BVA9507945 DOCKET NO. 93-12 068 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Entitlement to service connection for post-traumatic stress disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Julia M. Kurtz, Associate Counsel INTRODUCTION The veteran served on active duty from April 1944 to March 1946. This appeal arises from a December 1991 rating decision of the North Little Rock, Arkansas, Regional Office (hereinafter RO) which determined that the veteran had not submitted new and material evidence sufficient to reopen a claim of entitlement to service connection for post-traumatic stress disorder. The Board notes that in September 1990, the RO denied service connection for post-traumatic stress disorder. In May 1991, within the one year appeal period, the veteran requested to reopen his claim for service connection for post-traumatic stress disorder. Although the RO determined that the veteran had not submitted new and material evidence sufficient to reopen a claim of entitlement to service connection for post-traumatic stress disorder, they also discussed service connection for post- traumatic stress disorder on a direct basis and provided the veteran with the regulations for service connection in the statement of the case. The Board construes the veteran's request in May 1991 as a notice of disagreement to the September 1990 rating decision, and thus, will review the case on a de novo basis. CONTENTIONS OF APPELLANT ON APPEAL The veteran asserts that while serving in the Apennines and Po Valley during World War II, he experienced traumatic events that have resulted in post-traumatic stress disorder. He contends that he witnessed buddies killed, in particular, a platoon sergeant who was standing next to him and talking to him when he was hit by a shell, and that when he was asleep in the hole, an artillery round hit approximately six feet from his hole. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file(s). 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 the preponderance of the evidence is against the veteran's claim for entitlement to service connection for post- traumatic stress disorder. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran engaged in combat with the enemy and he has presented credible lay evidence of stressful events related to such combat and consistent with the circumstances, conditions or hardships of his service that would be distressing to almost anyone. 3. The clinical criteria to support a diagnosis of post- traumatic stress disorder have not been met. CONCLUSION OF LAW Post-traumatic stress disorder was not incurred in or aggravated by the veteran's active duty service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, it is necessary to determine if the veteran has submitted a well-grounded claim within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), and if so, whether the Department of Veterans Affairs (hereinafter VA) has properly assisted him in the development of his claim. A "well-grounded" claim is one which is not implausible. A review of the record indicates that the veteran's claim is plausible and that all relevant facts have been properly developed. The veteran advances that he suffers from post-traumatic stress disorder as a result of experiences during World War II. Under the applicable criteria, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.304 (1994). Service connection for post-traumatic stress disorder requires medical evidence establishing a clear diagnosis of the condition, credible supporting evidence that the claimed stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed inservice stressor. If the claimed stressor is related to combat, service department evidence that the veteran engaged in combat or that the veteran was awarded the Purple Heart, Combat Infantryman Badge, or other similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed inservice stressor. 38 C.F.R. § 3.304(f) (1994). In West v. Brown, 7 Vet.App. 70 (1994), the United States Court of Veterans Appeals (hereinafter the Court) recently set forth a framework for analysis of claims for service connection for post- traumatic stress disorder. This involves an initial determination of whether the veteran was engaged in combat and whether any of the alleged stressors occurred during combat. If the veteran was engaged in combat and the claimed stressors are related to combat, the veteran's lay testimony regarding claimed stressors must be accepted as conclusive as to their actual occurrence. Where the veteran did not engage in combat with the enemy or the claimed stressor is not related to such combat, the veteran's lay testimony by itself, will not be enough to establish the occurrence of the alleged stressor. It must then be determined whether the testimony as to the claimed stressor is corroborated sufficiently be service records to establish the occurrence of the claimed stressful events. Finally, it must be determined whether the claimed events are sufficient stressors to support a diagnosis of post-traumatic stress disorder. Service connection for post-traumatic stress disorder is not warranted unless it is related to the veteran's military service by a showing that the veteran experienced an inservice recognizable stressor "that is outside the range of usual human experience and that would be markedly distressing to almost anyone, such as experiencing an immediate threat to one's life or witnessing another person being seriously injured or killed." Zarycki v. Brown, 6 Vet.App. 91 (1993). This is a factual determination and the Board is