grade, and his mother signed paper 
for him to enlist in the service.  The claimant reported that 
his stepfather committed suicide in 1964 by hanging himself, 
and the claimant blamed himself because they had a stupid 
argument the day before.  The veteran also reported that at 
Ft. Bliss he was caught stealing another person's wallet, and 
was scheduled to see a psychiatrist in May 1969.  

Service medical records show that the veteran wanted to make 
an appointment with the Mental Hygiene in January 1969.  It 
was indicated that his commanding office at Fort Dix referred 
him to mental health.  While it was noted that the veteran 
left before the appointment was made, there is additional 
recorded information, in a different hand, reporting that the 
claimant stated that since a concussion in 1966 he had done 
peculiar things and he was not aware of doing them until 
afterwards.  

Service records show that in May 1969 the claimant received 
an Article 15 for writing a no-fund check and leaving a 
delinquent balance on his rent when moving out of a house he 
had been renting.  The claimant, when moving out, had also 
taken property belonging to the owner.  According to the 
property owner, the veteran left the house in a deplorable 
state.  The appellant received an Article 15, in June 1969, 
for going AWOL (absent without leave), and another Article 15 
in January 1971, for going AWOL.  In April 1989 the veteran 
reported that in association with his AWOL in 1971, he was 
stationed for 12 weeks in “Abermarle,” Maryland, before 
returning to Vietnam.  Service records show that he was due 
back in Vietnam the 29th of December 1970, and arrived there 
the 11th of January 1971.  There is no record of the 12 week 
interval reported by the appellant.

Dr. Vicker's in a statement in October 1984, noted that the 
appellant had talked to him about an indictment while the 
appellant was a member of a police department. The appellant 
noted counseling by Dr. Vickers concerning his drug ring 
indictment in hearing testimony in October 1994, and the 
appellant indicated he had been indicted concerning a drug 
ring by a Grand Jury in 1981, "which was cleared up" but his 
"probation" condition was to seek counseling.  (Transcript 
(T.), pages 3, 4, and 9.)  During VA examination in April 
1986 the veteran denied using alcohol or illicit drugs to 
excess.  In a VA Social Work Service Report, dated in April 
1989, it was noted that while he was a policeman, the 
appellant was charged by his superiors with attempting to 
extort a bribe in a DWI (driving while intoxicated) case, and 
the State attorney later dropped the charges.  He was 
reprimanded by his superiors for "abusing" black suspects he 
arrested.  The appellant also reported abusing alcohol after 
service.  On psychological evaluation in May 1989 the 
appellant denied using drugs or alcohol.  When examined in 
October 1989, the appellant reported experimenting with 
marijuana in Vietnam, but he had not used it since returning 
to the States.  He noted that he used to drink heavily but 
now had only an occasional beer.  He reported that an 
incident in which he was shot 6 times in 1986 was drug 
related.

In VA outpatient clinic records dated in March 1991, it was 
recorded that the veteran had been arrested for welfare fraud 
and misuse of food stamps.  During hospitalization at a VA 
medical facility in September and October 1995, information 
recorded for clinical purposes was to the effect the veteran 
had been raised by his natural parents.  In an October 1995 
neuropsychological assessment, the veteran reported being 
raised by his mother and stepfather.  

Education.

The appellant's DD 214 for the period form February to 
December 1967 show his education level at nine years.  His DD 
214 from December 1967 to August 1971 shows his education 
level at 10 years.  As noted above, service records show 12 
weeks of training in MOS code 63G20, fuel and electrical 
system repair.  VA education records show that the veteran 
applied in 1976 for education benefits including a GED, at 
which time he reported completion of the 9th grade.  When 
examined in April 1986, the veteran reported quitting school 
in the 9th or 10th grade.  During VA hospitalization in 
September and October 1995, the veteran reported achieving 
his GED in 1975.  In an October 1995 neuropsychological 
assessment, the veteran reported dropping out of high school 
in the 10th grade.  In hearing testimony in March 1997, the 
veteran reported that he had no knowledge of his 63G20 MOS, 
and that his only training was in the 11B10 field.  



Work.

In hearing testimony in October 1984 the veteran reported 
that after service he went to college, and was self employed 
with his brother doing stucco work.  In hearing testimony in 
March 1985, the veteran reported that after service he was on 
unemployment and worked for his brothers for a little while.  
He noted that he was in the reserves for 3 to 4 months, but 
he had to quit because of his back.  At the time of a VA 
examination in June 1985, it was recorded that the appellant 
worked as a policeman until November 1984 when he went on 
Workmen's Compensation due to his back.  During private 
neurosurgical consultation in May 1985, it was recorded that 
that between 1971 and 1975 the appellant drew unemployment.  
He finished the police academy at a community college in 1977 
and had several sedentary jobs.  The veteran also reported 
being in the reserves from 1973 on.  After back surgery in 
November 1984, the veteran reported going back to work in 
December 1984, and re-injuring his back in January 1985.  He 
was off work until February 1985, and shortly thereafter he 
re-injured his back. The veteran began receiving VA pension 
benefits effective in March 1986.

In a social report dated in April 1989, the appellant 
reported that after service he worked briefly in a salt mine, 
6 months in Bath, New York, and moved to Florida in 1972 or 
1973, and became a heavy equipment operator.  In 1976 or 1977 
he became a full time policeman, quitting police work in 
1984.  He worked patrolling an Indian reservation Game 
preserve for the Department of Interior, until he was laid 
off in 1986.  At a VA psychiatric examination in April 1989, 
the appellant stated that he last worked in August 1987, as a 
policeman, when he had a heart attack.  The appellant 
recalled during VA psychiatric examination in October 1989, 
that he last worked in 1986, when he was shot 6 times.  

Events in Service

The claimant's DA From 20, Enlisted Qualification Record, 
reflects that following his initial basic and advanced 
individual training, he served between August 1967 and 
February 1968 as a rifleman with units at Ft. Sill, Oklahoma.  
He then was transferred to the Aberdeen Proving Grounds where 
he underwent extensive training.  His DA From 20, Enlisted 
Qualification Record, shows 12 weeks training in fuel and 
electrical systems repair (MOS Code 63G20) in 1968.  
Thereafter, he served as a “F&E” “Sup” repairman with a 
maintenance battalion at Ft. Riley, Kansas until September 
1969.  During the last three months of this period, his MOS 
remained 63G20, but the job description was changed to 
instrument repairman.  

The appellant was credited with service in the Republic of 
South Vietnam (Vietnam) from February 22, 1970 to August 21, 
1971.  He was assigned as a wheeled vehicle repairman (MOS 
Code 63A10) from February 24, 1970 with the 588th Maintenance 
Company (CS).  From February 25, 1971, he was assigned as a 
“F&E” fuel system repairman (MOS 63G20) with the 632d HEM 
Company.  He went into “casual” status on August 18, 1971, as 
he was en route to “CONUS” (Continental United States).   

The DD 214 from February to December 1967 shows a specialty 
number of 11B10, light weapons, infantry.  His DD 214 from 
December 1967 to August 1971, shows awards of the National 
Defense Service Medal, Vietnam Service Medal, Vietnam 
Campaign Medal, and Bronze Star Medal for meritorious 
performance of duty from January 1970 to June 1971.  He has 
no awards or decorations specific to combat, such as the 
Combat Infantry Badge or a decoration for valor.  The record 
contains the award orders for the Bronze Star Medal, as well 
as the citation, these specify that the award was on the 
basis of “meritorious service in connection with military 
operations against a hostile force” for the period of January 
1970 to June 1971.  The citation further notes the 
appellant’s exemplary professionalism and initiative in 
obtaining outstanding results and his rapid assessment and 
solution of numerous problems “inherent in a combat 
environment.”  The General Order for that award listed 8 
other recipients, of various grades, units, and bases, to 
include Saigon.

A copy of two pages of the Vietnam Order of Battle contained 
in the record shows that the 588th, from September 1967 to 
June 1971, was at Chu Lai, and that the 632nd, from February 
1967 to April 1972, was at Long Binh.  Material received from 
Environmental Support Group (ESG) in August 1993, however, 
includes operational reports from the 79th Maintenance 
Battalion, which show the 588th Maintenance Company was 
reassigned on February 20, 1970, from the United States Army 
Support Command, Da Nang (USASUPCOM, Dng) to the 79th 
Maintenance Battalion, at Long Binh.  In that same 
information under the heading OPERATIONS, it was recorded 
that the 588th Maintenance Company was transferred from the 
57th Transportation Battalion to the 79th Battalion on April 
20, 1970.  The mission of the 588th Maintenance Company was 
described as repairing 1/4 and 3/4 ton vehicles for issue to 
the Army of the Republic of Vietnam or to the U.S. Army Depot 
Long Binh.    

The veteran was provided VA medical and psychological 
examinations in June 1985.  On the general report of 
examination form, in the block for history the appellant 
reported a “nervous condition,” but provided no details.  On 
medical examination, the appellant reported nervousness 
beginning in Vietnam in 1970, the condition “worsened”, and 
he had constant complaints of insomnia and bad dreams.  The 
medical examiner made no further findings relative to the 
appellant’s psychiatric status, but noted diagnoses including 
PTSD.  During the psychiatric evaluation, the appellant 
reported restless sleep, "but he does not have nightmares, 
although occasionally he wakes up in a sweat."  The claimant 
reported being very nervous about being in Vietnam, serving 
with a maintenance company and "therefore was not in front 
lines.  He never saw anyone killed while he was in Vietnam.  
He has nothing to feel guilty about, although he often wished 
that he was more in the middle of the action."  The veteran 
did report being beaten up many time by blacks, and attacked 
by blacks while going to a shower.  He stated that "I was 
more frightened of the blacks than the Viet-Cong."  He 
reported his nerves were “not what they should be.”  He found 
it difficult to tolerate noises or being in crowds.  He 
yelled at his children a good deal and did not like to leave 
the house.  The diagnosis was adjustment disorder with mixed 
features.  (For purposes of this decision, the Board will 
identify this version of the appellant’s experiences in 
Vietnam as Account Number One.)

In 1984, Dr. Vickers, a chiropractor, reported talking with 
the veteran about his Vietnam experiences.  

  In hearing testimony in October 1984 the appellant reported 
that his nervousness developed when he went through training 
at Ft. Polk for Vietnam.  (T., p. 3)  (Account Number Two)  
He reported that the mental hygiene appointment in service 
was because of his nervous condition, and he left because he 
did not want a medical discharge (T., pp. 3 and 4.)   The 
claimant noted that his first treatment for nervousness was 
in November 1981, by Dr. Vickers, but he had no psychiatric 
treatment (T. pp. 4, 6, 7 and 9).  It is noted in the hearing 
that the appellant was before a grand jury in November 1981.  
He reported injuring his back practicing karate in 1970, and 
that after the injury he was on bed rest and light duty for 3 
days, picking up litter and raking, and after that he was 
made the Company Commander's driver, and he did that until he 
left the Republic of Vietnam. (Tr. p. 2.)  (Account Number 
Three)

The veteran's spouse, in a letter in October 1984 noted 
meeting the veteran in 1972, and that he was subject to mood 
changes and would awaken with nightmares.  [redacted], in a 
statement dated in October 1984, noted that the veteran would 
get depressed, and lose his temper.

In hearing testimony in March 1985, the veteran reported that 
racial confrontations caused more stress as opposed to combat 
situations, page 4.  (Account Number Four)  Confrontations 
with other races in the States made him imagine he was back 
in Vietnam (T., p. 4).  Because he was a policeman he took 
his frustration out on his family.  In confrontational 
incidents, he would find himself going back to Vietnam where 
"they were the aggressor" (T., p. 5).  In his unit in 
Vietnam, other races would come in the barracks and beat "us 
while we were sleeping" (T., p. 7).  The veteran also 
reported that after the back injury while practicing karate, 
there was incoming that same night, and he fell on his back 
at a helicopter pad.  He went to sick call, was released to 
light duty, and stayed in the area picking up trash (T., p. 
2).  (Account Number Five)

In a May 1985 neurosurgical consultation, F. Cohen, M.D., 
noted the appellant reported that in service he was in 
“Special Forces” and also did some heavy equipment operating.  
(Account Number Six)  Mental status examination disclosed an 
affect that was sometimes “in appropriate,” and the examiner 
wondered whether the appellant had some “schizoid 
tendencies.”  

