Wood v. Derwinski

Wood v. Derwinski, 1 Vet. App. 190, decided 1991-03-28.

HOLDAWAY, Associate Judge: Bruce Wood appeals a September 29, 1989, decision from the Board of Veterans’ Appeals (BVA) denying entitlement to service connection for post-traumatic stress disorder (PTSD). The BVA rendered its decision on the following two grounds: (1) that the evidence of record did not objectively support the diagnosis of PTSD; and (2) that no independent evidence was shown to corroborate the veteran’s claim that he had been exposed to a psychologically traumatic event while in service. We affirm the BVA decision.

Appellant served in the Republic of Vietnam as a cannoneer from December 20, 1970, to June 17, 1971. He was honorably discharged on June 30,1971, with no indication in his records, or, indeed, from any source, of any disability, mental or physical. Nonetheless, appellant now alleges that, during his tour of duty, he witnessed some emotionally traumatic incidents which eventually resulted in PTSD. Although the traumatic incidents were never verified in any manner by separate objective evidence, he argues that the nature of his service, the fact that he served in Vietnam, and the clinical diagnoses of PTSD by a civilian doctor and social worker should be dispositive of his contention that his condition was service connected.

Three years after his service in Vietnam, appellant initiated counseling sessions with a clinical social worker. He initiated counseling because of marital difficulties, including violent episodes, which appellant felt were related to his experiences in Vietnam. Appellant was seen by the social worker from May 1975 to January 1976 in regular counseling sessions. In 1979, appellant was convicted of second-degree murder. He was sentenced to fifteen years to life.

In December 1985, the murder conviction was reversed and remanded for a new trial. See People v. Wood, 66 N.Y.2d 374, 488 *192N.E.2d 86, 479 N.Y.S.2d 340 (1985). (Appellant was apparently convicted again after a re-trial, because he is still incarcerated.) A psychiatrist involved in the murder case wrote to appellant’s public defender in May 1986 with a final diagnostic summary of appellant’s psychological condition at the time of the homicide. In that letter, the psychiatrist stated, “[Wood] definitely showed Post Traumatic Stress Disorder of the Chronic Type complicated by substance abuse and/or chemical dependency initiated in Vietnam.” It is not clear whether this statement means that it was the PTSD that began in Vietnam or whether the psychiatrist was referring only to the substance abuse and chemical dependency.

From February through June of 1986, appellant saw the same social worker weekly. On June 18,1989, the social worker provided a statement to the BVA giving his professional opinion that Wood suffered from borderline personality and chronic-type PTSD and that the social worker believed that these conditions coexisted.

In February 1988, appellant filed his claim with the Veterans’ Administration (now the Department of Veterans Affairs) (VA). In June 1988, appellant filed a statement in support of the claim that outlined the traumatic events he contends caused his PTSD. The VA sent this information to the U.S. Army and Joint Services Environmental Support Group (Environmental Support Group), a group which conducts research on behalf of veterans to aid them in substantiating their claims. The Environmental Support Group responded that its research was unsuccessful because the lack of specific combat dates, places and types of incidents made the research impossible.

The VA made a second request for information from the Environmental Support Group in November 1988. This time, at the Environmental Support Group’s suggestion, appellant’s DA Form 20 and his service record were forwarded. These documents showed the units to which appellant was assigned, his duty specialty, and the dates he was in Vietnam. The Environmental Support Group’s response was again negative, citing the vagueness of appellant’s description of events, the lack of specific locations and dates and, for some of the events, the type of some of the incidents involved (civilian deaths). A VA rating decision was issued on January 4, 1989, denying service connection for PTSD.

In June 1989, appellant appealed to the BVA, which also denied service connection for PTSD. Bruce Wood, loc. no. 927709 (BVA Sept. 29, 1989). A timely appeal was filed in this Court on December 11, 1989.

