Citation Nr: 0003813 Decision Date: 02/14/00 Archive Date: 02/15/00 DOCKET NO. 98-05 152 A ) DATE ) ) THE ISSUE Whether denial by the Board in March 1998 of service connection for post-traumatic stress disorder constituted clear and unmistakable error. REPRESENTATION Moving Party Represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Ralph G. Stiehm, Counsel INTRODUCTION The veteran had active service from June 1964 to May 1967. This case arises from a request for reconsideration of a prior Board decision, filed directly with the Board, under 38 U.S.C.A. § 7111, alleging clear and unmistakable error in a prior March 1998 Board decision which denied service connection for post-traumatic stress disorder. Since the Board's March 1998 decision, the veteran has submitted additional evidence which may be new and material. The issue of whether new and material evidence to reopen the March 1998 decision has been submitted is referred to the RO for appropriate action. FINDINGS OF FACT 1. In March 1998, the Board denied service connection for post-traumatic stress disorder. 2. Evidence before the Board in March 1998 did not compel a conclusion, to which reasonable minds could not differ, inconsistent with the Board's determination. CONCLUSION OF LAW The March 1998 Board decision which denied service connection for post-traumatic stress disorder did not contain clear and unmistakable error. 38 U.S.C.A. § 7111 (West Supp. 1998); 38 C.F.R. § 20.1403 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Recent statutory and regulatory changes have made it possible for the Board to revise or reverse an earlier Board decision based upon clear and unmistakable error. See 38 U.S.C.A. § 7111; see also Public Law 105-111 (November 21, 1997); 64 Fed. Reg. 2134 (1999)(codified at 38 C.F.R. § 20.609(c)(4) and Part 20, subpart O); Chairman's Memorandum No. 01-99-09 (February 19, 1999). Clear and unmistakable error is a very specific and rare kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied. Review for clear and unmistakable error must be based on the record and the law that existed when that decision was made. In addition, to warrant revision of a Board decision on the grounds of clear and unmistakable error, there must have been an error in the Board's adjudication of the appeal which, had it not been made, would have manifestly changed the outcome when it was made. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. 38 C.F.R. § 20.1403. In March 1998, the Board issued a decision denying service connection for post-traumatic stress disorder. At the time of the Board's decision the law provided that service connection was available for a disorder if it was incurred in or aggravated during the veteran's active duty service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1997). Service connection for post-traumatic stress disorder required medical evidence establishing a clear diagnosis of the condition, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (1997); see also Cohen v. Brown, 10 Vet. App. 128 (1997). If the claimed stressor was 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 similar combat citation would be accepted, in the absence of evidence to the contrary, as conclusive of the claimed in-service stressor. Id. The evidence necessary to establish the occurrence of a stressor during service to support the claim for service connection for post-traumatic stress disorder varied depending on whether the veteran was "engaged in combat with enemy." See Hayes v. Brown, 5 Vet. App. 60, 66 (1993). In cases where it was determined, through military citation or other supportive evidence, that a veteran engaged in combat, the veteran's lay testimony regarding the reported stressors was accepted as conclusive evidence as to their actual occurrence and no further development or corroborative evidence was necessary, providing that the veteran's testimony was found to be satisfactory, e.g., 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(d), (f) (1997). However, in cases where it was determined that veteran did not engage in combat with the enemy, or the claimed stressor was not related to combat, the veteran's lay testimony alone was not enough to establish the occurrence of the alleged stressor. In such cases, the record had to contain service records or other supportive evidence which substantiated or verified the veteran's testimony or statements as to the occurrence of the claimed stressors. See Zarycki v. Brown, 6 Vet. App. 91, 98 (1993); see also West v. Brown, 7 Vet. App. 70 (1994). Nothing in the statutes or regulations governing service connection for post-traumatic stress disorder, however, required that such corroboration be found in the service medical records. Instead, the VA was required consider whether the veteran's account of his stressors was inconsistent with the available service records. See Doran v. Brown, 6 Vet. App. 289 (1994). Medical evidence before the Board included various diagnoses of post-traumatic stress disorder. For instance, a report of a September 1993 VA examination documented a diagnosis of post-traumatic stress disorder in connection with complaints related to experiences during service in Vietnam, as did a report of an April 1991 examination by a private physician. In addition an April 1991 entry in the veteran's treatment records referenced "post-traumatic stress left over from the Vietnam war," and a report of a June 1991 evaluation documented a diagnosis of post-traumatic stress disorder associated with combat in Vietnam. In addition the veteran submitted a number of statements concerning the nature of the stressors he allegedly experienced in Vietnam. In a statement submitted in