In June 1985, the appellant responded to a letter sent to him 
by the RO requesting specific information in connection with 
his claim for service connection for PTSD.   The appellant 
reported his units in Vietnam were 588th Maintenance Company 
and the 632 Heavy Equipment Company at “long Binn” [Long 
Binh.]  In response to a question asking him to describe his 
general duties, he reported he maintained equipment for the 
field, pulled guard duty on the perimeter, and transported 
the commanding officer to the field and other locations.  
(Account Number Seven)  In response to a direct question as 
to whether he ever was in combat against the enemy, he 
referred to his citation for the Bronze Star Medal.  (Account 
Number Eight)  In response to a question as whether he was 
wounded as a result of enemy action, he noted falling on his 
back when incoming came in.  In response to a question about 
stressful events, he reported seeing wounded brought in, loud 
noises and being unable to cope with feelings toward being in 
Vietnam and coming home.  (Account Number Nine)  He also 
reported violent moods, dreams of blacks coming into shower 
or barracks and taking clubs and beating him up, and being 
more aggressive with blacks at work.  He referred to his 
feeling that he had not done enough and that he wished it 
would happen again so that “I could be in the middle of the 
war.”  (Account Number Ten)

Information recorded during VA psychiatric examination in 
April 1986, was to the effect the appellant reported injuring 
his back in 1970 during karate exercise, and that after 
several days rest he was returned to duty.  The appellant 
reported his nervousness began in “1969” while he was in 
Vietnam. He was severely assaulted by blacks and was highly 
fearful of them.  He was also disturbed by the sight of 
returning dead and nearby explosions.  (Account Number 
Eleven)  When asked if he ever heard voices or saw thing that 
no one else could see or hear, the veteran replied "There are 
voices in my mind telling me to do things I don't want to do 
- to kill myself- to do things I'm not supposed to do.  I try 
to ignore it."  The examiner noted that currently there was 
evidence that the veteran was re-experiencing the traumatic 
event of beatings.  Rather than experiencing active 
nightmares the veteran seemed to experience dissociative like 
states which last from a few minutes to several hours during 
which fragments of past events are relived and he behaves as 
though experiencing the event at the moment.  The diagnoses 
were PTSD and atypical psychosis.  The examination was signed 
by a clinical psychologist, and approved by a psychiatrist.

In a letter dated in July 1986, the appellant noted that 
while he was at the 24th evacuation hospital, he saw many 
soldiers come in from the helicopters with sheets over them, 
and bloody soldiers everywhere.  (Account Number 12)  In a 
February 1988 VA progress note it was recorded that the 
claimant admitted to audio-visual hallucination in the past.  

VA psychiatric examination was performed in April 1989.  The 
appellant reported that he did not experience combat duty, 
his only contact with the Vietnam scene consisted of 
occasional wounded soldiers from helicopters, prompting 
lingering thoughts of "wishing there was more that he could 
have done for these poor men."  (Account Number 13)  He noted 
that he sometimes heard a voice telling him he should have 
done more in Vietnam.  He would sit and think about this and 
blocks out his surroundings.  He claimed frequent depression.  
The diagnoses, was (claimed) PTSD with stressors of mild to 
moderate severity; anxiety state, associated with situation 
stress accompanied by schizo-affective traits.

Information recorded in a VA social work service report and 
summary, dated in April 1989, included a history from the 
appellant that his unit saw “‘heavy action’”  near Plieku and 
Chu Lai during the TET offensive.  The appellant reported 
that he was in heavy combat on numerous occasions, always 
under mortar or small arms fire but never wounded, and he 
felt guilty for surviving.  (Account Number 14)  His only 
service injury was a back problem developed during hand-to-
hand combat training exercise.  He reported that during his 
1st tour he "reapplied" for second tour, and was given a 30 
days pass to the States.  The veteran reported being arrested 
for being AWOL, spending 5 days in a stockade in Fort Dix, 
and after his release he was stationed for 12 weeks in 
“Abermarle, Maryland,” before returning to Vietnam.

In a May 1989 psychological evaluation, it was noted that the 
appellant claimed his MOS in Vietnam was infantryman and he 
spent most of his tour in Vietnam in I Corps.  (Account 
Number 15)  It was noted that he had no audio or visual 
hallucinations.  He reported much guilt over returning from 
Vietnam whole, while many of his friends were wounded and 
killed in combat.  (Account  Number 16)  A May 1989 
psychological test report noted some exaggeration of 
psychiatric symptomatology, but the test was valid.  The Hand 
test was not suggestive of thought disorder or other 
psychotic manifestations.  The test results were consistent 
with a diagnosis of PTSD.  A psychology note in June 1989 
indicated that the claimant had severe symptoms of PTSD.

When examined by the VA in October 1989, the appellant 
reported that he enlisted in early 1967, went to Vietnam the 
same year, and stayed until 1971.  (Account Number 17)  When 
confronted with his prior conflicting accounts of his service 
in Vietnam (i.e. his story of duty in a maintenance company 
and not witnessing of any deaths in 1986 verses his account 
of “heavy combat” later) the appellant reportedly indicated 
he did not want to talk about Vietnam.  He became tearful and 
mumbled something about bodies in bags, and said that 
"[redacted]" told him not to trust us.  [redacted] was an inner 
voice occasionally giving the veteran instructions.  When 
asked about being shot 6 times, the appellant said it was 
drug related, and he did not want to discuss it.  The 
veteran's memory was very poor and he did not remember when 
he divorced his first wife or the month he remarried in 1981.   
The examiner summarized that if the claimant was in Pleiku 
during TET, then the constant mortars and artillery fire 
described by other veterans were adequate stressors to cause 
PTSD; otherwise his being shot 6 times in 1986 could have 
caused PTSD.  It was also noted that he type of hallucination 
described by the claimant were not the type of hallucinations 
noticed in other people suffering from PTSD.  However, during 
the interview the claimant did not exhibit symptomatology 
which would support the diagnosis of atypical psychosis.  The 
diagnosis was PTSD.  

The appellant in a letter associated with the October 1989 
examination reported daydreams of things he should have done 
but did not.  In 1970, at the 24th Evacuation hospital he saw 
helicopters come in with dead and wounded and he couldn't 
understand why he wasn't one of them.  He stated that he did 
not know why he received the Bronze Star.  He reported seeing 
things that were not there, seeing friends killed but it did 
not happen, and seeing things done in Vietnam that did not 
happen.  (Account Number 18)

In VA outpatient clinic notes in 1989, it was recorded in 
August that the appellant drew similarities between his 
mother's death and the death of buddies in Vietnam, and in 
October it was noted that he was shot 6 times by his present 
wife because he was physically abusing her.  The record shows 
that N. Quirion, Ph.D., staff psychologist, was treating the 
appellant with hypno-therapy in 1989.  This provider was of 
the opinion that the appellant had severe PTSD due to 
psychosocial stressors in Vietnam.

VA outpatient treatment from January to April 1990 reflect 
that a January 1990 Mississippi scale for combat testing 
revealed a score of 149.  This was interpreted as suggesting 
severe and chronic PTSD experienced in Vietnam.  The 
appellant was reported in January and February 1990 to have 
described experiencing fear of being overrun by the enemy 
while guarding a base, survivor guilt, having seen the bodies 
of American servicemen, guilt about not having done enough, 
and having injured his back during an attack of incoming 
rounds in May 1970.  (Account Number 19)  In March 1990, he 
reported to a provider that he was highly stressed in Vietnam 
because he had no weapon to defend himself and he never knew 
who the enemy was.  (Account Number 20)  In April 1990, the 
appellant reported he had daydreams about stresses in Vietnam 
he did not really experience but feels like he experienced 
them.  (Account Number 21)

On a January 1990 VA Form 9, the appellant denied ever 
telling any social worker that he was in heavy action near 
Pleiku or Chu Lai.  He reported that he was stationed at Long 
Binh during his Vietnam tour.  (Account Number 22)  He also 
noted that he claimed PTSD in 1984, and thus question how his 
being shot in 1986 could have been the cause of his PTSD.  He 
reiterated his position on Pleiku in a January 1990 letter.  

VA outpatient clinic progress notes dated in 1990 and 1991 
show that in June and July 1990 the appellant reported 
spending 18 months in Vietnam without being issued a weapon, 
except for guard duty.  (He reported a similar account in 
January 1991.)   (Account Number 23)  In June 1990, the 
psychologist reported that the appellant had periods of 
amnesia as to things that happened to him in Vietnam 
“probably related” to stress.  Another June 1990 entry showed 
the appellant reported a “flashback” to unloading combat 
casualties in Vietnam after he killed a deer that had been 
struck by a car in front of him.  (Account Number 24)  In 
September 1990 the appellant reported experiencing a life 
threatening stress during a rocket attack while he was at 
Long Binh in May 1970.  (Account Number 25)  It was noted 
that the appellant's memory was tested in May 1989, and found 
to be moderately impaired.  The psychologist attributed the 
appellant’s PTSD to this rocket attack.  Also in September it 
was recorded that part of the problem in PTSD is poor memory 
and difficulty in "organizing his personal history."  

A May 1990 entry shows the appellant reported a former 
Vietnam peer “[redacted]” whom he “sees” and “talks to” at times 
and he indicated he had persistent beliefs that the was 
involved in extensive combat “despite his ‘knowledge’ that he 
was not.”  (Account Number 26)  An August 1990 entry 
reflected reports by the appellant that he hallucinated 
experiences where black pajama clad “VC” jumped out at this 
car.  In October 1990, he was noted to complain of 
“psychotic-like symptoms.”  In November 1990, he reported 
“visions” of combat.  The visions reportedly were associated 
with guilt over lack of opportunity to participate in combat 
in Vietnam as they did not reflect any real experience he 
could recall.  (Account Number 27)  The note recorded by the 
psychologist goes on to indicate that the appellant became so 
preoccupied with his guilt that he at times actually believes 
that he did experience combat, which, the psychologist 
offered, explained the appellant’s account in April 1989 on 
the Social Survey.  The psychologist tendered the opinion 
that “despite these apparent discrepancies, the veteran does 
suffer PTSD at the present time.”  In December 1991 the 
appellant reported racial fights in Vietnam in July 1990, 
being attacked by blacks at his barracks in Long Binh, and he 
spoke about his Vietnam related dreams "not" being a 
reflection of what he actually experienced.  

VA PTSD clinic records for 1990 show that in May the reported 
felt that physical disability had exacerbated PTSD symptoms 
which were due to either a) major trauma he experienced, or 
b) survivor guilt due to lack of combat.  Later in May there 
was a question of repression of trauma in Vietnam.  Noted 
were award of Bronze Star, and report that the appellant was 
told by physician treating gunshot wounds in 1986, that he 
had other "lead" in his leg.  The examiner also could not 
account for the differential diagnoses of question of 
atypical psychosis, "[redacted]", and claimant's persistent 
belief that he was involved in extensive combat despite 
"knowledge" that he was not.  It was recorded in August that 
the appellant would go on patrol at his cabin, firing his 
handgun and explosives as part of combat perception.  Also in 
August he reported seeing black "pajama'd" Viet Cong jumping 
out at his car when driving, also seeing Viet Cong in the 
woods when setting on his porch.  In October 1990 he 
continued complaining of psychotic like symptoms.  Dr. Lyman 
prescribed anti-psychotic medication on a trial basis.  In 
November 1990 "visions of combat" were noted, and it was 
recorded that the visions appeared associated with extreme 
guilt over lack of opportunities to participate in Vietnam 
combat, as the visions do not reflect any actual experience 
that he can recall.  "Vet becomes so preoccupied by the guilt 
that he at times actually believes that he did experience the 
combat, thus accounting for his statement to the effect in 
April '89 Social Survey."  The reporting medical provider 
believed that despite the apparent discrepancies, the veteran 
did suffer PTSD at the present time.  His trauma experience 
include extreme racial incidents in Vietnam, mutilated 
soldiers, and extremely frightening combat training 
experienced weekly.  (Account Number 28.)

