condition: knee

text:
92 Decision Citation: BVA 92-03911

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

    DOCKET NO.  90-00 485       )    DATE
                                )
                                )
                                )
       (RECONSIDERATION)

                              THE ISSUE

    Entitlement to service connection for a chronic knee
    disorder.

                           REPRESENTATION

    Appellant represented by:  The American Legion

                    WITNESS AT HEARING ON APPEAL

    Appellant

                       ATTORNEY FOR THE BOARD

    M. Siegel, Associate Counsel
                            INTRODUCTION

    This case first came before the Board on appeal from a
    rating action of May 1988 from the Cleveland, Ohio, regional
    office (hereinafter RO).  The notice of disagreement was
    received on June 8, 1988, and a statement of the case was
    issued on October 27, 1988.  The substantive appeal was
    received on November 3, 1988.  A hearing was held at the RO
    on January 27, 1989, and the hearing officer rendered a
    decision in October 1989.  A supplemental statement of the
    case was issued on December 7, 1989.

    The appeal was received at the Board on February 7, 1990,
    and was docketed on March 14, 1990.  The American Legion,
    the veteran's representative, submitted written argument on
    his behalf on July 5, 1990.

    The Board of Veterans' Appeals decided the issue of
    entitlement to service connection for a chronic knee
    disorder in October 1990.  The veteran thereafter moved for
    the reconsideration of that decision.  The Chairman has
    ordered reconsideration of that decision under the authority
    granted him in 38 U.S.C. � 7103 (formerly 38 U.S.C � 4003).
    The case is now before an expanded Reconsideration Section
    of the Board.  This decision by the Reconsideration Section
    replaces the decision of October 1990, with regard to the
    issue of service connection for a chronic knee disorder, and
    is the final decision of the Board as to that issue.

    The veteran's representative submitted additional written
    argument to the Board on September 9, 1991.

    The veteran served on active duty from July 1959 to July
    1987.

                 CONTENTIONS OF APPELLANT ON APPEAL

    The veteran contends, in essence, that the RO erred when it
    denied service connection for a chronic knee disorder.  He
    specifically states that while on active service he
    occasionally struck his knees while engaged in submarine
    construction, repair and operation.  He asserts that he
    currently experiences an intermittent sharp pain in his
    knees.  He points out that a February 1988 examination
    report indicates an impression of bilateral chondromalacia,
    and he states that he should therefore be accorded the
    statutory and regulatory presumption that osteoarthritis
    manifested to a compensable degree within one year of
    separation from service is deemed to have been incurred
    during that service.

                        DECISION OF THE BOARD

    For the reasons and bases hereinafter set forth, it is the
    decision of the Board that the preponderance of the evidence
    is against granting service connection for a chronic knee
    disorder.

                          FINDINGS OF FACT

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

    2.  Inservice knee injuries and disorders were acute and
    resolved without residuals; chondromalacia is first shown
    approximately six months after separation from service and
    is not shown to be a residual of an inservice knee injury or
    disorder.

                          CONCLUSION OF LAW

    A chronic knee disorder was not incurred in or aggravated by
    service.  38 U.S.C. �� 1110, 1131 (formerly 38 U.S.C.
    �� 310, 331, respectively); 38 C.F.R. � 3.310(a).

            REASONS AND BASES FOR FINDINGS AND CONCLUSION

    Initially, we find that all relevant facts have been
    properly developed.  The veteran has not indicated that
    records not already associated with his claims folder may be
    available, and we accordingly find that the duty to assist
    him, mandated by 38 U.S.C. � 5107(a) (formerly 38 C.F.R.
    � 3007(a)), has been satisfied.
    We also note that the veteran's claim is "well grounded"
    within the meaning of 38 U.S.C. � 5107(a); that is, he has
    presented a claim that is plausible.

    The service medical records from the veteran's approximately
    28 years of active service show that on several occasions he
    was treated for a knee disorder.  In February 1963 right
    knee tenderness and swelling was deemed to be acute
    cellulitis.  In February 1964, he reported a history of
    right knee abrasion, with subsequent tenderness, swelling,
    redness and aching; the diagnosis was again right knee
    cellulitis.  He was treated in June 1973 for a right knee
    abrasion, and in February 1984 for right knee strain and
    contusion.  In addition, on a report of medical history
    prepared in conjunction with his separation from service, he
    indicated affirmatively as to whether he had or once had had
    swollen or painful joints; "painful joints - arthritis" is
    also indicated.

    We do not find, however, that this service medical history
    demonstrates that service connection for a chronic knee
    disorder is warranted.  The service medical records show
    that the veteran's right knee abrasions and contusions were
    on each occasion apparently acute and transitory; the
    records do not show that he required significant followup
    treatment, such as hospitalization or repeated outpatient
    treatment, after any of these right knee injuries.  The
    separation examination report does not indicate the presence
    of a right knee injury, or the residuals thereof; to the
    contrary, it shows that the lower extremities were
    clinically evaluated as normal.

    Moreover, the question of whether the medical history report
    prepared on service separation refers to a degenerative
    joint process of the knees is made irrelevant by other
    medical evidence.  This evidence does not show the presence
    of arthritis of the knees.  As discussed above, the
    separation medical examination report does not indicate any
    findings with regard to a knee disorder.  A Department of
    Veterans Affairs (hereinafter VA) radiologic report dated in
    February 1988 and performed in conjunction with a VA
    physical examination notes that there were no bony
    abnormalities.  Similarly, a VA hospitalization summary
    dated in March 1989 notes that an orthopedist, after
    evaluating the veteran, determined that X-rays of the knees
    were not indicated, since the veteran's "symptoms were not
    sufficient and his exam was essentially unremarkable and
    unchanged for many yrs."

