Frank L. Gallegos, Jr. v. James B. Peake

22 Vet. App. 329, 2008 U.S. Vet. App. LEXIS 1715, 2008 WL 5421471
CourtUnited States Court of Appeals for Veterans Claims
DecidedDecember 31, 2008
Docket05-2920
StatusPublished
Cited by6 cases

This text of 22 Vet. App. 329 (Frank L. Gallegos, Jr. v. James B. Peake) 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
Frank L. Gallegos, Jr. v. James B. Peake, 22 Vet. App. 329, 2008 U.S. Vet. App. LEXIS 1715, 2008 WL 5421471 (Cal. 2008).

Opinions

SCHOELEN, Judge:

Before the Court is an appeal by the appellant, Frank L. Gallegos, Jr., of a June 16, 2005, Board of Veterans’ Appeals (Board) decision that denied entitlement to service connection for post-traumatic stress disorder (PTSD). Record (R.) at 1-16. This appeal is timely, and the Court has jurisdiction to review the Board’s decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). For the following reasons, the Court will affirm the Board’s decision.

I. BACKGROUND

The appellant served on active duty in the U.S. Anmy from December 1966 to January 1970. R. at 19. His service rec[331]*331ords indicate that he lost 32 days for time served in confinement pursuant to a military court-martial sentence. R. at 19, 176-77; see 10 U.S.C. § 972. While in service, the appellant underwent a single treatment for “nervous tension” and “situational anxiety” attributed to his ongoing divorce proceedings. R. at 116.

In October 1997, a clinical social worker diagnosed the appellant with PTSD and depression. R. at 343; see also R. at 518 (clinical diagnosis of PTSD and major depressive disorder). Thereafter, in July 2000, the appellant filed a claim seeking service connection for both disorders. R. at 555-57. To support his claim, the appellant submitted a stressor statement in which he attested that his PTSD originated from two rapes that he suffered while imprisoned for his court-martial sentence. R. at 556, 669. The appellant said that he did not report the incidents out of shame, and that after they occurred, he felt suicidal, isolated, distrustful of others, and he performed his military duties poorly. Id. He also attested that the assaults prompted him to request a transfer to Vietnam, but that the Army sent him to Alaska instead.1 R. at 642. In Alaska, the appellant recalled, he often drank and got into fights in order to “prove that [he] was a man and get [his] anger out.” Id.

In December 2000, pursuant to the version of 38 C.F.R. § 3.304(f)2 then in effect, the VA regional office (RO) in Denver, Colorado, sent a letter to the appellant requesting that he provide “alternate sources of information that would assist [VA] in evaluating your claim.” R. at 647. The RO set forth examples of such eviden-tiary sources, including statements from service medical personnel, “buddy” statements, accident or police reports, physical examinations conducted for employment or insurance purposes, medical treatment reports, letters written during service, photographs taken during service, and pharmacy records. R. at 647-48.

The appellant underwent a VA medical examination in October 2001. R. at 750-54. Upon review of the appellant’s claims file, including letters from his family detailing postservice behavioral changes (R. at 272-75), Charles Oppegard, M.D., opined that “[t]he symptoms [the appellant] gives are quite consistent with a highly traumatized experience of sexual rape to a man.” R. at 753. The RO denied the appellant’s claim in November 2001, finding no evidence of an in-service stressor. [332]*332R. at 759-62. The appellant appealed this decision to the Board. R. at 770, 820.

On March 7, 2002, while his claim was pending at the Board, VA published a final rule amending 38 C.F.R. § 3.304(f). 67 Fed.Reg. 10,330 (Mar. 7, 2002). Specifically, VA added the following to the existing text:

If a post-traumatic stress disorder claim is based on in-service personal assault, evidence from sources other than the veteran’s service records may corroborate the veteran’s account of the stres-sor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stres-sor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. VA will not deny a post-traumatic stress disorder claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the veteran’s service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred.

38 C.F.R. § 3.304(f)(3) (2002).

In September 2002, the RO sent the appellant a Statement of the Case (SOC) containing the full text of the amended regulation. R. at 804-18. In June 2003, the appellant submitted a statement from his ex-wife, which described his substance abuse, cheating, and violent tendencies. R. at 866, 871. That same month, the appellant testified at a Board hearing, during which his representative cited the amended version of § 3.304(f)(3) and pointed to examples of the appellant’s behavioral changes claimed to be indicative of an in-service assault. R. at 842-56. The appellant and his representative also discussed with the Board chairman various alternative sources of evidence that allegedly offered support for the appellant’s claim. R. at 853-55.

The Board issued a decision in December 2003 remanding the appellant’s claim for further development in light of the changes to 38 C.F.R. § 3.304(f). R. at 858-63. Citing the amended regulation, the Board found that although “the RO noted in its November 2001 rating decision that the veteran could establish service connection through alternate sources of evidence which document behavioral changes after the alleged incident, the RO did not actually determine if such evidence was present.” R. at 860. Accordingly, the Board ordered the RO to afford the appellant the opportunity to submit additional supporting evidence and to subsequently readjudicate the claim. R. at 861-62. In January 2004, the appellant provided a statement to the RO detailing his destructive behavior following the alleged in-service assault. R. at 875.

[333]*333In a letter dated March 2004, the RO requested that the appellant submit “evidence that [PTSD] existed from military service to the present time.” R. at 883.

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Bluebook (online)
22 Vet. App. 329, 2008 U.S. Vet. App. LEXIS 1715, 2008 WL 5421471, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frank-l-gallegos-jr-v-james-b-peake-cavc-2008.