R. K., in a statement dated in December 1990, reported that 
he saw the veteran slip and fall and hurt his back running to 
a bunker when a few rockets were fired at Long Binh in May 
1970.  R.K. also noted that when he was with the 632nd H&E 
company, a Vietnamese woman tried to get in the veteran's bed 
and the veteran told her to get out or he would kill her.  
R.K. reported that "he" (apparently the veteran) was going to 
the bathroom at the lower end of the barracks around midnight 
and about 5 black guys jumped him and he had to fight his way 
out.

N. Quirion, Ph.D., VA staff psychologist, in March 1991, 
reported that the appellant suffered from PTSD related to his 
tour of duty in Vietnam, and the disorder adversely affected 
his ability to concentrate and remember.  He had difficulty 
organizing his thoughts and planning for the future.

The appellant, in a March 1991 request for "reconsideration"  
referred to a lack of weapons except on guard duty, hearing 
firing in distance, incoming fire in May 1970, being attacked 
by blacks, and if the woman could get in his bed, the Viet 
Cong could do it.  (Account Number 29)

A. Lyman, Ph.D., clinical psychologist, in a PTSD clinic note 
in September 1991, noted that the claimant's nightmares were 
often of combat scenes which he did not recognize or recall.  
He described going on patrol each day carrying a shotgun, 
firing at silhouettes of back painted Viet Cong, who he 
actually visualized as being alive and firing at him.

In the VA Form 1-9, dated in October 1991, the veteran's 
representative stated that doctors treating appellant on 
weekly basis reported that he was suffering from amnesia in 
regard to portions of his Vietnam service.  Therefore, 
information supplied by the veteran in previous claims 
regarding stressful situation must be considered less than 
credible.  In this regard, submitted to substantiate his 
claim, were the following: 1)  The appellant did serve in 
Vietnam during the period of TET “offensives” in 1970 and 
1971 and that “documentation” would show that each year 
offensives were launched during TET, therefore references to 
the 1968 TET in prior VA adjudication were not proper.  2)  
While in Vietnam the appellant served in 2 outfits, the 
588th, and 632nd.  The Vietnam Order of  Battle documents 
that the 588th was never at Long Binh, only Chu Lai, and Chu 
Lai, being in I Corps, was subject to rocket attacks.  3)  
The ESG, in a May 1991 letter noted that it was uncommon for 
anyone serving in Vietnam not to have been rocketed or 
mortared, and a PTSD claim must be put in context of personal 
involvement.  4)  The Bronze Star was for outstanding 
meritorious service in connection with military operation 
against a hostile force in Vietnam.  The representative noted 
that the veteran was the lowest ranking member to receive the 
award, and the only one in his unit to do so.  The 
representative remarked that the idea that the appellant did 
not engage in heroic action was moot,  because it was 
“absurd” that only heroic deeds place individual in 
stressful, life threatening situations.  5)  The contention 
that the 1986 gunshot wounds produced PTSD is disputed by the 
fact that the claimant was treated for PTSD in 1984 and 1985.  
6) The appellant spent most of his time in the woods, and 
what he did there was documented in progress notes.  The 
representative also reported that because of sensitive nature 
of the gunshot wounds in 1986, it would not be documented, 
even though it would help his case.

In hearing testimony in November 1991, the veterans spouse 
provided testimony She indicated she met him in 1971 and he 
was very moody and abusive.  She described why she shot him 
in 1986.  Testimony and argument was presented that a 
civilian doctor at time of treatment for gunshot wound stated 
the veteran had old wounds in volar area.  (Transcript, pp. 
6-9.)  The representative “speculate[d]” that the appellant 
sustained injury in rocket/ mortar attacks, but that the 
appellant could not now remember this because of amnesia.  
(T., pages 10 and 11.)  The Bronze Star was argued as 
evidence that the appellant did something beyond the 
ordinary, and that he did experience something in Vietnam 
that led to his condition. (T., page 11.)  It was noted that 
the claimant did not remember many things about Vietnam, and 
when he was first home he couldn't remember where he was 
stationed. (T., p.12.)  It was reported that the claimant was 
not in Pleiku during TET, but at Chu Lai during TET.  (T., p. 
13.)

VA outpatient clinic records for 1991 and 1992, reveal that 
in April 1991 the appellant reported that the fear of blacks 
was a major stress to him.  It was noted in August 1991 that 
the appellant may have stress induced amnesia.  In January 
1992, he reported he believed he had amnesia for a period of 
time spent in Vietnam, "I don't remember being in Chu Lai 
although records show his unit was station there."  In March 
1992, the claimant reported beginning to recall going on 
patrol while stationed in Chu Lai.  He remembered seeing a 
bloodied soldier kneeling in front of him in dirty water in a 
ditch, and being afraid to go to sleep because he heard 
explosions.  (Account Number 30)  In April 1992 the claimant 
recalled his work as a policeman in South Florida after 
returning from Vietnam, and being shot by his wife.  He also 
spoke about having amnesia for the time he spent in Chu Lai.  
Also in April, he stated that Dr. Lyman told him it would be 
okay to be age regressed for hypnosis to remember traumatic 
events he could not remember in Chu Lai.  N. Quirion noted 
that he would use waking suggestions and assistive techniques 
to help the veteran recall his tour of duty in Chu Lai.  In 
June 1992, N. Quirion noted that he induced a hypnotic trance 
and used hypnotic regression to attempt to help the appellant 
recall trauma he experienced in Vietnam.

In a June 1992 statement from N. Quirion, Ph.D., it was 
recorded that in a hypnotic regression therapy session the 
veteran reported being ordered to go on patrol even though he 
was in a maintenance unit at Chu Lai, and around Hill 29 they 
walked into ambush.  The veteran witnessed several of the men 
in his platoon killed, including squad leader lieutenant J. 
G. or G. J.  (Account Number 31)  The veteran also reported 
an evacuation helicopter being shot down near Bien Hoa river, 
around April 14, 1970, and the pilot was badly wounded.  
(Account Number 32)  When the veteran returned to base camp 
no one knew where he had been.  The village where he was 
ambushed was Phy my Hung, and a soldier named [redacted] received 
the Silver Star.

It was also recorded in July 1992 that the appellant was 
relieved and less pressured since hypnotic regression earlier 
in June.  The claimant stated that he had 2 bronze stars for 
his role in combat in Vietnam.  (Account Number 33)  The 
events he recalled under hypnosis brought up a whole stream 
of memories, and he reported being on patrol in Hobo Woods to 
draw fire and finding a system of tunnels that NVA used.  
Those memories are now becoming intrusive and disturbing the 
appellant.  (Account Number 34)  In August 1992, there was 
reported an increase in combat related dreams since hypnotic 
regression session.

The veteran's daughter, in a letter in March 1993, recounted 
an episode of behavior by the veteran where he curled up on a 
sidewalk in a ball, and witnessing nightmare where her dad 
repeatedly yelled get down.

Received in July 1993 were records from Environmental Support 
Group (ESG) showing that the 588th was at Long Binh, from 
February 20, 1970.  It was also documented that the 632nd was 
at Long Binh.  It was also documented that a Lieutenant G. J. 
A. was killed May 19, 1970, at Hau Mghia, in III Corps area.  
Reports from the 23d Infantry Division reflected that there 
were attacks against the Chu Lai base area in May 1970.  
Specifically, on May 4, 13 and 21, 122 mm rockets were fired 
at the base. 

The veteran in correspondence dated and received in November 
1993, variously reported heavy attack at Chu Lai May 4, 1970, 
with 15 wounded in action, and another attack May 5, 1970, 
with the veteran not more that 150 feet away from the very 
life threatening attack.  (Account Number 35)   He also noted 
that May 19, 1970, he saw Lieutenant A. killed at Hau Mghia, 
and was 70 feet away when he was killed.  (Account Number 36)  
Further, one day in May a rocket back blast threw him back.  
He reported he was only 50 to 100 feet away from the crash of 
a helicopter on April 14, 1970.  The pilot was severely 
injured and taken to the 93d Evacuation Hospital.

The veteran's representative, in VA Form 21-4138, dated in 
October 1993, reported that the veteran was with the 588th at 
Chu Lai until at least May 1970, and treated at  the 588th 
dispensary in May 1970, and this was a heavy combat area.  
The presumption claimant did not have weapon issued was 
reported to be clearly erroneous, as all service members 
assigned in war zones had weapon assigned.  The 
representative noted that "Such a statement in his record is 
an interpretation problem."

The appellant, in a letter to a Senator, in January 1994, 
reported that records show rocket attacks at Chu Lai in May 
1970, and at Bien Hoa he was in bunker and a rocket hit 300 
yards away, and another bunker was directly hit with 5 WIA 
(wounded in action).  (Account Number 37)  He reported seeing 
Lt. J. A. killed at Hau Mighia May 19, 1970, and witnessing a 
chopper go down at Bien Hoa river April 14, 1970.  The pilot 
was severely injured.  The appellant noted that he found the 
incident in a book at the library.  

In a January 1994 letter to Jesse Brown, the claimant 
recounted rocket attacks, and a soldier near to the 
appellant, named [redacted], accidentally shot at LZ Stinson.  
(Account Number 38)  He also mentioned the helicopter crash.

M. C., in a statement dated in November 1993, and received in 
March 1994, reported arriving in-country May 11, 1970, with 
the 198th LIB fire base LZ Stinson.  He noted that they 
operated near the town of Chu Lai and the main fire base was 
LZ Stinson.  He reported that he was subject to frequent 
night rocket attacks while on the beach, and that after 
several days orientation he was sent into the field was hit, 
and wounded July 24, 1970.  He noted field hospitalization 
and then being sent to Cam Rahn Bay hospital.  Mr. [redacted] noted 
that the claimant remembered [redacted] from hospitalization, and 
[redacted] accepted him at his word.  Mr. [redacted] noted that the 
veteran also recalled LZ Stinson, and the accidental shooting 
of [redacted], which [redacted] recalled because he was in the 
vicinity when it happened.

R. K., in a statement dated in February 1994, and received in 
March 1994, reported that in the spring of 1970 he was in Chu 
Lai, in the 588th with the veteran.  R.K. reported numerous 
rocket, mortar, and small arms attacks.  He and the veteran 
were walking near the PX in Chu Lai, when some mortars came 
down nearby, about 75 to 100 yards away, and the aftershock 
waves knocked the appellant down hard on his back, and he had 
to go to the evacuation hospital.  It was noted that some 
guys were wounded in the attack.  The attack was reported to 
have happened in either April or May 1970.  
Hearing testimony in June 1994, according to the veteran's 
representative, was to the effect the appellant was at Long 
Binh after April 20, 1970, and that he was treated at the 93d 
Evacuation Hospital at Long Binh on May 7, 1970.  
(Transcript, pages 3, 4.)  It was noted that Mr. K., a buddy 
of veteran, placed the veteran in Long Binh in 1970, page 5.  
The representative recounted the hypnotic regression, and 
stressor incidents such as the helicopter crash, the 
lieutenant being killed were noted..  The representative 
believed that the regression therapy has validated the 
appellant's claim,  and medical amnesia.  (T., pp. 6, 7, 8, 
and 9.)

The veteran, in a letter received in September 1994, reported 
that he was in area of Chu Lai in May 1970 when the 
Lieutenant was killed, noting that he had given  the 
location, date, and everything but the last name.  He 
reported that he was in Chu Lai Zone I and also in Zone 3.  
He reported sending in a clipping of the helicopter crash, 
and felt that the buddy statements should be proof, pointing 
out that C. knew about the [redacted] incident.

N. Quirion, staff psychologist, in a September 1994 clinic 
report, stated that "It is possible under a hypnotic 
regression to confuse the location of a reported traumatic 
incident.  For example, veteran may actually have been in III 
Corps and reported the incident to have occurred in I Corps."

R. K., in statement dated in September 1994,  reported that 
the veteran was at Hau Nghis when Lieutenant A. was killed 
May 19, 1970.  R. also reported that there was a chopper 
crash on April 14, 1970, at the Bien Hoa river,  and "we" 
evacuated the pilot, whose face was all cut up from the 
crash, to the 93rd Evacuation hospital at Long Binh, while 
"we was on a mission on patrol."

