disposition: granted

text:
93 Decision Citation: BVA 93-11164

 Y93

                 BOARD OF VETERANS' APPEALS
                   WASHINGTON, D.C. 20420

DOCKET NO.  87-04 570       )    DATE
                            )
(RECONSIDERATION)           )
                            )

                         THE ISSUES

1.  Entitlement to accrued benefits based on a claim for
service connection for an acquired psychiatric disorder, to
include post-traumatic stress disorder.

2.  Entitlement to service connection for the cause of
death.

                       REPRESENTATION

Appellant represented by:  Disabled American Veterans

                   ATTORNEY FOR THE BOARD

Richard C. Thrasher, Associate Counsel

                        INTRODUCTION

The Board of Veterans' Appeals (Board) originally entered a
decision in this case on June 20, 1991.  Subsequently, a
motion for reconsideration of that decision was filed with
the Board in March 1992.  Reconsideration of the decision of
June 1991 has been ordered by the Chairman of the Board, as
provided in 38 U.S.C.A. � 7103 (West 1991), and the case is
now before an expanded reconsideration section of the
Board.  This decision by the reconsideration section
replaces the prior decision of June 1991 and constitutes the
final decision of the Board.

The veteran had active service from October 1965 to November
1967.  The veteran died in June 1985.  At the time of his
death, the veteran had claims pending for entitlement to
service connection for an acquired psychiatric disorder, and
for entitlement to an increased evaluation for duodenal
ulcer, evaluated as 10 percent disabling.  The claims for
accrued benefits and dependency and indemnity compensation
benefits now before the Board are the result of claims made
by the veteran's former father-in-law on behalf of the
veteran's surviving children in his custody.

In November 1983, a decision was issued by the Philadelphia,
Pennsylvania, regional office and insurance center (RO),
denying service connection for an acquired psychiatric
disorder, to include post-traumatic stress disorder (PTSD),
and denying entitlement to an increased evaluation for
duodenal ulcer, evaluated as 10 percent disabling.
Following that decision, a notice of disagreement was
received from the veteran in January 1984.  A statement of
the case was issued in February 1984.  The substantive
appeal was received in April 1984.  In September 1984, a
hearing was held before a rating board at the RO, at which
time the veteran testified on his own behalf.  Subsequently,
additional adverse decisions were issued by the RO in
December 1984 and January 1985, and supplemental statements
of the case were issued in January 1985 and February 1985.

Following the veteran's death in June 1985, a decision was
issued by the RO in November 1985 denying service connection
for the cause of the veteran's death.  In December 1985, a
"statement of the case" was issued by the RO in which it was
noted that the claims brought on behalf of the veteran's
surviving children by his former father-in-law were being
accepted as a continuation of the appellate issues pending
at the time of the veteran's death.  The issues presented on
appeal at that time included entitlement to accrued benefits
based on a claim for an increased evaluation above 10
percent for duodenal ulcer.  Subsequently, an additional
decision was issued in December 1985 denying claims made for
both entitlement to dependency and indemnity compensation
benefits and death pension benefits.  Thereafter, a "notice
of disagreement" was received in June 1986, and a
supplemental statement of the case was issued in August
1986.

In July 1987, a decision was issued by the Board denying the
claim for accrued benefits based on the claim for
entitlement to an increased evaluation for duodenal ulcer,
evaluated as 10 percent disabling.  That decision
constituted a final determination of the Board, and
reconsideration has not been granted with respect to that
issue.  A separate decision was also issued by the Board in
July 1987 remanding the issues presently being addressed in
this reconsideration decision to the RO for the completion
of further development.  Following the return of the appeal
to the RO, a decision was issued by the RO in June 1988
confirming and continuing the prior adverse determinations.
A supplemental statement of the case was then issued in June
1988.  The appellant is represented in this matter by
Disabled American Veterans, and the case is now ready for
appellate review.

             CONTENTIONS OF APPELLANT ON APPEAL

The appellant essentially contends that service connection
is warranted for the veteran's PTSD, and therefore, payment
of accrued benefits is warranted based on the claim pending
at the time of the veteran's death for entitlement to
service connection for that condition.  The appellant also
contends that service connection is warranted for the cause
of the veteran's death because the veteran committed suicide
as a result of the effects of PTSD.

                    DECISION OF THE BOARD

In accordance with the provisions of 38 U.S.C.A. � 7104
(West 1991), following review and consideration of all
evidence and material of record in the veteran's claims
file, and for the following reasons and bases, it is the
decision of the Board that payment of accrued benefits based
on a claim pending at the time of the veteran's death for
entitlement to service connection for PTSD is warranted, and
that service connection is warranted for the cause of the
veteran's death.

                      FINDINGS OF FACT

1.  The veteran died on June [redacted] 1985, as a result of a
self-inflicted gunshot wound to the chest.

2.  At the time of his death, a claim was pending for
entitlement to service connection for an acquired
psychiatric disorder, to include PTSD.

3.  The veteran had PTSD as the result of his military
service.

4.  The veteran was mentally unsound at the time of his
suicide.

5.  The veteran's service-connected PTSD was the cause of
his death.

                     CONCLUSIONS OF LAW

1.  Payment of accrued benefits based on a claim for service
connection for PTSD is warranted.  38 U.S.C.A. �� 5107(a),
5121 (West 1991); 38 C.F.R. � 3.1000 (1992).

2.  Service connection is established for the cause of the
veteran's death.  38 U.S.C.A. �� 1310, 5107(a) (West 1991);
38 C.F.R. �� 3.302, 3.312 (1992).

       REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Initially, we note that we find the appellant's claims to be
"well-grounded" within the meaning of 38 U.S.C.A. � 5107(a)
(West 1991).  That is, we find that the appellant has
presented claims which are not implausible.  We are also
satisfied that all relevant facts have been properly
developed.

                    I.  Accrued Benefits

At the time of the veteran's death in June 1985, a claim for
entitlement to service connection for an acquired
psychiatric disorder, to include PTSD, had been pending for
more than one year.  Based on our review of the evidence of
record, we conclude that service connection was warranted
during the veteran's lifetime for PTSD.

A review of the veteran's service personnel records reveals
that his military occupational specialty during service was
cook, and that he served in Vietnam from June 1966 to June
1967.  While in Vietnam, the veteran was assigned to the
24th Evacuation Hospital, 68th Medical Group, from June 1966
to March 1967, and to the 93rd Evacuation Hospital from
March 1967 to June 1967.  A review of the veteran's service
medical records reveals that he was seen in January 1967 in
connection with exhibited erratic behavior, but no
neuropsychiatric disease was diagnosed at that time, and no
psychiatric defects or abnormalities were noted at the time
of his separation examination.

Following separation from service, the veteran was
hospitalized in February 1969 at the Wilkes-Barre,
Pennsylvania, Department of Veterans Affairs (VA) Medical
Center.  The initial impression at the time of admission was
peptic ulcer, rule out cholecystitis, and rule out anxiety
reaction.  The final diagnosis, however, included only
duodenal ulcer.  In September 1982, the veteran was again
hospitalized by the VA, at which time the diagnoses rendered
were adjustment disorder with mixed emotional features, and
psychophysiologic gastrointestinal reaction (somatization
disorder).  In November 1982, a psychiatric evaluation was
conducted by the Schuylkill County Mental Health/Mental
Retardation Program.  The diagnoses made at that time were
PTSD, major depression, and brief reactive psychosis.
In November 1982 and January 1983, medical statements were
prepared by John J. Karlavage, M.D., of Mahanoy City,
Pennsylvania, indicating a diagnosis of chronic anxiety with
psychotic reaction, and also indicating the following:  "I
would urge you to seriously consider the severe physical and
mental problems that this individual has which has been
precipitated and brought on apparently by his Viet-Nam
battle experience."

In March 1983, a VA psychiatric examination was conducted,
at which time the veteran reported that, while in Vietnam,
he had served as a dietician in evacuation hospitals.  In
that position, he indicated that he was responsible for
feeding badly wounded soldiers, and that he witnessed many
deaths.  The diagnosis made by the examiner was PTSD and/or
psychological factors affecting physical condition.  The
supporting stressor for the diagnosis of PTSD was noted to
be "chronic and repetitive exposure to mutilated bodies for
which he [the veteran] had nutritional responsibility as
well as the frequent exposure to traumatic death."  In
September 1983, an addendum to the March 1983 examination
report was completed by the examiner reaffirming the prior
diagnosis of PTSD:

         [T]his individual's experience of trauma
         was not that as experienced by most of
         combat veterans, that being in intensive
         combat situations where their own life
         was under repetitive threat, etc., but
         rather was in the form of offering
         medical and dietary assistance to people
         with mutilated bodies from combat.

In March-April 1984, the veteran was again hospitalized by
the VA, at which time a diagnosis was rendered of adjustment
disorder with mixed emotional features.