    The report of the February 1988 VA examination notes
    impressions to include mild chondromalacia.  The veteran has
    asserted that he should be granted service connection for a
    knee disorder, pursuant to the governing VA statutes, set
    forth at 38 U.S.C. �� 1101, 1112, 1113 and 1137 (formerly
    38 U.S.C. �� 301, 312, 313 and 337, respectively), and
    regulations, set forth at 38 C.F.R. �� 3.307 and 3.309, that
    provide for a one-year presumptive period following service
    separation for the manifestation of arthritis; specifically,
    he stated that "[i]t is my understanding that mild
    chondromalacia is a form of osteoarthritis and is not a
    condition which manifests itself spontaneously."

    The veteran's implication that chondromalacia is the medical
    equivalent of osteoarthritis is contradicted by the medical
    literature.  "Chondromalacia patellae is defined as
    softening of the articular cartilage...."  S. L. Turek,
    Orthopaedics:  Principles and Their Application (Fourth
    Edition, 1984), at 1339 (emphasis added).  Conversely,
    osteoarthritis is a term used to describe "an idiopathic,
    slowly progressive disease of diarthrodial (synovial)
    joints,...characterized pathologically by focal degeneration
    of articular cartilage..." Turek, supra, at 384 (emphasis
    added).  Further, the same authority said in the second
    edition of his work, at page 752, that chondromalacia is the
    term applied to rapid erosion and fragmentation of cartilage
    in the young adult , and at page 210, that osteoarthritis is
    manifested on x-ray by lipping, osteophytes, joint spaces
    narrowing, and deformity of articular bone ends.

    As discussed above, the medical evidence in this case does
    not demonstrate the presence of arthritis of the knee, and
    we must accordingly conclude that the chondromalacia noted
    in February 1988, approximately six months after the
    veteran's separation from service, is not a manifestation of
    arthritis and is not to be accorded the statutory and
    regulatory presumptions afforded arthritis.

    Similarly, it is not shown that the chondromalacia noted in
    February 1988 is a manifestation of an inservice knee
    disorder, or a residual thereof.  According to medical
    literature

             three discrete categories of
             [chondromalacia] have been identified:  a

             primary idiopathic type occurring in
             adolescents and young adults, causing
             chronic persistent pain and usually
             subsiding with little or no residual; a
             secondary adolescent type resulting from
             direct trauma to the patella or due to
             repeated traumas of patellar
             displacements and often eventuating in
             osteoarthritis with advancing age; and an
             adult type that has its origin as early
             as the second decade, when osteoarthritic
             changes develop without symptoms,
             progress with advancing age, and become
             symptomatic at middle age or beyond.

    Turek, supra, at 1339.  Of these three categories, only the
    second category, whereby chondromalacia is the product of
    direct patellar trauma or of repeated patellar
    displacements, is applicable in this case; the first
    category refers primarily to adolescents and young adults,
    while the third category requires the presence of
    osteoarthritic changes, which we have already determined are
    not manifested.  With regard to the second category, we are
    of the opinion that the medical evidence does not
    demonstrate that the chondromalacia noted in February 1988
    is the product of inservice patellar trauma or
    displacements.  Although, as indicated above, the service
    medical records show treatment for right knee abrasions and
    contusions on several occasions, the most recent being in
    1984, they do not show treatment for right knee
    displacement, nor do they show treatment for right knee
    injuries other than abrasions and contusions, and a strain.
    As previously noted, the conditions requiring treatment
    were acute in nature; the evidence of record is devoid of
    any chronic or continuing symptomatology over a period of
    several years following the final acute injury in service,
    thereby making it very unlikely that there was an etiologic
    connection between the acute inservice traumas and the
    chronic chondromalacia first found about 4 years afterward.

    Moreover, the service medical records do not show treatment
    for a left knee injury on any occasion.  We further note
    that the post service medical evidence does not show the
    presence of any knee disorder other than chondromalacia.
    Since we have determined that chondromalacia is not shown to
    be a residual of inservice right knee injuries, it accordingly
    can be concluded that these injuries are not manifested by any
    current residuals.

    In view of the above, we find that the preponderance of the
    evidence does not show that a chronic knee disorder was
    manifested in or aggravated by service, and we accordingly
    conclude that the evidence is against the veteran's claim for
    service connection for such a disorder.  38 U.S.C. �� 1110,
    1131; 38 C.F.R. � 3.310(a).

                                 ORDER

    Service connection for a chronic knee disorder is denied.

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

         C. P. RUSSELL                   C. A. QUARLES, M.D.

                          JACK W. BLASINGAME

         J. J. SCHULE                      J. IMBURG, M.D.

                             C. J. STUREK

                                     CONTINUED ON NEXT PAGE
                               DISSENT

    With due regard for my colleagues I can not sign a denial in
    this case.  The veteran through twenty-eight years of naval
    service spent most of his tours on submarine and submarine
    tender duty where he no doubt experienced considerable wear
    on his knees, as one can not go far aboard such ships without
    having to climb or descend a ladder.  In 1984 he sustained
    trauma to his right knee of sufficient severity to reguire
    crutch ambulation for a period of time.  In March 1984 a navy
    medical officer described a friction rub at the distal end of
    the iliotibial fascial band.  On a periodic physical
    examination at that time he complained of knee pain.  In June
    1987, just prior to retirement in July 1987, he reported that
    his knees were symptomatic with occasional locking.

