Wilson v. Derwinski

Wilson v. Derwinski, 2 Vet. App. 112, decided 1992-01-28.

ORDER

Appellant’s Notice of Appeal (NOA) was filed on July 29, 1991; it identified the mailing date of her Board of Veterans’ Appeals (BVA) decision as October 31, 1990. On October 15, 1991, the Secretary of Veterans Affairs filed a motion to dismiss and to stay proceedings and, in support of the motion, attached a BVA decision with a mailing date of October 31, 1990. On November 1, 1991, appellant responded that her appeal should be considered by this Court because she filed a request for review (essentially an NOA) with the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, on November 14, 1990 (date-stamped on November 15, 1990), but did not receive a response from the RO until almost six months later, on May 1, 1991. In its letter, the RO informed appellant that she should have mailed her NOA directly to the Court.

To be timely filed under this Court’s rules (U.S. Vet.App.R. 4) and precedents construing 38 U.S.C. § 7266(a) (formerly § 4066), an NOA must be actually received by the Court within 120 days after the BVA decision is mailed to an appellant. See Elsevier v. Derwinski, 1 Vet.App. 150, 152 (1991); cf. Torres v. Derwinski, 1 Vet. *113App. 15, 16-17 (1990). Receipt by the BVA or a VARO is not receipt by the Court. This Court’s jurisdiction derives exclusively from statutory grants of authority provided by Congress, and this Court may not extend its jurisdiction beyond that permitted by law. See Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 818, 108 S.Ct. 2166, 2178, 100 L.Ed.2d 811 (1988); see also Prenzler v. Derwinski, 928 F.2d 392 (Fed.Cir.1991); Skinner v. Derwinski, 1 Vet.App. 2, 3 (1990).

Since this appeal from a BVA decision dated October 31, 1990, was not filed with the Court — notwithstanding its receipt almost six months earlier by the VARO on the 15th day after the BVA decision’s mailing — until well beyond the 120th day after the date on which the BVA mailed its decision to appellant, it was untimely. Although in Irwin v. Veterans Admin., 498 U.S. 89, 111 S.Ct. 453, 458, 112 L.Ed.2d 435 (1990), the Supreme Court extended “the principles of equitable tolling” to cases where the United States is a party, it held that those “principles ... do not extend to what is at best a garden variety claim of excusable neglect.” In Elsevier, 1 Vet. App. at 153-154, this Court concluded that “the rule of equitable tolling [is] applicable to the 120-day time limit of 38 U.S.C. § 7266(a)”.

After consideration of appellant’s statement and the Secretary’s pleadings, this Court finds that the case does not present the extraordinary and carefully circumscribed conditions necessary to warrant equitable tolling under Irwin and Elsevier, 1 Vet.App. at 154. See also Schreiner v. Derwinski, 2 Vet.App. 72 (1991). Accordingly, it is

ORDERED that the Secretary’s motion to dismiss is granted and this appeal is dismissed for lack of jurisdiction.

Wilson v. Derwinski, 2 Vet. App. 483, decided 1992-06-16.

STEINBERG, Associate Judge, concurring:

I concur in the Court’s opinion, but I write separately to suggest that there may have been errors in the previous Board of Veterans’ Appeals (BVA or Board) decisions, which the Court is unable to reach because of the absence of new and material evidence, but which the BVA may wish to revisit.

