condition: eye

text: The appellant is recognized as the "deemed valid" surviving spouse of the veteran, and the benefit sought on appeal is granted, subject to the effective date provisions of 38 C.F.R. § 3.114.

text:
92 Decision Citation: BVA 92-29397

 Y92
                          BOARD OF VETERANS' APPEALS
                       WASHINGTON, D.C. 20420

    DOCKET NO.  92-56 700       )    DATE
                                )
                                )
                                )

                              THE ISSUE

    Whether new and material evidence has been submitted to
    reopen a claim for recognition of the appellant as the
    surviving or "deemed valid" spouse of the veteran for the
    purpose of determining entitlement to Department of Veterans
    Affairs (VA) benefits.

                       ATTORNEY FOR THE BOARD

    Richard C. Thrasher, Associate Counsel

                            INTRODUCTION

    The veteran had active service from January 1945 to
    September 1945.  The veteran died in [redacted] 1977.

    This matter came before the Board of Veterans' Appeals
    (Board) on appeal from decisions of January 1991 and April
    1991 from the Houston, Texas, regional office (RO).  The
    notice of disagreement was received in May 1991.  The
    statement of the case was issued in November 1991.  The
    substantive appeal was received in December 1991.  The
    appeal was then received and docketed at the Board in
    February 1992.  The appellant, who is claiming to be the
    surviving, common-law spouse of the veteran, acts on her own
    behalf in this matter, and the case is now ready for
    appellate review.

                 CONTENTIONS OF APPELLANT ON APPEAL

    The appellant essentially contends that she should be
    recognized as the surviving, common-law spouse of the
    veteran because they lived together continuously from 1957
    until the time of his death, and because they had seven
    children together during that period of time.

                        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 submitted on behalf of the appellant, and for the
    following reasons and bases, it is the decision of the Board
    that the appellant is entitled to recognition as the "deemed
    valid" surviving spouse of the veteran.

                          FINDINGS OF FACT

    1.  A common-law marriage did not exist between the
    appellant and veteran, as such marriages are not recognized
    in Mexico.

    2.  Without knowledge of the legal impediment prohibiting
    common-law marriage in Mexico, the appellant entered into a
    purported common-law marriage with the veteran and
    thereafter cohabited with him continuously from 1957 until
    the time of his death, and during that period of time she
    and the veteran had seven children together.

                          CONCLUSION OF LAW

    The appellant is entitled to recognition as the "deemed
    valid" surviving spouse of the veteran.  38 U.S.C.A.
    �� 103(a), 5107, 5108 (West 1991); 38 C.F.R. �� 3.52, 3.102
    (1991).

            REASONS AND BASES FOR FINDINGS AND CONCLUSION

    The Board is aware of the United States Court of Veterans
    Appeals (Court) decision in Aguilar v. Derwinski, 2 Vet.App.
    21 (l991), but does not consider it to be controlling here.
    The appellant in this case is a claimant as the
    uncontroverted evidence of record establishes that she had a
    long term marital relationship with the veteran which she
    believed qualified as a legal marriage.  There are specific
    regulations dealing with the recognition of such a person as
    the spouse of a veteran despite a "de jure" legal
    impediment.  Since the appellant has submitted adequate
    information to place her claim squarely within the scope of
    38 C.F.R. � 3.52 (l99l), she may be recognized as a
    claimant.  Therefore, given this preliminary finding, we
    proceed to find the appellant'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 appellant has presented a claim
    which is not implausible when her contentions and the
    evidence of record are viewed in the light most favorable to
    her.  We are also satisfied that all development necessary
    to enable a favorable determination to be made has been
    completed.

    We also note, at the outset, that a claim for recognition as
    the surviving spouse of the veteran by the appellant was
    first denied by the Waco, Texas, regional office in an
    administrative decision issued in November 1978.  Although
    notified of that decision in December 1978, a timely notice
    of disagreement was never received from the appellant.
    Accordingly, that decision became final.  See Board of
    Veterans' Appeals:  Rules of Practice, 57 Fed. Reg. 4126
    (1992) (to be codified at 38 C.F.R. � 20.1103).

    The evidence of record in this case when first considered by
    the regional office in Waco in November 1978 may be briefly
    summarized as follows.  In September 1977, an application
    for VA benefits was received from the veteran, at which time
    he reported having had a common-law marriage with the
    appellant since 1957.  Following the veteran's death in
    [redacted] 1977, a claim for VA benefits was filed by the
    appellant as the surviving, common-law spouse of the
    veteran, at which time she also indicated that they had
    resided together continuously since 1957 in Mexico, that
    together they had had seven children, and that neither one
    of them had ever lived with another individual as husband
    and wife.  Supporting statements were also received from two
    individuals indicating, among other things, that the veteran
    and appellant were generally considered to be, and known as,
    husband and wife.

    Additional evidence submitted since 1978 includes birth
    certificates for the seven children, each of which lists the
    appellant and veteran as the parents of the child and which
    declares each child to be a legitimate child, i.e., the
    issue of a legal marriage, the appellant being noted as the
    informant on each certificate.  Also of record is a decision
    issued in March 1991 by the Family Court of Justice of
    Bravos Judicial District in Ciudad Juarez, Chihuahua,
    Mexico, in which the appellant was found to be entitled, or
    at least eligible, to inherit from the veteran's estate;
    copies of Mexican inheritance laws; and copies of two
    statements previously considered and of record.  In this
    case, based on our review of the additional evidence
    submitted since 1978, we conclude that new and material
    evidence has been submitted which is adequate to reopen the
    prior final determination made that the appellant does not
    qualify as the spouse of the veteran.

    While Mexico does not recognize the concept of common-law
    marriage, and therefore, the appellant's apparent belief
    that she was validly married to the veteran is incorrect,
    under 38 U.S.C.A. � 103(a), an invalid "marriage" may still
    be deemed to be valid for VA benefits purposes under certain
    circumstances:

             Whenever, in the consideration of any
             claim filed by a person as the widow or
             widower of a veteran for gratuitous death
             benefits under laws administered by the
             Secretary, it is established by evidence
             satisfactory to the Secretary that such
             person, without knowledge of any legal
             impediment, entered into a marriage with
             such veteran which, but for a legal
             impediment, would have been valid, and
             thereafter cohabited with the veteran for
             one year or more immediately before the
             veteran's death, or for any period of
             time if a child was born of the purported
             marriage or was born to them before such
             marriage, the purported marriage shall be
             deemed to be a valid marriage, but only
             if no claim has been filed by a legal
             widow or widower of such veteran who is
             found to be entitled to such benefits.
             No duplicate payments shall be made by
             virtue of this subsection.

    (Emphasis added); see also 38 C.F.R. � 3.52 (1991).  In June
    1991, following the submission of the reopened claim by the
    appellant in September 1990, a precedent opinion was issued
    by the General Counsel of the VA, in a case with a nearly
    identical fact situation, holding that "[t]he requirement of
    a marriage ceremony by a jurisdiction which does not
    recognize common-law marriage constitutes a 'legal
    impediment' to such a marriage for purposes of ... section
    [103(a)]."  Meaning of "Legal Impediment" for Purposes of
    Deemed-Valid Marriage Under 38 U.S.C. � 103(a)--Common-Law
    Marriage, 56 Fed.Reg. 50151 (1991), VA O.G.C. Prec. No.
    58-91 (June 17, 1991).

