Moran v. Principi

17 Vet. App. 149, 2003 U.S. Vet. App. LEXIS 479, 2003 WL 21432581
CourtUnited States Court of Appeals for Veterans Claims
DecidedJune 20, 2003
Docket99-754
StatusPublished
Cited by3 cases

This text of 17 Vet. App. 149 (Moran v. Principi) 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
Moran v. Principi, 17 Vet. App. 149, 2003 U.S. Vet. App. LEXIS 479, 2003 WL 21432581 (Cal. 2003).

Opinions

KRAMER, Chief Judge, filed the opinion of the Court. STEINBERG, Judge, filed an opinion concurring in part.

KRAMER, Chief Judge:

The appellant appeals, through counsel, a January 29, 1999, Board of Veterans’ Appeals (Board or BVA) decision that denied his claim for service connection for post-traumatic stress disorder (PTSD). Record (R.) at 2, 3-4, 5. The appellant and the Secretary have filed briefs, and the appellant has filed a reply brief. The parties also have filed, pursuant to two Court orders, supplemental pleadings addressing the impact on this appeal of the enactment of the Veterans Claims Assistance Act of 2000, Pub.L. No. 106-475, 114 Stat. 2096 (VCAA), and this Court’s opinion in Holliday v. Principi 14 Vet.App. 280 (2001). In addition, the Court ordered the parties to address two questions concerning the validity of 38 C.F.R. § 3.304(f). In response, the appellant and the Secretary have filed supplemental briefs, and the appellant has filed a supplemental reply brief. 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 Board’s decision and remand the matter for readjudication consistent with this opinion.

I. Background

The appellant served on active duty from January 1969 to November 1970, including service in Vietnam. R. at 12, 223. His service personnel records reflect, inter alia, that his military occupational specialty (MOS) was cook (R. at 12, 222) and that, during his tour of duty in Vietnam, he was assigned to Company A, 20th Engineer Battalion (R. at 223, 225). In January 1983, the appellant submitted an application for VA compensation or pension benefits for, inter alia, “nerves.” R. at 55-58; see R. at 62-63 (discharge summary for private hospitalization from December 12, 1982, to January 14, 1983; physician diagnosed appellant with dysthymic disorder in schizoid personality); see also R. at 190-96 (from December 1982 to October 1983, appellant seen at second private hospital complaining of anxiety, depression, nervousness, and trouble sleeping). On March 10, 1983, the appellant was afforded a VA psychiatric examination; the examiner diagnosed the appellant as having a dysthymic disorder by history with predominant components (gastrointestinal). R. at 76-77; see R. at 68 (March 1983 VA medical certificate listing diagnosis of probable chronic depressive disorder). A VA regional office (RO), in an April 15, 1983, decision, denied the appellant’s claim for service connection for a nervous disorder. R. at 79-80. The appellant did not appeal that RO decision.

On September 12, 1994, the appellant submitted an application for VA compensation or pension benefits for PTSD. R. at 93-96; see R. at 87-89 (appellant hospitalized in VA hospital from August 22, 1994, to September 19, 1994; examiner diagnosed appellant as having PTSD and stated in addendum that PTSD was considered to be result of stress incurred during tour of duty in Vietnam), 98-126 (progress notes from hospitalization); see also R. at 134-39, 141-47, 259-76. An October 17, 1994, VA psychological evaluation report reflects that the appellant related to the examiner that, during his service in Vietnam, he had seen combat and had spent most of his time not as a cook but as a guard for an engineering battalion that [152]*152built roads and bridges. R. at 128-31. The examiner diagnosed the appellant as having PTSD. R. at 131. From January 2, 1995, to January 11, 1995, the appellant was hospitalized in a VA medical center. R. at 556-58; see R. at 158, 160-61, 163-74. As a result of that hospitalization, the appellant was diagnosed as having, inter alia, PTSD (Axis I) and borderline traits (Axis II). R. at 556; see R. at 175-77, 199-204, 228-34 (progress notes, dated from December 1994 to September 1995, relating to appellant’s counseling sessions at VA Mental Health Clinic).

The RO, in a February 1995 letter to the appellant, requested that he complete and return to the RO an enclosed PTSD stressor verification form. R. at 183. Subsequently, on March 23, 1995, the appellant underwent a VA PTSD examination. R. at 206-09. In the report of that examination, the examiner noted that the appellant had related that, during his tour of duty in Vietnam, he had been a cook most of the time and had to “fill in in field operations” and on guard duty occasionally; the examiner further noted that the appellant had related that “his only combat duty was to protect the unit on guard duty and other such details.” R. at 207. The examiner diagnosed the appellant as having, inter alia, dysthymia, chronic, and history of PTSD (Axis I) and personality disorder, not otherwise specified, with borderline and antisocial traits (Axis II). R. at 209. The examiner opined that the appellant’s symptomatology was not significant for PTSD and that his symptomatology was much more suggestive of a chronic dys-thymic condition coupled with a significant personality disorder. The examiner further opined that he considered the Axis II pathology to be a significant part of the appellant’s current manifestations and symptoms. Id. In an April 17, 1995, decision, the RO determined that new and material evidence had not been submitted to reopen the appellant’s claim for service connection for a nervous condition, to include PTSD. R. at 217-19. The appellant did not appeal that decision.

In October 1996, the appellant submitted a stressor affidavit. In that affidavit, he asserted that (1) in March 1970, while his unit was assigned duties at “Camp Enari, II Corps area of operations,” he frequently was subjected to mortar fire over approximately a two-week period, and (2) regardless of where his unit was stationed in Vietnam, the unit was subjected nightly to sniper fire and he particularly remembered the sniper fire that occurred when the unit was stationed at An Khe. R. at 377; see R. at 566 (during counseling session, relating experiences of mortar fire and sniper fire in Vietnam). In a December 1996 decision, the RO again determined that new and material evidence had not been submitted to reopen the appellant’s PTSD-service-eonnection claim. R. at 381-83. The appellant timely appealed that RO decision (R. at 385, 397), and the RO issued to him a Statement of the Case (SOC) (R. at 390-95). The Board, in a June 25,1997, decision, concluded that new and material evidence had been submitted to reopen the appellant’s service-connection claim and remanded that claim to the RO for further development. R. at 399-409.

Pursuant to that remand, the RO, in October 1997, sent a letter to the U.S. Armed Services Center for Research of Unit Records (USASCRUR) requesting supportive evidence for the appellant’s PTSD claim, specifically verification of his asserted stressors. R. at 536. In April 1998, USASCRUR responded to that RO request with (1) a letter in which the director of USASCRUR stated, inter alia, that, after extensive research of available U.S. Army combat unit records for the appellant’s assigned unit and its higher [153]*153headquarters, USASCRUR was unable to verify the appellant’s listed stressors (R.

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Bluebook (online)
17 Vet. App. 149, 2003 U.S. Vet. App. LEXIS 479, 2003 WL 21432581, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moran-v-principi-cavc-2003.