In September 1984, the veteran testified at a hearing held
before the RO that, although his military occupational
specialty was cook, he spent most of his tour of duty in
Vietnam working as a dietician in two evacuation hospitals.
He also reported that he had performed stretcher duty for a
brief period of time which involved transporting wounded
soldiers from arriving helicopters to surgery.  In the
position of dietician, the veteran related that he was
responsible for preparing the diets of wounded soldiers and
also for helping to feed those individuals who were unable
to feed themselves as a result of their injuries.  He
further stated that he found this position to be very
stressful due to constant worrying about whether he was
ordering the correct food, and because of his close contact
with the wounded.  In addition, he reported that when he had
first arrived in Vietnam he had been regularly exposed to
both mortar and gun fire, as was also indicated in a
statement submitted in January 1985.  On June [redacted] 1985, the
veteran died as a result of a self-inflicted shotgun wound
to the chest.  A review of the record reveals that, just
prior to committing suicide, the veteran shot and killed his
ex-wife.

In June 1989, an opinion was obtained from the Office of the
VA Chief Medical Director (CMD) regarding the veteran.  In
that opinion, the veteran's psychiatric disabilities were
found to have included (1) PTSD, date of onset in 1966-67;
(2) major depressive disorder, psychotic, recurrent, date of
onset in 1982 (rule out schizophrenia or schizoaffective
disorder); and (3) psychophysiological reaction, peptic
ulcer disease, date of onset in 1967.  With respect to the
diagnosis of PTSD, the following supportive reasoning was
given by the CMD reviewer:

         The [veteran] appears to fulfill
         diagnostic criteria and description of
         Post-traumatic Stress Disorder.  First of
         all, the [veteran] did experience an
         event that is outside the range of usual
         human experience and represented a
         serious threat to his life; e.g., the
         mortar attacks that occurred in the first
         few months of his stay in Vietnam.  In
         addition to that, his job in Vietnam in
         feeding and taking care of wounded and
         dying veterans would be markedly
         distressing to almost anyone.  The
         [veteran] reports at his own hearing that
         many of his friends died in Vietnam.

In September 1990, an additional opinion was obtained from
an independent medical expert regarding the veteran's
psychiatric condition.  The diagnoses rendered by the
independent medical expert included PTSD; major depressive
disorder, recurrent, severe, with psychotic features; and
psychological factors affecting physical condition.  In
regards to the diagnosis of PTSD, the following supportive
reasoning was given, in part:

           Pilowsky introduced the term
         "cryptotrauma" to describe hidden
         traumatic aspects of an event in the
         context of a person's gasp [sic] of the
         event.  The appellant's experience in
         Vietnam probably did represent a
         significant trauma to him.  Whether or
         not, the events resulted in others,
         working in the same capacity to suffer
         psychiatric disorders is mute and
         problematic.  Recent literature supports
         this point.

           The fact that the [veteran] did not
         suffer from obvious symptoms sufficient
         enough to warrant medical intervention
         until 1982 does not in itself disavow the
         diagnosis of PTSD.  Infrequent cases have
         been noted in which the events have
         undergone repression for a number of
         years until the "onion" layers have been
         peeled revealing the true nature of the
         impact.  A "dose relationship" response
         has also been noted between event
         severity and PTSD.  The appellant indeed
         was in daily contact with severely
         injured comrades many of whom died before
         his very eyes.  The fact that the
         appellant was not in active combat does
         not nullify the diagnosis of PTSD.

           Further more (sic), it is quite
         apparent that the appellant suffered from
         a major depressive disorder with
         psychotic features recurrent and chronic
         in nature towards the end.  Dr. Hollander
         et.al. notes in his article in the
         "Textbook of Psychiatry" that "in some
         veteran outreach populations, 70 to 80
         percent of patients meet diagnostic
         criteria for both disorders, [i.e.,] PTSD
         and major depressive disorder.["]  He
         further states that major depression is a
         frequent complication of PTSD and carries
         an increased rick [sic] of suicide if not
         treated aggressively.

           The [veteran], in my opinion, did
         suffer from comorbidity kindled by
         marital discord unresolved over a period
         of years terminating in a divorce, murder
         and suicide.

           . . . .

           It is entirely plausible that the
         [veteran's] tour of duty in Vietnam did
         result in a delayed reaction via of [sic]
         repression and chronic post-traumatic
         stress disorder complicated by chronic
         and recurrent episodes of major
         depression with psychotic features which
         terminated in murder/suicide.

(Emphasis added.)

In September 1992, a follow-up opinion was obtained from the
same independent medical expert regarding the diagnosis
previously made of PTSD:

           According to the records, the [veteran]
         did engage in combat of a limited nature
         for a period of three weeks.  The extent
         of this engagement is unclear but
         irrelevant to the diagnosis of PTSD.

           The pre-disposition in the development
         of pathology, in this case PTSD, lies
         within each individual's structure, his
         personality mechanisms, coping skills,
         supportive system, prior activity and
         exposure.  The engagement, a single
         disastrous event of three weeks,
         represented the beginning of a series of
         cascading events, e.g.[,] feeding of
         maimed troops, transporting of the
         injured and dying, the fear of death
         itself and of being maimed. . . .

           . . . .

           The [veteran's] experience in Vietnam
         is typified in Van Der Kolk's text on
         Post-Traumatic Stress Disorder 1984[:]
         "A number of activities are common in
         Vietnam that brought men and women into
         contact with death and dying, e.g.[,]
         nursing, body bagging, transportation of
         the injured, feeding of the wounded."
         Van Der Kolk stressed the importance of
         cumulative exposures that eventually
         exceed the threshold.  This concept has
         been farther elaborated upon by Fester[,]
         P.A.[,] Journal of Clinical Psychiatry
         Vol. 52 #9[,] September 1991, with the
         contention that endogenous catecholamines
         are affected by repetitive flooding
         secondary to combat and high stress
         inducing the phenomenon of kindling
         within the limbic system.  This would
         account for many of the symptoms of PTSD,
         as well as the chronicity of the
         disorders.  Once kindling has been
         established, the nature of the stressor
         and/or intensity of stress required to
         trigger pathology is minimal.  This would
         account for many of the symptoms that the
         [veteran] suffered [from] over the years
         with only minor triggering factors,
         i.e.[,] family discord, interpersonal
         problems, etc.  PTSD patients are
         sensitized to even mild re-stimulation
         via kindling.

           . . . .

           In my opinion, the appellant at the
         time of his death in June 1985, suffered
         with co-morbid diagnoses, i.e.[,]
         Post-Traumatic Stress Syndrome and Major
         Depressive disorder with psychotic
         features.  The current literature,
         including Toland[,] A.M., Dual Diagnoses
         and Clinical Characteristics of Vietnam
         Veterans with PTSD, 96th Annual
         Convention of APA, Aug. 1988, highlights
         the likelihood of PTSD patients having
         some other psychiatric diagnoses[,]
         particularly depression, alcoholism and
         anxiety disorders.  As noted previously,
         unless the PTSD is recognized and
         treated, then a therapeutic response of
         the other disorder (depression in this
         case) is poor at best.  In other words,
         had the appellant received adequate
         treatment for PTSD over an adequate
         period of time, usually years, then his
         depression might have responded with a
         totally different outcome.  The
         appellant's condition at the time of
         death was secondary to PTSD with the
         prime diagnosis being PTSD.

(Emphasis added.)

In reviewing the above evidence of record, we first note
that no question is presented regarding the existence of a
diagnosis of PTSD, as the record is replete with diagnoses
of that condition.  Instead, the issue presented concerns
whether there is reasonably supportive evidence of a
stressor or stressors in service to support this diagnosis.
Here, based on a review of the record, we find that such
evidence does exist.  While the veteran did not have a
combat military occupational specialty, he did report that
he was exposed to mortar and gun fire during the initial
period of his tour of duty in Vietnam.  Regardless of
whether this is true or not, however, we note that our
determination does not turn on whether the veteran actually
had such exposure.  Instead, we note that a diagnosis of
PTSD does not need to be related only to trauma experienced
during combat.  Rather, a diagnosis of PTSD is contingent on
an individual having "experienced an event that is outside
the range of usual human experience and that would be
markedly distressing to almost anyone."  American
Psychiatric Association, Diagnostic and Statistical Manual
of Mental Disorders Diagnostic Code 309.89 (3d ed. rev.
1987).  In this regard, the VA Veterans Benefits
Administrative Manual, M21-1, Part VI, para. 7.46(g)(2)
(September 21, 1992), specifically provides the following:

         A stressor is not to be limited to just
         one single episode.  A group of
         experiences also may affect an
         individual, leading to a diagnosis of
         PTSD.  In some circumstances, for
         example, assignment to a grave
         registration unit, burn care unit, or
         liberation of internment camps could have
         a cumulative effect of powerful,
         distressing experiences essential to a
         diagnosis of PTSD.

(Emphasis added.)

Here, we find that the veteran's performance of duty as a
hospital dietician, as well as the performance of some
stretcher duty, was not unlike duty performed in a burn care
unit.  The veteran had repeated exposure to soldiers who had
been seriously wounded in combat, he was responsible for
their nutritional needs and assisted with their feeding, and
he was frequently exposed to traumatic death.  Clearly, it
is not implausible that such experiences could have had the
cumulative effect of powerful, distressing experiences
essential to a diagnosis of PTSD.  Moreover, we note that
opinions have been obtained from several medical examiners,
some of whom are experts in their field, which further
support this conclusion.  Accordingly, we conclude that
service connection was warranted during the veteran's
lifetime for PTSD.  See 38 U.S.C.A. � 1110 (West 1991);
38 C.F.R. � 3.303 (1992).

