Burger v. Brown

5 Vet. App. 340, 1993 U.S. Vet. App. LEXIS 206, 1993 WL 245109
CourtUnited States Court of Appeals for Veterans Claims
DecidedJuly 8, 1993
DocketNo. 91-935
StatusPublished
Cited by6 cases

This text of 5 Vet. App. 340 (Burger v. Brown) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burger v. Brown, 5 Vet. App. 340, 1993 U.S. Vet. App. LEXIS 206, 1993 WL 245109 (Cal. 1993).

Opinion

MANKIN, Judge:

Appellant appeals a February 4, 1991, decision of the Board of Veterans’ Appeals (BVA or Board) which denied service connection for post-traumatic stress disorder (PTSD) and for residuals of frostbite or trench foot. The Court has jurisdiction over the case pursuant to 38 U.S.C.A. § 7252(a) (West 1991).

I. BACKGROUND

Appellant had active service from October 1941 to September 1945. During service, his plane was shot down over German enemy territory and he was imprisoned for seven months in a prisoner of war (POW) camp. Appellant claims that during his confinement he had infections of the toes and feet and had his toenails removed as a result of frostbite. He also claims that he suffers PTSD as a result of his POW experience. R. at 2.

[342]*342Appellant was treated in October 1941 for a mild skin infection of undetermined origin of the toes. R. at 5, 11. Service medical records do not reveal any evidence of a psychiatric disorder or frostbite of the feet. Appellant’s separation examination report also reflects normal findings. R. at 1-2. The record contains a “buddy letter” from a fellow POW who recalled that during confinement appellant had an infected foot which had not been medically treated. R. at 32. Appellant’s initial application for Veterans’ Administration (now Department of Veterans Affairs) (VA) compensation or pension that was received in October 1945 contains no complaints of a psychiatric disorder or residuals of frozen feet. During a VA examination in July 1947, appellant complained of nervousness, but no findings were then made of a psychiatric disability or frozen feet. R. at 35-42. A February 1983 VA medical report noted a history of stomach 'problems and peptic ulcer disease. Appellant denied feelings of depression. The examining physician found “no significant nervous or emotional problems.” R. at 47-48. There were no complaints or findings of residuals of frozen feet. Appellant received a mental status examination at a VA facility in September 1983. He denied symptoms of depression or anxiety disorder, with the exception of occasional irritability or edginess. The examining physician diagnosed “probable PTSD, acute resolved.” R. at 49.

Service connection for PTSD was denied by rating decision in October 1983. R. at 65-66. In March 1989, appellant reopened his claim for PTSD and initiated a claim for residuals of frostbite of the feet. R. at 67-76. He submitted VA outpatient treatment records from 1988 and 1989 which show that he attended group therapy sessions for ex-POWs and which contain several diagnoses of PTSD. R. at 80, 86, 92, 96. In April 1989, appellant was examined at a VA facility. His feet were found to be normal, except for a few discolored toenails. R. at 98. When asked to describe his current mental and emotional state, appellant stated that he felt depressed at times; however, he emphasized that he is able to “pull [himself] out of it.” R. at 101. Appellant also stated that he is nervous and anxious “occasionally, a couple of times a month, about health problems.” He stated that he had nightmares a couple of times a week immediately after leaving service, but that in the last several years, they had occurred only once or twice a month. Appellant denied experiencing flashbacks. There was no clinical indication of organic brain dysfunction, and PTSD was not diagnosed. R. at 97-105.

Appellant’s claim for service connection for PTSD and frostbite or trench foot residuals, among other claimed disabilities, was denied by rating decision dated November 6, 1989. R. at 107. Appellant filed a Notice of Disagreement on December 7, 1989. R. at 108. In a subsequent 1-9 Appeal form, appellant’s service representative identified the issues on appeal as service connection for residuals of frostbite or trench foot, peptic ulcer, and PTSD. Appellant presented sworn testimony in support of his claims at a personal hearing. Appellant testified that he had frostbite of the feet during service, but that he had no current skin changes or abnormalities. R. at 121. He also stated that he experienced occasional flashbacks. R. at 124. The hearing officer granted service connection for a duodenal ulcer, but denied service connection for PTSD and for frostbite or trench foot residuals. R. at 132. Appellant appealed the decision to the BVA, which issued the decision now on appeal before the Court. R. at 137.

II. ANALYSIS

A.

The BVA, as fact finder, is required to weigh and analyze all the evidence of record. Decisions of the Board shall be based on the entire record and upon consideration of all of the evidence and applicable provisions of law and regulation. 38 U.S.C.A. § 7104 (West 1991). See also 38 C.F.R. § 3.303(a) (1992). The BVA’s task also includes determining the credibility of the evidence. Smith v. Derwinski, 1 Vet.App. 235, 237 (1991) (determining the credibility of evidence is a func[343]*343tion for the BVA, not the Court of Veterans Appeals); Ohland v. Derwinski, 1 Vet.App. 147, 149 (1991).

In the instant case, the BVA denied service connection for PTSD, finding that “the evidence does not show the presence of [PTSD].” Francis L. Burger, BVA 91-03537, at 4 (Feb. 4, 1991). While recognizing that reports of out-patient group therapy indicate findings of PTSD, the Board gave greater weight to the medical diagnoses from the February. 1983 psychiatric examination (finding no significant nervous or emotional problems) and from the September 1983 psychiatric examination (noting “probable [PTSD], acute, resolved”). The Board also relied upon the most recent VA examination of April 1989 in which the veteran denied flashbacks and preoccupation with his wartime experiences.

Where a claim has “significant evidence” supporting service connection, the Board is required to explain its reasons for not affording an appellant the benefit of the doubt under 38 U.S.C.A. § 5107(b) (West 1991); Williams v. Brown, 4 Vet.App. 270, 273-74 (1993); see also 38 U.S.C.A. § 7104(d) (West 1991); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). In its decision, the BVA laid out clearly the evidence supporting its findings as well as the evidence in favor of appellant’s claim, and articulated its reasoning as required under the reasons or bases requirement of 38 U.S.C.A. § 7104(d)(1) (West 1991), stating:

The formal psychiatric examination reports are in much greater detail, including statements of histories and mental status findings, than the clinical impressions resulting from outpatient therapy sessions.

Burger, BVA 91-03537, at 4. The reports from group therapy sessions are not in accordance with 38 C.F.R. § 4.126 and DSM-III-R (Diagnostic and Statistical RePORT Of Mental DISORDERS) which require supportive findings to substantiate a PTSD diagnosis.

This Court can overturn findings of fact made by the BVA only if those determinations, including findings regarding credibility, are clearly erroneous. Jones v. Derwinski, 1 Vet.App. 210, 217 (1991); Gilbert, 1 Vet.App. at 52. If the BVA’s account of the evidence is plausible in light of the entire record, the Court may not reverse it. Jones, 1 Vet.App. at 217; Gilbert, 1 Vet.App. at 52.

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5 Vet. App. 340, 1993 U.S. Vet. App. LEXIS 206, 1993 WL 245109, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burger-v-brown-cavc-1993.