C. M., Jr., in a statement received in December 1994, 
reported meeting the veteran around January or February 1970 
in Chu Lai, while serving with the 588th.  C.M. noted that 
his memory of Vietnam was a little sketchy but he did 
remember one Sunday morning “we were at the PX” when and 
several rounds of rocket fire landed in the vicinity, close 
enough to shake the building.  He was not sure how close but 
it seemed like “right outside,” and soldiers and civilians 
threw themselves to the ground in panic and one woman 
screamed hysterically.  A few months later the company moved 
south to Long Binh.  C.M. spent a year in Vietnam, extended, 
went home for 30 days, and when he returned the 588th was 
disbanded, and he was transferred to 147th, and the veteran 
was transferred to 632nd.  C.M. reported that at one point 
several companies pooled and did patrols in the Bien Hoa 
area.  C.M. did not remember all of the details of the 
patrols but he did remembers the veteran and R.K. together 
with him.  C.M. noted that it was very stressful on patrol 
and he was scared, and was sure everybody felt the same.  He 
did not recall the chopper crash but noted it was very 
stressful doing bunker guard duty during TET holidays.

A copy of a clinical record page from S. Benedek, M.D., dated 
February and May 1972, was received in January 1995.  This 
shows the veteran was seen on one occasion in February for 
“ache & pain in chest muscle (pectoris) [two words 
indecipherable] hurt more when laying down.”  He was provided 
apparently two medications, one which was “APC” and the other 
is indecipherable.  There is a scribbled date in March next 
to the medication notation.  The appellant apparently was 
seen again in May on one occasion for a complain wax in his 
ears.

When hospitalized at a VA medical facility in September and 
October 1995, the appellant reported going to Vietnam in 
January 1970, staying 2 tours, and agreeing to stay for 
second tour for an early out.  (Account Number 39)  He 
recalled accidentally shooting down a U.S. helicopter while 
on patrol, and going through Vietnam with his friend R., in 
Cu Chi, and Black Horse, and being in Chu Lai.  The appellant 
reported seeing much death and destruction in Vietnam.

An October 1995 neuropsychological assessment noted that 
MMPI-2 testing showed that the appellant tended to over 
endorse most indices of psychopathology.  This over reporting 
of psychopathology raised some question about the validity of 
the overall profile, and caution needed to be used in 
interpreting results.  

Received in November 1995 were reports dated in April 1968, 
concerning the 588th Maintenance Company activities in 1967.  

In hearing testimony in November 1995, the appellant 
explained that he was in Chu Lai in January and February 
1970, and subsequently in the III Corps area.  He stated  
that after the incident with the rockets at the PX with Mr. 
C., he can't stand loud noises, or firecrackers, and he was 
numb and experienced nightmares (“I live with they every 
night”).  (T., pp. 13 and 14.)  He also indicated that in May 
1970 he and Mr. R.K. were in Quang Ngai, down by LZ 
Blackhorse, and he personally saw Lieutenant A. killed in an 
ambush.  He witnessed him being shot down, and was standing 
over him, “like paralyzed” and he could not move.  He 
reported that his stressors included being beaten by 5 blacks 
in 1970, and that at Chu Lai he was exposed to rockets and 
mortars “every day.”  (T., pp. 14, 15, and 18.)  The 
appellant expressed his views that his Bronze Star Medal was 
not issued for merit but because he was in combat.  He 
indicated that statement from Mr. R.K. proves that he was 
present in combat.  (T., p. 19, 21, 26.)  The appellant 
maintained that conflicting information was because of his 
memory, amnesia was part of his PTSD, and that he blocked 
because he did not want to recall what occurred in Vietnam. 
(T., p. 23).

A PTSD progress note, dated in November 1995, indicated that 
the claimant was experiencing visual and auditory 
hallucinations of dying people during the battles in Vietnam.  
He was seeing bloody people, wounded and dying, screaming and 
crying for help.  In December 1995, it was noted that there 
were more frequent visual and auditory hallucinations with 
the veteran seeing VC's standing by his bedside every night, 
and hearing their voices constantly.  It was noted that he 
had hallucinatory delusions at night.  There were 
hallucinatory ponds filled with blood of U.S. Marines and VC.  
The diagnosis was delayed PTSD with dissociative thinking.  
In a progress note dated in January 1996, the appellant was 
bothered by more frequent recurrences of flash back, 
intrusive thoughts of the worse Vietnam moments.  He had 
visual and auditory hallucinations of dead soldiers "both 
American and Viet Cong."  In February 1996, the appellant was 
described as decompensating, and refused admission for 
psychiatric evaluation.  His flashbacks were especially at 
night.

The claimant in a statement dated in December 1995, asserted 
that the information concerning the 588th showed combat 
participation.

In a hearing before the Board, in Washington D.C., in March 
1997, the appellant reported being in rocket attacks at Chu 
Lai in 1970, fearing for his life, and injuring his back.  
(T. pp. 4-5.)  In May 1970 he was in Long Binh, for training 
and he was thrown in midair and came down on his lower back.  
He reported that shortly after the back injury in May 1970, 
he was relieved from duty for 2 days.  (T. pp. 13-14.)  The 
appellant testified that his service in Vietnam was 
“stressful.  I was scared for my life day by day . . . [and 
he was ] scared for my life as every day went on.”  (T. 16.)   
He reported that he had no knowledge of the job of a fuel and 
elctric repairman “whatsoever,” and that he was only trained 
as an 11B10 [infantryman].  He stated that he was on patrols 
“many, many times,” and that he was fired at every day by 
rockets and mortars (“It was a continuous thing.”)  (T. pp. 
16-17.)  He reported that in April 1970 he was transferred 
south. to the 1st Cav at Bien Hoa.  (T., p. 18.)  The 
appellant recounted being in Hong Ngu, in LZ Black Horse on 
patrol, when a lieutenant was killed fifty feet away on May 
19, 1970.  (T. pp. 18-19.)  On April 14th, 1970, while he was 
on patrol, a helicopter was shot down and he participated in 
pulling the pilot out.  (T., p. 19.)  According to the 
claimant, in Chu Lai the mortars rockets were constant “every 
day,” and he had flashbacks, nightmares, and saw visions of 
people killed every night.  (T., p. 20.)  The appellant 
indicated his patrols were performed on foot at Chu Lai.  
(T., p. 24.)  Other than the lieutenant, the claimant could 
not recall individuals wounded in his unit.  (T., p. 27.)  He 
could not recall when he extended his tour.  In response to a 
question as to why he had extended his tour of duty in 
Vietnam if he was afraid for his life every day, he stated 
that other individuals had returned home before he had and 
reported to him “what they was doing to Vietnam veteran as 
they came home.  I didn’t want--I didn’t want no part of it.  
I just figured that I would extend even six months--also I 
got an early out because of the extension.  I didn’t want to 
come home.”  (T. pp. 27-28.)


Analysis

At the outset, the Board notes that the veteran served in the 
Republic of South Vietnam from February 1970 to August 1971.  
He received a Bronze Star Medal for meritorious service.  
There is nothing in the record that indicates that the 
veteran’s performance of his assigned duties in Vietnam was 
less than highly satisfactory, and nothing in this decision 
is intended to challenge the quality of the service rendered.

This matter, however, does not turn on the general 
proposition that the appellant satisfactorily performed his 
assigned duties in service, including his tour of duty in 
Vietnam.  This is a specific claim for PTSD and, as such, 
requires not a general passing on overall performance of 
assigned duties, but an explicit scrutiny of all the events 
in service, including those in Vietnam, that are now claimed 
as “stressors.”  The starting point for any determination 
with regard to PTSD is one or more “stressors.”  Under the 
controlling regulation, there must be credible supporting 
evidence that the claimed service stressor actually occurred.  
38 C.F.R. § 3.304(f).  The existence of a an event alleged as 
a “stressor” that results in PTSD, though not the adequacy of 
the alleged event to cause PTSD, is an adjudicative, not a 
medical determination.  Zarycki v. Brown, 6 Vet.App. 91 
(1993).

“Conclusive Evidence” (Presumptive Corroboration) of an 
Alleged Combat Stressor

Under the framework established in Zarycki, the Board must 
make an explicit determination as to whether the appellant 
“engaged in combat with the enemy.”  This in turn requires as 
a preliminary matter examination of whether the record 
already contains “conclusive evidence” that he “engaged in 
combat with the enemy.”  By rule making, the VA has set 
forward criteria of “conclusive evidence” to establish a 
combat related stressor.  These criteria are defined as: (a) 
a claim that the stressor is related to combat and (b) a 
demonstration in the record that the claimant (“in the 
absence of evidence to the contrary”) has been awarded 
certain specific recognized awards or decorations identified 
in 38 C.F.R. § 3.304(f) or VA ADJUDICATION MANUAL M21-1, Part 
VI,  7.46 (effective Oct. 11. 1995).  The Board notes the 
revised version of this Manual M21-1 provision (Part VI,  
11.37 (effective Feb. 13, 1997) did  not alter the list of 
awards or decorations.  These include certain awards 
specifically denoting combat participation (the Combat 
Infantryman Badge and the Combat Action Ribbon), a decoration 
awarded for combat incurred wounds (the Purple Heart Medal), 
and certain decorations that are awarded only for valor in 
combat with the enemy.  The record clearly establishes that 
the claimant was not authorized any of these awards or 
decorations.

The claimant, as well as representatives acting on his 
behalf, have argued at length that he was, in fact, awarded 
the Bronze Star Medal in recognition that he “engaged in 
combat with the enemy” (Account Number Eight), or that the 
award in his case must be deemed to carry a connotation that 
he received the award for participation in “combat.”  The 
Board disagrees.  The actual award orders and citation are 
available.  They clearly show the award was for meritorious 
service.  The fact that the claimant performed meritorious 
service is not in dispute, nor is the fact that he performed 
meritorious service in Vietnam.  The award orders and 
citation do not show the award was for valor, nor that he was 
entitled to place the “V” Device on his Bronze Star Medal.  
Absent such authorization, simple reference to performing 
meritorious service in a generic “combat environment” can not 
convert this award into the category of a recognized award or 
decoration specifically identified as creating a conclusive 
presumption that he “engaged in combat with the enemy.”  
Moreover, the Board must point out that the service 
department award represented a clear choice between an award 
for “combat” participation and one for meritorious service.  
The service department award indisputably was for meritorious 
service and no amount of semantic teasing can convert it to 
the opposite.  As to the appellant’s contention that he was 
awarded two Bronze Star Medals (Account Number 33), there is 
no service department record to support this claim nor has 
the appellant submitted any evidence to support this bare 
assertion.  Accordingly, the Board finds this claim without 
merit.

In addition to the criteria based upon certain awards or 
decorations, “conclusive evidence” may also be established by 
“other supportive evidence” that the claimant was a prisoner 
of war under the requirements of 38 C.F.R. § 3.1(y), or 
evidence that the claimant was in a plane crash, ship 
sinking, explosion, rape or assault, or duty on a burn ward 
or in a graves registration unit.  The Board finds the term 
“other supportive evidence” is unclear as to the limitations, 
if any, on what can constitute “other supportive evidence.”  
At a minimum, as is discussed below, the case law from the 
Court would preclude the use of the claimant’s own assertions 
as “other supporting evidence,” nor would post-service 
medical evidence suffice as “other supporting evidence.”  To 
the extent that the term “other supporting evidence” in this 
context could be service department records, the Board finds 
that there are no service department medical or 
administrative records to establish that the claimant was a 
prisoner of war under the requirements of 38 C.F.R. § 3.1(y), 
or he was in a plane crash, ship sinking, explosion, rape or 
assault, or duty on a burn ward or in a graves registration 
unit.  Thus, the Board finds that the record does not contain 
“conclusive evidence” that he “engaged in combat with the 
enemy” and is therefore entitled to have his lay statements 
accepted without need of further corroboration.  To the 
extent that “other supportive evidence” could be other than 
service department records to establish any of the events 
listed under “conclusive evidence,” this matter is addressed 
further below.