As a result, given the above conclusion, we find that
payment of accrued benefits to the veteran's surviving
children is warranted based on the claim pending at the time
of his death for entitlement to service connection for
PTSD.  Under governing VA laws and regulations, accrued and
unpaid benefits to which a veteran was entitled at the time
of death may be paid to survivors for a period not to exceed
one year prior to the date of death.  38 U.S.C.A. � 5121(a)
(West 1991); 38 C.F.R. � 3.1000(a) (1992).  Accordingly,
because the veteran's claim for service connection for a
psychiatric disorder had been pending for more than one year
prior to the date of his death, we conclude that payment of
accrued benefits is warranted to the veteran's surviving
children for the one-year period prior to the date of his
death on June [redacted] 1985, based on the present grant of service
connection for PTSD.  The amount of benefits to be paid will
necessarily depend on the rating assigned by the RO for that
psychiatric condition.

                     II.  Cause of Death

With respect to cause of death, VA regulations provide, in
pertinent part, that "[t]he death of a veteran will be
considered as having been due to a service-connected
disability when the evidence establishes that such
disability was either the principal or a contributory cause
of death."  38 C.F.R. � 3.312(a) (1992).  A
service-connected disability is considered the principal or
primary cause of death "when such disability, singly or
jointly with some other condition, was the immediate or
underlying cause of death or was etiologically related
thereto."  38 C.F.R. � 3.312(b) (l992).  A contributory
cause of death is one inherently not related to the
principal cause and which more than "casually shared in
producing death," but rather, had a causal connection.  In
determining whether this causal connection has been
established, "it must be shown that it [the cause]
contributed substantially or materially; that it combined to
cause death; that it aided or lent assistance to the
production of death."  38 C.F.R. � 3.312(c)(1) (l992).
Further, VA regulations provide, in regard to service
connection for mental unsoundness in suicide, that "[t]he
act of suicide or a bona fide attempt is considered to be
evidence of mental unsoundness.  Therefore, where no
reasonable adequate motive for suicide is shown by the
evidence, the act will be considered to have resulted from
mental unsoundness."  38 C.F.R. � 3.302(b)(2) (1992).

In this case, based on our review of the evidence of record,
we conclude that service connection is warranted for the
cause of the veteran's death.  As indicated above, the
independent medical expert expressed opinions in both
September 1990 and September 1992 that the veteran's
condition of PTSD, and the lack of proper treatment thereof,
ultimately led to the occurrence of the tragic events on
June [redacted] 1985, when he shot and killed his ex-wife before
killing himself with a self-inflicted shotgun wound to the
chest.  A review of statements obtained from a friend and
family members further supports this conclusion in that a
significant change of behavior was observed in the veteran
during the one-year period prior to his death, including
increased depression, withdrawal, and isolation.
Accordingly, given this evidence, and given the presumption
in favor of finding mental unsoundness based on an act of
suicide, we conclude that the cause of the veteran's death
was related to his service-connected psychiatric condition.

In reaching the above conclusions, we note that, while no
action on the part of the VA can do anything to alleviate
the pain and suffering experienced by the veteran's
surviving children as a result of the simultaneous loss of
both of their parents, hopefully the receipt of monetary
benefits will help to alleviate some of the financial
hardship caused by this tragic loss which was related to the
veteran's service-connected psychiatric condition.

                            ORDER

Payment of accrued benefits is granted for the one-year
period prior to the date of the veteran's death on June [redacted]
1985, based on the grant of service connection for PTSD.
Service connection is also granted for the cause of the
veteran's death.

                 BOARD OF VETERANS' APPEALS
                   WASHINGTON, D.C. 20420

L. W. TOBIN III (DISSENTING)        ROBERT D. PHILIPP

                    WARREN W. RICE, JR.

   MARY SABULSKY                   H. M. MC ALLISTER, M.D.

                        J. U. JOHNSON

                           DISSENT

                             I.

I respectfully dissent from the decision of my colleagues in
the majority.  Based on the facts and law, I would deny both
the claim for service connection for PTSD or other
psychiatric disorder, for accrued benefits purposes, and the
claim for service connection for the cause of the veteran's
death.  I find that the veteran did not experience a
stressor in service, as required for finding service-related
PTSD, and alleged PTSD or any other psychiatric disorder is
not traceable to service.  Moreover, even if the veteran had
a psychiatric disorder which could be deemed service
connected, his death by suicide, following his murdering his
ex-wife, may not be considered service connected.

                             II.

PTSD is one of the anxiety disorders, caused by a person
experiencing a stressor; i.e., an event outside the range of
usual human experience that would be markedly distressing to
almost anyone.  American Psychiatric Association, Diagnostic
and Statistical Manual of Mental Disorders (3d ed. rev.
1987) (DSM-III-R), 247-51.  A diagnosis of PTSD, by itself,
is insufficient for service connection.  It must also be
established that the veteran had a requisite stressor in
service, as might reasonably lead to the disease.

As pointed out by the United States Court of Veterans
Appeals (Court), the existence of a valid service stressor
is a factual question for VA adjudicators, based on an
assessment of the credibility and probative weight of all
the evidence.  The Board is not bound to accept a veteran's
uncorroborated accounts of alleged stressors during service,
nor is the Board required to accept psychiatrists'
unsubstantiated opinions that alleged PTSD had its origins
in service.  This is particularly true where there has been
a considerable passage of time between putative stressful
events recounted by a veteran and the onset of alleged
PTSD.  Wood v. Derwinski, 1 Vet.App. 190, 192 (1991),
reconsidered, 1 Vet.App. 406 (1991); Wilson v. Derwinski,
2 Vet.App. 614, 618 (1992).  For unexplained reasons, the
majority chooses to ignore these precedent Court decisions
which are so important to this case.  Similarly, the
Disabled American Veterans representative fails to address
the Court cases, although certainly being aware of them (the
Disabled American Veterans appeared before the Court in the
landmark Wood case).

Bearing in mind the legal rules, it is apparent that in the
instant case the Board improvidently obtained medical
opinions on an adjudicative question (evidentiary proof of a
stressor) outside the scope of doctors' expertise.  The
doctors' opinions, in the context of this case, become no
more than those of ordinary laymen on the question of proof
of a stressor.  In fact, the doctors, not being adjudicators,
have erroneously interpreted the evidence, concerning a
valid stressor, and their opinions are far outweighed by
credible and probative evidence to the contrary.

The veteran served on active duty in the Army from 1965 to
1967, including a year's tour in Vietnam (1966-1967).  His
service records identify no chronic psychiatric disorder,
although they describe episodes of essentially drunk and
disorderly behavior.  Twice during service in Vietnam, the
veteran was reduced from his highest service rank of PFC
(E-3) to his final service rank of PVT (E-2) due to acts of
misconduct (as euphemistically stated by the "independent
medical expert," Dr. Caughman, in his September 27, 1990,
opinion: "several episodes of conduct disorder and alcohol
abuse with punitive sequela").  See service personnel
records including DA Form 20, DD Form 214, and DA Forms 2627
(Article 15 Uniform Code of Military Justice violations).

Many years after service, the veteran gave a vague history
of nervousness since even before his military service, but
by "nerves" he primarily meant gastrointestinal symptoms
(service connection was established for a duodenal ulcer,
rated 10 percent); there is no medical evidence of a chronic
psychiatric disorder prior to September 1982.  See history
on March 1983 compensation examination.  This is some 15
years after service.  This considerable passage of time,
while not precluding the possibility of service-related
PTSD, signals a need to closely scrutinize the claim for
corroboration of a service stressor.

At the time that the veteran first sought psychiatric
treatment, when hospitalized by the VA in September 1982, he
presented no history or symptoms suggestive of PTSD.  His
psychiatric complaints focused around contemporary life
events, including unemployment and domestic problems; the
diagnosis was adjustment disorder with mixed emotional
features, and a psychophysiological gastrointestinal
reaction.  Later, beginning in November 1982, the veteran
recited, by rote, the easily learned history and symptoms
needed to obtain the diagnosis of PTSD.  Then and later he
was episodically diagnosed as having PTSD.  PTSD information
was readily available to him, having been in the VA medical
system, and having been an active member of a service
organization.  See veteran's May 11, 1984 letter to Joyner
and Lenham, in which he notes he signed up for a lifetime
membership in the Disabled American Veterans in 1969, and
was enclosing a pertinent article from that organization's
magazine.  On a number of later occasions, the veteran was
not diagnosed as having PTSD, apparently when he forgot to
recite the PTSD litany, and on those occasions he was
diagnosed, instead, with various other neuroses, psychoses,
and personality disorders.  See, e.g., March-April 1984 VA
hospital record.