    In this case, the purported "marriage" between the veteran
    and appellant occurred several years before his death, seven
    children were born of the relationship and declared to be
    legitimate children, the veteran and appellant cohabitated
    continuously from the date the relationship began until the
    date of death, and no other claims have been filed by a
    legal surviving spouse.  With respect to the question of
    whether the appellant entered into the "marriage" without
    knowledge of the legal impediment in Mexico prohibiting
    common-law marriages, we note that she has never
    specifically indicated whether she was or was not aware that
    common-law marriages are not recognized in that
    jurisdiction.  However, given the evidence of record
    indicating that the veteran and appellant continuously lived
    together from 1957 until the time of his death, had seven
    children together, and were considered by both themselves
    and other individuals to be married, we find that there is
    no evidence to indicate she was in any way aware of the
    legal impediment which existed to their "marriage."
    Accordingly, given the General Counsel precedent opinion of
    June 1991, and given the submission of new and material
    evidence, we conclude, giving the appellant the benefit of
    the doubt, that she is entitled to recognition as the
    "deemed valid" surviving spouse of the veteran, subject to
    the effective date provisions of 38 C.F.R. � 3.114 (1991).
    See White v. Derwinski, 1 Vet.App. 519, 521 (1991) ("Where
    the law or regulation changes after a claim has been filed
    or reopened but before the administrative or judicial appeal
    process has been concluded, the version most favorable to
    appellant generally applies."); Board of Veterans' Appeals:
    Appeals Regulations, 57 Fed. Reg. 4105 (1992) (to be
    codified at 38 C.F.R. � 19.5) ("In the consideration of
    appeals, the Board is bound by applicable statutes,
    regulations of the Department of Veterans Affairs, and
    precedent opinions of the General Counsel of the Department
    of Veterans Affairs."); see also 38 U.S.C.A. � 5107(b); 38
    C.F.R. � 3.102 (1991).

                                ORDER

    The appellant is recognized as the "deemed valid" surviving
    spouse of the veteran, and the benefit sought on appeal is
    granted, subject to the effective date provisions of
    38 C.F.R. � 3.114.

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

        WARREN W. RICE, JR.               ROBERT D. PHILIPP

                    FRANCIS F. TALBOT (DISSENTING)

                                      (CONTINUED ON NEXT PAGE)
                               DISSENT

    In this case I find that I must disagree with my
    colleagues.  This appellant is not a claimant and therefore
    she is not afforded the protection of Title 38.  That is,
    she must establish by the weight of the evidence that she is
    either the widow of the veteran or that she qualifies as the
    deemed valid widow under the regulations.  The reasonable
    doubt provisions do not apply in this case and there is no
    duty to assist.  Aguilar, 2 Vet.App. at 23.

    It is undisputed that there was no formal marriage between
    the appellant and the veteran and it is equally clear that
    in Mexico, where they resided during their relationship,
    common-law marriages are not recognized as valid.
    Therefore, for the appellant to prevail it must be
    established that when she entered into the relationship with
    the veteran she believed that Mexico, or rather the state in
    Mexico in which she resided, recognized as legally valid,
    common-law marriages and that she was entering into such a
    relationship with the veteran.  38 C.F.R. � 3.52(b) (l99l).
    My search of the record does not lead me to conclude that
    she believed that Mexico recognized common-law marriages and
    that she had entered into one.  In fact, I can find not one
    piece of evidence which directly supports the proposition
    that she believed that Mexico recognized a common-law
    relationship as legally binding marriage.  I wish to point
    out that there is no dispute that the veteran and the
    appellant had a long and very close relationship which
    produced a number of children.  However, it does not follow
    from this relationship that the appellant believed that
    Mexico recognized common-law marriages and that she and the
    veteran entered into one.  They may well have believed that
    they had a common-law relationship but this does not amount
    to a marriage.  In view of the reasons noted above I vote to
    deny this appeal as the appellant has not submitted a well-
    grounded claim.

                        DECISION OF THE BOARD

    In accordance with the provisions of 38 U.S.C.A. � 7l04
    (West l99l), following review and consideration of all the
    evidence and material in the veteran's claims file and
    submitted on behalf of the appellant, and for the following
    reasons and bases, it is the decision of this member that
    the appellant has not met her initial burden of submitting
    evidence sufficient to justify a belief by a fair and
    impartial individual that the claim is well grounded.

                          FINDINGS OF FACT

    l.  The veteran and the appellant did not enter into a
    ceremonial marriage and they did not reside in a
    jurisdiction that recognized common-law marriages.

    2.  The preponderance of the evidence fails to establish
    that the appellant believed that the jurisdiction in which
    she resided recognized common-law marriages as legally valid
    and that she had entered into such a legally valid marriage
    with the veteran.

                          CONCLUSION OF LAW

    The appellant has not submitted evidence of a well-grounded
    claim.  38 U.S.C.A. �� l03(a), 5107, 5108 (West l99l); 38
    C.F.R. � 3.52 (l99l).

            REASONS AND BASES FOR FINDINGS AND CONCLUSION

                                ORDER

    Entitlement to recognition as the veteran's surviving spouse
    has not been established.  The appeal is denied.

                          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 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 relief 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.

    CHARLES L. CRAGIN
    Chairman


series: legacy

judge_norm: CHARLES L CRAGIN

judge_role: Chairman

disposition: denied

condition: ptsd

text:
92 Decision Citation: BVA 92-17535

 Y92
                          BOARD OF VETERANS' APPEALS
                       WASHINGTON, D.C. 20420

    DOCKET NO.  91-18 708       )    DATE
                                )
                                )
                                )

                              THE ISSUE

    Whether new and material evidence has been presented to
    reopen a claim for an effective date earlier than June 20,
    1985, for a grant of service connection for post-traumatic
    stress disorder.

                           REPRESENTATION

    Appellant represented by:  Disabled American Veterans

                    WITNESS AT HEARING ON APPEAL

    The veteran

                       ATTORNEY FOR THE BOARD

    Michael Martin, Associate Counsel

                            INTRODUCTION

    This matter came before the Board of Veterans' Appeals
    (Board) on appeal from a decision of October 1990 by the
    Department of Veterans Affairs (VA) Cleveland, Ohio,
    regional office (RO).  The veteran had active service from
    October 1967 to August 1970.  His notice of disagreement was
    received by the RO in November 1990.  The RO issued the
    statement of the case in January 1991.  The veteran's
    substantive appeal was received by the RO later that month.
    A hearing was held before an RO hearing officer in February
    1991.  The hearing officer confirmed the denial in a
    decision of March 1991.  The appeal was received and
    docketed by the Board in April 1991.  The veteran has been
    represented throughout his appeal by Disabled American
    Veterans.  That organization presented written argument in
    December 1991.  The case is now ready for appellate review.

                 CONTENTIONS OF APPELLANT ON APPEAL

    The veteran contends that the RO made a mistake by denying
    an effective date earlier than June 20, 1985, for a grant of
    service connection for post-traumatic stress disorder.  He
    argues that the effective date should be the date following
    his separation from service (August 18, 1970).  He points to
    the extensive medical evidence of record which shows that he
    has PTSD which relates to his military service and believes
    the disorder should be recognized as service connected since
    separation.

                        DECISION OF THE BOARD

    For the reasons and bases hereinafter set forth, it is the
    decision of the Board that the veteran has not presented new
    and material evidence to reopen a claim for an effective
    date earlier than June 20, 1985, for a grant of service
    connection for post-traumatic stress disorder.

                          FINDINGS OF FACT

    1.  The Board denied a claim for an effective date earlier
    than June 20, 1985, for a grant of service connection for
    post-traumatic stress disorder in a decision of September
    1987.

    2.  The evidence presented since September 1987 is
    cumulative and redundant with regard to the issue currently
    on appeal.

                         CONCLUSIONS OF LAW

    1.  The evidence presented since the September 1987 decision
    by the Board is not new and material.  38 U.S.C. �� 5108,
    7104  (1992); 38 C.F.R. �� 3.156, 3.400  (1990).

    2.  The September 1987 decision by the Board is final.  38
    U.S.C. �� 5108, 7104  (1992); 38 C.F.R. �� 3.156, 3.400
    (1990).

           REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

    Under 38 C.F.R. � 3.400, the effective date of an award of
    compensation will be the date of receipt of the claim, or
    the date entitlement arose, whichever is later.  The
    veteran's claim for an earlier effective date for a grant of
    service connection for post-traumatic stress disorder was
    previously denied by the Board in a decision of September
    1987.  In its decision, the Board made the following
    findings of fact:

             1.  An acquired psychiatric disorder was
             not present during service.

             2.  An acquired psychiatric disorder was
             first manifest several years after
             discharge from service.

             3.  The veteran filed a claim for
             service connection for a nervous
             disorder in 1973.  A rating action
             denied this claim, but the denial was
             not finalized.

             4.  The veteran filed a specific claim
             for service connection for
             post-traumatic stress disorder June 20,
             1985.

             5.  A post-traumatic stress disorder was
             first clinically established on Veterans
             Administration examination in September
             1985.

    The Board then concluded that an effective date earlier than
    June 20, 1985, for an award of compensation based on service
    connection for post-traumatic stress disorder was not
    warranted.

    When a claim is disallowed by the Board, the claim may not
    thereafter be reopened and allowed, and no claim based on
    the same factual basis may be heard.  38 U.S.C. � 7104.
    However, under 38 U.S.C. � 5108, a veteran may reopen a
    claim by presenting new and material evidence.  "New and
    material evidence" means evidence not previously submitted
    to the agency decisionmakers which bears directly and
    substantially upon the specific matter under consideration,
    which is neither cumulative nor redundant, and which by
    itself or in connection with the evidence previously
    assembled is so significant that it must be considered in
    order to fairly decide the merits of the claim.  38 C.F.R. �
    3.156.

    Subsequent to the September 1987 decision by the Board,
    several additional items of evidence were presented or
    secured.  However, the additional evidence essentially
    duplicates previously considered evidence.  For example, in
    a hearing held in February 1991, the veteran testified in
    support of his claim.  However, the testimony essentially
    duplicated testimony which the veteran previously presented
    in a July 1987 hearing.  Thus, the testimony presented in
    February 1991 was not new and material evidence.  Similarly,
    the additional evidence presented since September 1987
    includes reports of disability compensation examinations
    conducted in November 1987 and January 1990.  However, the
    reports contain essentially no information which was not
    already contained in a report of a VA examination which was
    conducted in September 1985 which established, for the first
    time, that the veteran had post-traumatic stress disorder.

    Similarly, a written statement from a physician at a VA
    medical center dated in August 1988 which shows that the
    veteran had a history of having symptoms of post-traumatic
    stress disorder for at least 15 years and a written
    statement from a VA staff psychiatrist which was received in
    September 1990 which shows that the veteran has severe
    post-traumatic stress disorder, the onset of which relates
    back to combat trauma in 1969 in Vietnam, is also
    duplicative of previously considered evidence.  In this
    regard, we note that it is not in dispute that the veteran's
    post-traumatic stress disorder relates back to stressors
    which he experienced during service.  That point was
    recognized when the VA granted his claim for service
    connection for post-traumatic stress disorder.  For the
    purpose of establishing the effective date, however, the key
    event is when a post-traumatic stress disorder was first
    clinically recognized.  As was noted above, this did not
    occur until the VA examination of September 1985.  The
    additional evidence which has been presented does not show
    that post-traumatic stress disorder was clinically
    established prior to that examination.  For these reasons,
    we conclude that the additional evidence presented since the
    September 1987 decision by the Board is not new and
    material.  Accordingly, the September 1987 decision by the
    Board which denied an effective date earlier than June 20,
    1985, for a grant of service connection for post-traumatic
    stress disorder, is final.

                                ORDER

    New and material evidence not having been presented to
    reopen a claim for an effective date earlier than June 20,
    1985, for a grant of service connection for post-traumatic
    stress disorder, the benefits sought on appeal are denied.

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

        WARREN W. RICE, JR.               ROBERT D. PHILIPP

                   FRANCIS F. TALBOT (DISSENTING)

                               DISSENT

    I find that I must dissent from the conclusions reached by
    my fellow members.  It appears to me that new and material
    evidence has been submitted; therefore, the claim for an
    earlier effective date for the granting of service
    connection for post-traumatic stress disorder has been
    reopened.

    To start the analysis it is necessary to look at the l987
    Board decision and see what it actually held.  It is clear
    that the Board found that the l974 rating decision was not
    final but declined to assign an effective date for the grant
    of service connection before June of l985 (the date selected
    by the RO, apparently on the basis of the date of claim).  A
    reading of the l987 Board decision also demonstrates the
    underlying rationale for their holding was on the basis of
    facts found, in other words the evidence did not demonstrate
    the presence of post-traumatic stress disorder before the
    date of award assigned by the RO.  The statements of
    Dr. Thangavelu, dated in September l990, and Dr. Jackson,
    dated in August l988, go to the question of when the
    post-traumatic stress disorder was first manifested.  These
    statements are new and material as they make an allowance
    reasonably possible when considered in conjunction with all
    the evidence.

    After holding that the claim is now reopened, I would remand
    to have the case reviewed by a board of psychiatrists for an
    expression of an opinion as to when the record demonstrates
    that a post-traumatic stress disorder was shown in the
    record.

    I would also emphasize that the issue presented for our
    consideration is the effective date of the grant of service
    connection, not the effective date of the assignment of a
    compensable rating.

                          FRANCIS F. TALBOT

    NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C. � 7266 (1992),
    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 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. � 7103(a) (1991) (formerly 38 U.S.C.
    � 4003(a).  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


text:
92 Decision Citation: BVA 92-02650
 Y92
                          BOARD OF VETERANS' APPEALS
                       WASHINGTON, D.C. 20420

    DOCKET NO.  90-47 047       )    DATE
                                )
                                )
                                )

                              THE ISSUE

    Whether the character of the appellant's discharge from
    service precludes entitlement to Department of Veterans
    Affairs (VA) benefits.

                           REPRESENTATION

    Appellant represented by:  Lisa M. Day, Attorney

                       ATTORNEY FOR THE BOARD

    T. D. Harrigan, Counsel
                            INTRODUCTION

    This case came before the Board on appeal from a June 1990
    administrative decision of the Philadelphia, Pennsylvania,
    Regional Office (RO).  The appellant served during the
    Vietnam Era.  A hearing was held at the RO in May 1990.  The
    notice of disagreement was received in July 1990.  A
    statement of the case was issued in August 1990.  The
    substantive appeal was received in October 1990.  The appeal
    was originally received at the Board in October 1990.  The
    case was remanded by the Board in December 1990.  A
    supplemental statement of the case was issued in February
    1991.  The appeal was again received at the Board in
    September 1991.  The veteran is represented by Lisa M. Day,
    Attorney, who has submitted written argument in connection
    with the case.  The case is now ready for appellate review.

                 CONTENTIONS OF APPELLANT ON APPEAL

    The appellant asserts that the RO committed error in failing
    to find that there were compelling circumstances warranting
    the period of absence without leave which resulted in his
    discharge under other than honorable conditions.

                        DECISION OF THE BOARD

    For the reasons and bases hereinafter set forth, it is the
    decision of the Board that the character of the appellant's
    discharge from service is such as to preclude entitlement to
    VA benefits.

                          FINDINGS OF FACT

    1.  The appellant had active service from January 1971 to
    December 1972 and was discharged under other than honorable
    conditions because of a period of absence without leave of
    more than 390 days.

    2.  The evidence does not establish there were compelling
    circumstances to warrant his prolonged period of absence
    without leave.

                          CONCLUSION OF LAW

    VA benefits are not payable based upon the appellant's
    period of service from January 1971 to December 1972.
    38 U.S.C. �� 101(2), 5303 (1989) (formerly � 3103(a),
    recodified in 1991); 38 C.F.R. � 3.12.