“Credible Supporting Evidence” of a Claimed “Stressor”

Where the record does not reflect “conclusive evidence” that 
the claimant “engaged in combat with the enemy” under 
38 U.S.C.A. § 1154(b), his assertions, standing alone, can 
not as a matter of law provide evidence to establish that he 
“engaged in combat with the enemy” or that an event claimed 
as a stressor occurred.  Dizoglio, 9 Vet.App. 163 (1996).  
Furthermore, as a matter of law, “credible supporting 
evidence that the claimed in[-]service event actually 
occurred” can not be provided by medical opinion based on 
post-service examination.  Moreau, 9 Vet.App. 394-96.  This 
does not mean that the claimant can not still establish that 
he “engaged in combat with the enemy,” and then secure the 
presumptions provided under 38 U.S.C.A. § 1154(b).  It only 
means that other “credible supporting evidence from any 
source” must be provided that the event alleged as the 
stressor in service occurred.  Cohen, 10 Vet.App. at 147.  
Thus, the analysis of stressor verification is not so much 
bisected by whether the event is “combat” or “noncombat,” but 
whether there is “conclusive evidence” of a combat stressor, 
or “credible supporting evidence from any source” of a combat 
or noncombat stressor.  

Assignments and Locations in Service

The first step in sorting out the evidence at this point is 
to recapitulate what the record establishes about what units 
the claimant was assigned to and where those units were in 
Vietnam:  Based on the claimant’s service administrative 
records and the information from the Environmental Support 
Group, the Board finds the facts as to these matters to be as 
follows:

The claimant arrived in Vietnam on or about February 22, 1970 
and by February 24, 1970, he was assigned to the 588th 
Maintenance Company; 

The 588th Maintenance Company was reassigned from the United 
States Army Support command Da Nang on February 20, 1970 to 
the 79th Maintenance Battalion at Long Binh; the effective 
date of that transfer was April 20, 1970, i.e. the veteran’s 
unit was physically at Chu Lai from on February 24, 1970 to 
on or about April 20, 1970, and his unit was physically at 
Long Binh from on or about April 20, 1970;
   
The claimant remained with the 588th Maintenance Company at 
Long Binh until reassigned to the 632d HEM effective February 
25, 1971 until the end of his tour in Vietnam.  The 632d HEM 
was at Long Binh throughout this period.

The Board finds that as between the information published in 
Vietnam Order of Battle showing the 588th was at Chu Lai from 
September 1967 to June 1971, and the official records 
prepared in Vietnam by the 79th Maintenance Battalion and 
produced by Environmental Support Group that include the 
contemporary report of the 79th Maintenance Battalion, the 
official records are far more probative than the unofficial 
account in establishing the whereabouts of units.

Contradictions by Service Records

The claimant has advanced numerous arguments, and has 
presented many pieces of evidence as “credible supporting 
evidence from any source” of a combat or noncombat stressor.  
To begin with, the claimant has argued that he must be 
presumed to have “engaged in combat with the enemy” because 
he performed the duties of an infantryman in Vietnam, that he 
was daily, or virtually daily, on patrols and under fire, and 
he has alleged that his Military Occupational Specialty (MOS) 
was that of 11B (Account Number 15).  Not only does the 
record not provide supportive evidence, it provides evidence 
to show this set of representations is false.  The service 
administrative records document that prior to service in 
Vietnam the claimant was carried in an MOS of 11B.  These 
records show, however, very clearly that he was never carried 
as an 11B or had duties described as those of an infantryman 
during his service in Vietnam.  Furthermore, extensive 
records have been developed on the assignments and 
responsibilities of the two units to which the appellant was 
attached in service.  This evidence also refutes the claim 
that these units were combat, as opposed to support units.

The Court has expressly held that in assessing claims 
concerning alleged in-service events advanced as “stressors” 
the service records “must not contradict” the appellant’s lay 
testimony.  Doran, 6 Vet.App. 289.  In this case, the 
appellant’s assertion that his duty assignment was as an 11B 
is by no means the only assertion concerning claimed combat 
participation or verifiable and material features of his 
service that the service records show is demonstrably false.  
Besides evidence to refute his performance of duties of an 
infantryman (MOS 11B) during service in Vietnam, service 
records also refute these allegations:

In May 1985, he reported to Dr. Cohen that he was in “Special 
Forces” (Account Number Six).  There is no support in the 
service records for training or duty in Special Forces.  This 
matter is subject to further discussion below concerning the 
submission of false evidence.  

In October 1989, he reported he enlisted in 1967, went to 
Vietnam that same year and stayed until 1971.  (Account 
number 17)  There is, of course, clear evidence to the 
contrary that his service in Vietnam started no sooner than 
1970.

In March 1997, he reported that he had no training as a fuel 
and electric repairman.  His administrative records 
demonstrate that he had no less than 12 weeks of such 
training. 
  
In November 1993, he reported being under rocket attack in 
Chu Lai in May 1970 (Account Number 35), and the service 
department records show he was not in Chu Lai as of that 
date.

Submission of False Evidence

The claimant submitted a VA Form 22-1990 in September 1976.  
Date stamped as received with this application are numerous 
documents relating the claimant’s marital and dependency 
status, and with these documents is a copy of a DD Form 214.  
This document is not individually date stamped, however, it 
is clearly associated with the same documents date stamped as 
received in September 1976, and there are no records to show 
that the RO had requested any verification from the service 
department before or contemporaneously with the receipt of 
this claim.  Thus, there is no basis to believe that the DD 
Form 214 could have been submitted into the record by any 
party other than the claimant.  This DD Form 214 contains 
entries in block 25 concerning alleged training in Special 
Forces and airborne.  As noted in the discussion of the 
evidence, the entries concerning Special Forces and airborne 
training are clearly refuted by the service administrative 
evidence.  Moreover, a copy of the same DD Form 214 for this 
period of service was entered into the record subsequently, 
which does not contain the entries concerning the Special 
Forces and airborne training.  The Board concludes that the 
record thus shows the claimant submitted a DD Form 214 with 
false evidence concerning the nature of his service in 1976.  
 

Internal Contradictions of Claimant’s Accounts

The record shows that early on in the pursuit of this claim 
the appellant flatly disavowed combat or seeing anyone 
killed, but subsequently his accounts shifted dramatically, 
not merely to a few episodes of “combat,” but ultimately to a 
story that he was under fire every day, or virtually every 
day, of his tour in Vietnam.  

Account Number One in June 1985 was that he served with a 
maintenance company and "therefore was not in front lines.  
He never saw anyone killed while he was in Vietnam.  He has 
nothing to feel guilty about, although he often wished that 
he was more in the middle of the action."  At the hearing in 
October 1984, he reported that after back injury practicing 
karate in 1970, and light duty, he was made the company 
commander’s driver and remained in that capacity through the 
rest of his tour.  (Account Number three)  In June 1985, he 
expressed the wish that he had done more and could be “in the 
middle of the war.” (Account Number Ten)  Also in June 1985, 
in response to a direct question from the RO as to whether he 
was in combat, the appellant only referred to his award of a 
Bronze Star Medal.  In an April 1989 on psychiatric 
examination he said he did not experience combat duty 
(Account Number 13)

In April 1989, however, a social worker recorded the 
appellant as reporting heavy combat around Plieku and Chu Lai 
during TET (Account Number 14).  In March, June and July 1990 
and January 1991, he related to a providers that he was 
highly stressed in Vietnam because he had no weapon to defend 
himself.  (Account Number 20.)  He repeated that a “stressor” 
was having no weapon (except on guard duty) in March 1991. 
(Accounts Number 23, 29).  At various times he reports that 
he has visions of combat, but they did not relate to any real 
experience he could recall (Accounts Number 18, 21, 26, 27) 

In September 1991 and thereafter his story became that he was 
on patrol every day.  and that many of his friends were 
killed and wounded (May 1989 psychological survey, Account 
Number 16).  Most recently, his story subsequently became 
that he was present when Lt. A. was killed.  The Board notes 
that not only is there a clear contradiction between these 
accounts, there is also a clear pattern that the accounts of 
the events in service became far more supportive of 
allegations of exposure to an alleged “stressor” the longer 
the appellant pursued the claim.   

The Death of Lt. A.

Service department evidence supplied by the ESG has been 
entered into the record to show that a Lt. G.J.A. was killed 
on May 19, 1970 at Hau Mghia, in the III Corps area of 
Vietnam.  The claimant has in his recent accounts alleged 
that he was present and witnessed this event (Accounts Number 
31, 36), although originally he did not give the name of the 
lieutenant correctly.  Moreover, he has submitted a September 
1994 statement from R.K. to support this account.

The Board notes that there is no service department record 
linking the veteran directly to this event.  The only 
supporting evidence purporting to show the claimant was 
present at the time and witnessed the death of Lt. A. 
consists of the claimant’s own statement, the statement of 
R.K., and the “recollection” of the event under hypnotic 
regression.  The Board notes the statements of the claimant 
and R.K. were made in excess of two decades after the event.  
The Board further must point out  that the claimant’s 
statement stands in flat contradiction to his original 
statements offered on multiple occasions early in his pursuit 
of this claim wherein he expressly disavowed that he had seen 
anyone killed.  

The claimant’s current accounts also stand in flat 
contradiction of another part of his representations made in 
the context of this appeal.  In this regard, the Board finds 
that the decisive evidence on this event is the service 
medical record dated May 18, 1970.  That record documents the 
veteran’s acute back injury following karate practice.  
According to the information recorded at that time, the 
veteran was experiencing significant pain and was unable to 
execute movements that were part of the examination, such as 
sitting, lying down, straight leg or reflex testing.  The 
veteran has provided repeated statements describing this 
injury and he reiterated many times that he was placed on bed 
rest or light duty for several days thereafter.  

The record in this case requires a clear choice between which 
of the claimant’s two conflicting accounts to believe: that 
as he originally maintained that he saw no one killed and 
that he was on bed rest and light duty for three or more days 
after May 18, 1970, or that he was out in the field when Lt. 
A. was killed the on May 19, 1970.  The Board finds that the 
clinical medical record documenting the claimant’s condition 
on May 18, 1970, makes the claimant’s original accounts of 
bed rest and light duty following this injury vastly more 
credible than the subsequent version in which the appellant 
reports he was present when Lt. A was killed on May 19, 1970.   

It follows not only that the claimant’s account of being 
present when Lt. A. was killed is thus shown to be false, it 
also follows that the statement of R.K. is shown to be 
demonstrably false.  The statements of R.K. also show 
tailoring by alteration as to places and dates to realign 
them with the appellant’s accounts.  Accordingly, as R.K.’s 
account is shown to be clearly false with respect to the 
event that can be directly compared to other more credible 
evidence, and as his accounts contain internal 
inconsistencies as to dates and locations, and thus evidence 
of bias, the Board finds that none of R.K. representations 
can be accorded any probative value.  Thus, his statements 
can not constitute “credible supporting evidence” for such 
other episodes as the helicopter crash (Account Number 32), 
the claimed racial confrontation or confrontations of the 
claimant (Accounts Number 4, 10, 11, 29), and the episode 
involving the Vietnamese woman reported by R.K.   

With regard to the racial incidents, the Board further notes 
that the prior decision of the Board addressed these 
allegations on the basis of whether they would be sufficient 
to constitute a “stressor” for purpose of supporting a 
diagnosis of PTSD.  This question has been subsequently been 
held by case law to be a matter of medical expertise, and 
thus a matter that is not subject to adjudicative 
determination without the input of independent medical 
evidence.  West v. Brown, 7 Vet.App. 70 (1993).  The Board 
does not find that the 1990 decision of the Board expressly 
conceded the existence of this event.  Moreover, the 
subsequent case law makes clear that the appellant’s 
assertions by themselves are not sufficient to establish a 
noncombat stressor.  Dizoglio, 9 Vet.App. 163.  Consequently, 
the case law now indicates the Board could not, as a matter 
of law, have conceded this event or events without finding 
that they were supported.  This the Board did not do.  As 
this decision has found no supporting evidence for this event 
under the current case law, there is no basis for further 
action on this evidentiary assertion.

Finally, as the Board finds that account of the claimant’s 
presence at the time of the death of Lt. A. is false, this 
conclusion has significant bearing on the reliability of the 
evidence submitted to purport to show that under hypnotic 
regression, the claimant “recalled” being present at this 
incident.