    On his original Department of Veteran's Affairs (VA) physical
    examination for disability evaluation, conducted two months
    after retirement, he reported that his knees had been
    symptomatic for two years.  A diagnosis of mild
    chondromalacia of the "knees" was made but no physical
    findings related to this were documented.  When hospitalized
    for evaluation in March 1989, he is reported to have
    undergone an orthopedic evaluation which is not of record.
    However, the Narrative Summary of that hospitalization
    contained the following comments:

            "Orthopedic Consult was called and the
            Ortho physican (sic) evaluated the patient
            and felt that....  no X-rays of the knees
            were indicated as the patient's symptoms
            were not sufficient and his exam was
            essentially unremarkable and unchanged for
            many yrs."

    The veteran reports sharp pains in his knees with some
    locking which he is able to "work out."  He also reports
    knee pains relieved by moving his knees.

    Although the veteran may have had an adequate orthepedic
    examination by the VA, I can find no satisfactorily
    documented evidence of same in records submitted for
    our evaluation.  Noting our duty to assist, I find the
    documentation of findings, regarding the veteran's knees to be
    inadequate and would prefer to remand the case for further
    orthopedic examination of the knees to include:  tests for
    ligamentous integrity, tests for internal derangement
    (specifically, McMurray, O'Donoghue, and Apley tests), test
    for patellar crepitus with pain, and patellar apprehension
    test.

                            J. IMBURG, M.D.
                             (DISSENTING)

    NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C. � 7266 (formerly
    38 U.S.C. � 4066), 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 � 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:

    Pursuant to 38 U.S.C. � 7103(a) (1991) Formerly 38 U.S.C.
    � 4003 (a)), 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. � 7103(b) (1991) (Formerly 38 U.S.C. & 4003(b))
    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 noted to deny the relief sought on appeal.  Accordingly,
    the benefit sought on appeal is denied.

    CHARLES L. CRAGIN
    Chairman


series: legacy

judge_norm: CHARLES L CRAGIN

judge_role: Chairman

disposition: denied

text: Service connection for PTSD is denied.

text:
92 Decision Citation: BVA 92-07950

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

    DOCKET NO.  89-10 313       )    DATE
                                )
                                )
                                )

                              THE ISSUE

    Entitlement to service connection for post-traumatic stress
    disorder.

                           REPRESENTATION

    Appellant represented by:  Division of Veterans Affairs,
                               New York

                   WITNESSES AT HEARING ON APPEAL

    The appellant, his wife, sister and three daughters

                       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
    Veterans Affairs (VA) Regional Office in New York, New York
    (RO).  The veteran had active service from September 1965 to
    August 1967.

    A March 1987 rating decision denied entitlement to service
    connection for post-traumatic stress disorder (PTSD).  A
    notice of disagreement was received in March 1987, and a
    statement of the case was issued in July 1987.  Supplemental
    statements of the case were issued in December 1987 and
    April 1988.  A VA Form 1-9 (Appeal to Board of Veterans'
    Appeals) was received in May 1988 with a request for a
    hearing.  A hearing was held in September 1988.  A
    supplemental statement of the case was issued in February
    1989.  The RO certified the issue on appeal and the case was
    received at the VA in April 1989.

    By a decision dated in June 1989, the BVA remanded this case
    for further development.  Following that development, the RO
    issued a supplemental statement of the case in December
    1989.  The RO recertified the issue on appeal in January
    1990, and the case was again received at the BVA in April
    1990.  In July 1990, on the Board's own initiative, the case
    was referred to the VA Chief Medical Director for review and
    an opinion which was obtained in October 1991.  The veteran
    has been represented by the New York Division of Veterans
    Affairs throughout his appeal.  The case is now ready for
    appellate review.

                 CONTENTIONS OF APPELLANT ON APPEAL

    The veteran essentially contends that the RO was incorrect
    in not granting service connection for PTSD.  He maintains,
    in substance, that he has PTSD resulting from his service in
    Vietnam.  He relates that while in Vietnam, he was exposed
    to stressful incidents, including guard and patrol duty, as
    well as enemy small arms fire.  He relates incidents in
    which he witnessed the rape of a Vietnamese woman by
    comrades and another incident in which he and others on
    guard duty fired on and killed individuals attempting to
    cross a bridge, and later discovered that they were young
    children, maybe 13 or 14 years old.  It is pointed out that
    the veteran has been diagnosed as having PTSD by the VA and
    that he receives treatment for that disorder.  Therefore, he
    feels he is entitled to service connection for PTSD.

                        DECISION OF THE BOARD

    For the reasons and bases to be explained, it is the
    decision of the Board that the evidence is against the claim
    for service connection 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 is not shown to have been exposed to a
    recognizable stressor in service to support the diagnosis of
    PTSD.

                          CONCLUSION OF LAW

    Post-traumatic stress disorder was not incurred in or
    aggravated by active service.  38 U.S.C. �� 1110, 5107
    (1989) (formerly �� 310, 3007, recodified in 1991).

           REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

    As a preliminary matter, we find that the veteran's claim is
    "well grounded" within the meaning of 38 U.S.C. � 5107(a)
    (1989).  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
    that claim.  We are also satisfied that all relevant facts
    have been properly developed.

    The Board's review of the record discloses that the veteran
    served in Vietnam from October 1966 to September 1967.  His
    military occupational specialty was that of a crane shovel
    operator with the 56th CS CO Hvy. Sup. (56th Supply Company,
    Composite Service, Heavy Material Supply; C. S. Stanton,
    Vietnam Order of Battle, Ch. 18, pg. 201 (1981)).  Pertinent
    awards and decorations received by the veteran include the
    Vietnam Service Medal and the Vietnam Campaign Medal.  We
    note at this point that neither the veteran's military
    occupational specialty, nor his service records provide
    evidence that he was exposed to 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 v. Derwinski, U.S. Vet. App. No. 89-50, slip op. at 4
    (March 28, 1991).  Despite the suggestion that the "CS" in
    the veteran's unit designation stands for "Combat Support,"
    which it clearly does not, the veteran's personnel records
    demonstrate that he was assigned to an occupation and unit
    generally not associated or involved in combat.

    Since the veteran has been diagnosed as having PTSD, the
    ultimate question is whether the stressors related by the
    veteran provide an adequate basis to support a diagnosis of
    PTSD.  However, "the BVA [is] not bound to accept [the
    veteran's] uncorroborated account of his Vietnam
    experiences..." Wood, slip op. at 4, nor we would add, are
    we bound to accept a diagnosis of PTSD that is based on an
    uncorroborated account of the veteran's Vietnam experiences
    or accept an account which is inconsistent with his service
    records.

    As for the veteran's account of his Vietnam experiences, we
    observe that the veteran has been unable to provide specific
    factual information, such as the names of individuals killed
    and wounded in Vietnam or the names of those involved in the
    specific incidents related by him, which would allow for
    verification or confirmation from the United States Army and
    Joint Services Environmental Support Group.  While there is
    some indication that the veteran has a poor memory, he has
    related some selective information and incidents regarding
    his service in Vietnam, but "[t]he factual data required,
    i.e., names, dates, and places, are straightforward facts,
    and do not place an impossible or onerous task on
    appellant."  Wood, slip op. at 5.

    In any event, with respect to the specific information
    provided by the veteran, he related during his October 1986
    VA examination that he served in combat and that he was
    assigned as a sniper.  However, his service records do not
    show combat service or specialized training as a sniper.  He
    also related during the 1986 examination that he witnessed
    American soldiers rape a Vietnamese girl and then stab her
    in the left chest, but at his hearing, he testified that
    "They raped her and slapped her."  (Transcript at 7.)  He
    also indicated that those involved were American soldiers
    who were known to him, some from his own unit, but he was
    not otherwise more specific.  Following the 1986
    examination, it was apparent that the diagnosis of PTSD was
    based on the veteran's "active combat" in Vietnam.

    The veteran also related during the VA examinations
    performed in February and December 1988 that he was a sniper
    in Vietnam, but later testified that he spent his entire
    time in Vietnam on guard duty and on patrols, and that he
    did not serve in his military occupational specialty while
    in Vietnam, despite the contrary indication from his service
    records.  He testified further that he did not work in the
    construction field as a crane operator while in Germany, as
    shown by his service records.  This testimony essentially
    amounts to the veteran never having worked in his military
    occupational specialty while on active duty following his
    training in that career field.

    It does appear from the record that the diagnosis of PTSD,
    including that related by the October 1991 opinion from the
    VA Chief Medical Director, are based on either the veteran's
    claimed participation in combat as a sniper or on continuous
    guard and patrol duty while in Vietnam, and/or on unverified
    and uncorroborated incidents which have not been
    consistently related by the veteran.  As previously
    mentioned, for example, the veteran related that the
    Vietnamese girl that was raped by American soldiers was
    stabbed, but later testified that she was only slapped.
    Such a significant change in the factual nature of the event
    undermines the veteran's credibility and the probative value
    of his statements and testimony regarding that incident.
    Recent testimony that he never worked in the military
    occupational specialty he was trained in while stationed in
    Germany or Vietnam, and that he served on continuous guard
    and patrol duty while in Vietnam further strains his
    credibility.  In addition, the veteran testified that while
    on patrol, he saw comrades killed and wounded, transcript at
    5, but could not provide the names of those soldiers so as
    to permit verification of his account.

    The veteran has also related an incident regarding two boys
    killed while attempting to cross a bridge the veteran was
    guarding in Vietnam.  This incident, as well as the rape of
    a Vietnamese girl, cannot be objectively verified, as noted
    by our dissenting colleague, but we observe that the
    incident has undergone some embellishment.  During the
    October 1986 examination the veteran simply related that
    "The enemy tried to cross the bridge and had to be shot
    down."  By the time of the September 1988 hearing, the
    incident had become a fire fight with shelling.  Transcript
    at 3.

    Since evidence of a combat stressor has not been objectively
    verified or confirmed, what is left are two incidents
    claimed as stressors which are not capable of verification.
    In this situation an analysis of the credibility and
    probative value of the evidence becomes critical.  We are of
    the opinion that the inconsistencies with the objective
    evidence, specifically the veteran's service records
    regarding his duties in Vietnam, as well as the fluid nature
    of the incidents related by the veteran, and the inability
    to recall specific objectively verifiable information of the
    individuals involved in the incidents related and those
    killed while on patrol, significantly diminishes both the
    veteran's credibility and the probative value of his
    statements and testimony when compared with the objective
    evidence.  In this regard, we find that the veteran's
    service personnel records have greater probative value.

