Hayes v. Brown

5 Vet. App. 60, 1993 U.S. Vet. App. LEXIS 162, 1993 WL 142076
United States Court of Appeals for Veterans Claims·Decided April 28, 1993·No. No. 90-1306·Published·Cited by 79 cases

Opinion

FARLEY, Associate Judge:

Appellant, Paul R. Hayes, appeals a November 26, 1991, decision of the Board of Veterans’ Appeals (BVA or Board) which denied service connection for post-traumatic stress disorder (PTSD) and a panic disorder. The Court has jurisdiction of the case pursuant to 38 U.S.C.A. § 7252(a) (West 1991). The BVA rendered its decision on the following grounds: (1) that the evidence of record did not objectively support the diagnosis of PTSD; (2) that no independent evidence was shown to corroborate the veteran’s claimed stressors during service; (3) that, although the veteran had a few panic attacks during service, the symptoms and frequency did not meet the diagnostic criteria for panic disorder and the veteran had had similar attacks prior to service; and (4) that appellant’s current chronic psychiatric disorder, panic disorder, was first manifested many years after service and is not related to service. Because we find that the Board applied the proper statutory and regulatory standards and that the findings of fact made by the Board are “plausible,” the BVA decision will be AFFIRMED.

I. Background

Appellant had active service in the United States Army from April 1968 to November 1969, including a tour of duty in Vietnam from November 1968 to November 1969. He was assigned to the 497th Engineering Company where his job specialty was plumber. Appellant’s service medical records (SMRs) indicate that he was treated for anxiety-related symptoms in June 1968, before his tour of duty in Vietnam. These symptoms included passing out, seizures followed by combative behavior, cramping of the stomach, tightness in the chest, paresthesia of the fingers, and anxious hyperventilation. A neurology clinic report listed appellant’s symptoms as dizziness, becoming sweaty, and losing consciousness; according to the report, appellant claimed that he had experienced these latter symptoms on several occasions since age seventeen and that anger and anxiety had preceded each of the episodes. The examining physician’s impression was vaso-depression syncope for which he prescribed Librium. (Vasodepression is defined as a “decrease in vascular resistance with hypo-tension,” see DoRland’s IllustRated Medical DICTIONARY 1809 (27th ed. 1988) [hereinafter Dorland’s]. Syncope is defined as “a temporary suspension of consciousness due to generalized cerebral ischemia; a faint or swoon.” See Dorland’s, at 1628.) The SMRs indicate that in December 1968 and January 1969, during his period of service in Vietnam, appellant was treated for dizzy spells, headaches, and hyperventilation, which were apparently related to tension and anxiety. He was prescribed Librium and Dramamine to treat these symptoms.

In a statement dated December 21, 1986, Mr. Charles G. Bearce, A.C.S.W., a private social worker, noted that he had been counseling appellant since March 13, 1986, and discussed at length the stressors alleged by appellant. According to Mr. Bearce, appellant reported that, prior to being assigned to the Vietnam theatre, .he had been promised “duty in school” where he would be taught to read and write and that during his service in Vietnam, he experienced conflict with other soldiers and alienation from his family due to his illiteracy. Mr. Bearce also noted that appellant reported feeling a great deal of anxiety around rocket attacks, and that since returning from Vietnam appellant had suffered two to three years of nightmares which had stabilized until 1979, when appellant’s current psychiatric disorders began to slowly develop. Mr. Bearce concluded that appellant’s present psychiatric disorders, which he diagnosed as including anxiety, depression, and agoraphobia, were clearly connected to his experiences in Vietnam and the stress from exposure to war trauma which was exacerbated by his illiteracy problems and social isolation.

In March 1987, appellant filed a claim with the Veterans’ Administration (now Department of Veterans Affairs) (VA) for service connection for PTSD and hearing loss. (Appellant’s hearing loss claim is not before this Court.) He reported various events as stressors related to his service in Vietnam. Appellant noted that, because he was illiterate, he was unable to communi[64]*64cate with his family and was subjected to teasing from his fellow servicemen, resulting in loneliness and alienation. Appellant also contended that he had witnessed rocket attacks, nightly fire fights, and mass burials of dead Vietnamese by bulldozers. Appellant stated that he had witnessed the deaths of several friends during the rocket attacks, including Joseph Murphy. As a result of the stressors related to his service in Vietnam, he claimed to be currently experiencing recurring nightmares, shaking, cold sweats, pounding heartbeat, a fear of travelling or being enclosed, and frequent panic attacks. In support of his claim, appellant submitted various statements from friends and family who described changes in appellant’s condition since returning from Vietnam, including nervousness, frequent crying, nausea, and fear of travelling outside the home.

In March 1987, the VA furnished information regarding appellant’s claimed stres-sors to the United States Army and Joint Services Environmental Support Group (ESG) and requested that the ESG attempt to verify the stressors in connection with appellant’s claim for service connection for PTSD. In June 1987, appellant was examined by a VA fee-based psychiatrist, Dr. Patricia Lillquist. After noting the stres-sors and symptoms provided in appellant’s own account of his history, Dr. Lillquist diagnosed appellant as having two distinct psychiatric disabilities: PTSD and panic disorder.

In a letter dated September 1987, the ESG responded to the VA’s request for information regarding appellant’s claim and enclosed extracts of the activity reports of the 35th Engineer Group and the 87th Engineer Battalion describing the 497th Engineer Company’s operations during appellant’s period of Vietnam service. These extracts did reveal that a diver support group of the 497th Engineering Company recovered three bodies from the Rach Thi Tinh River on July 9, 1969, but did not corroborate whether appellant took part in this operation. The ESG noted that it was unable to locate information confirming the stressors claimed by appellant.

In a decision dated March 1988, the VA Regional Office (RO) deferred rating appellant’s claim. The RO noted that appellant claimed that he was involved in a rocket attack, during which several of his fellow servicemen were killed, including his buddy Joseph Murphy, and required further corroboration of appellant’s alleged stressors pursuant to VA Adjudication Manual M21-1 (Manual M21-1), paragraph 50.-45(e). In a letter dated June 20, 1988, the ESG confirmed that a serviceman, Joseph T. Murphy, was killed on May 4, 1969; however, the ESG could not confirm that appellant was in Mr. Murphy’s unit or that appellant witnessed Mr. Murphy’s death. The ESG noted that the information provided was general in nature due to the lack of specific information or specific stress indicators provided by appellant. The ESG stated that more detailed information was needed in order to provide any further research into appellant’s claim, including a brief description of the specific combat incidents, including dates, places and types, and the full names of friends in appellant’s unit, killed or missing in action.

In a decision dated October 4, 1988, the RO denied service connection for PTSD. In adjudicating the claim, the RO relied on the SMRs, the December 1986 statement from Mr.

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Hayes v. Brown, 5 Vet. App. 60, 1993 U.S. Vet. App. LEXIS 162, 1993 WL 142076 (Cal. 1993).

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