Amnesia

Medical evidence has been submitted to explain away the 
manifest contradictions and inconsistencies between the 
accounts provided by the claimant as to his experiences in 
service.  With respect to this question, the Board notes as a 
preliminary matter that under Moreau, such evidence can not 
be used to affirmatively provide “credible supporting 
evidence” that an in service “stressor” occurred.  

Even without the application of the presumption in Moreau, 
the Board does not find this medical evidence to be 
probative.  First and foremost, “amnesia” as an explanation 
of the obvious contradictions in the record does not explain 
away the fact that the record shows the appellant actively 
submitted false evidence in 1976 concerning what he did in 
service.  The DD Form 214 was altered in 1976 to reflect 
training in Special Forces and airborne that never occurred.  
Thus when the appellant first approached the VA concerning a 
claim for benefits, he was not laboring under the handicap of 
being unable to remember events, but was engaged in active 
misrepresentations.  The medical reports do not reflect that 
the providers had the full record before them as to such 
conduct by the appellant at the time they attributed the 
contradictions to “amnesia.”  Moreover, the reliability of 
the hypnotic techniques employed in this case can be tested 
against other evidence.  That evidence concerns the death of 
Lt. A.   For the reasons noted above, the Board finds the 
representations as to the appellant’s presence at the time 
Lt. A. was killed are false.  Obviously, if the hypnotic 
techniques employed in this case demonstrably “retrieve” 
false information, the Board finds no basis to attach any 
probative value to them.  

Finally, even if for the sake of argument the finding of 
“amnesia,” or that the appellant has difficulty “organizing” 
his history, must be deemed medically correct, what 
conclusion then follows on this record?  If the appellant’s 
current recollections are shown to produce blatant 
contradictions and are refuted (not simply unsupported) by 
service records, how do the clinicians distinguish between 
the “memory” of events in service that is valid, and the 
“memory” of events in service that is not valid?  The 
clinicians effectively are conceding the unreliability of the 
statements of history provided by the appellant, and then the 
same clinicians purport to base their diagnosis on the same 
unreliable evidence.  Accordingly, the Board finds that, far 
from assisting the appellant, the clinicians in this case 
have quite effectively destroyed the probative value of their 
own evidence in support of the appellant’s claim.  



Direct Assessment of Credibility

The Board had direct opportunity to observe the appellant at 
the March 1997 hearing.  In the course of that proceeding, 
the veteran provided testimony as to the nature of his duties 
in Vietnam that is contradicted by his earlier accounts and 
the service records, as set forth above.  Moreover, when 
asked why, given the fact that he reported he was afraid for 
his life every day, the appellant chose to extend his tour in 
Vietnam, the appellant replied that he got an “early out” 
because of the extension.  (March 1997, T. p. 28)  This 
statement is consistent with earlier testimony.  The 
appellant, however, only added this point after commenting 
first that he extended his tour because he had heard reports 
from other servicemen who had returned from experiencing at 
home the treatment of Vietnam veterans, and he “didn’t want 
no part of it.”  The Board notes that this response had not 
previously been provided by the appellant as an explanation 
of the reason he extended his tour, and thus is inconsistent 
with his prior statements.  Much more importantly, the direct 
observation of the appellant’s demeanor in this exchange, 
coming upon the impressions formed concerning the earlier 
accounts as to his duties which were inconsistent or refuted 
by the service records, compelled the conclusion that no 
credibility could be attached to the  appellant’s evidentiary 
assertions in pursuit of this claim.  See Caluza, 7 Vet.App. 
511 (In assessing the credibility of oral testimony, the 
hearing officer may properly consider the demeanor of the 
witness, and the consistency of the witness’ testimony with 
other testimony and affidavits submitted on behalf of the 
appellant.)

Statement of M.C.

As to the statement from M.C. of November 1993, the Board 
notes that this individual makes no representation that he 
has any memory of the claimant in Vietnam.  Mr. C. only 
states that he takes the claimant “at his word” that they 
were in a hospital together and that the claimant had 
recollections of events that took place where Mr. C was 
stationed.  The Board notes that Mr. C. only arrived in 
Vietnam in May 1970 and that he was in the Chu Lai area.  The 
claimant, as noted above, was then in the Long Binh area.  
The Board finds this is not “credible supporting evidence” 
because at no point does Mr. C. state that he has personal 
knowledge linking the claimant to an alleged “stressor” 
(including Account Number 38 involving [redacted]), Mr. C. only 
states he accepts the appellant at his own word.  Since the 
statement from Mr. C. does not actually contain an assertion 
from Mr. C that he can recall the claimant’s presence, and 
since there are obvious conflicts between what the records 
show about the claimant’s whereabouts at the time Mr. C. 
arrived in Vietnam, the Board does not find that Mr. C.’s 
statement provides credible supporting evidence of a 
stressor.  

Unconfirmed Events

Among the barrage of accounts the appellant has presented as 
events purported as “stressors,” are the following:

Training of nonspecific nature at Ft. Polk prior to duty in 
Vietnam  (Account Number Two)
Seeing unidentified individuals who were wounded or killed 
(Accounts Number 9, 11, 12, 13, 16, 19, 24, 30)
Loud noises (Account Number 9)
“Nearby explosions” or nonspecific rocket or mortar attacks 
(Account 11)
He “didn’t do enough” (Account number 19)
Extremely frightening weekly combat training (Account Number 
28)
Patrols in “Hobo Woods” and discovery of tunnels (Account No. 
34)
The account that the same night he sustained the injury in 
karate, there was incoming fire and he fell on his back at a 
helicopter pad.  (Story Number Five).

The Board finds that none of these events are corroborated by 
“satisfactory evidence.”

Statement of C.M.

The claimant has also reported:

Perimeter guard duty (Account Number Seven)
Fear of being “overrun” (Account Number 19)
Exposure to a rocket attack at a “PX” in Chu Lai in “May 
1970” (Account Number 35)

In contrast to the other evidence of record, the Board finds 
that the statement of C. M., Jr., received in December 1994, 
is supporting evidence that the appellant performed duties 
involving the provision of security around the perimeter of 
the compound and that Mr. M. feared a possible enemy attack 
while performing such duty and assumed others felt the same.  
Whether this event would constitute “combat with the enemy,” 
however, is another matter.  Mr. M. makes no representation 
that at any time he was aware of an actual event in which the 
“enemy” was palpably present while he or the claimant were 
performing such duties.  Assuming that each word of the term 
“combat with the enemy” is to be accorded its plain meaning, 
the Board finds that the phrase at a minimum requires some 
active manifestation of the presence of the “enemy,” not an 
inchoate potential presence of the “enemy.”  To hold 
otherwise would be to convert the meaning of the term to 
simply “presence in the war zone” (or “entitled to credit for 
participation in a recognized campaign,” or “in a combat 
environment,” or “overseas service in wartime,” or “entitled 
to hostile fire pay”), all of which were choices the drafters 
of the law could have, but did not make.  

The statement of C.M. also indicates that “we” were present 
when a rocket landed in the vicinity of a PX in Chu Lai.  It 
is notable that the statement from Mr. M. provides no 
confirmation of the accounts provided by the appellant that 
he sustained a back injury as a result of this incident.  It 
is also notable that this event must have occurred prior to 
April 20, 1970, not in May 1970 as the appellant has 
reported.  This conflict of dates alone is sufficient to 
raise significance questions about whether Mr. M. and the 
appellant are actually referring to the same event.

Application of 38 U.S.C.A. § 1154(b)

Even assuming that Mr. M.’s statement is sufficient evidence 
to support the fact that that on one occasion in Chu Lai, a 
rocket landed near where he and the claimant were, there is 
still further analysis to be applied to this case.  The Court 
of Appeals for the Federal Circuit in Collette pointed out 
that 38 U.S.C.A. § 1154(b) sets for a three step sequential 
analysis that must be applied when a combat veteran seeks the 
advantages of the method of proof provided by the statute.  
The first step is that he must provide “satisfactory lay or 
other evidence of service incurrence or aggravation of such 
injury or disease.”  “Satisfactory” evidence is defined as 
“credible evidence that would allow a reasonable fact finder 
to conclude that the alleged injury or disease was incurred 
or aggravated by combat service.”  The second step requires 
examination of whether the proffered evidence is “consistent 
with the circumstances, conditions, or hardships of such 
service.”  The Court of Appeals for the Federal Circuit held 
that as to these two steps, the credibility of the veteran’s 
evidence must be assessed by examining his evidence alone, 
not by weighing the veteran’s evidence against contrary 
evidence.  Collette, 82 F.3d at 392-94.

In this case, the Board finds that as to the first step of 
analysis under 38 U.S.C.A. § 1154(b), the claimant has not 
presented “satisfactory” evidence.  This conclusion is 
founded upon the fact that the claimant’s own statements, 
considered without regard to any contrary evidence, are 
inconsistent as to the event reported by Mr. M.  The claimant 
has placed the date of the event in May 1970, long after date 
that Mr. M.’s account could support.  The claimant has not 
consistently referred to this alleged event at Chu Lai, but 
rather has alleged alternatively a strongly similar  event at 
Long Binh.  He has not expressly alleged there were two such 
events, and thus these alternative versions are contradictory 
as to dates and places.

While these inconsistencies with respect to this event alone 
are sufficient to make his evidence unsatisfactory and thus 
fail the first step of the three part test articulated in 
Collette, the record shows a still broader basis to find his 
evidence not “satisfactory.”   The claimant has riddled the 
record so massively with inconsistencies that a reasonable 
fact finder could not find his assertions in pursuit of this 
claim are credible.  The appellant initially maintained 
clearly that he did not engage in combat (April 1989 VA 
examination) and saw no one killed, and then he asserted that 
he did engage in combat (and, indeed, that he saw amounts of 
combat that grew progressively with the retelling) and that 
he did see someone killed.  He has also asserted in clear 
contradiction that his duties involved driving the company 
commander for most of his tour and that a stressor was the 
fact that he had no access to weapons, then he switched to a 
radically different account in which his daily, or near 
daily, job throughout his tour was patrolling as an 
infantryman .  Further, in this case, the Board had the 
opportunity to directly observe credibility and, as noted 
above, prior inconsistencies in the appellant’s own accounts 
and his demeanor lead the conclusion that he is not credible.  
By such pervasive and obvious alterations in his accounts, 
the appellant has devastated his own credibility such that 
the Board must conclude that none of his assertions is 
“credible” or “satisfactory” evidence of any event.

The appellant’s pervasive lack of credibility is also 
determinative in another context, and make this case 
distinguishable from Wood or Cohen.  Even assuming that Mr. 
M.’s statement is sufficient to establish that the appellant 
performed ordinary perimeter security duty without the 
presence of the enemy or that on one occasion a rocket landed 
in their vicinity, it would still be necessary for a party 
with medical expertise to find those events were adequate to 
constitute “stressors” to cause PTSD and that the remainder 
of the diagnostic criteria to support such a diagnosis have 
been met.  This in turn, however, hinges upon the question of 
the probative value of the information the appellant provides 
to the medical provider.  In this case, the record shows that 
the appellant has pursued a pervasive pattern of 
misrepresentation and contradiction, and that he has 
submitted evidence or testimony that is false in pursuit of 
this claim for benefits.  It follows that further medical 
input would be pointless as no diagnosis emerging from an 
examination could be more reliable than the self-serving and 
noncredible evidentiary assertions supplied the appellant.


Back Disability

Background

To reopen a claim following a final decision, the appellant 
must submit new and material evidence.  38 U.S.C.A. § 5108 
(West 1991); 38 C.F.R. §§ 3.104, 3.160 (1996).  New and 
material evidence means evidence not previously submitted 
which bears directly and substantially upon a specific matter 
under consideration, which is neither cumulative nor 
redundant and which, by itself or in connection with evidence 
previously assembled, is so significant that it must be 
considered in order to fairly decide the merits of the claim.  
38 C.F.R. § 3.156(a) (1996).  The United States Court of 
Veterans Appeals (Court) has stated that the evidence must be 
relevant and probative of the issue at hand.  Colvin v. 
Derwinski, 1 Vet.App. 171 (1991).