            REASONS AND BASES FOR FINDINGS AND CONCLUSION

    The evidence submitted by the veteran in an attempt to
    reopen his claim is "new and material."  Accordingly, the
    claim is reopened and we will review all of the evidence to
    determine whether there is a new factual basis for granting
    the benefit sought.

    The appellant's discharge from service was terminated by a
    discharge under conditions other than honorable issued as
    the result of an absence without leave (AWOL) for a period
    of more than 390 days.  The record shows that the veteran
    completed basic training and advanced individual training
    and received excellent ratings in both conduct and
    efficiency during the approximately six months that it took
    to complete that training.  The appellant was then sent to
    Korea, and after only 1 or 2 days in Korea he was returned
    to his home on compassionate leave following a serious
    injury to his brother.  The veteran has stated that his
    mother was chronically ill and was unable to perform many
    household duties.  There were four younger children living
    at home, aged 15, 14, 12 and nine.  The appellant reported
    back to Fort Dix following the expiration of his leave and
    for approximately one month, traveled between Fort Dix and
    his mother's home so that he could help out on weekends.  He
    has reported that he eventually went back to his old job at
    a service station.  He had no regular assigned duties at
    Fort Dix and eventually stopped going back to report in.

    We note that the appellant's service was of relatively short
    duration.  38 C.F.R. � 3.12(c)(6)(i) provides that service
    exclusive of the period of prolonged AWOL should be of such
    quality and length that it can be characterized as honest,
    faithful and meritorious and of benefit to the Nation.  The
    appellant completed training with good ratings, but never
    performed the job for which he was trained because of his
    unauthorized absence.  While he may have performed well
    during training, successful completion of training can be of
    only minimal benefit to the Nation.  When the appellant
    completed his training and was ready to perform the work for
    which he had been trained, he went AWOL.  Since he performed
    no significant duty following his training, his service was
    not of benefit to the Nation.

    While the appellant may have felt that his family situation
    required his personal attention, he has not demonstrated
    that his presence was required for such an extended time.
    The emergency situation which precipitated his return from
    Korea was the injury of a brother, who was hospitalized and
    apparently in critical condition for a time.  However, the
    brother was released from the hospital about three weeks
    after the accident.  The appellant's mother was chronically
    ill, but was well enough to travel, apparently
    unaccompanied, by cab to doctor appointments.  Any family
    emergency requiring the appellant's presence at home should
    have been resolved within the thirty days that  the
    appellant was authorized to be on leave, or certainly
    shortly thereafter, and cannot have required the appellant's
    personal attention for more than one year of unauthorized
    absence.  We also note that there were four younger children
    still at home who were old enough to be responsible for most
    of the more strenuous types of household chores that the
    appellant's mother may not have been able to perform, and
    that the the mother testified that they did help out.

    The appellant indicated that for a time he continued to
    report to Fort Dix and return to help at home on weekends.
    He stated that he had no permanent assignment and was to
    report daily to find out if he had a work assignment for the
    day.  He reported that he frequently had no assignment.  It
    appears that his dissatisfaction with his military duty had
    as much to do with his decision to go on unauthorized
    absence as did any family emergency.  Additionally, there is
    no indication that he ever sought a hardship discharge or
    otherwise attempted to handle his problems through
    appropriate military channels.  We also note that at the
    time of his separation from service, the appellant signed
    papers showing that he had consulted legal counsel, that he
    understood that his discharge might render him ineligible
    for VA benefits and that he requested discharge.

    We are directed by the above-cited regulation to consider
    how the situation appeared to the appellant himself at the
    time that he went AWOL.  The record shows that he was a high
    school graduate and had held a job at a service station
    before entering the military.  He had been raised in a poor
    neighborhood where most families were on welfare.  He stated
    that he knew that he had to do service, but his family
    needed him.  There is little else in the record to indicate
    the appellant's level of maturity or his attitude toward
    service vis-a-vis his family obligations.  On the basis of
    the available evidence, we are unable to conclude that there
    were compelling circumstances to warrant the appellant's
    prolonged unauthorized absence.  38 U.S.C. �� 101(2),
    5303(a); 38 C.F.R. � 3.12(c)(6).

                                ORDER

    VA benefits are not payable based upon the character of the
    appellant's discharge from service.  The benefits sought on
    appeal are denied.

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

    WARREN W. RICE, JR.(DISSENTING)       JAMES R. ANTHONY

                          FRANCIS F. TALBOT

                               DISSENT

    I agree with the facts as related in the second paragraph of
    the "reasons and bases for findings and conclusion" on
    page 3 of this decision.  I disagree with the conclusion of
    my colleagues that the character of the veteran's service
    or, more precisely, the character of his discharge, does not
    meet the statutory or regulatory requirements for
    recognition as qualifying service for purposes of
    entitlement to VA benefits.

    38 C.F.R. � 3.l2 provides, in pertinent part, that absence
    without official leave (AWOL) of a former service member for
    a continuous period of at least l80 days is not a bar to
    benefit entitlement if there are compelling circumstances to
    warrant the prolonged unauthorized absence.  Factors for
    consideration in determining whether there are compelling
    circumstances to warrant prolonged unauthorized absence
    include the length and character of service exclusive of the
    period of prolonged AWOL.  Service exclusive of the period
    of prolonged AWOL should generally be of such quality and
    length that it can be characterized as honest, faithful and
    meritorious and of benefit to the Nation.  I believe the
    appellant's service met these criteria.

    Another factor for consideration is the appellant's reason
    for going AWOL.  A legitimate reason specifically listed in
    the applicable regulation is a family emergency.  Moreover,
    the regulation stipulates that the reasons for going AWOL
    should be evaluated in terms of the person's age, cultural
    background, educational level and judgmental maturity.
    Consideration should be given to how the situation  appeared
    to the person himself and not how the adjudicator might have
    reacted.  Hardship or suffering incurred during overseas
    service is to be carefully and sympathetically considered in
    evaluating the person's state of mind at the time the
    prolonged AWOL period began.

    In light of the foregoing, I find it significant that the
    appellant was only l9 years of age when the crisis arose in
    his family which, in his mind, required his presence at
    home.  He was young and immature, and undoubtedly believed
    that his decision to put his family over his military
    service was the right one.  My colleagues point out that
    there is no indication that the appellant ever sought a
    hardship discharge or otherwise attempted to handle his
    problems through proper military channels.  I have no doubt
    that this never occurred to this teenager who was convinced
    of the appropriateness of his actions.  I suspect that if he
    had sought a hardship discharge from service through proper
    channels, this would have been granted.  I find no legal,
    logical or reasonable basis for barring the appellant from
    receiving benefits to which he would otherwise have been
    entitled had he had the wisdom of a mature man at the tender
    age of l9 and obtained a hardship discharge from the Army.
    Accordingly, I find the analysis of my colleagues to be
    legally erroneous and I would grant the benefit sought on
    appeal.  I propose the following alternative findings and
    conclusion.

                          FINDINGS OF FACT

    l.  Same as above.

    2.  There were compelling circumstances warranting the
    appellant's prolonged period of AWOL.

                          CONCLUSION OF LAW

    VA benefits are payable based on the appellant's period of
    service from January l97l to December l972.  38 U.S.C. ��
    l0l(2), 5303 (l989) (formerly � 3l03(a), recodified in
    l99l); 38 C.F.R. � 3.l2.

                        WARREN W. RICE, JR.

    NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C. � 7266
    (formerly � 4066, recodified in 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 (see sec. 402 of
    the Veterans' Judicial Review Act (Pub. L. 100-687)).  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 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. � 7103(a) [formerly 38 U.S.C.
    � 4003(a)])  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


disposition: granted

condition: respiratory

text:
92 Decision Citation: BVA 92-24793

 Y92
                          BOARD OF VETERANS' APPEALS
                       WASHINGTON, D.C. 20420

    DOCKET NO.  92-02 489       )    DATE
                                )
                                )
                                )

                              THE ISSUE

    Entitlement to service connection for pulmonary asbestosis.