I find the veteran's initial presentation of history and
symptoms, in September 1982, which was devoid of references
to PTSD, to be the most credible, given that it was
spontaneously made for treatment purposes, whereas the
veteran later had ample opportunity and motive to change his
story for compensatory gain.  That some veterans do, in
fact, fabricate their military histories to obtain VA
compensation, in claims involving PTSD, is unfortunate but
well recognized.  See, e.g., VA Physician's Guide for
Disability Evaluation Examinations (1985), Chapter 20;
Fleming, Post Vietnam Syndrome:  Neurosis or Sociosis?,
48 Psychiatry 122, 135 (1985) ("the borrowing of embellished
'war stories' is regularly practiced").  In his article,
Fleming, a psychologist and former Vietnam soldier, gives an
indepth, candid analysis of PTSD, discussing the legitimate
use of the diagnosis and the misuse of the diagnosis,
particularly in instances of veterans with personality
disorders.

My colleagues in the majority, in finding that the veteran
had the required stressor for PTSD, emphasize that the
veteran was a "dietician" in Vietnam evacuation hospitals
(during his lifetime, this was the veteran's primary
allegation of a service stressor), and they further
analogize his duties to that of a medical professional
working in a hospital burn unit.  It seems dubious that a
job of a dietician in a large evacuation hospital would
involve traumatic stressors outside the range of normal
human experience, but at least dieticians could make an
argument that they had performed duties involving some
degree of direct contact with patients.  However, the most
obvious flaw in the majority's reasoning (and in the
veteran's lifetime allegations) is that the veteran was not
a dietician and performed no duties in any way analogous to
a medical care provider of any type.

Dieticians are college educated health professionals, who
hold at least a Bachelor's degree, and in the hospital
setting they work closely with doctors, nurses, and similar
health professionals who are on the medical treatment team.
See United States Department of Labor, 1 Dictionary of
Occupational Titles 4-5, 64 (4th ed. 1991); United States
Department of Labor, Occupational Outlook Handbook 122-124
(1984-1985 ed.).  Registered dieticians in the Army are
officers.  See Army Regulation 40-1.  In contrast, the
veteran's credentials when he was in the Army consisted of a
high school education, eight weeks of Army cooking school,
and a service rank of E-2 or E-3 while in Vietnam.  His
service records clearly show he was trained as a cook, and
while in Vietnam he exclusively performed duties of a cook,
assigned to evacuation hospitals.  See DA Form 20.  The
hospitals to which the veteran was assigned were large, safe
facilities located in Long Binh, far from the front, and
were comparable to a typical, stateside urban hospital.  (In
1969 the 24th Evacuation Hospital had a bed capacity of 328,
and the 93rd Evacuation Hospital had a bed capacity of 250.
S. Stanton, Vietnam Order of Battle 214, 216 (1981).)

Cooks prepare food.  In a hospital setting, they perform
their duties in a kitchen, located in the basement or other
area remote from patients and their health care providers.
Cooks do not administer direct patient care, nor would such
be ethically tolerated by any doctor, nurse, or other health
professional.  Contact between cooks and patients is no more
than incidental (perhaps, when transporting food from the
kitchen to the ward), just as it is with other hospital
service personnel such as the janitors who empty wastebaskets
from patients' rooms or wards.

The veteran's lifetime grandiose assertions that he was
involved in direct patient care are implausible, as is the
theory that working as a low-level hospital cook could
constitute a stressor leading to PTSD 15 years later.  An
honest veteran who had worked as a hospital cook could
justly take pride in having performed useful duties, but
would not exaggerate the nature or glory of his job.  Such
was not so with the veteran in the instant case, whose
stories of service experiences reflect a flair for the
dramatic, a penchant for embellishment, and frequent
inconsistencies.

The veteran told of feeding wounded soldiers through tubes
and straws, and seeing many people die from trauma.  See
March 1983 VA examination.  He said that nurses usually fed
the wounded patients, but he also would at times (although
in one variation of this story, he said that this activity
did not bother him).  See September 1984 RO hearing
transcript at 8.  Such tales of direct patient care are
inconsistent with the veteran's official cooking duties,
limited skills, and how hospitals operate.  The stories are
incredible and not accepted.

The veteran alleged that his primary stress during service
was being worried that he might prepare food not in
accordance with dietary instructions or that there might be
a mixup in food orders which would harm the hospital
patients.  See May ll, 1984 veteran's letter (in which he
alleged he was "petrified" by these circumstances);
September 1984 RO hearing transcript at 3 ("I was always
afraid of goofing up").  However, even by the veteran's own
account, the worst thing that ever happened to him and his
fellow cooks, when mixing up a food order, was getting
rebuked by the hospital professional health staff who came
down to the kitchen.  See September 1984 hearing transcript
at 8 ("[t]hey came down and chewed us out right away").
Alleged dread fear of "goofing up" while cooking does not
amount to a stressor for PTSD.  Moreover, getting
reprimanded by one's superior for mixing up a food order,
while unpleasant, is certainly not a stressor for PTSD 15
years later.

While the veteran made much of his duties of preparing
so-called special diets for the sick and wounded, there is
nothing unusually stressful in such duties.  All hospital
patients are on diets, be they regular diets, liquid diets,
high or low calorie diets, etc.  Whether the veteran
prepared hospital food in accordance with his Army cooking
manual, or in accordance with special recipes given to him
by professional dieticians, such does not change the fact
that food preparation does not constitute a stressor for
PTSD.  An E-2 or E-3 hospital cook performs perfunctory
tasks, involving little individual responsibility and nothing
approaching psychic trauma.

The veteran fancied himself a dietician, even though he was
not, and he said, "As far as death is concerned, I have seen
as much or even more in my duty as a dietician in the 93rd.
Evacuation Hospital Unit as any front line soldier."  See
the veteran's January 18, 1985, letter to the Disabled
American Veterans.  Such unabashed self-promotion does the
veteran no credit, and it is safe to say that infantrymen
who experienced the carnage of the Vietnam battlefield would
take umbrage with the veteran's comparison.

Against reliable evidence of the circumstances of his
service, the veteran's patently incredible assertions of a
service stressor, in the course of working as a hospital
cook, fail.

As an apparent afterthought to buttress his claim for
service connection for PTSD, the veteran alleged some
additional stressors.  He gave an account of being subjected
to enemy mortar rounds and gunfire when he first arrived in
Vietnam.  See September 1984 RO hearing transcript at 3
(although it bothered him, it did not make him nervous at
the time it happened).  The veteran apparently told a doctor
of being discharged from service because of a nervous
breakdown from his Vietnam "battle experience."  See
November 1982 and January 1983 letters by Dr. Karlavage.
The service records, however, show no decorations or any
other indication of exposure to a combat environment, and
the veteran's hospital cook duties were incompatible with
such an experience.  Even if the veteran had briefly been in
the general vicinity of enemy fire when he first came to
Vietnam, there is no indication that there was any genuine
danger to him or others close by him, and even by his own
account he did not perceive the purported event as
inordinately stressful.  There is no proof or corroboration
of combat experience, and no related stressor is found.

The veteran also alleged, as a stressor, that he worked
briefly as a stretcher bearer for wounded soldiers arriving
at the hospital by helicopter.  See veteran's May 11, 1984
letter, stating that he did this for two weeks; September
1984 RO hearing transcript at 4.  While the veteran
conceivably could have temporarily performed such duties, it
is clear that his overwhelming time in Vietnam was spent as
a cook.  Cooks do not perform the jobs of medics.  The vague
account of isolated instances of helping to carry litters of
wounded soldiers into the hospital does not constitute
corroboration of a stressor.

In his lifetime stories, given 15 and more years after
service, the veteran expressed his fantasies of his military
service, attempting to adopt the stressors of others, such
as the combat soldier, the health professional, and the
seriously wounded hospital patient.  But service connection
for PTSD cannot be established by borrowing stressors from
others and rescripting one's life.  The veteran spent his
time in Vietnam as a cook in evacuation hospitals; an
unstressful job in one of the safest of locations.  There is
absolutely no basis for the majority's portrayal of the
veteran as a dietician, medic, burn unit nurse, or any other
health professional.  Perhaps a proper analogy for the
veteran's one year of cooking in evacuation hospitals in
Vietnam would be one year of cooking in one of our major
city hospitals which have helicopter-serviced shock trauma
units and other intensive care facilities, and which
routinely treat countless gunshot wounds and other serious,
sometimes fatal, injuries and diseases.  To suggest that a
cook working for a year in, e.g., the Washington Hospital
Center, would develop PTSD 15 years later by reason of his
job duties is simply preposterous.  Granted, the veteran
spent his one year of hospital cooking in Vietnam, but at
the very most, his experiences amounted to no more than the
"ordinary stressful environment" of being in a war zone,
without traumatic stressors for PTSD.  Wood, 1 Vet.App. at
193.

The clear weight of the credible and probative evidence
proves that during service the veteran did not experience a
stressor or stressors which, singly or in combination, might
reasonably lead to PTSD, nor is there any other psychiatric
disorder traceable to service.  Thus, no benefits accrue to
his survivors on the claim, pending at the time of death,
for service connection for a psychiatric disorder including
PTSD.

                            III.