BVA decisions were rendered in this case in 1969, 1972, and in 1979, as well as in 1990, on the issue of the veteran’s entitlement to service-connected disability compensation for a back disability. R. at 1, 78, 92, 172. In support of his claim, submitted in 1967, the veteran offered medical examination reports showing that in 1967 and 1968 he received diagnoses of chronic disc disease of the lumbar spine and osteoarthritis. R. at 34, 61. In these examination reports, the physicians noted, in addition to the above conditions, the existence of old back injuries. In one, the diagnosis was “chronic disc disease ... with old mild compression fracture of L4.” R. at 34. In the other, the report noted an “old” cause of the L4 “wedging”. R. at 37. In 1969, the veteran began submitting evidence to demonstrate that these “old” injuries were incurred during service. He submitted affidavits by fellow servicemen and superiors attesting to the in-service incurrence of a back injury in 1943 and an accident causing back injury in 1944. R. at 45, 46, 50, 54. Indeed, his service medical records showed that he reported to the Army’s orthopedic clinic for a chronic backache in 1943 and that his separation examiner noted the existence of a scar on his lower back and that he had been wounded in action. R. at 26. In an August 26, 1969, decision, the BVA denied the veteran’s claim. R. at 78. In its 1972 decision, the BVA found the evidence to be cumulative of that previously submitted and, apparently, did not reopen the claim. R. at 92.

In support of the 1979 BVA decision, the veteran submitted the evaluation of a private physician who concluded that the veteran’s back problems stemmed from “a compression fracture of the body of L-4 which was probably sustained in his accident of 1943 or 1944.” R. at 111. He concluded that he “strongly supported] the veteran’s claim” for service connection. The veteran also delivered sworn testimony in a hearing before the BVA on October 23, 1978, which is consistent with the physician’s hypothesis and the veteran’s claim that in-service injuries are responsible for his ongoing back problems. R. at 113. He testified that, although he had experienced two car accidents prior to service, he had not been injured in either of them and that the Army physician who, in 1943, had attributed his back pain to “chronic trauma during adolescence” (R. at 9) had asked him only whether he had ever been in a car accident and had asked nothing more. Thus, he contended, the physician had not asked him whether or to what extent any back injuries had resulted from those accidents. R. at 120-21. The veteran further testified that he had first complained about his back when he went to this physician in 1943 because he had developed a “knot” there during an assignment driving a weapons carrier and that he had been told during that examination that he had fractured his back. R. at 123. He further contended *486that, while serving in France during WWII, he had been thrown from a jeep and hospitalized for the resulting back injury. The affidavits previously submitted by the veteran in 1969 were consistent with his contentions that he had injured his back twice during service.

From the face of the Board’s 1979 decision, it appears that the Board found that new and material evidence was presented and reopened the case, for it enumerated much of the evidence submitted prior to the 1972 BVA decision. 38 U.S.C. § 5108; see Manio v. Derwinski, 1 Vet.App. 140, 145-46 (1991). Having reopened the case, the Board was required to evaluate all of the evidence and the relevant statutory and regulatory provisions. Ibid.; Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991); Browder v. Derwinski, 1 Vet.App. 204, 205 (1991) (BVA is required to apply all statutes and regulations relevant to the case before it). In 1979 the BVA was not yet required to explain the reasons or bases for its decision, compare 38 U.S.C. § 4004(d) (1982) with 38 U.S.C. § 7104(d)(1) (formerly § 4004(d)(1)), but, rather, was required to make a written statement of only its findings of fact and conclusions of law. Gilbert v. Derwinski, 1 Vet.App. 49, 56 (1990). It appears, however, from a review of the “Findings of Fact” and “Conclusions of Law” sections of the BVA’s 1979 decision, that the Board in 1979 may have failed to consider certain statutory and regulatory provisions pertinent to the claim before it. Although the issues of pre-existing injury and aggravation were presented by the evidence then of record, the Board did not consider the presumption of aggravation then codified at 38 U.S.C. § 353 (1976) (re-codified at § 1153) or the heavy burden that the Secretary was required to meet, under then 38 U.S.C. § 311 (1976) (recodi-fied at § 1111), to establish the existence of a preexisting injury and the absence of aggravation during service. Nor did the Board consider the regulations corresponding to those statutory provisions in then 38 C.F.R. §§ 3.304(b) and 3.306(b). The precise relationship of these statutory and regulatory provisions is pending before the Court in Guerrieri v. Derwinski, 2 Vet.App. 339 (1992). Nevertheless, the Board panel that reviewed this case in 1979 should have considered, before finding that service connection for the veteran’s back condition was not warranted, whether clear and unmistakable evidence, under then 38 U.S.C. § 311, had demonstrated that the injury which was the subject of the claim had preexisted the claimant’s entry into service and whether aggravation of any preexisting disability had occurred during service. See Akins v. Derwinski, 1 Vet.App. 228, 232 (1991) (application of regulation granting presumption of service connection required that evidence rebutting it be presented and found to be clear and unmistakable to defeat the presumption of service connection).