                           REPRESENTATION

    Appellant represented by:  Disabled American Veterans

                    WITNESS AT HEARING ON APPEAL

    Appellant

                       ATTORNEY FOR THE BOARD

    T. H. Smith, Counsel

                              INTRODUCTION

    This matter came before the Board of Veterans' Appeals
    (hereinafter Board or BVA) on appeal from a June 1991 rating
    decision from the Togus, Maine, regional office (hereinafter
    RO).  The notice of disagreement was received on July 12, 1991,
    and the statement of the case was issued on August 15, 1991.
    The substantive appeal was received on October 18, 1991.  A
    personal hearing before the RO was conducted on December 11,
    1991, and the issue was addressed by a hearing officer on
    December 17, 1991.  The appeal was received at the Board on
    March 16, 1992, and it was docketed on March 18, 1992.  The case
    is now ready for appellate review.

    The veteran had active naval service from February 1944 to
    February 1946 and served aboard the U.S.S. Walke (DD 723).

                   CONTENTIONS OF APPELLANT ON APPEAL

    The veteran's primary argument is that the RO erred when it
    denied service connection for asbestosis.  Specifically, he
    asserts that he was exposed to asbestos on a daily basis when he
    was aboard the U.S.S. Walke from December 2, 1945, to February
    6, 1946, that he was exposed in his bunk as asbestos fibers fell
    from the pipes overhead, and that he was also exposed to
    asbestos in the engine room where he worked.

                          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 supports a grant of
    service connection for asbestosis.

                            FINDINGS OF FACT

    1.  All evidence necessary for an equitable disposition of the
    veteran's claim has been developed.

    2.  The veteran has provided sworn testimony relating extensive
    exposure to asbestos during service while serving as a
    boilermaker in the engine room aboard a navy ship.
    3.  Current pulmonary asbestosis may not be clearly
    disassociated from the veteran's World War II naval service.

                           CONCLUSION OF LAW

    With resolution of reasonable doubt, pulmonary asbestosis was
    incurred in active naval service.  38 U.S.C.A �� 1110, 5107(b)
    (West 1991); 38 C.F.R. � 3.102 (1991).

             REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

    The veteran has not asserted that any records of probative
    value that may be obtained and not already associated with his
    claims folder are available.  We accordingly find that all
    relevant facts have been properly developed, and that the duty
    to assist him, mandated by 38 U.S.C.A. � 5107(a) (West 1991),
    has been satisfied.  We also find that his claim is "well
    grounded" within the meaning of that statute; that is, he has
    presented a claim that is plausible.

    Careful consideration has been given to the records and
    contentions set forth by the veteran and his accredited
    representative, in light of the corroborating evidentiary data
    of record and the applicable statutes, regulations and
    Department of Veterans Affairs (VA) policy.  Evidence reviewed
    includes service medical records and post service private and
    VA medical documents.  Additionally, the veteran's sworn and
    credible testimony at a December 1991 personal hearing has been
    considered in conjunction with the medical evidence presented.

    According to the post service medical records, the veteran
    currently has both pleural and parenchymal pulmonary
    asbestosis.  This disorder was first noted by a private
    physician in the early 1980's.  It is the veteran's contention
    that inservice asbestos exposure resulted in this disorder.  In
    support of this contention, the appellant testified under oath
    at a December 1991 personal hearing that he was heavily exposed
    to asbestos when in the navy aboard the U.S.S. Walke.  He
    stated that pipes in the engine room where he worked and over
    his bed were covered with frayed and unstable asbestos.

    Additional testimony pertinent to our inquiry is found at pp.
    4, 5, 7 and 8 of the hearing transcript.  When asked by his
    representative what his responsibility was aboard the U.S.S.
    Walke, the veteran related that he worked in the engine room.
    He said that pipes in this room were covered with asbestos.
    Additionally, he slept in a top bunk where there were pipes
    overhead.  The covering on these pipes left white dust all over
    his bed.  He later "found out" that this covering was asbestos.
    He believed that he was heavily exposed to asbestos during the
    three months that he was aboard this ship.  He also denied any
    preservice asbestos exposure and stated that post service
    exposure to asbestos in his job as a boilermaker was limited as
    he was issued a breathing mask and air purification devices.
    Additionally, he stated that this post service exposure began in
    1960, not when he first started working at the shipyard in the
    1950's.  He originally worked as a laborer and was not exposed.
    Although he continued to work as a boilermaker, he hoped to
    retire in approximately one year.

    Clearly, the veteran believes that his work during service
    involved relevant asbestos exposure.  In this connection, it is
    noted that his VA file includes an old 1947, private medical
    statement wherein the veteran stated that his routine work in
    service involved cleaning an oil engine.  As engine room duties
    during World War II have been recognized by the VA as presumably
    involving significant unprotected exposure to asbestos, and
    because the record provides corroboration for the veteran having
    served at a duty station in a naval vessel's engine room, we
    consider his sworn testimony credible that he was probably
    exposed to unstable asbestos during naval service.  While the
    record reflects that he was also exposed to asbestos after
    separation from service, this exposure will not preclude the
    grant of service connection, as it is impossible to differentiate
    whether inservice or post service exposure resulted in current
    pulmonary asbestosis.  The evidence raises a clearly existing
    reasonable doubt as to the origin of the disorder which must be
    resolved in the veteran's favor.  In recognizing the presence of
    reasonable doubt, careful consideration has been given to VA
    policy conceding a long latent period varying "from 10 to 45
    years" between exposure and development of asbestos-related
    pulmonary disease.  Also of significance in this connection is
    the Department of Veterans Affairs' recognition that harmful
    exposure to asbestos may be brief "(as little as a month or two)"
    or indirect (bystander disease).  Asbestos-Related Diseases,
    DVB Circular 21-88-8, May 11, 1988.

                                  ORDER

    Service connection for pulmonary asbestosis is granted.

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

        ANTHONY FAVA                       C. P. RUSSELL

                          JACK W. BLASINGAME
                              (DISSENTNG)

    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 (see sec.
    402 of the Veterans' Judicial Review Act (Pub. L. 100-687)).
    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.

                                 DISSENT

    I respectfully dissent.  The veteran has not met his burden
    under 38 U.S.C.A. � 5107(a) to submit evidence of a well
    grounded claim, and it should be denied.

    The United States Court of Veterans Appeals (the Court) said, in
    Tirpak v. Derwinski, No. 91-780, slip op. at 3 (U.S. Vet. App.
    July 20, 1992):

                [w]e defined a well-grounded claim as
                "a plausible claim, one which is
                meritorious on its own or capable of
                substantiation.  Such a claim need not
                be conclusive but only possible to
                satisfy the initial burden of �
                [5107(a)]."  The test is an objective
                one which explores the likelihood of a
                prevailing on the claim under the
                applicable standards....

                  Although the claim need not be
                conclusive, the statute provides that
                it must be accompanied by evidence.
                In ordinary civil actions, a complaint
                alone will commence the action -- no
                other evidence is required.  See Fed.
                R. Civ. P. 3.  Unlike civil actions,
                the Department of Veterans Affairs
                (previously the Veterans' (sic)
                Administration) (VA) benefits system
                requires more than just an allegation;
                a claimant must submit supporting
                evidence.  Furthermore, the evidence
                must "justify a belief by a fair and
                impartial individual" that the claim
                is plausible. 38 U.S.C. � 5107.