not bound to accept the uncorroborated account of the veteran on this point. Swann v. Brown, 5 Vet.App. 229 (1993); Wilson v. Derwinski, 2 Vet.App. 614 (1992); Wood v. Derwinski, 1 Vet.App. 190 (1991); reconsidered, 1 Vet.App. 406 (1991). Some of the basic facts are not in dispute. The veteran had active service during World War II. Information on his discharge report shows that his military occupational specialty was clerk general and that his military qualification was combat infantryman. His separation qualification report indicates that the veteran served as a light mortar crewman in the North Apennines and the Po Valley for nine months operating with a crew of six light mortar crewmen, under fire and in all kinds of weather. The veteran received the World War II Victory Ribbon, Good Conduct Medal, American Theater Ribbon, European African Middle Eastern Theater Ribbon, and 2 Bronze Service Stars. Service medical records reveal no complaints or findings of a psychiatric disorder. Several statements were submitted from laypersons in 1971, which detailed problems the veteran had been experiencing with his back since service. One of the statements also indicated that the veteran had been very nervous since his separation from service. At a VA neuropsychiatric examination in September 1971, the veteran stated that his nerves bother him, that he becomes a little shaky and weak sometimes. In discussing his military service, there was no reference to the disturbing effects of his combat experience. He denied crying spells and indicated that he controls his temper well and gets along with people. He worked as a carpenter but was currently unemployed. Mental status examination showed no findings. The examiner indicated that the veteran had complaints as listed but that there was insufficient evidence to warrant a neuropsychiatric diagnosis. By rating action in September 1971, service connection was denied for "nervousness." A January 1989 VA outpatient treatment note indicates that the veteran was seen for complaints of increasing memory loss. His wife indicated that he became disoriented going to the bathroom at night. The veteran dated the symptoms to 3 1/2 years earlier. The examiner noted symptoms of post-traumatic stress disorder although the veteran indicated that he had not been diagnosed with post-traumatic stress disorder. The examiner noted the lack of complete medical records and insufficient information and that the possibilities included: onset of dementia, sleep disorder secondary to post-traumatic stress disorder and dreams leading to nighttime disorientation, decreased cardiac output leading to restricted blood flow an symptoms secondary to angina, and stress and anxiety reaction leading to increased response to situational factors. At a psychiatric evaluation in November 1989, the veteran complained of forgetfulness for the last three years and confusion for the last three weeks. The veteran was unable to remember the date, month or year. He was unable to do serial 7 but was able to count backward from 10. The veteran denied delusions, hallucinations, or suicidal or homicidal ideation. The diagnosis was dementia, probably Alzheimer's, and organic affective disorder. A report of VA hospitalization dated in December 1989 notes the veteran was admitted for an organic workup. There was no past psychiatric history. The veteran's mini-mental status was 16/30. He was slightly disheveled. He displayed blocking and inability to concentrate and remember. He denied hallucinations or delusions. A computerized tomography scan showed atrophy which was consistent with the veteran's age. It was noted that it was very difficult to do formalized neuropsychological testing due to the severe global deficits. Based on the organic workup, the diagnosis was dementia, senile, Alzheimer's type. The hospital discharge summary includes a diagnosis of post-traumatic stress disorder on Axis I. VA outpatient treatment and social service notes dating from August 1989 to July 1991 note that in April 1990 the veteran complained of depression, inability to sleep, poor energy, and fleeting suicidal thoughts. The social worker indicated the veteran had post-traumatic stress disorder with nightmares and intrusive thoughts, and the assessment was post-traumatic stress disorder with depression. In December 1990 and May 1991, she noted post-traumatic stress disorder, improved. In July 1990, the veteran underwent a VA psychiatric examination. The examiner reviewed the veteran's medical file and set forth salient facts about his psychiatric history. It was noted that there had been a diagnosis of dementia, probably Alzheimer type, and organic affective disorder, and reported symptoms, noted as characteristic of post-traumatic stress disorder, with formal psychological testing being difficult to perform due to severe global deficits. The veteran's wife stated that when he got back from service he was restless and had horrible nightmares. She stated that they are not as frequent or severe. She stated that he was too restless to watch war movies, could not sit still long enough, and does not watch much television at all. She stated that he loses his concentration and has been increasingly forgetful for the last five years. The veteran stated that his nerves have bothered him since service but that he didn't do anything about it. He stated that, during service, he was in the infantry, was a 60 millimeter mortar crewman, and went from ammunition carrier to gunner. He was in the Apennines and an offensive was started in the spring when it