For service connection to be granted under the VA regulations, the facts of the case must “establish that a particular injury or disease resulting in disability was incurred coincident with service.... This may be accomplished by affirmatively showing inception or aggravation during service.” 38 C.F.R. § 3.303(a) (1990) (emphasis added). A finding of service connection, or, in this case, no service connection, is a finding of fact. The function of this Court in reviewing findings of fact by the BVA is to decide only whether such factual decisions constituted clear error. “[I]f there is a ‘plausible’ basis in the record for the factual determination,” we must affirm. Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990).

We have carefully examined the record and are convinced that there is a plausible basis for the factual finding of the BVA, i.e., that there was insufficient evidence to support a finding of PTSD stemming from appellant’s military service. Contrary to the contentions of appellant, the BVA was not bound to accept his uncorroborated account of his Vietnam experiences; nor was the BVA required to accept the social worker’s and psychiatrist’s unsubstantiated (if somewhat ambiguous) opinions that the alleged PTSD had its origins in appellant’s Vietnam service. This is especially true since there was a considerable passage of time between the putative stressful events recounted by appellant and the onset of the alleged PTSD. Also, as noted by the BVA, neither appellant’s military specialty (cannoneer), nor his service records, disclose that the nature of his *193duties exposed him to a more than ordinary stressful environment, even given the fact that service in a combat zone is stressful in some degree to all who are there, whatever their duties and experiences. It was reasonable, therefore, for the BVA to require, in this case, some corroboration of the events that appellant alleges happened to him in Vietnam.

Appellant now argues in his brief that, particularly because the health professionals accepted his Vietnam experiences as truthful, the BVA was required to do the same. That misconceives the role of the BVA. The BVA has the duty to assess the credibility and weight to be given to the evidence. Such assessments will be overturned only if “clearly erroneous.” Gilbert, at 52.

Of course, if the BVA decision fails to give sufficient “reasons or bases” for accepting or rejecting critical evidence, expert or otherwise, then a remand for further proceedings may be appropriate. See Gilbert, at 55-57, 58-59. However, in this case, we find the BVA opinion concerning this evidence to be both plausible and adequately explained. Bruce Wood, loc. no. 927709 at 3-4 (BVA Sept. 29, 1989).

One other issue remains that was not directly raised by appellant but was alluded to in his brief: Did the VA adequately assist appellant in developing his claim? See 38 U.S.C. § 3007(a) (1989). Complicating this issue is the fact of the appellant’s incarceration. Obviously, in such situations the opportunity for face-to-face assistance is greatly reduced, if not eliminated; the corollary of this is the necessity of ensuring that all VA written communication is helpful and clear in explaining to a veteran what evidence he needs together with advice and help in obtaining it. In the context of this case, as noted above, the sine qua non of establishing a claim is some corroboration of the alleged “stressors” that were service connected. Appellant obviously needed help in obtaining this evidence. The Department did, in a reasonably clear way, advise appellant that independent evidence was needed and that it was obtainable only if appellant could furnish some concrete data as to time, place, and witnesses. Two attempts were made to get such information despite the sparsity of the data furnished by appellant. His service record was produced in an attempt to obtain corroboration. Appellant failed twice to be sufficiently specific about the stressful events he had alleged.

While the VA’s help and advice in this case was not a model to be followed, an examination of the record satisfies us that appellant was adequately on notice that more was required of him if there was to be a successful search for the necessary evidence. The factual data required, i.e., names, dates and places, are straightforward facts and do not place an impossible or onerous task on appellant. The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.

We do, however, caution those who adjudicate claims of incarcerated veterans to be certain that they tailor their assistance to the peculiar circumstances of confinement. Such individuals are entitled to the same care and consideration given to their fellow veterans.

The decision of the BVA is AFFIRMED.

STEINBERG, Associate Judge, concurring.