    And, finding that the claim was not well-grounded in the
    case, said, "Consequently, VA was not required to carry the
    claim to full adjudication, since the claim failed, as a
    matter of law, to be well-grounded under section 5107(a)."
    Id.
    The veteran's claim is based solely on his written and oral
    statements, the latter in the form of sworn testimony during
    a personal hearing, with both the written and oral statements
    based on his recollection - no official records, no notes, no
    letters home during the time in question, no corroborative
    testimony, just his recollection - of circumstances alleged
    to have existed more than 40 years earlier.  He said, without
    saying how he knew it to be true, or how he knew it could be
    more than a guess after so many years, that he was exposed to
    and inhaled asbestos fibers during service; and he said,
    without explaining how he was qualified to so say, that the
    fibers he inhaled in service resulted in asbestosis.

    Judge Holdaway, Associate Justice of the Court, wrote in
    Turner V. Derwinski, No. 90-1315, Slip Op. at 2 (U.S. Vet.
    App. July 28, 1992) that there was nothing wrong with
    attributing an ailment to service, even 40 years later, but

                [i]t is necessary to "connect"
                [the] present medical condition to
                the time in service.  It certainly is
                not unreasonable for a BVA panel to
                reject a claimant's unsupported,
                nonexpert "opinion" that his present
                malad[y] stem[s] from service. ...
                As time passes and the interval
                becomes three, then four decades,
                it is also not unreasonable for
                skepticism to deepen.

    In view of the fact that the veteran has submitted no more
    than his unsupported claim, I submit that he has not
    submitted evidence sufficient to justify a belief in a fair
    and impartial individual that his claim is well-grounded,
    that it fails as a matter of law, and that it should be
    denied.

    The Decision of the Board should be:

                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 veteran has not fulfilled his burden
                of presenting a well-grounded claim.

    The current Findings of Fact should be replaced with:

                The veteran has submitted no
                evidence to support his claim
                that he was exposed to asbestos
                in service.

    The Conclusion of Law should be changed to read:

                The veteran has not submitted a well-
                grounded claim.  38 U.S.C.A. �  5107(a)
                (West 1991).

    And the Order should be changed to read:

                Service connection for asbestosis is
                denied.

                          JACK W. BLASINGAME

    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. � 7103(a) (1992).  I have reviewed
    this decision and note that the majority of the members of
    the section have voted to grant the relief 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.

    CHARLES L. CRAGIN
    Chairman


judge_norm: ROGER K BAUER

judge_role: Acting Chairman

text: Service connection for PTSD is denied.

condition: back

text:
92 Decision Citation: BVA 92-13812

 Y92
                          BOARD OF VETERANS' APPEALS
                       WASHINGTON, D.C. 20420

    DOCKET NO.  90-46 882       )    DATE
                                )
                                )
                                )

                             THE ISSUES

    1.  Entitlement to service connection for post-traumatic
    stress disorder.

    2.  Entitlement to an effective date prior to June 2, 1988,
    for the grant of service connection for degenerative disc
    disease of the lumbar spine with a history of a lumbar
    strain.

                           REPRESENTATION

    Appellant represented by:  Disabled American Veterans

                    WITNESS AT HEARINGS ON APPEAL

    The appellant

                       ATTORNEY FOR THE BOARD

    Raymond F. Ferner, Counsel
                            INTRODUCTION

    This matter comes before the Board of Veterans' Appeals (BVA
    or Board) on appeal from decisions of the Department of
    Veteran Affairs (VA) Regional Office in Milwaukee, Wisconsin
    (RO).  The veteran had active service from October 1950 to
    October 1951.  An August 1952 rating decision granted
    service connection for a lumbar strain.  An October 1957
    rating decision severed service connection for the lumbar
    strain as of October 3l, l957.  The veteran was notified of
    the determination and of his appellate rights by a letter
    dated in October 1957.  An appeal was not filed.

    A June 1988 rating decision denied service connection for a
    back disorder.  A notice of disagreement was received in
    July 1988, and a statement of the case issued in August
    1988.  A VA Form 1-9 (Appeal to Board of Veterans' Appeals)
    was received in September 1988 with a request for a
    hearing.  A hearing was held before a Hearing Officer in
    October 1988.  The Hearing Officer rendered a decision in
    October 1988, and a March 1989 rating decision effectuated
    the Hearing Officer's decision to grant service connection
    for a back disability, and assigned a 20 percent evaluation
    effective June 2, 1988.

    In November 1989, a notice of disagreement was received with
    respect to the evaluation assigned, along with a request for
    consideration of service connection for post-traumatic
    stress disorder (PTSD).  A statement of the case with
    respect to the evaluation of the veteran's back disability
    was issued in December 1989.  A VA Form 1-9 was received in
    January 1990 with a request for a hearing.  A February 1990
    rating decision denied service connection for PTSD.  A
    hearing was held before a Hearing Officer in February 1990,
    and the Hearing Officer rendered a decision in March 1990.
    A notice of disagreement was received in March 1990 with
    respect to the denial of service connection for PTSD and the
    effective date for the grant of service connection for the
    veteran's back disability.

    An April 1990 rating decision effectuated the Hearing
    Officer's March 1990 decision, which was to increase the
    evaluation of the veteran's back disability from 20 percent
    to 60 percent.  A statement of the case was issued in May
    1990, and a VA Form 1-9 was received in May 1990.  The RO
    certified the issues on appeal and the case was received at
    the BVA in October 1990.  The case was referred to the
    veteran's representative at the Disabled American Veterans,
    and additional written argument was presented to the Board
    in November 1990.

    By a decision dated in March 1991, the BVA remanded this
    case for further development.  Following the accomplishment
    of the requested development, the RO continued its denial of
    the benefits sought on appeal and issued a supplemental
    statement of the case in August 1991.  In September 1991, a
    request for a hearing was received.  A hearing was held
    before a Hearing Officer in October 1991, and the Hearing
    Officer rendered a decision in November 1991.  A
    supplemental statement of the case was issued in November
    1991.  The RO recertified the issues on appeal and the case
    was again received at the BVA in January 1992.  The case was
    referred to the veteran's representative and further written
    argument was presented to the Board in February 1992.

                 CONTENTIONS OF APPELLANT ON APPEAL

    The veteran essentially contends that the RO was incorrect
    in denying service connection for PTSD and in the assignment
    of June 2, 1988, for the effective date for the grant of
    service connection for his back disability.  He maintains,
    in substance, that he was exposed to stressful incidents
    during the Korean Conflict which have caused PTSD.  He
    reports that he was involved in emergency flight deck
    operations on the aircraft carrier he was assigned to while
    stationed near Korea and that he witnessed aircraft crashes
    and the deaths of individuals.  He reports that he was
    required to dispose of live ordnance and was assigned to
    shoot contact mines from the bow of the ship, among other
    duties.  He related that his back disability was incurred in
    connection with disposing of the live ordnance.  Reference
    is made to the deck logs of the aircraft carrier he was
    stationed on and the medical evidence of record.  He also
    cited the death of a friend, Corporal [redacted],
    as a significant trauma for him.  Therefore, he feels he is
    entitled to service connection for PTSD.

    The veteran also contends that a mistake was made when
    service connection for his back disability was severed in
    1957.  He points out that the August 1952 and October 1957
    rating decisions are contradictory and that the 1957 rating
    decision ignores the evidence of record.  He reports that he
    had no back disability prior to service and that he was able
    to complete boot camp and sea school without complaints
    referable to his back.  As previously contended, he reports
    that he injured his back during service following the
    lifting of 500-pound bombs and that his back injury caused
    his separation from service.  Therefore, he feels he is
    entitled to an earlier effective date for the grant of
    service connection for his back disability.

                        DECISION OF THE BOARD

    For the reasons and bases to be explained below, it is the
    decision of the Board that the evidence does not support the
    claim for service connection for PTSD.  It is also the
    decision of the Board that the evidence supports the grant
    of an earlier effective date for the award of service
    connection for the veteran's back disability because the
    October 1957 rating decision which severed service
    connection was clearly and unmistakably erroneous.

