Moreau v. Brown

9 Vet. App. 389, 1996 U.S. Vet. App. LEXIS 713, 1996 WL 521249
CourtUnited States Court of Appeals for Veterans Claims
DecidedSeptember 12, 1996
DocketNo. 94-883
StatusPublished
Cited by54 cases

This text of 9 Vet. App. 389 (Moreau 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
Moreau v. Brown, 9 Vet. App. 389, 1996 U.S. Vet. App. LEXIS 713, 1996 WL 521249 (Cal. 1996).

Opinion

STEINBERG, Judge:

The appellant, Vietnam veteran Ronny J. Moreau, appeals a June 29, 1994, decision by the Board of Veterans’ Appeals (BVA or Board) denying entitlement to service connection for post-traumatic stress disorder (PTSD). Record (R.) at 8. For the reasons that follow, the Court will affirm the decision of the Board.

I. Background

The veteran served on active duty in the U.S. Army from November 1965 to November 1967, with service in Vietnam from April 1966 to April 1967. R. at 28,131. His Army records show assignments as an ammunition storage specialist and a vehicle mechanic while he was in Vietnam. R. at 94. His August 1964 preinduction and October 1967 separation medical examination reports stated that he was psychiatrically normal. R. at 33, 64. His service medical records do not note any complaints of or treatment for a psychiatric condition. R. at 35-57.

In January 1990, the veteran filed with a Department of Veterans Affairs (VA) regional office (RO) an application for VA service-connected disability compensation or non-service-connected pension for PTSD. R. at 86. The VARO requested that the veteran list in-service traumatic experiences in detail, provide a work history, and submit medical evidence. R. at 88-89. The record does not indicate that the veteran replied to the RO letter, and an April 1990 RO decision denied service connection for PTSD. R. at 97.

A “readjustment counseling therapist” at a VA Vet Center, Mr. Brock, submitted to the RO in July 1990 a letter stating that the veteran had been seen at the Center several times since May 1990, had reported the occurrence of stressful events while in Vietnam, and “suffer[ed] from a very severe case of [PTSD].” R. at 101-02. The RO again asked the veteran to list the traumatic experiences in detail, provide a work history, and submit medical evidence. R. at 106-07. In June 1990, the veteran, complaining of depression and suicidal feelings, was seen by a VA physician and hospitalized. R. at 110, 112. He participated in a “trauma recovery group” in July 1990. R. at 112.

In August 1990, the veteran submitted to the RO a statement that in Vietnam he had carried out “body recovery” activities; that in March or April 1967 his unit had endured a two-hour mortar attack; that he had experienced nightmares, flashbacks, and depression; and that he had held about 35 jobs since separation from service. R. at 121. The National Archives furnished the RO with a 1967 “Unit History” of the veteran’s ordnance company, which stated that his unit had supported “combat operations conducted by the Fourth Infantry Division, First Caval[391]*391ry Division[,] and 173d Airborne Brigade” and had suffered some mortar and “Sapper” attacks, apparently in December 1967. R. at 144. The history referred to difficult working conditions during the monsoon season and the need for security precautions due to the possibility of enemy infiltration. R. at 145. From August 27 to September 28,1990, he was hospitalized at a VA medical center (MC), where he reported a history of counseling “on and off’ since the early 1970s “due to depression and poor anger control”. R. at 149. His discharge diagnoses were PTSD and depression. R. at 149.

An October 1990 RO decision continued the denial of PTSD on the grounds that no in-service “life-threatening experience” had been shown and that there was no evidence that the veteran had been in combat. R. at 154,156. The veteran filed a November 1990 Notice of Disagreement (NOD). R. at 161. A December 1990 Statement of the Case (SOC) noted that the stressors mentioned in the veteran’s counseling reports “cannot be verified”. R. at 167. In his February 1991 VA Form 1-9, Substantive Appeal to the BVA, the veteran stated:

I spent one year in Vietnam from 1966 to 1967. During that year I was volunteered to pick up dead bodies that [were] without arms or legs or faces blown apart, and I also washed down bodies with DDT powder and water to kill the red and black ants which made tunnels under the skin.

R. at 173. He also submitted a January 1991 letter from Mr. Brock listing specific traumatic events and concluding that the veteran had “a severe case” of PTSD (R. at 178), and an April 1991 VAMC physician’s statement that he was “[tjotally unemployable at present” due to PTSD (R. at 176; see R. at 183).

At a May 1991 RO hearing, the veteran testified under oath that for about four months in Vietnam he had been informally assigned to help as needed with picking up dead bodies in the field, washing them down, and bagging them for refrigeration and embalming. R. at 183-89. He testified that at times he would have to go by helicopter to an area where servicemen had been killed and “we would just hurry up because we didn’t want to get hit because these guys just got killed”. R. at 186. He also asserted that on one occasion a helicopter crashed behind him and he turned around and saw that the “whole crew was killed”. R. at 193. The hearing officer determined that because of the absence of proof of an in-service stressor there was no evidence that the veteran had PTSD as a result of military service. R. at 199.

In June 1991, the veteran filed a net-worth statement indicating that he had no income or assets and had been totally disabled since May 1990. R. at 203-05. A September 1991 VA examination report diagnosed “nervous condition reactive depression”. R. at 217. In November 1991, a VA psychiatrist diagnosed chronic, delayed PTSD and recurrent depression; he stated, “I have no doubt as to his honesty in his reports”, and noted:

I have no doubt that Mr. Moreau suffers and suffered from [PTSD] for a long time. The death of his child has impacted upon his life quite significantly. Mr. Moreau blamed himself for the death[,] and he has difficulty dealing with that particular death.
Following [a] recent visit to [the Vietnam memorial] moving wall in Concord, his symptoms of [PTSD] have gotten worse and his depression as a result also has been quite intense. [The veteran] is unable to distract himself from the thoughts of Vietnam for any length of time. He is ruminating over feelings of helplessness, hopelessness and suicidal thoughts.

R. at 237.

A January 1992 BVA decision remanded the claim to the RO to take the following actions: (1) Ask the veteran to provide more specific information as to stressors, particularly “approximate dates and names of those he witnessed being killed or wounded”; (2) seek confirmation of the stressors and obtain the veteran’s unit history; (3) if any of the stressors were confirmed, schedule a psychiatric examination of the veteran, to include review of the claims file, “by a psychiatrist who is knowledgeable in the diagnosis and treatment of [PTSD], and who has not previously examined the veteran” and obtain a report from that psychiatrist containing “detailed social, industrial and mili[392]*392tary histories”; and (4) obtain treatment records postdating the May 1991 RO hearing and associate them with the file. R. at 243-45. Also in January 1992, the RO determined, after considering records concerning the veteran’s mental and physical condition, that he did not incur PTSD in service and that he was 30% disabled by non-service-connected depression. R. at 250.

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Bluebook (online)
9 Vet. App. 389, 1996 U.S. Vet. App. LEXIS 713, 1996 WL 521249, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moreau-v-brown-cavc-1996.