Gaines v. West

11 Vet. App. 353, 1998 U.S. Vet. App. LEXIS 967, 1998 WL 457696
United States Court of Appeals for Veterans Claims·Decided August 6, 1998·No. No. 97-39·Published·Cited by 16 cases

Opinions

STEINBERG, Judge, filed the opinion of the Court. HOLDAWAY, Judge, filed a concurring opinion.

STEINBERG, Judge:

The appellant, Vietnam veteran Jerry Gaines, Sr., appeals through counsel a December 31, 1996, decision of the Board of Veterans’ Appeals (BVA or Board) denying his claim for service connection for post-traumatic stress disorder (PTSD). Record (R.) at 2, 7-8. The appellant filed a brief and a reply brief, and the Secretary filed a brief. The parties agree that a remand is required but disagree about the bases for such a remand. This appeal is timely, and the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). For the reasons that follow, the Court will vacate the BVA decision and remand the matter for further development and readjudication.

I. Facts

The veteran served on active duty in the U.S. Marine Corps from August 1962 to October 1966. R. at 39. His service records do not reflect the award of any military decoration that would presumptively establish that he engaged in combat with the enemy; however, a notation in his personnel records, on a page captioned “Combat History — Expeditions”, stated that he had “[pjartieipated in operations against Viet Cong, Chu Lai, South Vietnam”, from March 26, 1966, to September 1, 1966. R. at 191; see also R. at 193. His personnel records note, and the Secretary concedes, that for at least part of his service in Vietnam his primary duties included “0331 [machine gunner]”. Secretary’s Brief (Br.) at 2; R. at 190.

In February 1994, he filed with a Department of Veterans Affairs (VA) regional office (RO) a claim for VA service-connected disability compensation or non-service-eonnect-ed pension for, inter alia, PTSD. R. at 144r-49. The VARO sought specific information with regard to stressors (R. at 151-52). He responded by letter that he had been a machine gunner attached to a division supply unit in Chu Lai, Vietnam (R. at 181); he further stated that he had been troubled by “so many people ... dying around [him]” and by the threat of being killed by white service members (R. at 182). A July 1995 RO decision denied the claim, noting that there was no diagnosis of PTSD. R. at 208-10.

In an August 1995 VA compensation and pension medical examination for PTSD, the examining psychologist concluded: “The pattern of results [is] consistent with the profiles of veterans who suffer from [PTSD], and thus are supportive of this veteran’s application for compensation”. R. at 264. The VA examining psychiatrist diagnosed PTSD; in discussing the history of the illness, he noted:

Mr. Gaines served in Vietnam in 1965-66 for nine months toward the end of the [sic] his four-year enlistment. He was a machine gunner attached to a Division Supply Company stationed primarily at Chu Lai. The base was subject to sniper and mortar attacks and, at times, he manned the machine gun on the perimeter and though he would fire if there was any movement, he often could not see exactly what his target was. At times, he saw casualties and remains brought back to the base from the field. Mr. Gaines described some racial tension in his barracks and stated that he kept to himself as much as possible throughout his stay in Vietnam. [356] R. at 265-66. In October 1995, the RO again denied the claim, concluding as follows: “Although there is a clinical diagnosis of PTSD, there is no evidence of record to corroborate the veteran’s history of stressful events”. R. at 270. The veteran filed a timely appeal to the Board. R. at 282, 800. He provided a letter, jointly signed by a Ph.D. (apparently a psychologist) and a psychology trainee, stating that he had been diagnosed with PTSD and that he experienced “psychological distress when exposed to situations similar to those in Vietnam”. R. at 275.
In a May 1996 hearing before the RO, the veteran testified under oath that while in Vietnam he had provided machine-gun support to the supply company to which he was assigned, guarded the perimeter during which time he received fire, went on patrol, and went out oh trucks to make deliveries; he further testified that he had seen the dead bodies of those he had shot and that he had seen a friend, Lonnie Gay, from another company shot and killed. R. at 304-07. He also testified that once, when he was taken to a hospital ship for an eye appointment, he saw unbagged dead bodies and wounded people calling for help. R. at 807-08. He stated that he was fired upon while manning a truck-mounted machine gun in a truck convoy. R. at 308-09. He also stated that he was harassed by white Marines because he was black. R. at 309-10. The veteran’s representative noted at the hearing that the veteran had applied to the U.S. Department of the Navy to have his records corrected, “requesting that he be issued the Combat Action Ribbon”. R. at 310. After the hearing, the RO sought verification from the Marine Corps of the death of Lonnie Gay (R. at 316), but the record on appeal (ROA) does not suggest that VA otherwise attempted to confirm the alleged stressors. As to the death of Lonnie Gay, the Marine Corps reported that a U.S. soldier by that name was killed in Vietnam two years after the veteran had left the country. R. at 403.
In the December 31, 1996, BVA decision here on appeal, the Board acknowledged that the veteran had a current diagnosis of PTSD (R. at 4) but found that he had not engaged in combat:
While the Vietnam Service Medal signifies that the veteran was assigned for duty in the Republic of Vietnam, neither this award, nor the M-14 Rifle Expert Badge and the National Defense Service Medal, in and of themselves signify exposure to combat. The report that the veteran “participated in operations” against an enemy force does not indicate that he was involved in “combat operations.” Thus, the available service department evidence of the veteran’s service does not indicate the veteran engaged in combat or that the veteran was awarded the Purple Heart, Combat Infantryman Badge, or similar combat citation.

R. at 6. The BVA stated that it was “not obligated to accept the veteran’s uncorroborated account of his Vietnam experiences” (R. at 7) and thus concluded: “In the absence of [evidence of combat service], the VA cannot accept the veteran’s claimed combat stressor without verification of the claimed in[-]service stressor” (R. at 6). The Board noted that the death of Lonnie Gay had taken place two years after the veteran’s departure from Vietnam (R. at 6-7) but did not discuss any of the other stressors, concluding that his “description of the events of his service lacks the specificity required for verification; as a result, his claimed stressors have proved unverifiable”. R. at 7.

II. Analysis

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Gaines v. West, 11 Vet. App. 353, 1998 U.S. Vet. App. LEXIS 967, 1998 WL 457696 (Cal. 1998).

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