March 1993, the veteran indicated that in the Summer of March 1966, his unit's position in Vo Dat, Vietnam, "was over-run by the enemy and many . . . close friends," whose names the veteran did not identify, lost their lives. Thereafter, in a statement submitted in November 1993, the veteran indicated that while in Vietnam, he was permanently assigned to the 6750th Combat Support Group from December 1965 to December 1966 as a ground radio operator for forward air control and that "the temporary and changing nature of [his] combat assignments made it impossible for [him] to become familiar with the individual members" of the units supported and that therefore it was "impossible . . . to provide dates, places and names of those [the veteran] witnessed being killed." The veteran added in that statement that the most frequent nightmares involved witnessing the overrun of Vo Dat in late February or early March 1966, having to shoot a young Vietnamese boy in the early Summer of 1966, and "the crashing of a medivac chopper" in the Summer of 1966. In December 1993, the RO forwarded to U.S. Army and Joint Services Environmental Support Group (ESG) for verification a letter providing a synopsis of the veteran's claimed stressors with which a copy of the veteran's November 1993 statement was enclosed. In January 1994, ESG responded, indicating that in order to provide research concerning specific combat incidents and casualties, the veteran had to provide the dates of the incident to within seven days, the type and location of the incident, the number and full name of casualties, and information identifying other units involved. In October 1996, the veteran submitted a statement in which he indicated that in the performance of his duty on several occasions he received enemy fire and that he was told he would be recommended for, although he never received, "air medals," two Purple Hearts for minor shrapnel wounds, and a Bronze Star for action during the Spring of 1966. The veteran added that his combat operations were a result of brief and varied assignments to other service branch units and that, therefore, he was unable to provide information more specific than that contained in the statement of November 1993. In denying service connection for post-traumatic stress disorder, the Board observed that service department records did not provide objective corroboration of combat, that evidence associated with the claims file did not otherwise substantiate or verify the veteran's claimed stressors, and that service medical records did not document a diagnosis of psychiatric disorder in service. Personnel records associated with the claims file confirmed service in Vietnam as a ground radio operator. However, as observed by the Board, there was no objective evidence in the claims file that the veteran was involved in combat. Service personnel records, including the veteran's DD 214, did not evidence awards for combat. Service medical records did not reflect treatment for injuries sustained during combat, notwithstanding the veteran's representations that he sustained minor shrapnel wounds. Although the veteran's personnel records revealed that the veteran had been involved in the Vietnam Defense campaign from December 1965 to January 1966, the Board in its earlier decision correctly observed, citing Wood v. Derwinski, 1 Vet. App. 190, 193 (1991), that mere presence in a combat zone does not equate with engaging in combat with the enemy. As such, the Board did not have before it evidence from the veteran's personnel or service medical records that required a conclusion that the veteran was involved in combat. In addition, evidence before the Board did not require a conclusion that other evidence associated with the claims filed substantiated or verified the veteran's claimed stressors. Statements submitted by the veteran documenting his claimed stressors were vague and lacked, for instance, references to names of individuals that might be verified. ESG's response to the RO's inquiry, furthermore, confirmed that without more specific information, it was not possible to verify the veteran's claims. Although the veteran submitted an additional statement subsequent to ESG's response, that statement did not add any significant new information concerning the veteran's stressors that might have made verification more feasible. Furthermore, a failure by the Board to develop the veteran's claim cannot serve as a basis for alleging clear and unmistakable error. 38 C.F.R. § 20.1403 Finally, although the veteran's service medical records contain a March 1965 entry which reflects the presence of a "previous psychiatric-neurologic history," that entry does not reflect that any acquired psychiatric disorder, let alone post-traumatic stress disorder, was diagnosed during or prior to the veteran's period of service. A report of an October 1965 medical examination reflects that a psychiatric interview conducted at that time revealed no detectable mental or emotional disorders which would preclude the veteran from completing his tours and that the veteran's psychiatric health was reportedly normal. A May 1967 examination similarly revealed no psychiatric abnormality. Given the state of the evidence before the Board, it was not unreasonable for the Board to have concluded that the veteran did not engage in combat with the enemy, that the veteran had not presented a verifiable stressor, and that post-traumatic stress disorder had not otherwise been incurred or aggravated during service. The Board's March 1998 decision, therefore, did not contain clear and unmistakable error. ORDER The veteran's motion is denied. MILO H. HAWLEY Acting Member, Board of Veterans' Appeals