I concur in the opinion of the Court. I write separately to emphasize the following point. Department of Veterans Affairs (VA) regulations require VA personnel conducting a personal hearing for a claimant at the regional office level “to explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant’s position.” 38 C.F.R. § 3.103(c)(2) (1990) (emphasis added). I am not prepared to conclude at this point that VA is required to provide this amount of assistance as part of its statutory “duty to assist” VA claimants under 38 U.S.C. §§ 3007(a) (the Secretary “shall assist such a claimant [with a well-grounded claim] in developing the facts pertinent to the claim”) and 241(3) (the Secretary “shall provide, to the maximum extent possible, aid and assistance to ... veterans ... *194and eligible dependents ... in the preparation and presentation of claims”) (1988). However, requiring by regulation that VA regional office personnel provide this amount of assistance to claimants who request and receive such hearings and not to claimants who don’t might not withstand a “rational basis” analysis under the Due Process Clause of the Fifth Amendment1 if it is concluded that Congress has authorized this disparate treatment under 38 U.S.C. §§ 3007(a), 241(3). At least the same amount of assistance would seem to be owed to a VA claimant who does not request a hearing, especially one for whom, as was the situation for the appellant here, the opportunity for face-to-face assistance is greatly reduced, if not eliminated, by the circumstances of the case. (It seems to me that the Court’s opinion agrees with this assertion in concluding that “incarcerated veterans ... are entitled to the same care and consideration given their fellow veterans.” Majority opn., ante p. 193.) These circumstances do in fact exist for many VA claimants who live hundreds of miles distant from the nearest hearing site. It would seem that such claimants have a need for more, not less, VA assistance under statutory sections 3007(a) and 241(3).

As stated in the opinion of the Court, VA seems to have done the minimum to fulfill its statutory “duty to assist” the claimant here in light of the information he provided, although for me this is a very close call. If this claimant requests more specific assistance or advice in the future, I trust it will be forthcoming. I also trust that the Department (and, if necessary, the Congress) will examine the basis for the disparate treatment, discussed above, which seems inherent in VA’s regulations.

. The "rational basis" test requires that "a classification ‘must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.’ ” Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225 (1971) (invalidating under 14th Amendment Equal Protection Clause state statute giving preference to males or females in the appointment of administrators of intestate estates) (quoting Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561-62, 64 L.Ed. 989 (1920)). Accord Cleburne v. Cleburne Living Center, 473 U.S. 432, 450, 105 S.Ct. 3249, 3259-60, 87 L.Ed.2d 313 (1985) (invalidating under 14th Amendment Equal Protection Clause city ordinance requiring special-use permit for group home for mentally retarded persons); U.S. Dept. of Agriculture v. Moreno, 413 U.S. 528, 538, 93 S.Ct. 2821, 2827-28, 37 L.Ed.2d 782 (1973) (invalidating under Fifth Amendment Due Process Clause as "wholly without any rational basis” Federal Food Stamp Act provision denying food stamps to households in which unrelated persons resided); James v. Strange, 407 U.S. 128, 140, 92 S.Ct. 2027, 2034, 32 L.Ed.2d 600 (1972) (invalidating under 14th Amendment Equal Protection Clause state statute which did not allow indigent defendants all exemptions provided other judgment debtors); Jackson v. Indiana, 406 U.S. 715, 730, 92 S.Ct. 1845, 1854, 32 L.Ed.2d 435 (1972) (invalidating under 14th Amendment Equal Protection Clause court order which committed, until certified sane, mentally defective deaf mute accused of robbery); Stanley v. Illinois, 405 U.S. 645, 649, 92 S.Ct. 1208, 1211-12, 31 L.Ed.2d 551 (1972) (invalidating under 14th Amendment Equal Protection Clause state action denying unwed father a hearing, provided to all other parents, before custody of his children was taken from him); Eisenstadt v. Baird, 405 U.S. 438, 447, 92 S.Ct. 1029, 1035, 31 L.Ed.2d 349 (1972) (invalidating under 14th Amendment Equal Protection Clause state statute restricting contraceptive distribution that treated married and unmarried persons differently); Aladdin's Castle, Inc. v. City of Mesquite, 630 F.2d 1029, 1039-40 (1980), undisturbed on remand (from Supreme Court, 455 U.S. 283, 102 S.Ct. 1070, 71 L.Ed.2d 152 (1982)), 713 F.2d 137, 139 (5th Cir.1983) (invalidating under 14th Amendment Equal Protection Clause city ordinance barring individuals under age 17 from entering coin-operated-machine amusement centers unless accompanied by adult). It has been axiomatic since Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954), that the 14th Amendment’s Equal Protection Clause guarantee applies to the Federal Government through the Fifth Amendment’s Due Process Clause. See Frontiero v. Richardson, 411 U.S. 677, 680 n. 5, 93 S.Ct. 1764, 1767 n. 5, 36 L.Ed.2d 583 (1973); Shapiro v. Thompson, 394 U.S. 618, 641-42, 89 S.Ct. 1322, 1335-36, 22 L.Ed.2d 600 (1969); Schneider v. Rusk, 377 U.S. 163, 168, 84 S.Ct. 1187, 1190, 12 L.Ed.2d 218 (1964). So axiomatic is the notion that the Equal Protection Clause is equally applicable to the Federal Government that the Supreme Court refers to “the equal protection component of the Due Process Clause of the Fifth Amendment." Moreno, 413 U.S. at 533, 93 S.Ct. at 2825.