    With respect to the lay statements and sworn testimony of
    others, the probative value of that evidence is not great
    and almost nil, as none were present in Vietnam and are only
    relating what has been told to them by the veteran or their
    observations of the veteran's symptomatology, which is not
    at issue.  That the veteran may manifest symptomatology,
    which is compatible with PTSD is essentially irrelevant if
    the veteran is not shown to have been exposed to a stressor
    to support such a diagnosis.

    We, therefore, 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.

                                ORDER

    Service connection for PTSD is denied.

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

    WARREN W. RICE, JR., DISSENTING   C.W. HUMPHREYS, JR., M.D.

                          FRANCIS F. TALBOT

                               DISSENT

    I must respectfully dissent from the decision of my
    colleagues that the veteran does not have a post-traumatic
    stress disorder resulting from his service in Vietnam.  They
    base their conclusions on the premise that an adequate
    stressor is not verified by the evidence of record to
    support a diagnosis of post-traumatic stress disorder.  I
    submit that there are innumerable stressful incidents that
    occurred to servicemen during our involvement in the Vietnam
    war that are incapable of verification.  I believe the
    events described by the veteran fall into that category.  It
    is highly unlikely that either the rape of a Vietnamese girl
    by American soldiers or the killing of young Vietnamese boys
    on a bridge at night during the veteran's guard duty in a
    combat area would be capable of verification, yet how can
    reasonable men conclude that these events indelibly
    impressed in the veteran's memory did not happen and that
    they did not trigger the development of his chronic
    psychiatric disorder?  Certainly, there are countless
    undocumented and unverifiable Vietnam war horror stories
    based on factual experiences which forever will be known and
    remembered only by those who witnessed them.  In contrast
    with the speculation of my colleagues that the veteran did
    not experience the atrocities he describes, let us look at
    the evidence which is of record and which the Board must
    consider.

    The veteran and others have supplied sworn testimony in
    support of his claim at a personal hearing in the regional
    office in September 1988.  Also, lay statements have been
    submitted substantiating the veteran's claim.  Reports from
    VA psychiatrists dated from 1988 to 1989 show the veteran
    was being treated for a primary diagnosis of chronic
    post-traumatic stress disorder with psychotic features.  A
    board of three VA psychiatrists reported on examination in
    December 1988 that it was their overall impression the
    veteran was severely disabled psychiatrically and that the
    clinical data warranted diagnoses of both schizophrenia and
    post-traumatic stress disorder.  It was stated that the
    veteran had persistently reexperienced traumatic events in
    Vietnam.  A VA psychiatrist reported a primary diagnosis of
    chronic post-traumatic stress disorder with psychotic
    features in a letter dated April 7, 1989, wherein he
    described the veteran's recent difficulties.

    In response to questions from the Board, the Director of the
    Department of Veterans Affairs Mental Health and Behavioral
    Sciences Service, the designated representative of this
    Department's Chief Medical Director and Chief Medical
    Officer of the VA offered the following opinion dated
    October 3, 1991:

             "The records of [the veteran] were
             reviewed and the following opinions are
             offered to your questions.

             "a.  Are the recent diagnoses of
             post-traumatic stress disorder supported
             by the record and, if not, does the
             veteran have any other acquired
             psychiatric disorder traceable to service?

             "ANSWER:  Yes, the diagnosis of
             post-traumatic stress disorder (PTSD) is
             supported by the record.

             "b.  Is any further testing desirable to
             aid in formulating your opinion?

             "ANSWER:  No.

             "2.  Reasoning:

             "a.  Understanding this 48-year-old,
             unsophisticated, Puerto Rican veteran's
             illness requires both medical and
             cultural perspectives.  The evidence from
             professionals clearly supports the
             presence of an intermittent, severe,
             progressively disabling psychiatric
             disorder that takes the form of PTSD at
             least since 1985.  The suicidal attempt
             in 1975 and testimony from the family
             suggests an earlier onset.  The negative
             examination for 'back injury' May 19,
             1986, can be seen as consistent with
             neighbors' written statements saying that
             at times the patient appears as a normal,
             concerned father and at other times,
             angry and irrational.  An additional
             diagnosis of schizophrenia is
             understandable considering his paranoia,
             visual and auditory 'hallucinations,' and
             periodic somewhat bizarre violence and
             cannot be ruled out; but these symptoms
             are also consistent with severe PTSD and
             should be explained under one diagnosis,
             if possible.  A score of 157 on the
             Mississippi Scale for PTSD supports the
             diagnosis of PTSD.  The issue of
             alcoholism is relevant only in that
             periodic substance abuse is
             characteristic of most veterans with
             PTSD.  Records from his reported repeated
             VA hospitalizations are surprisingly
             missing.