With regard to service connection for the cause of the
veteran's death, that claim could only be allowed if
evidence showed that the veteran's suicide was due to mental
unsoundness attributable to a service-connected disorder.
Clearly, the veteran's only established service-connected
disability, a duodenal ulcer, rated 10 percent, did not
involve mental unsoundness.  As discussed above, I find no
service-connected psychiatric disorder, and, thus, there
could be no related mental unsoundness to explain the
veteran's death by suicide.  Assuming, arguendo, that PTSD
or another psychiatric disorder were deemed service
connected, the evidence still proves that such a disorder
was not the cause of the veteran's death.  My colleagues in
the majority gloss over the law and material facts on this
point, depicting the veteran as a pitiful, dejected
individual, brooding about Vietnam experiences and then
taking his life in a bout of PTSD and depression.  The
evidence shows something quite different.

The veteran and his wife, [redacted], apparently were divorced in
late 1984.  See appellant's June 21, 1985 statement in
support of claim.  The veteran was a brutal man, who beat
[redacted] and otherwise abused her and the children, both before
and after the couple's divorce.  See February 1988 report of
VA field investigation.  On June [redacted] 1985, the veteran
persuaded [redacted] to come to his house, purportedly to talk
about reconciliation.  She went to his house, bringing along
her young daughter.  The veteran made the child wait outside.
The veteran then savagely shot [redacted] to death.  See [redacted]'s
death certificate:  massive hemothorax from gunshot wounds
of the chest and abdomen, as a result of a homicide.  Having
shot [redacted], the veteran directed his mother to take the
waiting child to a relative's home.  He thereafter shot and
killed himself.  See February 1988 report of VA field
investigation.

Violent acts of this nature, in which current and former
wives and girlfriends are brutalized and slain at the hands
of the current and former men in their lives, are
unfortunately common occurrences and the subject of much
publicized concern by decent citizens and law enforcement
officials.  See, e.g., Judges' Conference Hears of Family
"Terrorism," Washington Post, Apr. 4, 1992, at A20.
The veteran's slaying of [redacted] did not involve self-defense;
it was not justifiable homicide.  There is no credible
evidence that the veteran, regardless of the existence of a
psychiatric disorder, was criminally insane at the time that
he killed [redacted]; the killing was not excusable homicide.
Indeed, many killers have mental illnesses but are not
insane, and they are criminally culpable for their deeds.
The notion that PTSD explains away criminal acts, while
embraced by some creative defense attorneys, is without
merit, as criminal conduct is inconsistent with the nature
and consequences of the disease.  See Fleming, supra, at
136-37.  The facts and circumstances show that the veteran's
killing of [redacted] was willful and done with malice
aforethought, and was nothing short of cold blooded,
indefensible murder.  The veteran's murder of [redacted], in
itself, rather than alleged mental unsoundness from assumed
service-connected psychiatric illness, was the precipitating
cause of his ensuing suicide, as explained below.

Service connection for the cause of a veteran's death is
judged under the same basic standards and criteria for
determining if a disability is service connected, and one
requirement is that the disability or death may not be the
result of the veteran's own willful misconduct.  See
38 U.S.C.A. �� 1110, 1310.  An act of suicide may or may not
be deemed the product of a service-connected psychiatric
disorder, or the result of willful misconduct, depending on
the state of mind of the person at the time of the act of
self-destruction.  38 C.F.R. � 3.302.  The determination is
an adjudicative one, to be made based on all the evidence in
the individual case.  Id.  Where a person is so mentally
unsound from service-connected psychiatric illness at the
time of suicide (i.e., unable to realize the consequences of
his act, or unable to resist the impulse), he lacks the
intent (mens rea, or guilty mind) which would otherwise
classify the act as being of willful misconduct origin.  In
such instances, service connection for the cause of death
would be permitted.  Id.  In contrast, when the person is
able to form the necessary intent (i.e., lacks mental
unsoundness, as defined) and takes his life under
circumstances which would lead a rational person to
self-destruction, the suicide is deemed to be of willful
misconduct origin.  In such instances, death is non-service-
connected.  Id.  As stated in VA Compensation and Pension
regulations Transmittal Sheet No. 279, January 8, 1963 (which
promulgated major changes in 38 C.F.R. � 3.302):  "There are
circumstances to be considered on the facts of the individual
case, which could establish a reasonable adequate motive for
suicide, e.g., affirmative evidence showing that the act was
impelled by a reasonable fear of punishment and disgrace
associated with commission of a heinous crime...."

Review of all the evidence, with particular attention to
that surrounding the murder-suicide, discloses that the
veteran had the mens rea, or guilty mind, necessary for
intentional suicide under circumstances of willful
misconduct; he was not of unsound mind, within the meaning
of the regulation, as might negate the necessary intent;
and, his heinous murder of [redacted] having transpired, he
faced circumstances which would lead a rational man to
self-destruction.  After shooting [redacted] with murderous
intent, the veteran had ample opportunity to reflect on the
enormity and consequences of his deed.  His methodical
actions, as [redacted] lay dead or dying, including directing his
mother to take the waiting child to a relative's home,
indicate he did in fact reflect on his predicament.  In
these moments the veteran knew he had criminally murdered an
innocent woman, that he had deprived the children of their
mother, that all people would scorn him for his reprehen-
sible actions, that he would imminently face a law
enforcement system which guaranteed him a lengthy prison
sentence or execution for his crime, and that there simply
was no going back from his irreversible deed.  While medical
professionals posit a variety of theories for suicide
following murder, many suggest that the murderer kills
himself out of a sense of guilt or self-punishment for his
crime.  See H. Hendin, Suicide in America 97, 98 (1982).
Such was the situation in the veteran's murder-suicide.

Under the unique circumstances of this case, I find that the
preponderance of the evidence proves that, even assuming
that the veteran had a service-connected psychiatric
disorder, when he shot himself he was of sound mind within
the meaning of the law (he fully realized the consequences
of his act and was not controlled by an irresistible
impulse), and he committed his act of self-destruction as a
rational person having a reasonably adequate motive.  His
death was due to his own willful misconduct.  Thus, service
connection for the cause of the veteran's death by suicide
must be denied.

                             IV.

There can be no question but that the VA has a moral and
legal obligation to provide compensation for or on behalf of
veterans who have been exposed to intense combat or similar
traumatic stressors, and as a consequence developed PTSD or
other mental illness.  The experiences of those worthy
veterans and their hardships are trivialized by the
majority's grant of benefits in this case.  The veteran was
both a fraud and a murderer, deserving of society's utmost
disdain, and in good conscience I cannot join the majority
in cloaking him with Government legitimacy.  I sympathize
for [redacted], the veteran's murder victim, but there is nothing
which can be done for her by any human being.  I likewise
feel compassion for the surviving children, who are also
victims of the veteran, but the claims now made on their
behalf are derivative of the veteran, and for the reasons
stated both claims must be denied.  The clear preponderance
of the evidence is against the claims, and, thus, the
benefit of the doubt doctrine is inapplicable.  See
38 U.S.C.A. � 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49
(1990).

In light of the foregoing, I make the following findings of
fact:

         1.  At the time of his death, the veteran
         had a claim pending for service
         connection for a psychiatric disorder.

         2.  During service, the veteran did not
         experience a stressor which might lead to
         PTSD.

         3.  A chronic psychiatric disorder began
         many years after service, and was not
         caused by any incident of service.

         4.  Even if the veteran were deemed
         to have a service-connected psychiatric
         disorder, his suicide, after murdering
         his ex-wife, was intentionally accomp-
         lished with a sound mind, and with a
         reasonable adequate motive which would
         lead a rational person to self-destruc-
         tion.

I make the following conclusions of law:

         1.  A psychiatric disorder, including
         PTSD, was not incurred in or aggravated
         by service, and there are no related
         accrued benefits payable based on the
         veteran's lifetime claim for service
         connection.  38 U.S.C.A. �� 1110, 5121
         (West 1991); 38 C.F.R. �� 3.303, 3.1000
         (1992).

         2.  A service-connected disability did
         not cause or contribute to the veteran's
         death, and his death by suicide was the
         result of his own willful misconduct.
         38 U.S.C.A. � 1310; 38 C.F.R. �� 3.302,
         3.312.

         L. W. TOBIN

                                       Continued on Next Page

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.

ADDENDUM:

Pursuant to 38 U.S.C.A. � 7103(a) (West 1991), the Chairman
ordered reconsideration in this case.  Upon reconsideration,
the members of an expanded section of the Board did not
agree.

38 U.S.C.A. � 7103(b) (West 1991) provides that the decision
of a majority of the members of the expanded section shall
constitute the final decision of the Board.  The majority of
the members of the expanded section have voted to grant the
relief sought on appeal.  Accordingly, the benefits sought
on appeal are granted.

CHARLES L. CRAGIN
Chairman


series: legacy

judge_norm: CHARLES L CRAGIN

judge_role: CHAIRMAN

disposition: denied

condition: ptsd

text:
93 Decision Citation: BVA 93-07175

 Y93

                 BOARD OF VETERANS' APPEALS
                   WASHINGTON, D.C. 20420

DOCKET NO.  90-22 547       )    DATE
                            )
                            )
                            )

                          THE ISSUE

Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for
post-traumatic stress disorder.