When a veteran seeks to reopen his or her claim under 
38 U.S.C.A. § 5108, the Board must conduct a two-step 
analysis.  First, the Board must determine whether the 
evidence submitted since the previous final decision is “new 
and material.”  Second, if the evidence is found to be new 
and material, the claim is to be reopened and the Board must 
then “assess the new and material evidence in the context of 
the other evidence of record and make new factual 
determinations.”  See Masors v. Derwinski, 2 Vet.App. 181, 
185 (1992); Godwin v. Derwinski, 1 Vet.App. 419, 425 (1991); 
and Jones v. Derwinski, 1 Vet.App. 210, 215 (1991).

In this case the evidence of record at the time of the Board 
denial of service connection for chronic back and neck 
disorders, in August 1987, included service medical records 
which show that no back disorder was noted at examination for 
entry into service in March 1966.   Clinical records disclose 
that while practicing karate in May 18, 1970, the appellant 
slipped and fell on his lower back.  He complained of pain in 
his testis and lower back and was unable to flex.  
Examination showed tenderness over the coccyx and surrounding 
area of buttocks, with no muscle spasm.  There was no pain on 
extension or lateral rotation.  He was unable to sit or lay 
down for straight leg testing or reflex testing.  He was 
referred for X-rays of the lumbosacral spine and coccyx, 
however, there were no findings on the radiographic report.  
He was sent to the dispensary for an orthopedic consult.  In 
September 1970 he was seen for complaints of acute low back 
pain of two days duration with light radiation to the inner 
perineal area.  Examination disclosed a full range of motion 
on straight leg raising.  Deep tendon reflexes were equal and 
physiologic.  The impression was acute low back pain.  When 
seen the following day for low back pain “not much improved,” 
examination showed only tenderness at the L5-S1 area.  The 
disposition was quarters for 24-hours and to return as 
needed.  The separation examination in August 1971 was 
negative for the spine.  The examination showed such clinical 
findings as urinalysis results, chest X-ray results, height, 
weight, blood pressure, distant vision, and audiometry.  It 
was signed by an officer physician.  Army Reserve examination 
in March 1973 revealed no back disability.  In the 
contemporaneously prepared Report of Medical History, the 
appellant specifically denied recurrent back pain. 

Actual treatment reports from R.H., M.D., covering the period 
from May 1981 to 1982 indicated that the appellant reported 
in March 1981 an injury to his back during the course of his 
employment as a policeman in a scuffle with a belligerent 
prisoner.  Specifically, he was “kicked in the back.”  He had 
received prior treatment from Dr. V.  He had pain in the back 
and right leg as well as some radicular pain in the right 
testicle.  X-ray studies showed narrowing at L4-5 with some 
sclerotic changes of the facet joints.  It was noted that "It 
is interesting the patient has had no previous back 
difficulty."  The records extend through October 1982 and 
show the appellant had repeated episodes of back pain.

Dr. Vickers, a chiropractic physician, in February 1984, 
reported treating the veteran since March 1981, and that the 
veteran reported original back injury in Vietnam, with 
multiple low back injuries since then.  Records of Dr. 
Vickers dated in 1983 and 1984 were submitted.  These shed no 
light on a nexus between service and a back disorder.  In an 
October 1984 statement, Dr. Vickers stated that the 
appellant’s “stress factor” tended to aggravate his low back 
problem. 

 C. R. Greer, D.O., in August 1984 noted that he saw the 
appellant in August 1984.  The appellant reported a back 
injury in a training program in 1970, falling on the floor of 
the barracks on his low back and buttocks, with 3 days bed 
rest.  The history also was that since the time the appellant 
had suffered “repeated episodes of low back pain that have 
progressively been getting worse.”  The physician indicated 
the appellant had a “crushed disc of L4-5,” and that “by his 
history it is my opinion that this disc is the direct results 
of the fall in Vietnam in apporximately (sic) 1970.”  

W. Anspach, M.D., in a statement dated November 1984 
indicated that the appellant reported low back pain for 
approximately fourteen years.  The pain reportedly began 
after a fall in Vietnam.  The physician reported that when he 
first saw the appellant on October 11, the appellant appeared 
“an honest reliable type of person who was genuinely in a 
good deal of pain.”   In December 1984, Dr. Anspach reported 
that the appellant had a back problem since May 1970.  

In hearing testimony in October 1984, the appellant reported 
a back injury in service and that the condition was bothering 
him at discharge, but he did not mention it.  He reported the 
condition really began to give problems about three years 
after service during his police work .  (Transcript, pp. 1-2)   
He stated he was on three days of bed rest and light duty 
following his “karate” injury in service.  He noted that he 
made the company commander’s driver after his injury in 
service, remained in that task during the remainder of his 
tour in Vietnam, and was not put back doing mechanical work. 
(T., p. 2.)  The veteran indicted that it was more than 2 
years after service before receiving treatment for his back. 
(T., p. 6.)  It was recorded that when he applied for police 
work in 1981 he noted a bad back on his application.  (T., p. 
8.)  

H. J., in a statement in October 1984, noted knowing the 
veteran for 12 to 13 years, and that all during that time the 
veteran had a “severe” back problem.  Mr. J.  reported 
speaking with the appellant about medical problems “received 
in Vietnam.”  

R.C., in a statement of October 1984, reported knowing the 
appellant for the past 15 months.  Mr. C. indicated the 
appellant had a back problem, and that the appellant reported 
he did not know he could receive treatment from VA.

The appellant, in a sworn statement dated in October 1984, 
noted that when he returned from Vietnam he did not say 
anything about his back because his wife was expecting a baby 
and he just wanted to go home.

Nerve conduction studies for the low back pain were conducted 
in October 1984.  A history was recorded of radiating back 
pain into the left buttock, left lower extremity and 
occasionally the right leg intermittently since 1970.  There 
was some minimal evidence of denervation at the L4, L5 levels 
in the paraspinal muscles consistent with an L4, L5 disc 
possibly compressing both those nerve roots.

Records of private medical treatment from Dr. Anspach show 
the appellant was seen in October 1984.  At that time, a 
history was recorded of low back pain for 14 years.  The 
appellant related a back injury in “Vietnam” in a fall with 
low back pain.  He also reported work as a policeman with 
“many injuries on and off with low back pain.”  It was noted 
he was trying to secure VA disability for low back pain.  The 
Impression was degenerative L-4-5 disc.  The appellant was 
seen thereafter for similar complaints through May 1985; he 
had back surgery in November 1984.

C. Prior, D.C., in a statement dated in March 1985, reported 
office visits for the veteran beginning in 1975, ending in 
1979, and that the veteran reported in his case history a 
"lumbo-sacral" condition due to a fall in May 1970.

In a May 1985 neurosurgical consultation, F. Cohen, M.D., 
noted the history of back injury in service during “karate 
instructing” in 1970 “in Vietnam.”  He received some 
treatment, but when he came home in 1971 he was “excited” and 
therefore did not report any injuries.  There were no 
injuries between 1971 and 1975, but the appellant did have 
back pain and saw  Dr. “Pryor,” a chiropractor between 1975 
and 1979.

On the examination report form completed by the appellant for 
a VA examination in May 1985, he reported he fell on his low 
back in 1970 during karate practice.  He also reported a 
second injury occurred when he fell “when incoming came in.”  
He claimed treatment by Dr. “Pryor” from 1975 to 1979 and by 
a Dr. Vickers from a date in the 1970’s (the last digit is 
not decipherable) to 1984.  During VA orthopedic examination 
in June 1985 it was that noted the veteran sustained low back 
injury during karate exercise in 1970, with rest for several 
days and then returned to duty.  In 1971 his neck began to 
bother him and he took chiropractic treatments for the spine.  
A lumbar laminectomy and diskectomy were performed in 1984, 
with some improvement until re-injury in 1985.  

The veteran provided hearing testimony in March 1985.  At 
that time he reported that after the back injury while 
practicing karate, there was incoming that same night, and he 
fell on his back at a helicopter pad.  He went to sick call, 
was released to light duty, and stayed in the area picking up 
trash.  He was asked if he was given duties that would not 
further “aggravate” the disorder and he replied that he was.  
(T., pp. 1-2.)  The appellant reported that his separation 
physical was not complete.  His wife was having a baby that 
same day, the 23d of August, and a lieutenant helped him 
expedite straight through the physical, and checked out 
everything on the questionnaire.  (T., p. 2.)  He noted 
quitting the reserves because of his back, and not reporting 
his back problem because he wanted to stay in the service for 
a partial retirement.  (T., p. 3.)  The claimant believed 
that the injury in 1981 was just an aggravation of the 
service injury. (T., p. 3.)  He stated that his neck injury 
occurred during basic training, and that Dr. Prior treated 
him for the neck also. (T., p. 8.)  

Evidence since the August 1987 Board decision denying service 
connection for chronic back and neck disorders includes VA 
outpatient clinic records showing periodic treatment for the 
appellant’s back in the 1980's and 1990's.  These contain a 
number of recorded statements of medical history.  For 
example, clinical records and a request for a radiographic 
study in July 1990 show a history recorded of a back injury 
in 1970.  In August 1990, a history of back pain for 20 years 
was noted, with reported back injuries during hand-to-hand 
combat training and while running to a bunker.  In 1993, a 
history of back pain since a mortar attack in service was 
reported.

Information recorded in an interview with the veteran in 
April 1989 was to the effect the only injury sustained by the 
veteran was a back problem developed during hand-to-hand 
combat training exercise.  

R. K., in a statement dated in December 1990, reported that 
he saw the veteran slip and fall and hurt his back running to 
a bunker in Long Binh during a rocket attack, in May 1970.

R.K., in a letter dated in February 1994, reported that in 
the spring of 1970 in Chu Lai with the claimant, when walking 
near the PX mortars came down nearby, and the after shock 
waves knocked the claimant down hard on his back, and he had 
to go to an evacuation hospital.  This happened in April or 
May 1970.  

The appellant submitted duplicate medical records and 
statements considered in the 1987 decision, received in 
August 1994.  Those records did include a May 1981 X-ray 
study of the lumbar spine, showing probable degenerated disc 
L4, L5, and partial lumbarization of S1.  A March 1981 job 
application showed that the appellant reported lower back 
problems.  An undated copy of a statement by R. Greer, D.O., 
with the opinion that the "crushed disc" was a direct result 
of the fall in Vietnam in approximately 1970.  There was also 
an undated copy of a statement from the claimant's sister 
that when he came home from Vietnam his back was hurting.  An 
undated copy of a statement from the claimant's mother also 
noting back complaints by the veteran when he returned home 
from Vietnam.  His mother also reported that she and the 
appellant went to a medical facility in Bath, New York, and 
the appellant was turned down for treatment because he was a 
Vietnam veteran.  

J. Tusch, D. C. submitted a statement dated in March 1994, in 
which he noted initially that he wanted to make it clear that 
he was without documents and that the information he was 
reporting was solely from memory.  He reported that he 
remembered that in October or November 1971 the appellant's 
brother brought the veteran in to see him with a low back 
condition.  It was Dr. Tusch's understanding that the injury 
occurred in Vietnam, as the result of a mortar or rocket 
attack in the spring of 1970.  The conservative treatment was 
reported to have been over a period of 3 to 4 visits.  
Reference was made to a VA facility in Bath, New York, and it 
being advisable for the veteran to go there.

VA clinical records show treatment for the veteran's back and 
neck between 1989 to 1995.  Once again, these include 
statements of medical history indicating the presence of back 
symptoms since service.  There is reference to back injury in 
Vietnam, listed on at least one occasion as following an 
indirect fire attack.  A July 1994 entry records a history of 
an injury in 1970 and a “problem since Ap 1984.”   X-rays of 
lumbosacral spine in September 1995 were interpreted to show 
disc disease and spondylosis.  

In a statement in August 1994, the appellant reported that 
when he returned home from Vietnam in 1971 he saw Dr. Tusch 
in October and November 1971, and tried to get treatment from 
the VA but was refused.  He reported being in the reserves 
one year but wasn't able to do anything because of his back 
and was honorable discharged.  He then saw Dr. "Pryor" from 
1974 or 1975 to 1979.  The veteran believes that the evidence 
of record shows a continuity of back disability since 
service.  

Received in September 1994 was an additional statement from 
the veteran, noting the buddy statement from Mr. K concerning 
his back injury on the way to the PX.  