Moreover, it is also evident, in reviewing the “Findings of Fact” and “Conclusions of Law” of the 1969 and 1979 BVA decisions, that neither BVA panel considered the following provisions then in 38 U.S.C. § 354(b) (recodified at § 1154(b)), which sets forth a special evidentiary standard for combat veterans attempting to establish service connection:

In the case of any veteran who engaged in combat with the enemy in active service ... during a period of war ... the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incur-rence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incur-rence or aggravation in such service, and ... shall resolve every reasonable doubt in favor of the veteran.

See also 38 C.F.R. § 3.304(d); Godwin v. Derwinski, 1 Vet.App. 419, 426 (1991) (remanding record to BVA on other grounds, Court stated that Board may wish to take into account section 354(b) (now section 1154); on remand, Board found obvious VA error, see Wallace B. Godwin, BVA 90-10507 (Mar. 19, 1990), readjudicated, Supp. Dec. at 4-5 (Dec. 31, 1991)). As a WWII *487veteran, the claimant here was entitled to the benefit of the above standard of proof. He had presented several consistent lay affidavits, medical evidence showing “old” back injuries in conjunction with his then current condition, and service medical records showing an in-service clinic visit and a hospitalization during the times he alleged that back injuries had occurred. Proper application of the statutory and regulatory provisions herein discussed, and the placement on the Secretary of the heavy evidentiary burden they dictate, may have led to a favorable outcome in this case as to the veteran’s back claim.

In affirming these two decisions, the BVA may have committed obvious error under 38 U.S.C. § 7103(c) (formerly § 4003) or clear and unmistakable error under 38 C.F.R. §§ 3.105(a), 3.400(k) (1991) for failing to apply controlling statutes. See 38 U.S.C. §§ 7104(a), (c) (formerly § 4004); 38 C.F.R. § 19.103 (1991); Tucker v. Derwinski, 2 Vet.App. 201, 203 (1992) (Steinberg, J., concurring). Although the June 7, 1990, BVA decision has been affirmed, the Board may wish to revisit these issues, just as the Court suggested in Godwin v. Derwinski, 1 Vet.App. at 426, and as the Board did there on December 31, 1991, in granting service connection based on obvious error in its prior failure to apply the same law and regulation which were at issue here— 38 U.S.C. § 1154(b) and 38 C.F.R. § 3.304(d) — and the benefit-of-the-doubt doctrine under 38 U.S.C. § 5107(b) (formerly § 3007). Godwin, BVA 90-10507, readjudicated, Supp.Dec. at 4-5.

FARLEY, Associate Judge, filed the opinion of the Court in which HOLDA-WAY, Associate Judge, joined. STEIN-BERG, Associate Judge, also joined and filed a concurring opinion.

FARLEY, Associate Judge: Appellant William F. Wilson seeks review of a June 7, 1990, Board of Veterans’ Appeal (BVA or Board) decision denying service connection for a back disability. We hold that appellant failed to submit sufficient new and material evidence to warrant the reopening of a claim which was the subject of a final denial. It is not clear whether the BVA intended to reopen appellant’s claim despite the absence of new and material evidence, but any error which may have occurred was necessarily harmless in view of the BVA’s ultimate denial. The decision of the BVA is affirmed. Therefore, the denial of service connection for a back disability is affirmed.

I.