             "b.  If any testimony of the patient's
             family, relatives, friends, and neighbors
             is given credibility, a clear connection
             of the man's tour in Vietnam is evident
             from the content of his outbursts since
             very soon after his return.  His recent
             compulsive, repetitious viewing of
             Vietnam movies has only confounded the
             symptoms.  After reviewing all of the
             evidence in the record, the possibility
             of a conspiracy of family, friends, and
             professionals to create a case for PTSD
             after the fact is considered unlikely.
             While there are some inconsistencies,
             they are not vital.  The man's
             wife--poor, rural, uneducated, without a
             supportive family of her own, married
             after two week's acquaintance at age 15,
             not sophisticated enough even to seek
             help after years of periodic abuse by the
             patient--is an unlikely candidate for
             fraud.  When the patient and his family
             moved to New York in the mid-70's and the
             wife learned about the new Vets Center
             which opened in 1981, she began
             participating in treatment.  A concept of
             PTSD only began to be available in our
             culture in 1980.

             "c.  The one missing piece has been
             independent evidence of an appropriate
             stressor in Vietnam.  The patient's
             testimony, that he was not assigned his
             MOS of crane operator but spent his
             entire time in Vietnam on guard duty
             inside or outside the base perimeter, is
             considered a clear possibility
             considering his marginal sophistication
             and the need for base security.  Evidence
             is conflicting regarding how often the
             base came under attack.  The man's poor
             memory for names, dates and details about
             his Vietnam tour has precluded supportive
             evidence from the Army.  He states that
             he tried to forget what happened in
             Vietnam, a not uncommon tendency in
             veterans afflicted with PTSD which is
             also consistent with his apparent lack of
             sophistication.  His story of killing
             teen-age Vietcong and the rape story are
             at least consistent in much of the
             testimony.  It would seem unjust to
             withhold an otherwise compelling
             diagnosis on this point alone, given the
             policy of giving the veteran the benefit
             of the doubt."

    In light of the entire evidentiary picture and especially
    the aforementioned VA expert's psychiatric opinion, which
    was based on a study of all evidence of record and is
    clearly and unequivocally supportive of the veteran's claim
    for service connection, I believe the findings and
    conclusions of my colleagues are so contrary to the
    overwhelming preponderance of the evidence as to be clearly
    factually and legally erroneous and unjust.  Accordingly, I
    would substitute the following finding of fact for those
    listed previously:

                      FINDING OF FACT

             The veteran served in Vietnam from
             October 1966 to September 1967 and has
             post-traumatic stress disorder resulting
             from events experienced during that
             service.

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

                     CONCLUSION OF LAW

             Post-traumatic stress disorder was
             incurred in service.  38 U.S.C. � 1110.

                         WARREN W. RICE, JR.

    NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C. � 7266 (1991),
    a decision of the Board of Veterans' Appeals granting less

                                       (CONTINUED ON NEXT PAGE)
    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


judge_norm: ROBERT E SULLIVAN

judge_role: Chief Member

disposition: remanded

text:
93 Decision Citation: BVA 93-09087

 Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C.  20420

DOCKET NO.        92-54 308       )    DATE
                  )
                  )
                  )

THE ISSUE

Entitlement to service connection for the cause of the veteran's
death.

REPRESENTATION

Appellant represented by:  Veterans of Foreign Wars
                           of the United States

ATTORNEY FOR THE BOARD

William W. Berg, Associate Counsel

INTRODUCTION

This matter came to the Board of Veterans' Appeals (Board) on
appeal from a May 1989 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon.
The veteran served on active duty from January 1968 to January
1971.  His notice of disagreement was received in June 1989, and
the RO issued a statement of the case in August 1989.  The
veteran's substantive appeal was received in January 1990.  The
veteran's representative at the time, Oregon Department of
Veterans Affairs, submitted written argument on his behalf in
February 1990.  The case was received at the Board in March 1990
and placed on the docket in April 1990.

In a May 1990 decision the Board denied entitlement to service
connection for a gastrointestinal disorder manifested by stomach
pains.  The veteran appealed the Board's decision to the United
States Court of Veterans Appeals (Court) and in April 1991, filed
a motion with the Board to reconsider its May 1990 decision.  In
October 1991, the Deputy Vice Chairman of the Board ordered
reconsideration of the May 1990 Board decision, and in April
1992, an expanded Reconsideration Section of the Board remanded
the case to the RO for further development.  On August 6, 1992,
the Secretary of Veterans Affairs filed a motion with the Court
for remand of the case to the Board.  On August 18, 1992, the
Court vacated the Board's June 7, 1989, [sic] decision and
remanded the case, nunc pro tunc, October 2, 1991, to the Board.
Breazeale v. Derwinski, No. 90-979 (U.S. Vet.App. Aug. 18, 1992).
The veteran is currently represented by an attorney, Sean A.
Kendall.

                  REMAND

The veteran is seeking service connection for a chronic
gastrointestinal disorder manifested by stomach pains.  Evidence
of record shows complaints of stomach problems during and
subsequent to service.  The etiology of the veteran's stomach
complaints has not, however, been established.  A VA examination,
performed in April 1989, resulted in a recommendation by the
examining physician that another examination by performed.

r Aootteran had active military service from June 1969 to January
1975 and unverified periods of active duty from September 1947 to
September 1949 and from January 1951 to June 1969.

This matter came before the Board of Veterans' Appeals (Board) of
the Department of Veterans Affairs (VA) on appeal from an August
1991 rating decision of the Chicago, Illinois, Regional Office
(RO) denying a claim of entitlement to service connection for the
cause of the veteran's death.  The notice of disagreement with
this determination was received in September 1991.  The statement
of the case was issued in October 1991.  The substantive appeal
was received in December 1991.  The appeal was received and
docketed at the Board in January 1992.  The appellant has been
represented throughout her appeal by the Veterans of Foreign Wars
of the United States.  That organization submitted additional
written argument to the Board in June 1992.