Wood v. Derwinski, 1 Vet. App. 367, decided 1991-07-12.

MANKIN, Associate Judge: Appellant challenges the effective date assigned by the Board of Veterans’ Appeals (BVA) for the award of total disability compensation based upon unemployability. Because we find that the BVA applied the wrong legal standard in assigning the effective date for appellant’s compensation we vacate the BVA decision and remand with instructions.

Appellant served in the United States Army from 1965 until 1968. He apparently began receiving disability compensation from the Army after being retired because of a back condition. See R. at 33. In 1981 a 40-percent rating was assigned to the veteran for residuals of lumbar spine fusions. See R. at 39. In May 1984 appellant underwent an operation characterized as a “Decompression of lumbar spine with spinal fusion and bilateral Caldwell-Luc.” R. at 25. In connection with this operation appellant was granted a 100-percent convalescent rating, see 38 C.F.R. § 4.30 (1990), from May 7, 1984, until October 31, 1984. R. 33, 112. Prior to this operation appellant was fired from a position at the Philadelphia Museum of Art after he “became too disabled to maintain a normal work schedule.” R. at 94. There is no evidence that appellant has ever been formally employed since that time.

When Did Appellant Initiate His Claim

One of the central issues of this case is the procedural posture of appellant’s claim as of May 1987. The BVA determined that May 14, 1987, was the proper starting date to increase appellant’s compensation. This conclusion was apparently based upon a determination that appellant’s claim was initiated in May 1987. We find that appellant initiated his claim with the Department of Veterans Affairs (formerly Veterans’ Administration (VA)) much earlier than May 1987 and that his claim was still pending at that time.

Appellant sought an increase, of his then 40-percent disability rating, from the VA in April of 1984. R. at 1. The Regional Office (RO) denied appellant’s requested increase. R. at 32. The BVA subsequently remanded the case back to the RO in April of 1986. R. 75. After obtaining additional records and evidence, the RO on August 21,1986, retroactively increased appellant’s disability rating to 60 percent effective from September 1,1984. R. 89-90. In October of 1986 appellant formally requested unemployability compensation. R. at 92. This request was denied by the RO in March of 1987. R. at 111. The March denial was confirmed on April 6, 1987. R. at 113. After appellant submitted additional medical evidence, in May 1987, the denial was confirmed again in July 1987. R. at 125.

In May 1989 appellant was awarded un-employability compensation effective retroactive to September 1988. R. at 295. Dissatisfied with this effective date, appellant filed a notice of disagreement seeking review by the BVA. R. at 301. The BVA awarded an effective date of May 14, 1987. It is that decision which we now review.