Appellant served in the Army from March 11, 1943, until November 6, 1945. Appellant’s induction examination is negative for any spinal abnormalities. R. at 7-*4848. While in service, appellant sought treatment for a “backache”. A November 1943 orthopedic consultation reflects that, prior to service, appellant had been involved in two automobile accidents; the examiner’s impression was “chr[onic] trauma during adolescence”. R. at 9. The 1945 discharge examination indicates evidence of a lacerated back and no defects of the musculoskel-etal system. R. at 26.

Prior to the BVA decision giving rise to this appeal, appellant’s claim for service connection had been denied in three prior BVA decisions. In a 1969 decision, the Board found that appellant’s back disability existed prior to service and that there had been no aggravation of appellant’s condition in service. R. at 78 (William F. Wilson, BVA 69-08695 (Aug. 26 1969)). Subsequent BVA decisions in 1972 and 1979 affirmed the denial of appellant’s claim for service connection based upon the conclusions that the evidence submitted by the veteran did not create a new factual basis sufficient to establish service connection. R. at 92 (William F. Wilson, BVA 71-19234 (Jan. 4, 1972)); R. at 172 (William F. Wilson, BVA 78-20699 (Mar. 15, 1979)).

In 1989, appellant again sought to reopen his claim by submitting medical progress notes from a Veterans’ Administration (VA) (now the Department of Veterans Affairs) orthopedic clinic dated April 14, 1988, October 3, 1988, and March 20, 1989 (R. at 195, 182, 184), that reflect treatment for back pain. A May 24, 1989, VA Regional Office (RO) rating decision determined the reports were cumulative and “insufficient to rebut the pre-service existence of the veteran’s back condition and also were insufficient to show that the veteran’s back disability was aggravated during active duty.” R. at 203. In its decision of June 7, 1990, the BVA affirmed the 1989 RO rating decision concluding that:

new evidence of record consists of records of treatment for the veteran’s back disorder by [VA] many years subsequent to service as well as contentions advanced_ [These records] do not establish the onset in service of a back disorder ... or that a preexisting back disorder worsened during service.

William F Wilson, BVA 90-18231, at 4-5 (June 7, 1990).

A timely appeal to this Court followed.

II.

“Except as provided in section 5108 [formerly section 3008] of this title, when a claim is disallowed by the Board, the claim may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be reconsidered.” 38 U.S.C. § 7104(b) (formerly § 4004(b)). Section 5108 provides: “If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary [of Veterans Affairs (Secretary)] shall reopen the claim and review the former disposition of the claim.” Thus, only if the evidence submitted by appellant is found to be both “new” and “material”, may the claim be reopened and the entire record reviewed. See Manio v. Derwinski, 1 Vet.App. 140 (1991); Jones v. Derwinski, 1 Vet.App. 210 (1991). In Colvin v. Derwinski, 1 Vet.App. 171 (1991), the Court said that “[n]ew evidence is not that which is merely cumulative of other evidence on the record. Material evidence is relevant and probative of the issue at hand.” Id. at 174 (citations omitted). The Court held that “to justify a reopening on the basis of new and material evidence, there must be a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome.” Id.

Here, the evidence reflecting treatment for back pain in 1988 and 1989, while new, was not as a matter of law material to the issue of whether appellant’s current disability was service-connected. Because the evidence was not “new” and “material”, there was no basis upon which appellant’s claim could be reopened under 38 U.S.C. § 5108. It is not clear from the BVA decision, which predates our jurisprudence with respect to reopened claims, whether the Board found insufficient basis to reopen the appellant’s claim or rejected it on the merits. While the appropriate course would have been to conclude that *485there was an insufficient predicate for reopening, any error by the Board was harmless in view of its ultimate denial of the claim. See Thompson v. Derwinski, 1 Vet.App. 251, 254 (1991).

III.