REMAND

The evidence of record shows that the veteran died at an Air
Force hospital in June 1991 at the age of 62.  The cause of
death, as listed on the certificate of death, was respiratory
arrest due to pneumonia as a result of esophageal cancer.  No
other significant conditions contributing to death were listed.
The death certificate does not disclose whether an autopsy was
performed.  The terminal hospital report is not of record.

At the time of the veteran's death, service connection was in
effect for diabetes mellitus, which had been rated 10 percent
disabling since February 1975, and for essential hypertension,
which had been rated 10 percent disabling since May 1990.  The
appellant and her representative contend, in substance, that his
service-connected disabilities either caused or contributed
substantially or materially to hasten his death.  The appellant's
representative requests that the case be remanded to the RO for
further evidentiary development, in particular, to obtain the
termina

hospital report and any other pertinent associated medical
records.  VA has a duty to assist the appellant in the
development of facts pertinent to her claim.  38 U.S.C.A.
� 5107(a) (West 1991); 38 C.F.R. � 3.103(a) (1992).  The duty to
assist includes the duty to obtain pertinent medical records to
which the appellant or her representative has referred.
Littke v. Derwinski,  1 Vet.App. 90 (1990).  We are of the
opinion that, in light of the foregoing, further development, as
specified below, is warranted.

Accordingly, the case is REMANDED to the RO for the following
actions:

1.  The RO should request the appellant to
provide the names and addresses of all
health care providers who treated the
veteran in recent years for his diabetes
mellitus, hypertension, or esophageal
cancer, and the approximate dates of
treatment.  Then, after obtaining an
appropriate release from the appellant, the
RO should attempt to obtain copies of the
records cited by the appellant which are not
currently of record, as well as copies of
the records of the veteran's  final
hospitalization and any report of autopsy
performed at the United States Air Force
Hospital, Chanute Air Force Base, Illinois
61868.  These records should be associated
with the claims folder.

2.  Thereafter, in light of the evidence
obtained pursuant to the requested
development, the RO should readjudicate the
issue of entitlement to service connection
for the cause of the veteran's death.

If the appellant disagrees with the decision of the RO, and if
otherwise appropriate, a supplemental statement of the case
should be issued, and the appellant and her representative should
be provided with an opportunity to respond.  Thereafter, the case
should be returned to the Board for further consideration, if
otherwise in order.  By this REMAND, the Board intimates no
opinion as to any

final outcome warranted.  No action is required of the appellant
until she is notified by the RO.

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

                                  *
JOHN J. CASTELLOT, SR., M.D.

                        ROBERT E. SULLIVAN

*38 U.S.C.A. � 7102(a)(2)(A) (West 1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of the
Board, to proceed with the transaction of business without awaiting
assignment of an additional member to the Section when the Section
is composed of fewer than three Members due to absence of a Member,
vacancy on the Board or inability of the Member assigned to the
Section to serve on the panel.  The Chairman has directed that the
Section proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a third
Member.

Under 38 U.S.C.A. � 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals.  This remand is in the nature of a
preliminary order and does not constitute a decision of the Board
on the merits of your appeal.  57 Fed. Reg. 4126 (1992) (to be
codified as 38 C.F.R. � 20.1100(b)).

To: Chairman

From:  Chief Member, Section One

Re:  Messrs. Berg and Vander Meer

     Please accept this notice as a formal request to waive

any otherwise required Performance-based notice or action

concerning the above gentlemen.

     Mr. Berg and Mr. Vander Meer were both adversely

affected by the inability of Section One to dispatch any

cases due to the move to the 6th floor and attendant NOAVA

software problems.  I am personally aware that both

gentlemen worked very diligently during the time period

in question and both, in my view, deserve your informed

beneficence.  Further, due to Mr. Manning's refusal to

work, both were required to assume his GS 14

responsibilities.

                                           ROBERT E. SULLIVAN
                                           Chief Member
                                           Section One


text:
93 Decision Citation: BVA 93-09092

 Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C.  20420

DOCKET NO.        92-54 308       )    DATE
                  )
                  )
                  )

THE ISSUE

Entitlement to service connection for the cause of the veteran's
death.

REPRESENTATION

Appellant represented by:  Veterans of Foreign Wars
                           of the United States

ATTORNEY FOR THE BOARD

William W. Berg, Associate Counsel

INTRODUCTION

This matter came to the Board of Veterans' Appeals (Board) on
appeal from a May 1989 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon.
The veteran served on active duty from January 1968 to January
1971.  His notice of disagreement was received in June 1989, and
the RO issued a statement of the case in August 1989.  The
veteran's substantive appeal was received in January 1990.  The
veteran's representative at the time, Oregon Department of
Veterans Affairs, submitted written argument on his behalf in
February 1990.  The case was received at the Board in March 1990
and placed on the docket in April 1990.

In a May 1990 decision the Board denied entitlement to service
connection for a gastrointestinal disorder manifested by stomach
pains.  The veteran appealed the Board's decision to the United
States Court of Veterans Appeals (Court) and in April 1991, filed
a motion with the Board to reconsider its May 1990 decision.  In
October 1991, the Deputy Vice Chairman of the Board ordered
reconsideration of the May 1990 Board decision, and in April
1992, an expanded Reconsideration Section of the Board remanded
the case to the RO for further development.  On August 6, 1992,
the Secretary of Veterans Affairs filed a motion with the Court
for remand of the case to the Board.  On August 18, 1992, the
Court vacated the Board's June 7, 1989, [sic] decision and
remanded the case, nunc pro tunc, October 2, 1991, to the Board.
[citation redacted].
The veteran is currently represented by an attorney, Sean A.
Kendall.