                       REPRESENTATION

Appellant represented by:  Disabled American Veterans

                   ATTORNEY FOR THE BOARD

Richard C. Thrasher, Associate Counsel
                        INTRODUCTION

This matter came before the Board of Veterans' Appeals
(Board) on appeal from rating decisions of September 1989,
January 1990, February 1990, March 1991, and May 1992, from
the St. Petersburg, Florida, regional office (RO).  The
veteran had active service from July 1968 to June 1971.  The
notice of disagreement was received in October 1989.  The
statement of the case was issued in December 1989.  A
supplemental statement of the case was issued in January
1990.  The substantive appeal was received in February
1990.  An additional supplemental statement of the case was
then issued in March 1990.  In December 1990, a decision was
issued by the Board remanding the case to the RO for the
completion of further development.  Following the completion
of that development by the RO, a supplemental statement of
the case was issued in March 1991.  In June 1991, an
additional decision was issued by the Board again remanding
the case to the RO for the completion of further development
and the correction of a procedural defect.  Following the
return of the appeal to the RO, a supplemental statement of
the case was issued in June 1992.  The appeal was then
received and docketed at the Board in September 1992.  The
veteran is represented in this matter by Disabled American
Veterans, to which the claims file was referred in October
1992.  That organization then submitted additional written
argument to the Board in October 1992, and the case is now
ready for appellate review.

In January 1985, a decision was issued by the RO denying
service connection for a condition described as general
anxiety disorder with depression (post-traumatic stress
disorder).  Although notified of that decision in February
1985, a timely notice of disagreement was not received from
the veteran.  Accordingly, that decision became final.  See
Rule of Practice 1103, 38 C.F.R. � 20.1103 (1992).  In
January 1989, a claim was filed by the veteran to reopen his
claim for service connection for post-traumatic stress
disorder.  Accordingly, the issue now presented on appeal is
whether new and material evidence has been submitted since
January 1985 to reopen the veteran's claim for service
connection for post-traumatic stress disorder.  See Rule of
Practice 1105, 38 C.F.R. � 20.1105 (1992).

             CONTENTIONS OF APPELLANT ON APPEAL

The veteran essentially contends that new and material
evidence has been submitted to reopen his claim for service
connection for post-traumatic stress disorder.  The veteran
maintains that, although his military occupational
speciality (MOS) was in supply, and not in a combat related
area, he only spent a short period of time in Vietnam before
being detailed out of supply due to a need for additional
guard personnel in his unit.

                    DECISION OF THE BOARD

In accordance with the provisions of 38 U.S.C.A. � 7104
(West 1991), following review and consideration of all
evidence and material of record in the veteran's claims
file, and for the following reasons and bases, it is the
decision of the Board that the preponderance of the evidence
is against the claim being made for entitlement to service
connection for post-traumatic stress disorder.

                       FINDING OF FACT

Although a diagnosis of post-traumatic stress disorder has
been made, the record does not establish that the reported
stressful events which allegedly caused that psychiatric
disorder actually occurred.

                      CONCLUSION OF LAW

Post-traumatic stress disorder was not incurred in, and did
not develop as a result of, active service.  38 U.S.C.A. ��
1110, 5107 (West 1991); 38 C.F.R. �� 3.102, 3.303 (1992).

        REASONS AND BASES FOR FINDING AND CONCLUSION

Initially, we note that we find the veteran's claim to be
"well-grounded" within the meaning of 38 U.S.C.A. � 5107(a)
(West 1991).  That is, we find that the veteran has
presented a claim which is not implausible.  We are also
satisfied that all relevant facts have been properly
developed.

The evidence of record in this case when the issue of
service connection for post-traumatic stress disorder (PTSD)
was first considered by the RO in January 1985 may be
briefly summarized as follows.  In December 1984, a
Department of Veterans Affairs (VA) psychiatric examination
was conducted, at which time the diagnosis made was
generalized anxiety disorder with depression (post-traumatic
stress disorder).  Also present at that time was a copy of
the veteran's DD Form 214 which revealed that, although
numerous awards and commendations had been received in
service, these awards did not include a Purple Heart Medal,
Combat Infantryman Badge, or any other award which would
indicate combat exposure.

Additional evidence submitted since 1985 includes a number
of private and VA hospitalization and treatment records
showing various psychiatric diagnoses, including personality
disorder, dysthymic disorder with suicidal ideation, PTSD,
and PTSD with depression.  In January 1991, an additional VA
psychiatric examination was conducted, at which time the
diagnosis made was PTSD with generalized anxiety, bouts of
depression and social alienation, flashbacks, and
nightmares.  Besides these medical records, the veteran's
service medical and personnel records were also obtained.
Although no indication of a psychiatric disorder is found in
the service medical records, the veteran's service personnel
records do reveal that he served in Vietnam from May 1969 to
March 1970, during which period of time he was assigned to
Company E, 1st Battalion, 18th Infantry, 1st Infantry
Division.  The veteran's principal duty while in Vietnam was
armorer, and he was noted to have participated in the
following campaigns while in Vietnam (degree of
participation not indicated):  (1)  Vietnam Tet
Counteroffensive (1969); (2)  Vietnam Summer Fall Campaign;
(3) Vietnam Winter Spring Campaign (1970); and (4) the 13th
Campaign.

In May 1989 and August 1989, statements were received from
the veteran in which he reported that, while in Vietnam, his
special duty assignments included supplying and refurbishing
night defense positions, participating in perimeter patrols,
performing various guard duties, and working in graves
registration.  He also indicated that he provided "buddy
care" to wounded soldiers in the field, and that his unit
was subject to mortar and rocket attacks.  With respect to
the claimed graves registration duty, the veteran indicated
that this duty was performed "when assigned" in his field
unit as directed additional duty and included making
inventories of personal effects.  In addition, the veteran
reported that, prior to going to Vietnam, he had also been
assigned to burial details at Fort Ord, California.  In
March 1992 and May 1992, information was received from the
United States Army and Joint Services Environmental Support
Group (Environmental Support Group) indicating that, during
the veteran's period of service in Vietnam, the 1st
Battalion, 18th Infantry had provided ambush teams and
convoy escorts, conducted rice denial operations, and was
involved in other combat operations.  The Environmental
Support Group, however, was unable to document whether the
veteran's unit or organization had been involved in graves
registration duty, or whether he had actively participated
in the duties and events described above.

Based on our review of the additional evidence received
since 1985, we conclude that new and material evidence has
been submitted to reopen the veteran's claim for entitlement
to service connection for PTSD.  See 38 U.S.C.A. � 5108
(West 1991); see also Justus v. Principi, No. 91-1596, slip
op. at 3-4 (U.S. Vet. App. Dec. 2, 1992) (for the purpose of
determining whether new and material evidence has been
submitted to reopen a prior final decision, newly submitted
evidence is presumed to be credible); Colvin v. Derwinski, 1
Vet.App. 171 (1991).  This being the case, the merits of the
veteran's claim must be reviewed in light of all the
evidence of record, both new and old.  Here, based on our
review of all the evidence of record, we conclude that the
preponderance of the evidence is against a grant of service
connection for PTSD.  Although the veteran has received
diagnoses of PTSD, there is no reasonably supported evidence
of stressors in service to support such a diagnosis.

Although the veteran has received a variety of psychiatric
diagnoses in the past, the most recent diagnoses of record
have been PTSD.  Accordingly, the issue presented on appeal
is whether there is reasonably supported evidence of a
stressor or stressors in service to support this diagnosis.
We conclude that there is not.  The veteran currently
contends on appeal that, although his MOS in service was in
supply and not in a combat related area, he only spent a
short period of time in Vietnam before being detailed out of
supply due to a need for additional guard personnel in his
unit.  While information obtained from the Environmental
Support Group does indicate that the veteran's unit was
involved in combat operations, no information was obtained
to indicate that the veteran himself actually participated
in these operations or served as a guard.  Further, the
Environmental Support Group was not able to document whether
the veteran's unit was involved in graves registration
duty.

Based on our review of the record, we find that the lack of
verification of any of the incidents or situations reported
by the veteran substantially detracts from his credibility.
While the record does establish that the veteran's unit in
Vietnam provided ambush teams and convoy escorts, conducted
rice denial operations, and was involved in other combat
operations during his period of service in Vietnam, no
verification has been obtained to support the contention
that the veteran himself actually participated in these
actions.  While there is a citation of record for a Bronze
Star Medal, the citation indicates that it was awarded for
meritorious achievement, not for heroism.  As such, it
carries no implication of combat exposure.  Further, given
the absence of any award or commendation which would clearly
indicate combat exposure, such as a Purple Heart Medal or
Combat Infantryman Badge, and given the veteran's failure to
provide specific, as opposed to general, information
regarding claimed stressors, such as the name of a wounded
"buddy" to whom he provided care in the field, we find it
doubtful that any of the events reported by him ever
actually occurred.  In addition, we note that the veteran's
principal duty while in Vietnam of armorer would not denote
or imply by itself combat exposure.  See The American
Heritage Dictionary 72 (New College ed. l976) (defining
"armorer" in the military sense as follows:  "An enlisted
man in charge of maintenance and repair of the small arms of
his unit.")  Accordingly, because verifiable stressors are
not present to support the diagnosis of PTSD, we conclude
that service connection is not warranted for that
psychiatric disorder.  See 38 U.S.C.A. � 1110 (West 1991);
38 C.F.R. � 3.303 (1992).