                          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 is not shown to have been exposed to an
    event that is outside the range of usual human experiences
    and would be markedly distressing to almost anyone.

    3.  The veteran is not shown to have PTSD which is related
    to service.

    4.  Service connection for a lumbar strain was granted in
    August 1952 based on service medical records and a VA
    examination which demonstrated that a lumbar strain had its
    onset during service and continued following service.

    5.  An August 1957 rating decision proposed to sever service
    connection for the service-connected back disability because
    the back disability was not the result of any incident in
    service, but was the result of a fracture of the right leg
    and shortening of this leg which was incurred prior to
    service.

    6.  An October 1957 rating decision severed service
    connection because there was no evidence of any back injury
    in service and because the veteran's back condition existed
    prior to entering military service and was not aggravated by
    service.

    7.  By a decision of October l988 the veteran was again
    granted service connection for a lumbar sprain based on the
    direct incurrence of the disability during service, and
    there was no medical evidence of record at the time of
    either the August or October 1957 rating decisions which
    demonstrated that a back disability preexisted service.

                         CONCLUSIONS OF LAW

    1.  PTSD was not incurred in or aggravated by active
    service.  38 U.S.C. �� 1110, 5107 (1992).

    2.  The August and October 1957 rating decisions, which
    severed service connection for a lumbar strain, were clearly
    and unmistakably erroneous.  38 U.S.C. �� 1110, 5107 (1992);
    38 C.F.R. � 3.105(a) (1991); 38 C.F.R. � 3.9(a) (1956).

    3.  An effective date of November l, l957, for resumption of
    service connection for degenerative disc disease of the
    lumbar spine with a history of lumbar strain is in order.
    38 U.S.C. � 5107 (1992); 38 C.F.R. �� 3.105(a), 3.400(k)
    (1991).

           REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

    As a preliminary matter, we find that the veteran's claims
    are "well grounded" within the meaning of 38 U.S.C.
    � 5107(a) (1992).  That is, we find that he has presented
    claims which are 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 sufficiently and properly developed.

                   I.  Service Connection for PTSD

    The Board's review of the record discloses that the veteran
    served in the United States Marine Corps as a rifleman
    during the Korean Conflict aboard the U.S.S. Bon Homme
    Richard (CV-31), and participated in operations against the
    enemy aboard that vessel from May 30, 1951, to June 17,
    1951.  The veteran did not receive any awards or decorations
    which would indicate that he participated in direct combat,
    but rather, his service records indicate that he served
    aboard a vessel that participated briefly in combat
    operations.  Since the veteran has been diagnosed as having
    PTSD, the only matter for resolution is whether the
    stressful incidents reportedly experienced by him are
    sufficient to support that diagnosis.  However, "the BVA
    [is] not bound to accept [the veteran's] uncorroborated
    account of his [Korean Conflict] experiences...," Wood v.
    Derwinski, 1 Vet. App. 190, 192 (1991), nor are we bound to
    accept a diagnosis of PTSD that is based on an
    uncorroborated account or accept an account which is
    inconsistent with the evidence of record.

    With respect to the stressful incidents reportedly
    experienced by the veteran, he related in an April 1991
    statement several stressful incidents:  On March 23, 1951,
    he reported that the plane that hit the 5-inch gun mounts
    very nearly hit him; on June 6, 1951, there were
    320 takeoffs and landings; he carried five armed bombs to
    the side of the flight deck for disposal injuring his back;
    and had no sleep for 48 hours; and on June 12, 1951, he was
    posted at the bow of the ship to shoot floating contact
    mines with his rifle and to watch for enemy submarines.  The
    veteran has also testified that he actually witnessed
    aircraft crashes, specifically that he had witnessed "lots
    of them."  Transcript at 5.  He also reported during the VA
    examination performed in January 1990 that he saw many men
    killed because of crashes and loose ordnance, including
    bombs that fell from landing aircraft at times.  He reported
    that he had dreams of planes crashing, bombs on the deck and
    people being burned in aircraft.

    However, we note inconsistencies in the veteran's versions
    and the evidence of record, specifically the deck logs.  In
    particular, the deck logs the veteran furnished do not
    document casualties of the magnitude he reports witnessing.
    We are also of the opinion that some of the stressful
    incidents related by the veteran, specifically regarding
    320 takeoffs and landings in one day and 48 hours without
    sleep, amount to no more than "an ordinary stressful
    environment, even given the fact that service in a combat
    zone is stressful in some degree to all who are there,
    whatever their duties and experiences."  Wood, 193.  During
    combat and noncombat operations, planes take off and land
    from aircraft carriers and sleep deprivation is possible,
    and neither would be outside the range of usual human
    experience while serving aboard an aircraft carrier.

    The more significant stressors, as noted by our dissenting
    colleague, involve the disposal of live ordnance,
    specifically the removal of six 500-pound bombs on June 6,
    1951, and the witnessing of plane crashes, and in
    particular, the incident on March 23, 1951, when the veteran
    was almost hit by an airplane that crashed into 5-inch gun
    mounts he was near.  Since the deck logs do not corroborate
    that any live ordnance were required to be removed from the
    flight deck on June 6, 1951, corroborating evidence for this
    incident should be found in the veteran's service medical
    records because he has related that his service-connected
    back disability was sustained in the removal of those
    bombs.  However, no such history of back trauma is shown in
    contemporaneous service medical records, but rather, the
    veteran's back disability is clearly shown to be a
    manifestation of a preexisting right femur fracture.  With
    respect to the March 23, 1951, incident, the veteran
    testified that the aircraft "sheared its wing off, burst
    into flame, flaming debris all over the deck and all over
    me."  Transcript at 5.  Again, contemporaneous service
    medical records do not show that the veteran received any
    treatment for burn injuries, and the deck log for that date
    indicates that the aircraft "crashed into #3 and #4 barriers
    and 5-inch gun mounts 5 and 7.  Minor damage to gun mounts,
    major damage to aircraft, no personnel injury."  Certainly
    an incident of the magnitude related by the veteran would
    have likely merited more of an entry in the deck log.  We
    also note that this was a crash during training off the
    coast of California, not in a combat situation.  In any
    event, while the veteran has related that he witnessed
    individuals killed in aircraft crashes and ordnance
    explosions, a review of the deck logs which he furnished
    does not reveal any such occurrences; no deaths whatsoever,
    let alone in aircraft crashes or incidents, or due to
    ordnance explosions.  The veteran cited the death of a
    friend as a pertinent traumatic event.  A letter of July
    l990 from the Marine Corps confirms that a Corporal
    [redacted] died due to combat wounds.  However, it also
    established that Corporal [redacted] was wounded in February
    l952, over five months after the veteran's active service
    ended.

    Based on this record, we find that the stressors related by
    the veteran to psychiatric examiners to support the
    diagnosis of PTSD, specifically regarding the witnessing of
    fatal airplane crashes and the removal of live ordnance, to
    not be confirmed or verified by objective records which
    would ordinarily document the incidents.  As such, we find
    that the veteran's statements and testimony regarding the
    stressful incidents he experienced to be significantly
    diminished in its probative value, and that the
    contemporaneous service records have greater probative
    value.  Consequently, we find by a fair preponderance of the
    evidence that the veteran's exposure to a recognizable
    stressor which would evoke symptoms of distress in almost
    anyone has not been convincingly or persuasively
    demonstrated.  As a result, a diagnosis of PTSD is not
    considered reliable.  Accordingly, we conclude that service
    connection for PTSD is not established.