                  REMAND

The veteran is seeking service connection for a chronic
gastrointestinal disorder manifested by stomach pains.  Evidence
of record shows complaints of stomach problems during and
subsequent to service.  The etiology of the veteran's stomach
complaints has not, however, been established.  A VA examination,
performed in April 1989, resulted in a recommendation by the
examining physician that another examination by performed.

r Aootteran had active military service from June 1969 to January
1975 and unverified periods of active duty from September 1947 to
September 1949 and from January 1951 to June 1969.

This matter came before the Board of Veterans' Appeals (Board) of
the Department of Veterans Affairs (VA) on appeal from an August
1991 rating decision of the Chicago, Illinois, Regional Office
(RO) denying a claim of entitlement to service connection for the
cause of the veteran's death.  The notice of disagreement with
this determination was received in September 1991.  The statement
of the case was issued in October 1991.  The substantive appeal
was received in December 1991.  The appeal was received and
docketed at the Board in January 1992.  The appellant has been
represented throughout her appeal by the Veterans of Foreign Wars
of the United States.  That organization submitted additional
written argument to the Board in June 1992.

REMAND

The evidence of record shows that the veteran died at an Air
Force hospital in June 1991 at the age of 62.  The cause of
death, as listed on the certificate of death, was respiratory
arrest due to pneumonia as a result of esophageal cancer.  No
other significant conditions contributing to death were listed.
The death certificate does not disclose whether an autopsy was
performed.  The terminal hospital report is not of record.

At the time of the veteran's death, service connection was in
effect for diabetes mellitus, which had been rated 10 percent
disabling since February 1975, and for essential hypertension,
which had been rated 10 percent disabling since May 1990.  The
appellant and her representative contend, in substance, that his
service-connected disabilities either caused or contributed
substantially or materially to hasten his death.  The appellant's
representative requests that the case be remanded to the RO for
further evidentiary development, in particular, to obtain the
termina

hospital report and any other pertinent associated medical
records.  VA has a duty to assist the appellant in the
development of facts pertinent to her claim.  38 U.S.C.A.
� 5107(a) (West 1991); 38 C.F.R. � 3.103(a) (1992).  The duty to
assist includes the duty to obtain pertinent medical records to
which the appellant or her representative has referred.
Littke v. Derwinski,  1 Vet.App. 90 (1990).  We are of the
opinion that, in light of the foregoing, further development, as
specified below, is warranted.

Accordingly, the case is REMANDED to the RO for the following
actions:

1.  The RO should request the appellant to
provide the names and addresses of all
health care providers who treated the
veteran in recent years for his diabetes
mellitus, hypertension, or esophageal
cancer, and the approximate dates of
treatment.  Then, after obtaining an
appropriate release from the appellant, the
RO should attempt to obtain copies of the
records cited by the appellant which are not
currently of record, as well as copies of
the records of the veteran's  final
hospitalization and any report of autopsy
performed at the United States Air Force
Hospital, Chanute Air Force Base, Illinois
61868.  These records should be associated
with the claims folder.

2.  Thereafter, in light of the evidence
obtained pursuant to the requested
development, the RO should readjudicate the
issue of entitlement to service connection
for the cause of the veteran's death.

If the appellant disagrees with the decision of the RO, and if
otherwise appropriate, a supplemental statement of the case
should be issued, and the appellant and her representative should
be provided with an opportunity to respond.  Thereafter, the case
should be returned to the Board for further consideration, if
otherwise in order.  By this REMAND, the Board intimates no
opinion as to any

final outcome warranted.  No action is required of the appellant
until she is notified by the RO.

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

                                  *
JOHN J. CASTELLOT, SR., M.D.

                        ROBERT E. SULLIVAN

*38 U.S.C.A. � 7102(a)(2)(A) (West 1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of the
Board, to proceed with the transaction of business without awaiting
assignment of an additional member to the Section when the Section
is composed of fewer than three Members due to absence of a Member,
vacancy on the Board or inability of the Member assigned to the
Section to serve on the panel.  The Chairman has directed that the
Section proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a third
Member.

Under 38 U.S.C.A. � 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals.  This remand is in the nature of a
preliminary order and does not constitute a decision of the Board
on the merits of your appeal.  57 Fed. Reg. 4126 (1992) (to be
codified as 38 C.F.R. � 20.1100(b)).

To: Chairman

From:  Chief Member, Section One

Re:  Messrs. Berg and Vander Meer

     Please accept this notice as a formal request to waive

any otherwise required Performance-based notice or action

concerning the above gentlemen.

     Mr. Berg and Mr. Vander Meer were both adversely

affected by the inability of Section One to dispatch any

cases due to the move to the 6th floor and attendant NOAVA

software problems.  I am personally aware that both

gentlemen worked very diligently during the time period

in question and both, in my view, deserve your informed

beneficence.  Further, due to Mr. Manning's refusal to

work, both were required to assume his GS 14

responsibilities.

                                           ROBERT E. SULLIVAN
                                           Chief Member
                                           Section One