CAVC Case 94-169: PTSD

CAVCReal U.S. Court of Appeals for Veterans Claims (CAVC) decision · August 9, 1995 · MANKIN

This is a decision of the U.S. Court of Appeals for Veterans Claims — the federal court that reviews Board of Veterans' Appeals decisions, one level above the Board. Court decisions can vacate, reverse, or affirm what the Board did.

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10%	$180.42
20%	$356.66
30%	$552.47
40%	$795.84
50%	$1,132.90
60%	$1,435.02
70%	$1,808.45
80%	$2,102.15
90%	$2,362.30
100%	$3,938.58

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Outcome

Vacated / Remanded

Decision Date

August 9, 1995

Judge

MANKIN

Service Era

Not specified

Conditions Claimed

PTSD Back Cervical Hearing Loss Tinnitus Hip Diabetes Eye

Issues on Appeal

PTSDBackCervicalHearing LossTinnitusHipDiabetesEye

Why It Was Decided This Way

The Board concluded that there was no evidence that the appellant experienced hearing loss during service.

On appeal, this Court found that the BVA's decision was defective because it: (1) misstated the legal standard used to determine service connection; and (2) disregarded the arguably doubtful credibility of the appellant's separation physical.

With respect to the Court's second finding, the Court found that the Board erred by not discussing the appellant's attack on the credibility of his separation physical.

Because of the absence of hearing disorder complaints on the appellant's separation examination and for many years after service, the Board concluded that there was not an approximate balance of the evidence (Gilbert v.

49, 53 (1990)), and that the preponderance of the evidence was against finding that hearing loss and tinnitus were due to service.

This Court will not overturn the BVA's factual findings unless they are "clearly erroneous.

To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran.

For the reasons set forth below, the Court holds that the Board's findings of fact in this case have a plausible basis in the record and are not subject to reversal as being clearly erroneous.

Authorities Cited

Abernathy v. PrincipiBlack v. BrownColvin v. DerwinskiCombee v. BrownCosman v. PrincipiCuevas v. PrincipiElkins v. BrownFrancisco v. BrownGilbert v. DerwinskiGodfrey v. DerwinskiGrottveit v. BrownHare v. DerwinskiHatlestad v. DerwinskiHeuer v. BrownIn Hensley v. BrownMasors v. DerwinskiOhland v. DerwinskiOwens v. BrownPeyton v. DerwinskiReonal v. BrownSee Burger v. BrownSee Gabrielson v. BrownSee Gilbert v. DerwinskiSee Lizaso v. BrownSee Wood v. DerwinskiSimon v. DerwinskiSmith v. DerwinskiSwann v. BrownThurber v. BrownWilson v. Derwinski

Regulations Cited (38 CFR / 38 USC)

38 CFR 3.303(d)38 CFR 3.38538 CFR 3.385 (1993)38 CFR 4.8538 CFR 4.85(a) (1994)38 CFR 4.86a (1994)38 USC 5107(b)38 USC 7104(d)(1)38 USC 725238 USC 7261(a)(4)

Denial Type

Credibility|No Nexus|Preponderance Against

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