Upon consideration the briefs of appellant and the Secretary, and the record on appeal, it is the holding of the Court that appellant’s newly submitted evidence was not material to the issue of service connection for a back disability. Appellant has not demonstrated that the Board of Veterans’ Appeals committed either factual or legal error which would warrant reversal. Gilbert v. Derwinski, 1 Vet.App. 49 (1990); see also Anderson v. City of Bessemer City, 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985); Danville Plywood Corp. v. United States, 899 F.2d 3 (Fed.Cir.1990). Accordingly, the BVA decision of June 7, 1990, is AFFIRMED.

Wilson v. Derwinski, 2 Vet. App. 614, decided 1992-07-22.

HOLDAWAY, Associate Judge: Appellant, appeals an October 4, 1990, decision of the Board of Veterans’ Appeals (BVA or Board) which denied service connection for an acquired psychiatric disorder, including post-traumatic stress disorder (PTSD). Appellant claims that the Department of Veterans Affairs (VA) and the BVA have misapplied the regulations relating to the grant of service connection for PTSD by requiring objective confirmation of stressors. See 38 U.S.C. § 1154 (formerly § 354); 38 C.F.R. § 3.303(a) (1991); 38 C.F.R. § 3.304(d) (1991). Appellant also contends that a recent change in a VA Adjudication Procedure Manual (M21-1) regulation should be applied to his claim. See Karnas v. Derwinski, 1 Vet.App. 308, 312-13 (1991). Appellant filed a motion for oral argument on this issue. That motion is denied. We find that the BVA applied the proper statutory and regulatory standards in its decision and that the findings of fact made by the Board are plausible. See Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). Accordingly, the BVA decision is affirmed.

Appellant had active service between March 1971 and June 1972. He served ih Vietnam between August 1971 and March 1972. His principal duty during that time was as a radio operator. He was listed as absent without leave (AWOL) from March 25, 1972, to May 23, 1972. Appellant claims several events as stressors during his service in Vietnam. Shortly after his arrival at Cam Ranh Bay, the ammunition dump exploded. Appellant states he was knocked unconscious by the explosion. Due to the numerous casualties, appellant did not seek medical treatment for this. He also states that while he was on perimeter patrol duty, he saw a fellow soldier killed. Later in his tour of duty, appellant claims that he missed his helicopter ride to a new duty station. He attempted to hitch a ride with a Vietnamese civilian but this resulted in his being kidnapped and forced to steal for his captors. This period of time corresponds with the time he was listed as AWOL. Appellant also alleges witnessing an incident in which his fellow soldiers tortured and raped a Vietnamese woman.

Appellant states that he started taking drugs, while in Vietnam, to treat the pain of a back injury. He used drugs after discharge as a way to avoid his nightmares and flashbacks of his experiences in Vietnam. In 1987 and 1988, appellant was hospitalized for treatment of drug problems. In March 1988, appellant applied for VA compensation for several disabilities including PTSD. He also claimed to have been a prisoner of war (POW). The VA Regional Office (VARO) requested his service records, verification of POW status, and current treatment records. On December 28, 1988, the VARO denied service connection for PTSD stating:

With regard to a diagnosis of [PTSD], the Board does note the diagnosis on current Veterans Administration exami*616nation. However, the diagnosis is questionable in view of the fact of the shown unreliability of the veteran’s statements with regard to his Vietnam service and the multiple lengthy hospitalizations which have failed to produce any findings or diagnosis of [PTSD]. Based on the evidence in its entirety at this time, with careful review, the Board finds the diagnosis of [PTSD] is unsupported, therefore, .having no basis and service connection must be denied, based on the absence of a confirmed stressor.

Appellant filed a Notice of Disagreement and requested a personal hearing. During the hearing, he elaborated on the time he was listed as AWOL, clarifying that that period of time was what he based his POW claim on. The hearing officer again requested any information to confirm appellant’s claimed stressors from the U.S. Army and Joint Services Environmental Support Group (ESG). The ESG replied that it was able to only document the explosion of the ammunition dump at Cam Ranh Bay and certain assignments of appellant in Vietnam. Other incidents, as described by appellant, either could not be documented or were shown not to have happened. His POW claim could not be verified, nor could his claim that he was assigned to perimeter patrols. The hearing officer continued the denial of appellant’s claim for service connection for PTSD.