was thawing. He said one artillery shell went off about 12 feet from his hole; he was asleep. He said that he and his section sergeant, a buddy, were together, they hit the ground and his section sergeant was killed. He also said that he captured a German officer and they rounded up about 40 prisoners at one time. He said several of his buddies were killed but he wasn't close to them and had forgotten the details. After service, he was restless and drinking a lot but quit when he ran out of money. Currently, when he is idle, he is restless and paces. Crowds bother him sometimes, and when he goes to a restaurant, he goes to where he can see out. He complained of sleep disturbance, had a couple of nightmares quite a while ago, and wakes up sweaty for no reason. The examiner indicated that there were no indications of delusions or hallucinations, and he found no guilt, survivor guilt, or disturbance from noises. The diagnosis was primary degenerative dementia of the Alzheimer type with senile onset and uncomplicated and generalized anxiety disorder. The examiner noted that the veteran had a few of the symptoms of having had a type of post-traumatic stress disorder symptomatology when he first got home but now, due to his dementia, found it very difficult to get enough information to make that diagnosis. The veteran was also noted to be incompetent for VA purposes. In May 1991, the veteran was hospitalized at a VA medical center for evaluation of spells. Based on the veteran's mental status, it was felt the veteran's primary problem was Alzheimer's dementia. The veteran was noted to be incompetent. He was also characterized as a very poor historian. The pertinent diagnosis at discharge was dementia of the Alzheimer's type. In November 1991, the veteran submitted a statement dated in November 1975 from C.O. Favrist who stated that he filled prescriptions for him in 1946 for back trouble. The Board finds that the veteran "engaged in combat with the enemy." The veteran's discharge report showed that he received 2 Bronze Service Stars, which indicates the veteran served in a combat zone, during a named campaign. Furthermore, his separation qualification report confirms that he served as a light mortar crewman in the Apennines during World War II and operated under fire. Moreover, the veteran has provided statements to the effect that he saw people dying around him and that a sergeant standing next to him and talking to him was hit by a shell. The Board finds that this stressor is related to "combat with the enemy." Under the law, regulations and precedent decisions of the Court, the veteran's lay testimony must be accepted as conclusive as to the existence of the stressor provided that it is found to be "satisfactory." Evidence is "satisfactory" if it is found to be credible, and "consistent with the circumstances, conditions, or hardships of such service." 38 U.S.C.A. § 1154(b) (West 1991); 38 C.F.R. § 3.304(f) (1994); Zarycki v. Brown, 6 Vet.App. 91 (1993). The Board finds that the veteran's accounts are credible, and that they are consistent with the "circumstances, conditions, or hardships" of his service. Furthermore, the death of the sergeant was an event outside the range of usual human experience that would be markedly distressing to almost anyone and constitutes an inservice recognizable stressor. American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, 146, 3rd ed, Revised (DSM-III-R) 1987. Despite the fact that the veteran meets the stressor criteria for post-traumatic stress disorder, he does not have a clinically substantiated diagnosis of post-traumatic stress disorder. The Board notes that a VA hospitalization report and VA social worker reports include a diagnosis of post-traumatic stress disorder. However, the hospitalization report contains no background information pertaining to stressors, history or clinical symptomatology to support a diagnosis of post-traumatic stress disorder. Likewise, although the VA social worker diagnosed post-traumatic stress disorder with nightmares and intrusive thoughts, although the probative value of this finding is lessened by the fact that, like the aforementioned VA hospital summary, the diagnosis was premised upon an inadequately developed clinical record. In July 1990, a VA psychiatrist noted that the veteran may have had some symptoms of post-traumatic stress disorder following discharge; however, he was unable to render a current diagnosis of post-traumatic stress disorder due to the lack of information. This examination report is found to have greater probative value than other clinical evidence previously referred to as there was a review of the record specifically for the purpose of assessing whether the veteran was reasonably shown to have post-traumatic stress disorder. A finding by a psychiatrist, in that regard, would also have greater probative weight than that rendered by a VA social worker, given the academic credentials of the former. The Board notes that the difficulty in obtaining information from the veteran is due, largely, to his dementia due to Alzheimer's disease. However, the fact remains that the veteran does not have a clinically substantiated diagnosis of post-traumatic stress disorder. Accordingly, the Board finds that service connection for post-traumatic stress disorder is denied. ORDER Service connection for post-traumatic stress disorder is denied. JEFFREY MARTIN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (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), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.