In reaching this conclusion, we note that the veteran is not
entitled to the benefit of the doubt, as no reasonably
supportive evidence has been submitted or obtained to
substantiate the occurrence of the stressful events
generally reported by him.  See 38 U.S.C.A. � 5107(b) (West
1991); 38 C.F.R. � 3.102 (1992).  While the veteran did
serve in Vietnam, absolutely no objective evidence has been
submitted to indicate that he actually saw any individual be
killed, or that he encountered or engaged in combat with the
enemy.  See American Psychiatric Association's Diagnostic
and Statistical Manual of Mental Disorders, Diagnostic Code
309.89 (3d ed. rev. 1987) (PTSD involves the reexperiencing
of a traumatic "event that is outside the range of usual
human experience and that would be markedly distressing to
almost anyone").

                            ORDER

Entitlement to service connection for post-traumatic stress
disorder is denied.

                 BOARD OF VETERANS' APPEALS
                   WASHINGTON, D.C. 20420

WARREN W. RICE, JR. (DISSENTING)        ROBERT D. PHILIPP

                      FRANCIS F. TALBOT

                           DISSENT

I respectfully dissent from the decision of my colleagues
that the veteran does not have PTSD.  While it is true that
he received a variety of psychiatric diagnoses in the past,
the most recent diagnoses of record have all been PTSD,
including the VA examination of January l99l, which this
Board specifically ordered in its December l990 remand.  The
stated purpose for ordering that examination was to
determine the nature and extent of any psychiatric disorder
found and specifically to determine whether or not the
veteran had PTSD.  If the Board was not prepared to accept
the diagnosis of PTSD offered by the VA psychiatrist at that
time, one wonders why the examination was ordered by the
Board at all.  The veteran has stated that, although his MOS
in service was in supply and not in a combat related area,
he only spent a short time in Vietnam before being detailed
out of supply due to a need for additional guard personnel
in his unit.

While specific stressors have not been enumerated by the
veteran, information obtained from the Department of the
Army and Joint Services Environmental Support Group
establishes the fact that he and his unit were in fact
involved in combat operations, e.g., ambush teams, convoy
escorts, and conducting rice denial operations.  It is
inconceivable that the veteran's duties, even if primarily
in a support role in a combat unit, never exposed him to
life-threatening situations or other events which would meet
the criteria as stressors for PTSD.

In addition, although the Environmental Support Group was
not able to document whether the veteran's unit was involved
in graves registration duty, the veteran did report that
this duty was performed only when assigned in his field unit
as directed additional, and not regular duty.  As a result,
because there is service department evidence that the
veteran likely engaged in combat, and because a diagnosis
has been officially confirmed of PTSD, I conclude that the
positive and negative evidence in this case is at least in
equipoise and, therefore, resolving the benefit of the doubt
in the veteran's favor that service connection is warranted
for PTSD.  See 38 U.S.C.A. �� 1110  5107(b) (West l99l); 38
C.F.R. �� 3.102, 3.303 (l992); see also Hamilton v.
Derwinski, 2 Vet.App. 671, 674 (l992) (holding that, under
the VA Adjudication Procedure Manual, M21-l, if the evidence
shows that a veteran "engaged in combat with the enemy," the
veteran's description of a claimed stressor must be accepted
unless found to be inconsistent with the circumstances of
his service); 57 Fed. Reg. 34,536-37 (l992) (to be codified
at 38 C.F.R. � 3.304(f)) (proposed rule for direct service
connection for PTSD).

In view of the foregoing, I would substitute the following
decision, finding of fact, and conclusion of law for those
offered by my colleagues:

                    DECISION OF THE BOARD

In accordance with the provisions of 38 U.S.C.A. � 7l04
(West l99l), following review and consideration of all
evidence and material of record in the claims file, it is
the decision of the Board that the evidence is in equipoise
and, such being the case, reasonable doubt is resolved in
favor of the veteran's claim for service connection for
post-traumatic stress disorder.

                       FINDING OF FACT

Having served in a combat unit in Vietnam, it is as likely
as not that the veteran was exposed to stressors in service
which precipitated his currently diagnosed post-traumatic
stress disorder.

                      CONCLUSION OF LAW

Resolving reasonable doubt in favor of the veteran, post-
traumatic stress disorder developed as a result of service
in Vietnam.  38 U.S.C. �� lll0, 5l07 (West l99l); 38 C.F.R.
�� 3.l02, 3.303 (l992)

                     WARREN W. RICE, JR.

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.

                                   Continued on Next Page

                          ADDENDUM

Decisions by a section of the Board shall be made by a
majority of the members of the section.  The decision of the
section is final unless the Chairman orders reconsideration
of the case.  38 U.S.C.A. � 7103(a) (West l99l).  I have
reviewed this decision and note that the majority of the
members of the section have voted to deny the relief sought
on appeal.  I have decided not to order reconsideration.
Accordingly, the decision of the majority to deny the relief
sought on appeal is final.

                      CHARLES L. CRAGIN
                          CHAIRMAN


judge_norm: ROGER K BAUER

judge_role: Acting Chairman

text:
93 Decision Citation: BVA 93-14252

 Y93

                 BOARD OF VETERANS' APPEALS
                   WASHINGTON, D.C. 20420

DOCKET NO.  92-17 040       )    DATE
                            )
                            )
                            )

                          THE ISSUE

Entitlement to an increased (compensable) evaluation for
post-traumatic stress disorder.

                       REPRESENTATION

Appellant represented by:  Disabled American Veterans

                   ATTORNEY FOR THE BOARD

Christine Puffer, Associate Counsel

                        INTRODUCTION

This matter is currently before the Board of Veterans'
Appeals (Board) on appeal from rating decisions of the
Department of Veterans Affairs (VA) Regional Office in
Jackson, Mississippi (RO).  The veteran has been recognized
as having honorable service from January l95l to January
l954.  A period of service which ended in August l954 was
terminated by a bad conduct discharge.

A November 1991 rating decision granted service connection
for post-traumatic stress disorder (PTSD) and assigned a
non-compensable rating.  A notice of disagreement was
received in April 1992, and a statement of the case was
issued in May 1992.  A substantive appeal was received in
June 1992.  A July 1992 rating decision confirmed the denial
of a compensable rating.  The claims file was received and
docketed at the Board in September 1992.  The case was then
referred to the veteran's accredited representative,
Disabled American Veterans, which presented written argument
to the Board in January 1993.  The case is now ready for
appellate review.

             CONTENTIONS OF APPELLANT ON APPEAL

The veteran essentially contends that the RO committed error
in failing to assign a compensable rating for post-traumatic
stress disorder.  It is alleged that the veteran experiences
hallucinations and nightmares, takes medications for his
psychiatric disorder, has an increase in symptomatology, and
would be more appropriately evaluated at a 30 percent rating.

                    DECISION OF THE BOARD

In accordance with the provisions of 38 U.S.C.A. � 7104
(1991), following review and consideration of all evidence
and material of record in the veteran's claims file, and for
the following reasons and bases, it is the decision of the
Board that the preponderance of the evidence supports the
veteran's claim for a compensable rating for PTSD.

                      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's PTSD is manifested by some nervousness and
mild anxiety, nightmares, insomnia, and flashbacks, which is
productive of no greater than mild social and industrial
impairment.

                      CONCLUSION OF LAW

The schedular criteria for a 10 percent evaluation for PTSD
have been met.  38 U.S.C.A. �� 1155, 5107 (West 1991);
38 C.F.R. Part 4, Diagnostic Code 9411 (1992).

        REASONS AND BASES FOR FINDINGS AND CONCLUSION

As a preliminary matter, we find that the veteran's claim is
well-grounded within the meaning of 38 U.S.C.A. � 5107(a)
(West 1991).  Murphy v. Derwinski, 1 Vet.App. 78 (1990);
Gilbert v. Derwinski, 1 Vet.App. 49 (1990).  That is, we
find that he has presented a claim which is not implausible
when his contentions and the evidence of record are viewed
in the light most favorable to those claims.  We are also
satisfied that all relevant facts have been properly and
sufficiently developed.

A preliminary review of the claims file reveals that the
veteran was granted a non-compensable rating for PTSD by a
rating action of November 1991.  This was based upon a
review of Jackson, Mississippi, VA Medical Center (VAMC)
outpatient records; Pine Belt Mental Health and Retardation
Services records; and a 1991 VA examination report.