Appellant appeared before the BVA on April 20, 1990. In addition to his testimony, appellant submitted an affidavit from a VA physician stating:

(4) That I have conducted a thorough review of [appellant’s] medical records and completed during this hospitalization a complete psychiatric examination of [appellant] and find him to be suffering from a combination of chronic depression and [PTSD],

(5) That after reviewing his medical records and discussing with the patient his military service, I am satisfied within a reasonable degree of medical certainty that both of these conditions relate to his military service in Vietnam.

(6) That after discussing with the patient the stressors which he has identified as having took [sic] place during his military service I am satisfied within a reasonable degree of medical certainty that these stressors were sufficient to produce and justify a diagnosis of [PTSD].

Appellant also submitted a copy of the Social Security Administration decision awarding him benefits effective June 9, 1987.

On October 4, 1990, the BVA denied service connection for acquired psychiatric disorder, including PTSD. In the Discussion and Evaluation section of the decision, the Board stated:

The American Psychiatric Association Manual of Mental Disorders referred to in the regulations cited above provides that an essential diagnostic criterion for post-traumatic stress disorder is the existence of a recognizable stressor. Thus, service connection will not be established for post-traumatic stress disorder on the basis of a diagnosis unsupported by credible evidence of an in-service stressor of sufficient gravity to evoke significant symptoms in almost anyone. While we have noted the representative’s assertion to the contrary, the question of whether a specific event reported by a veteran as a stressor [was a stressor] is a question of fact for the Board to decide, involving as it does factors as much historical as psychological. The Board is not bound to accept the opinion or conclusion of a psychiatrist or any other person as to this fact question, merely because of their reported expertise in a particular field.

With respect to the reported stressors, the veteran has stated that on his arrival in Vietnam an ammunition dump exploded and that he was rendered unconscious for approximately two hours. Although the record shows that a large amount of ammunition was destroyed by sappers at Cam Ranh Bay 4 or 5 days after the veteran arrived in Vietnam, there has not been presented any persuasive evidence that he was anywhere near the ammunition dump that was attacked at that huge base or that he sustained a concussion. Morever [sic], he reported in March 1983 that he had sustained a concussion due to a mortar round in 1972. At his May 1989 *617hearing, the veteran testified that he was transferred from Cam Ranh Bay to the 198th Light Infantry Brigade at Chu Lai and that the base there was subject to rocket and sniper attacks; however the [ESG] found that the records did not show that there were rocket, sniper, or mortar attacks on Chu Lai during the period that the veteran was there. While he has also stated that he engaged in combat after he was transferred to Da Nang, the 516th Adjutant General Company, was an administrative service, noncombat unit.

... A thorough review of the case file reveals no evidence whatsoever which corroborates the veteran’s account [of being kidnapped by a Vietnamese civilian], and the service records do not show that he was ever listed as a prisoner of war or missing in action. Moreover, there is no evidence, other than that provided by the veteran’s own account, that he witnessed the death of a friend in an artillery attack at Phu Loi in April 1972 or that he saw the torture and rape of a Vietnamese woman there. In fact, the evidence showed that there were no artillery attacks on Phu Loi during the period in question and that the veteran was listed as absent without leave from March 25 to May 23, 1972.

After a thorough review of all the evidence, we have concluded that the stres-sors reported by the veteran are either unsupported by or inconsistent with the records of his Vietnam service_

John S. Wilson, BVA-(Oct. 4, 1990). Appellant filed a timely Notice of Appeal.

ANALYSIS

The applicable statute, in pertinent part, is 38 U.S.C. § 1154:

(b) In the case of any veteran who engaged in combat with the enemy in active service with a military ... organization of the United States during a period of war, ... the Secretary [of Veterans Affairs] shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incur-rence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is not official record of such incur-rence or aggravation in such service, and to that end, shall resolve every reasonable doubt in favor of the veteran. Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service-connection in each case shall be recorded in full.