R. K., in a statement dated in September 1994, places the 
veteran in the Long Binh area in April and May 1970.

In December 1994 the claimant submitted a statement in which 
he listed the sequence of his injury in service, and 
treatment post-service, starting in 1971.  The veteran, in 
March 1995 submitted what he believed was new and material 
evidence concerning his back.  The evidence was copies of X-
ray studies of the lumbar and cervical spine in 1986.

M. G., former secretary to Dr. Benedek, in a statement in 
November 1995, noted that the veteran was the husband of a 
patient of Dr. Benedek, but she was not a witness to the 
conversation of the one and only time the veteran was treated 
by Dr. Benedek, after recently returning from the military.

An undated statement from D.G.C. (or H.G.C.), who identified 
himself as a brother of the appellant, reported that when the 
appellant returned from Vietnam he was “jumpy.”  The 
appellant also reported indicated that he injured his back in 
Vietnam and that it was very painful.  The statement also 
related that the appellant had been taken to a VA facility at 
Bath and refused treatment because the disorder was not 
service related.  Also with this statement were several other 
statements from the appellant’s mother and sister to the 
combined effect that the veteran had a back problem upon his 
return from Vietnam.  

A copy of a clinical record page from S. Benedek, M.D., dated 
February and May 1972, was received in January 1995.  This 
shows the veteran was seen on one occasion in February for 
complaints of aches and pains in the chest muscle (pectoris) 
more painful when he was laying down.  He was provided 
medication.  there is a scribbled date in March next to the 
medication notation.  The appellant apparently was seen again 
in May on one occasion for a complain wax in his ears.

Hearing testimony provided by the veteran, in November 1995, 
included recitation of medical treatment after service, 
starting with Dr. Tusch in 1971, Dr. Schmike in 1972, Dr. 
Benedek in 1972, and Dr. Prior from 1974 to 1979.  (T., pp. 
1-4).  He reported that a Lt. Steem expedited him through the 
separation physical, and the veteran never noticed that a 
physical was performed, except he made out the questionnaire.  
(T., pp. 6-7)  The  veteran also stated that on the 1973 
reserve physical he was never asked about psychiatric or 
physical problems, and he did not have a physical 
examination.  (T. pp. 5-7)  In regard to the kick in the back 
in 1981, the veteran reported that he went to see Dr. 
Vickers, his chiropractor, before he was kicked, and the kick 
in the back did not cause the condition.  It may have 
aggravated it but it did not cause it.  (T., pp. 10-11).  The 
veteran asserted that the statement by R. K., proves that the 
rocket incident occurred, that he hurt back before karate 
incident, and he received no treatment for the rocket 
incident.  (T., pp. 23-24).

The appellant participated in a hearing before the Board, in 
March 1997.  The veteran reported that he never had any 
injury or disease of the back until after arrival in Vietnam 
in 1970.  He stated there were numerous mortar and rocket 
attacks, and during one of those attacks he was in PX (post 
exchange) in Chu Lai, “North” Vietnam, and a rocket hit close 
by, 75 to 100 feet, and he flew up a “fair distance” onto his 
back.  T. pp. 4-5.  Later, May 17th, 1970, he was sent to 
“South” Vietnam for formalized training and was thrown, 
landing on back; he was hospitalized and treated.  T. pp. 5-
6.  The appellant reported piercing pain in his back, groin 
and legs, and his legs went numb.  The pain went up through 
back into his neck, and at times he could hardly turn his 
neck.  T., p. 7.  He indicated he “continually” had pain and 
sought treatment at a hospital for this disability.  In 
regard to his separation physical, he maintained that he was 
taken by Lieutenant through stations and not physically 
examined.  All he did was make out a questionnaire, but he 
did report any back disorder.  T. pp., 8-9.  He stated he was 
treated by a private physician around October or November 
1971 for a back disorder, but he was turned down when he 
tried to secure VA treatment.  T. p. 9.  He described being 
seen a Dr. Benefict in 1972 for a back condition with 
manifestations the same as those he experienced in service.  
. T. p. 10.  The veteran stated that although he was “kicked 
in the ass,” in the buttocks area in 1984, no doctor told him 
that injury caused his back problems.  T. pp. 10-11.  He 
stated that after the May 1970 injury, he was relieved from 
duty for two days.  T. pp. 13-14.

At the time of the hearing before the Board, the appellant 
submitted a copy of a March 1997  report from I.W. Rosien, 
M.D.  The appellant waived consideration of that report by 
the RO.  In summary, the report of Dr. Rosien indicates he 
obtained a history from the appellant and “information 
obtained from his medical and military records.”  The history 
noted on he report included an account from the appellant 
that in “January 1970 in Vietnam,” he was injured by an enemy 
rocket attack on Chu Lai.  He reportedly stated that he was 
standing next to a PX when a blast “destroyed the building,” 
and he was “suddenly thrown.”  He reportedly felt 
“‘stunned,’” but “had no immediate sense of pain or injury.”  
The physician noted that there were no documentation or 
records available of this episode.  The appellant reported 
that after this injury, he experienced “persistent neck and 
back pain.”  The history then was recorded of an injury in 
May 1970 during karate practice, when the appellant was 
thrown and injured the small of his “back.”  He then 
reportedly had  “chronic back pain for which he has AHD 
recurrent follow up.”  Although the report notes a history of 
a lumbar laminectomy in 1984, there is no reference to any 
specific post service injury.  There is a general reference 
to “injury, trauma and recurrent strain” as the “mechanism” 
that underlies the current disability.  The examiner’s 
impression was moderately severe to severe chronic pain of 
spinal origin - “Multifactorial.”

Analysis

The RO has characterized the issue on appeal as whether new 
and material evidence has been submitted to reopen a claim 
for service connection for a back disorder following the 
Board’s denial of this claim in 1987.  In explaining the 
reasoning for its determination in the February 1995 rating 
action, the RO found that, while additional evidence had been 
submitted, ultimately it was not material because it raised 
no reasonable possibility that it would change the outcome 
based upon a review of all the evidence of record.  The 
decision supporting that conclusion shows the RO acknowledged 
the existence of additional lay evidence attesting to back 
symptoms post service, and medical evidence diagnosing a back 
disorder and providing opinions linking a back disability to 
events in service.  The RO noted that:  

. . . the veteran has given a history of 
treatment for a back disability beginning in 
service.  However, the veteran has not 
provided objective clinical evidence of the 
existence of a permanent back disability 
arising from service.  Copies of service 
reports provided by the veteran were 
previously considered and it was determined 
that no permanent back disability arose 
during service.  

Again in May 1996, the RO considered the evidence, including 
medical opinions purporting to link a current disability to 
service, and the RO reiterated the same rationale for its 
determination that the evidence was not material because it 
raised no reasonable possibility of changing the outcome.  
Copies of the 1995 and May 1996 decisions of the RO were 
provided to the appellant.  

The representative has argued that the veteran has submitted 
new and material evidence to reopen his claim.  Specifically, 
it is maintained that his evidentiary assertions are new and 
material and, in the alternative, that the report from Dr. 
Rosien constitutes new and material evidence.  The Board 
finds that the report of Dr. Rosien can be characterized as 
new and material evidence.  This conclusion stems from the 
fact that the physician drew on statements of medical history 
from the appellant as to at least two separate back injuries 
in service.  One of these is the documented incident in May 
1970, which was of record at the time of the Board’s decision 
in 1987.  To the extent that this history was considered and 
rejected at that time, an additional medical report based 
upon the same history would not provide a basis to reopen a 
claim.  Reonal v. Brown, 5 Vet.App. 458 (1993). 

In this case, however, the report of Dr. Rosien appear to 
also incorporate a history concerning a second alleged back 
injury during a rocket attack in “January 1970” at Chu Lai.  
This was not before the Board in 1987, and thus can not be 
deemed to have been considered and rejected at that time.  As 
noted above, the statement of C.M. provides support for the 
fact that the veteran was present when a rocket landed in his 
vicinity at Chu Lai, and at the stage of determining whether 
there is new and material evidence to support a reopening, 
the statement of C.M. must be presumed to be true and can not 
be challenged on the merits.  To this extent, the report from 
Dr. Rosien is not based on the same factual predicate 
previously considered by the Board.  In such circumstances, 
the Board finds that Dr. Rosien’s report can only be 
addressed on the merits to assess its probative value.  Given 
the complexity of this record, the Board is not prepared to 
find that a disposition of this issue on the merits would not 
violate Bernard.  In addressing the probative value of this 
report, attention must be given to the degree to which the 
record is or is not altered with regard to whether any 
chronic back disability existed during service, whether there 
is continuity of symptomatology linking a post service back 
disability to service, or whether there is competent medical 
evidence, founded on an accurate factual history, to link a 
post-service back disorder with service.   




ORDER

Service connection for PTSD is denied.

New and material evidence has been submitted to reopen the 
claim for entitlement to service connection for back 
disability.


REMAND

In light of the above discussion, the Board finds that the 
claim for service connection for a back disorder must be 
returned to the RO for the following actions:

1.  The appellant should be accorded the 
opportunity to submit additional argument or 
evidence in support of his claim.  

2.  The RO should then arrange for an 
examination by an orthopedic specialist.  The 
complete claims folder as well as a copy of 
this remand, should be made available to the 
examiner.  Any indicated testing should be 
performed.  Following examination and review 
of the record, the examiner is requested to 
respond to the following questions:

a)  What is the correct diagnostic 
classification of any current back 
disability?

b)  With respect each back disability 
currently present, what is the degree of 
medical probability that such a disability is 
causally related to service, or any incident 
or event therein?

In responding to b), the examiner is 
respectfully requested to formulate a 
response first based on the premise that 
following the documented episodes of back 
pathology in service in May and September 
1970, the appellant’s back remained 
asymptomatic until the documented 1981 
injury.  In the alternative, the physician is 
requested to formulate an opinion based on 
the premise that the claimant’s back was 
symptomatic between the documented episodes 
in 1970 and the post service injuries.  

3.  The RO should then review the examination 
report and assure that it is complete and 
that responses to these questions have been 
provided.  If not, the examination report 
should be returned to physician to correct 
any deficiency.  38 C.F.R. § 4.2 (1996).

4.  Once the RO determines that the record is 
complete, the RO should review the claim for 
service connection for a back disability on a 
de novo basis without regard to the finality 
of any prior determination.  The RO must 
review the complete record.  In this context, 
the attention of the RO is respectfully 
invited to the March 1997 report of Dr. 
Rosien, as well as any other evidence the 
appellant has or may submit into the record.  
In addition to any other finding, the RO is 
respectfully requested to make a 
determination as to whether the record 
supports the allegation of a continuity of 
symptomatology following the documented 
episodes of back treatment in service.  The 
RO should also resolve any credibility issues 
raised by the record in assessing the 
probative value of any evidence contained in 
the claims folder.

If the determination remains adverse, the RO should provide 
the appellant and his accredited representative with a 
Supplemental Statement of the Case (SSOC).  The SSOC should 
contain all applicable law and regulatory provisions 
pertaining to a disposition on the merits.

The purpose of this remand is to accord the appellant the due 
process of law.  By this action, the Board intimates no 
opinion, legal or factual as to the ultimate disposition of 
this claim.

This claim must be afforded expeditious treatment by the RO.  
The law requires that all claims that are remanded by the 
Board of Veterans’ Appeals or by the United States Court of 
Veterans Appeals for additional development or other 
appropriate action must be handled in an expeditious manner.  
See The Veterans’ Benefits Improvements Act of 1994, Pub. L. 
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. 
§ 5101 (West Supp. 1996) (Historical and Statutory Notes).  
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part 
IV, directs the ROs to provide expeditious handling of all 
cases that have been remanded by the Board and the Court.  
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.


		
	RICHARD B. FRANK
	Member, Board of Veterans' Appeals

The Board of Veterans' Appeals Administrative Procedures 
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741 
(1994), permits a proceeding instituted before the Board to 
be assigned to an individual member of the Board for a 
determination.  This proceeding has been assigned to an 
individual member of the Board.

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. § 7266 (West 
1991 &  Supp. 1995), 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, 102 Stat. 4105, 4122 (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.
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