The BVA stated that: “Inasmuch as the date of receipt of private medical evidence may be accepted as an informal claim for increased benefits, May 14, 1987, is the appropriate effective date for the award_” Clarence E. Wood, loc. no. 014274, at 7 (BVA April 16, 1990). Al*369though its not clear, the BVA probably relied on 38 C.F.R. § 3.157(a), (b) in making this statement. Subsection (a) states in part:

Effective date ... will be the date of receipt of the claim or the date when entitlement arose, whichever is later.

Subsection (b) states in part:

Once a formal claim ... has been allowed or ... disallowed ... receipt of [medical examination reports] will be accepted as an informal claim for increased benefits or an informal claim to reopen.

We start with the premise that § 3.157(b) was intended to help a veteran avoid a procedural pitfall by directing that the mere submission of additional evidence is sufficient to initiate a claim. Subsection (b), however, is not applicable until after a claim has been “allowed” or “disallowed”. Appellant initiated his claim at least as early as October 1986 and that claim was still pending, see 38 C.F.R. § 3.160(c) (1990), in May of 1987, when appellant submitted the additional evidence relied upon by the BVA. See 38 U.S.C. § 4005(d)(1) (1988); see also R. at 122 (expressing dissatisfaction with prior adjudication).

Rather than § 3.157, the BVA should have looked to 38 U.S.C. § 3010(b)(2) (1988), for the standard by which to determine the proper effective date of appellant’s compensation. That subsection directs that:

The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.

Appellant’s October 1986 claim for unem-ployability compensation was an application for “increased compensation” within the meaning of § 3010(b)(2). See also 38 C.F.R. § 3.400(o)(2) (1990). Appellant was not alleging any new disability, he was merely attempting to show that his condition was more incapacitating than the level at which it was then evaluated.

When Did Appellant’s Unemployability Become Ascertainable

On remand the BVA should determine when it was ascertainable that an increase in disability had occurred. The medical records submitted in May 1987 and found by the BVA to be significant, see Clarence E. Wood, loc. no. 014274, at 6 (BVA April 16, 1990), were the results of a January 1987 examination. That would seem to rather conclusively establish January 1987 as the latest date on which the extent of appellant’s disability was ascertainable. There is also evidence suggesting an earlier date.

In June of 1984, approximately one month after appellants’ back surgery, Dr. Schmuck reported that appellant was “totally and permanently unemployable” and would “never be able to engage in any substantial or gainful employment.” R. at 11. In contrast, appellant’s regular physician Dr. Cotier recommended to appellant in November 1984 and April 1985 that he seek employment. R. at 109, 110. Dr. Schmuck reexamined the veteran in July of 1986 and seems to indicate that appellant’s condition was no better than it was at the time of the June 1984 examination. R. at 84-85

Title 38 U.S.C. § 3010(b)(2) would require that the BVA look to see if it was ascertainable that an increase in disability had occurred as early as October 1985 — one year prior to appellant’s claim for increase or such other date as would be appropriate upon proper application of the law and regulations. As early as June 1984, appellant had a pending claim for compensation and a VA examination strongly suggested that the veteran was unemployable.

While it is for the BVA to resolve the apparent conflict between doctors Schmuck and Cotier, we would note that Dr. Cotier’s statements in April of 1985 could not seem to be said to conflict with an assessment made by Dr. Schmuck in July 1986.

The decision of the BVA is VACATED and the case is REMANDED for further proceedings consistent with this opinion.

Wood v. Derwinski, 1 Vet. App. 406, decided 1991-07-23.

ORDER

PER CURIAM. On March 28, 1991, this Court affirmed the decision of the Board of Veterans’ Appeals (BVA) that denied appellant compensation for Post Traumatic Stress Disorder (PTSD). This affirmance was based in part on a factual finding by the BVA that there was no independent corroboration of “stressors” arising from appellant’s military service. A review of the record by this Court determined that this finding was plausible under Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). See Wood v. Derwinski, 1 Vet.App. 190, 192-93 (1991).

Appellant has timely requested reconsideration of our opinion under U.S.Vet. App.R. 35(a) (Interim) (final rules effective May 1, 1991). He cites 38 U.S.C. § 354(b) (1988) for the proposition that no independent “evidence of a stressor is necessary if the evidence shows that the veteran was engaged in combat with the enemy and the claimed stressor is related to combat.”