This statute is implemented by 38 C.F.R. § 3.303(a) and 38 C.F.R. § 3.304(d), which in pertinent part states:

38 C.F.R. § 3.303 Principles relating to service connection.

(a) General. Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. Each disabling condition ... for which he seeks a service connection must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence. Determination as to service connection will be based on review of the entire evidence of record, with due consideration to the policy of the Department of Veterans Affairs to administer the law under a broad and liberal interpretation consistent with the facts in each case.

38 C.F.R. § 3.304 Direct Service Connection; wartime and peacetime.

(d) Combat. Satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or *618hardships of such service even though there is no official record of such incur-rence or aggravation.

Prior to March 26, 1991, the M21-1 directed VARO to require confirmation of stressors in the service records:

Paragraph 50.45

d. Reasonably Supportive Evidence of Stressors in Service. Any evidence available from the service department indicating that the veteran served in the area in which the stressful event is alleged to have occurred and any evidence supporting the description of the event are to be made part of the record. If the claimed stressor is related to combat, receipt of the Purple Heart, combat Infantryman Badge, Bronze Star, and other similar citations are, in the absence of information to the contrary, considered supportive evidence of participation in a stressful episode. Other supportive evidence includes, but is not limited to, plane crash, ship sinking, explosion, rape or assault,.... POW status is conclusive evidence of an in-service stressor.

e. A history of a stressor as related by the veteran is, in itself, insufficient. Service records must support the assertion that the veteran was subjected to a stres-sor of sufficient gravity to evoke symptoms in almost anyone. The existence of a recognizable stressor or accumulation of stressors must be supported. It is important that the stressor be described as to its nature, severity and date of occurrence.

Subparagraph e. was changed, on March 26, 1991, to read:

e. If the evidence shows the veteran engaged in combat with the enemy and the claimed stressor is related to combat, no further development is necessary. See subparagraph d above. If the claimed stressor is not combat related, a history of a stressor as related by the veteran is, in itself, insufficient. Service records must support the assertion that the veteran was subjected to a stressor of sufficient gravity to evoke symptoms in almost anyone. The existence of a recognizable stressor or accumulation of stressors must be supported. It is important that the stressor be described as to its nature, severity and date of occurrence.

The Secretary of Veterans Affairs argues that the previous version of paragraph 50.45(e) is the applicable version in this case because the provision was not amended until after the BVA decision was issued. The appellant argues, on the other hand, that under Karnas, if a law or regulation changes while a claim is still in the administrative or judicial process, the version more favorable to the veteran must be applied. The appellant is correct, but it avails him nothing in this case. Even under the more “liberal” version there must be evidence that he was engaged in combat with the enemy. As the excellent analysis of the BVA points out, there was no such evidence.

“Contrary to the contentions of the appellant, the BVA was not bound to accept his uncorroborated account of his Vietnam experiences ...” in the face of objective evidence which indicates that those experiences did not take place. See Wood v. Derwinski, 1 Vet.App. 190, 192 (1991), reconsidered, 1 Vet.App. 406 (1991). Just because a physician or other health professional accepted appellant’s description of his Vietnam experiences as credible and diagnosed appellant as suffering from PTSD does not mean the BVA was required to grant service connection for PTSD. “The BVA has the duty to assess the credibility and weight to be given the evidence. Such assessments will be overturned only if ‘clearly erroneous.’ ” Wood, 1 Vet.App. at 193 (citing Gilbert, 1 Vet.App. at 52).

The BVA, in this case, has provided an unusually thorough and specific discussion of the evidence. Each claimed stressor has been discussed and the contradictions between appellant’s various claims and the information provided by the ESG pointed out. The BVA decision is a model of how facts should be evaluated and weighed. The BVA decision is “plausible” and cannot be overturned. Accordingly, the Court *619holds that the October 4, 1990, BVA decision is AFFIRMED.