    With respect to the VA's duty to assist the veteran, as
    pointed out by our dissenting colleague, not all of the deck
    logs have been obtained.  However, the deck logs for the
    particular dates the veteran referred to have been
    submitted.  Also, the deck logs submitted do not provide any
    support for the veteran's contentions regarding the
    stressors he reported, and in fact, are contrary to his
    accounts, e.g., the deaths aboard ship; therefore, we
    believe that a REMAND to obtain all deck logs is
    unnecessary.  It is also unlikely that the veteran, who
    submitted the deck logs, would have omitted evidence which
    would support his claim.

         II.  Earlier Effective Date for Service Connection
               for a Lumbar Spine Disability

    The Board's review of the record discloses that an August
    1952 rating decision granted service connection for a lumbar
    strain based on the following reasoning:

             The Veteran's [preexisting] leg deformity
             is static and unchanged.  However, during
             service, he did develop and still retains
             a lumbar strain.  Since there is no
             evidence of such a strain preexisting his
             duty, it can only be attributed to such
             duty and service connection is recognized.

    An August 1957 rating decision proposed to sever service
    connection for the lumbar strain based on the following
    reasoning:

             The evidence of record shows a fracture
             of the right femur with a shortening of
             the left leg prior to service and the
             back condition found in service was a
             residual of the shortening of the leg and
             a tilt to the pelvis and was not incurred
             as a result of any particular incident in
             and during service.

    The October 1957 rating decision, which severed service
    connection, went further and reasoned:

             There is no evidence of any back injury
             in service.  During service, an X-ray
             examination revealed an old fracture
             deformity of the right femur with
             shortening of the right lower extremity
             and pelvic tilt.  This old injury
             occurred in 1927 and since that time, the
             veteran cannot fully extend the right leg
             and has shifted most of the weight to the
             left leg.  This is shown to be the cause
             of his back complaint and it is the
             decision of this Board that the veteran's
             back condition existed prior to his
             military service and was not aggravated
             by service.  Service connection for
             lumbar strain granted in the rating dated
             August 7, 1952, is severed.

    The veteran subsequently requested service connection for a
    back disorder.  While initially denied by a June 1988 rating
    decision, an October 1988 Hearing Officer's decision granted
    service connection for a lower back disorder.  That decision
    indicated that:

             Service medical records indicate that the
             veteran received extensive treatment for
             a lower back condition which ultimately
             resulted in his discharge from service.
             There was no medical evidence to indicate
             the existence of a back disorder prior to
             service.  Buddies' statements, considered
             new and material evidence, substantiate
             that the veteran had no back problems
             between the incurrence of his right femur
             fracture and his entrance into the
             military.  Therefore, service connection
             for a lower back disorder is
             reestablished.

    We are of the opinion that the basic reasoning of the
    October 1988 Hearing Officer's decision is identical to that
    set forth in the August 1952 rating decision, and that the
    October 1957 rating decision was clearly and unmistakably
    erroneous in severing service connection.  There was no
    medical evidence of a preexisting back disability in 1952 or
    in 1988, and the 1957 rating decision was erroneous in
    concluding that the veteran's back condition existed prior
    to service.  The evidence that was of record at the time of
    the 1957 severance decision clearly demonstrated that the
    veteran had the onset of back pain during service following
    basic training and sea school, and continued to have back
    complaints following service.  That a lumbar strain was
    precipitated by a preexisting leg disorder is irrelevant in
    the absence of some evidence of a preexisting back
    disorder.  That a back disorder was not due to a specific
    traumatic incident of service is similarly irrelevant when
    the disorder originated during service and continued after
    service.

    Therefore, we conclude that an effective date for service
    connection for the veteran's back disability as of the day
    following termination, or November l, l957, is warranted
    because the 1957 rating decisions were clearly and
    unmistakably erroneous in severing service connection.

                                ORDER

    Service connection for PTSD is denied.

    Subject to the provisions governing the award of monetary
    benefits, an effective date for resumption of service
    connection for degenerative disc disease of the lumbar spine
    with a history of lumbar sprain as of November l, l957, the
    date following termination, is granted.

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

    WARREN W. RICE, JR., Dissenting       ROBERT D. PHILIPP
    in Part

                          FRANCIS F. TALBOT

                               DISSENT

    I must respectfully dissent from the decision of my
    colleagues that the veteran does not have PTSD resulting
    from his service.  They base their findings and conclusions
    on the premise that an adequate stressor is not verified by
    the evidence of record to support a diagnosis of PTSD.  I
    submit that two of the incidents related and testified to by
    the veteran, the aircraft crash on March 23, 1951, and the
    disposal of five armed bombs from the flight deck, are
    adequate stressors to support a diagnosis of PTSD.  In this
    regard, the American Psychiatric Association:  Diagnostic
    and Statistical Manual of Mental Disorders, third edition,
    revised (1987) (DSM-III-R), under Code 309.89, describes a
    stressor for PTSD as follows:

             The person has experienced an event that
             is outside the range of usual human
             experience and that would be markedly
             distressing to almost anyone, e.g.,
             serious threat to one's life or physical
             integrity; serious threat or harm to
             one's children, spouse, or other close
             relatives and friends; sudden destruction
             of one's home or community; or seeing
             another person who has recently been, or
             is being, seriously injured or killed as
             a result of an accident or physical
             violence.

    Under these criteria, I believe that both events qualify
    because both clearly were a "serious threat to one's life or
    physical integrity."  Even if the veteran were not actually
    injured in the March 23, 1951, aircraft accident, which is
    documented by the deck logs submitted by him, the veteran
    has indicated that he was almost hit by the aircraft, i.e.,
    it was a close call.  That the plane crash landing on the
    carrier deck, which resulted in major damage to the aircraft
    and additional damage to two large gun mounts occurred
    during training rather than combat, as noted by my
    colleagues, is irrelevant.

    Similarly, I am of the opinion that the disposal of armed
    bombs which have come loose from a landing plane to be
    stressful and pose a "serious threat to one's life or
    physical integrity."  This would be particularly stressful
    to this veteran who was not trained in ordinance handling or
    disposal.

    In light of the incidents related by the veteran and the
    diagnoses of PTSD which are of record, I believe the
    findings and conclusion of my colleagues are so contrary to
    the evidence of record as to be erroneous and unjust.
    Accordingly, I would substitute the following findings of
    fact regarding PTSD for those listed previously:

                          FINDINGS OF FACT

             2.  The veteran is shown to have been
             exposed to events that were clearly
             outside the range of usual human
             experiences and would be markedly
             distressing to almost anyone.

             3.  The veteran is shown by VA
             psychiatrists to have PTSD which is
             related to service.

    I would substitute the following conclusion of law for that
    offered by my colleagues:

                          CONCLUSION OF LAW

            1.  PTSD was incurred during active
            service.  38 U.S.C. �� 1110, 5107 (1992).

    I would also point out that it appears the VA has not
    satisfied its duty to assist the veteran in developing all
    relevant facts relating to his claim.  38 U.S.C. � 5107(a).
    In this regard, I note that not all of the deck logs for the
    entire time the veteran was aboard the aircraft carrier have
    been obtained.  Such evidence is clearly relevant to the
    veteran's claim, and I believe that if the veteran's claim
    for service connection for PTSD cannot be allowed based on
    the current record, that the case should be remanded to
    obtain complete deck logs for the period of time the veteran
    was stationed aboard the U.S.S. Bon Homme Richard.

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

                        Warren W. Rice, Jr.

    NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C. � 7266 (1992),
    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 REGARDING THE CLAIM OF ENTITLEMENT TO SERVICE
    CONNECTION FOR POST-TRAUMATIC STRESS DISORDER:

    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. � 7103(a) (1991) (formerly 38 U.S.C.
    � 4003(a).  I have reviewed this decision and note that the
    majority of the members of the section have voted to deny
    service connection for post-traumatic stress disorder.  I
    have decided not to order reconsideration.  Accordingly, the
    decision of the majority to deny service connection for
    post-traumatic stress disorder is final.

           ROGER K. BAUER
           Acting Chairman