Appellant’s reliance on § 354(b) and the implementing regulations is misplaced. It is clear that two conditions must exist before the statute applies: (1) the appellant must have been engaged in combat with the enemy and (2) the injury (in this case the “stressors” triggering the PTSD) must have been consistent with the “circumstances, conditions, or hardships of such [combat] service.” As we noted in our opinion, the nature of the circumstances of his service were considered in our decision. See Wood, at 192-93. There is nothing whatever in the record, including importantly, the appellant’s own statements concerning the “stressors”, that show he was engaged in combat with the enemy when the putative stressful events occurred. One incident he relies upon was entirely unrelated to combat; the other was a scene he claims to have observed that was the aftermath of a combat action that he had not participated in but had “happened on” after the action was over. It should also be noted that in the latter event he was not present pursuant to official duty but was, at best, an unofficial observer.

The Motion for Reconsideration is DENIED.

STEINBERG, Associate Judge, dissenting:

I respectfully dissent from the Court’s denial of reconsideration under Court Rule 35(a). I would grant reconsideration and remand the case to the Board of Veterans’ Appeals (BVA or Board) to apply the new provision in the Department of Veterans Affairs Adjudication Procedure Manual, Manual M21-1, para. 50.45e, regarding the development of evidence in cases involving service connection for post-traumatic stress disorder (PTSD). This provision was effective March 26, 1991, prior to the date (March 28, 1991) when our per curiam af-firmance was entered in this case.

Under Fugere v. Derwinski, 1 Vet.App. 103, 107 (1990), substantive rules (those having the force of law and narrowly limiting administrative action) in VA’s Adjudication Procedure Manual are the equivalent of Department regulations, and under Karnas v. Derwinski, U.S.Vet.App. 1 Vet.App. 308, 312-13 (1991), a change in such a rule *408occurring “after a claim has been filed ... but before the ... judicial appeal process has been concluded” is to be applied to that appeal, absent circumstances not present here (when “the Congress provided otherwise or permitted the Secretary ... to do otherwise and the Secretary did so”, Karnas, at 313).

Under the new Manual provision, if the evidence in adjudicating a PTSD claim shows that the veteran engaged in combat with the enemy and the claimed stressor is related to combat, no further evidence of a stressor is necessary. I believe the proper course is for the Board — or a regional office on remand from the Board — to determine whether or not, on the facts of this case, the appellant was engaged in “combat” when he experienced the stressors he alleged during a medical evacuation in which he participated after having hitched a ride on an evacuation helicopter and, if so, whether the claimed stressor is related to combat.

In determining that the appellant was not here engaged in combat with the enemy, the Court in its order has engaged in ab initio factfinding. The Court also ignores the new Manual provision, which, under Karnas, should be applied to this appeal. In its Response to Appellant’s Motion for Rehearing at 3, the Department points out the inappropriateness of a fact-finding exercise by the Court:

In light of the recent Manual change, VA has redefined to some extent what constitutes “satisfactory lay or other evidence” of service connection. Obviously, though, VA adjudicators have not had the opportunity to apply this new provision in the Appellant’s case; and so it would be inappropriate for the Court to consider it at this juncture. See 38 U.S.C. § 4052(b). The Appellant, rather than seek a rehearing (reconsideration) with regard to the Court’s recent decision, should pursue a reopened claim at the regional office with the aim of establishing entitlement to service connection under the new liberalizing criteria. [Citations omitted.]

I agree with the Department’s analysis insofar as the inappropriateness of this Court’s factfinding here, but, under Kar-nas, this case should be remanded to permit Departmental consideration, in the first instance, of the application of the new Manual provision to the facts here. Requiring a claimant who is probably incarcerated to pursue a reopened claim at a regional office, as the Secretary suggests, in order to take advantage of the liberalizing criteria is not, in my view, an adequate substitute for application of these principles, under Karnas, to his current claim.