A VA examination performed at the Jackson, Mississippi RO in
October 1986 included orthopedic, neurological, and
psychiatric evaluations.  The veteran indicated he last
worked 4 to 5 years previously (about 1981), but lost his
oil field job due to the removal of a kneecap.  (He had also
experienced extensive permanent heel damage due to an
accidental electrocution in the 1970's.)  The examiner
determined he had no psychiatric impairment preventing
gainful employment, noting the veteran's ongoing abuse of
alcohol, and diagnosed him with alcohol abuse, chronic.  He
also found a "possibility" of an antisocial personality
disorder.  The neurological examiner found the veteran's
stated history of blackouts to be "quite vague and
unreliable".  No organic cause was found and a diagnosis of
blackouts, etiology uncertain, but most likely related to
alcohol abuse, was made.

The veteran was initially assigned a provisional diagnosis
of PTSD during a three-day VAMC admission in December 1987,
based on the veteran's report of severe nightmares, a
history of nervousness, and syncopal episodes of unknown
etiology.  A provisional diagnosis of PTSD was assigned with
a recommendation of an evaluation "per Psychology" if a
definite diagnosis of PTSD was required for service
connected benefits.  There is no record of any such
evaluation having been performed.

The veteran was admitted to the VAMC on August 16, 1988,
requesting a detoxification, stating he had been told it was
necessary to help with the PTSD evaluation, though there was
no corroboration of such a request being made.  A mental
status examination noted him to be somewhat hostile, but in
no apparent distress, alert and oriented in all four
spheres, with appropriate affect and no auditory or visual
hallucinations or paranoid delusions.  History of PTSD was
noted as an Axis I diagnosis.

A VA psychology services consultation performed in October
1988 in response to his admission noted a previous
evaluation in March 1988 for the trauma recovery program
which concluded that the veteran was "found not to meet the
diagnostic criteria for PTSD."  In comparing the March
evaluation with the then-present findings, numerous
inconsistencies were found; it is of note that many PTSD
diagnostic criteria which were denied as present in March,
were reported in October as having been present for quite a
long time.  In summary, the examiner stated that if the
veteran's symptoms as reported were accurate, he was
presenting symptoms which "minimally meet the diagnostic
criteria of PTSD.  However, it should be noted that the
examiner stated his report "[is] apparently highly
discrepant with previous symptoms reported which did not
warrant a diagnosis of PTSD."

The final record from the VAMC is a psychiatric examination
of October 1991.  No flight of ideas, loosening of
associations, hallucinations or identifiable delusions were
found.  He was oriented in all four spheres, with limited
insight.  His current problems were then described as "I'm
okay unless I take too much medicine and then I have
hallucinations."  An initial diagnosis of alcohol abuse and
dependence, anxiety disorder not otherwise specified, was
accorded pending psychological testing results.  The latter
diagnosis was revised subsequent to receipt of the results
of such testing, with a note that the veteran "minimally met
criteria for a diagnosis of PTSD."  We note numerous
references to the veteran's alcohol abuse and its negative
interactions with his medications found throughout the VA
records.

As stated, the veteran had been referred to Pine Belt Mental
Health and Retardation Services from the Jackson VAMC.   He
reported on an intake form of June 1990 his problems with
nightmares and flashbacks about the war, waking up sweating
with his heart racing.  Axis I diagnoses of generalized
anxiety disorder, "rule-out" PTSD, and a provisional
diagnosis of alcohol abuse were accorded, along with an Axis
II diagnosis of antisocial personality disorder.  A July
1990 progress note recorded that the veteran had a "positive
relationship with his live-in girl friend," and that sleep
disturbances and anxiety symptoms were a "chronic
situation."  Ongoing monthly visit records found reports of
nightmares, insomnia (with him reporting better sleeping in
February and March 1991), blackouts, and anger at the VA.
In April 1991, he reported "doing better," and in May, when
his landlord took his medications away, he was experiencing
insomnia, but stated he was functioning better.  In June
1991, he was found to be "meeting his goals," was off all
medications (apparently pending a medication change), though
his thought process was deemed irrational.  The last record
of July 1991 noted the veteran was not drinking and had
started a new treatment.

For an increased evaluation to 30 percent for PTSD, as
requested by the appellant, he would have to demonstrate
definite impairment in the ability to establish or maintain
effective and wholesome relationships with people.
Psychoneurotic symptoms would have to result in such
reduction in initiative, flexibility, efficiency, and
reliability levels as to produce definite or moderate
industrial impairment.  In order to be accorded a 10 percent
rating, the veteran needs to demonstrate less than the above
criteria, with emotional tension or other evidence of
anxiety productive of mild social and industrial
impairment.  38 C.F.R. Part 4, Diagnostic Code 9411 (1992).
We find there has been no showing of definite social and
industrial impairment and that, based on resolution of the
benefit of the doubt doctrine, the veteran has demonstrated
mild impairment.

With regards to the veteran's impairment in maintaining
relationships, we note that the veteran stated in July 1990
that he had a positive relationship with his live-in girl
friend.  It appears by this statement that the veteran is
able to establish and maintain relationships with others.

Significantly, both Jackson VAMC and Pine Belt records show
that, while the veteran experiences ongoing insomnia,
nightmares, flashbacks, and "blackouts," he has consistently
presented himself as fully oriented, with appropriate affect
and behavior, sufficient judgment, with no evidence of
hallucinations or delusions, and in October 1991 indicated
that he was okay unless he took too much medication.  We
note that there had been no definitive determination of the
cause of his "blackouts", but they appear likely related to
his alcohol abuse.  There has been no evidence of industrial
impairment due to any psychiatric disorder; he was forced to
stop working only secondary to injuries incurred as a result
of an accidental electrocution in 1971 and, ultimately, due
to the loss of his kneecap in the early 1980's.  An October
1986 psychiatric evaluation found him to have no psychiatric
impairment preventing gainful employment and he was
diagnosed with chronic alcohol abuse.  A psychiatric
evaluation performed in October 1988 in response to an
admission noted an evaluation five months prior which found
he failed to meet the criteria for a diagnosis of PTSD.  On
reevaluation, he was determined to minimally meet the
criteria, but noted his report of symptoms to be "highly
discrepant" with the prior symptom reports with which he
failed to meet the criteria.  Again, in February 1990, he
was evaluated and found to not meet the requirements for a
PTSD diagnosis.  Subsequent to the October 1990 VA
examination finding that he minimally met the requisite
criteria for PTSD, the veteran continued to be treated at
both the Jackson VAMC and Pine Belt Mental Health and
Retardation Services.  Both agencies noted in May 1991 that
he was doing better.

Where there is a question as to which of two evaluations
should be applied, the higher evaluation is assigned only if
the disability picture more nearly approximates the criteria
required for that rating.  38 C.F.R. � 4.7 (l992).  The
current findings do not reflect definite or moderate social
and industrial impairment, and, thus, a 30 percent
evaluation is clearly not warranted.  As the veteran's
disabilities are currently manifested by some anxiety
symptomatology with some evidence of mild social and
industrial impairment, we find that the veteran is entitled
to a 10 percent evaluation.

                            ORDER

Entitlement to a 10 percent evaluation for PTSD is granted.

                 BOARD OF VETERANS' APPEALS
                   WASHINGTON, D.C. 20420

   WARREN W. RICE, JR.                ROBERT D. PHILIPP

               FRANCIS F. TALBOT (Dissenting)

                           DISSENT

My associates have voted to assign a l0 percent rating for
the veteran's PTSD using 38 C.F.R. � 4.7 (l992).  In my
view, even with the use of this provision, a compensable
rating is not warranted.  The basis for the grant of service
connection in this case is that the veteran minimally met
the criteria for a diagnosis of PTSD.  There was a
substantial question in the examiners mind about the
veteran's credibility.  It is also interesting to note that
the record does not show a firm diagnosis of PTSD from
either a VA or private source.  The record conclusively
demonstrates that minimally, if any, of the veteran's
credible psychiatric symptoms are attributable to his PTSD.
The applicable regulation forbids us from considering
symptoms caused by disorders which have not been service
connected when assigning a rating for a service-connected
disorder.  38 C.F.R. � 4.l4 (l992).

Considering that 38 C.F.R. 4.l4 (l992) requires that we may
only consider the symptoms of the service-connected
disability when assigning a rating for a service-connected
disability; that the veteran barely meets the criteria for
diagnosing of PTSD; and the veteran's credibility, I would
keep his rating at a non-compensable level.

In view of the above, I would find the following findings of
fact and conclusion of law:

                      FINDINGS OF FACT

l.  All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
RO.

2.  The veteran's PTSD is barely manifested and results in
absolutely no more than minimal, if any, social and
industrial impairment.

                      CONCLUSION OF LAW

The schedular criteria for a compensable rating for PTSD
have not been met.  38 U.S.C.A. �� 1155, 5107 (West 1991);
38 C.F.R. Part 4, Diagnostic Code 9411 (1992).

                      FRANCIS F. TALBOT

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.

ADDENDUM:

Decisions made by a section of the Board shall be made by a
majority of the members of the section.  The decision of the
section is final unless the Chairman orders reconsideration
of the case.  38 U.S.C.A. � 7103(a) (West 1991).  I have
reviewed this decision and note that the majority of the
members of the section have voted to grant the benefit
sought on appeal.  I have decided not to order
reconsideration.  Accordingly, the decision of the majority
to grant the relief sought on appeal is final.

ROGER K. BAUER
Acting Chairman