Samuels v. West

11 Vet. App. 433, 1998 U.S. Vet. App. LEXIS 1147, 1998 WL 650875
CourtUnited States Court of Appeals for Veterans Claims
DecidedSeptember 23, 1998
DocketNo. 96-402
StatusPublished
Cited by3 cases

This text of 11 Vet. App. 433 (Samuels v. West) 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
Samuels v. West, 11 Vet. App. 433, 1998 U.S. Vet. App. LEXIS 1147, 1998 WL 650875 (Cal. 1998).

Opinion

NEBEKER, Chief Judge:

The appellant, Barry C. Samuels, appeals from a March 1, 1996, Board of Veterans’ Appeals (BVA or Board) decision denying service connection for post-traumatic stress disorder (PTSD). The issue is whether the appellant has submitted a well-grounded claim for PTSD. For the following reasons, the Court holds that he has not submitted such a claim and will affirm the BVA’s denial of service connection for PTSD.

I. FACTS

The appellant entered into active service with the U.S. Army on October 30, 1970. Supplemental Record (Supp. R.) at 1. At that time, the entrance examination report recorded a normal psychiatric condition. Record (R.) at 17. Seventeen days after entering service, a medical consultation sheet entry noted that the appellant had complained of being scared around weapons because, prior to entering service, he had accidentally shot his girlfriend. R. at 27. In a November 1970 letter, Dr. Maurice B. Weiner stated that the appellant had been terrified of guns since the accidental shooting of his girlfriend. R. at 28. An Army physician then permanently restricted the appellant from “the personal use of weapons in training or duty,” and an Army medical board confirmed that restriction. R. at 29-30. After only three months and twenty-three days of service, the Army discharged the appellant because he did not meet the “medical fitness standards at time of [induction].” Supp. R. at 1.

More than four years later, the appellant filed a claim for service connection of an unspecified “nervous disorder.” R. at 36-52. The appellant stated that he had enlisted in “good mental and physical condition,” but that once he actually began basic training he started to have problems. R. at 40. Essentially, the appellant asserted that Army drill instructors forced him to undergo weapons training despite his declared fear of using a weapon. See R. at 41-42, 94-99. In January 1976, the appellant further elaborated on his current psychological condition, requesting service connection for “schizophrenia-nerves.” R. at 62. Michael Kelly, who went through basic training with the appellant, confirmed the appellant’s assertion that he had been harshly treated by his drill instructors during basic training because of his fear of using a weapon. R. at 110-11,126-27. In October 1977, the Board denied service connection for a “nervous disorder,” finding that there was no evidence of a confirmed psychiatric disorder until 1976, more than four years after he left service. R. at 194-98.

Over the years, the appellant has received many diagnoses of various psychiatric disorders, not including PTSD. See R. at 204, 225, 230, 234, 303, 305, 322, 364, 382. None of these examiners linked the appellant’s psychological condition to his service. In March 1991, the appellant filed a claim for PTSD and submitted a December 1989 psychological report that recorded a PTSD diagnosis. R. at 480, 476-78. The history the appellant provided in that report included a reference to his having had “PTSD from Vietnam,” and a statement that a recent PTSD episode had been triggered when he saw an “old friend from the war whom he had thought had died.” R. at 476. In a December 1991 VA psychiatric examination, the appellant “remembered” more Vietnam combat experiences, alleging that he had seen many people killed. R. at 492-94. The examiner diagnosed “atypical psychosis” and listed the “stress of military service” as an environmental factor. R. at 494.

A July 1994 BVA decision remanded the appellant’s PTSD claim because, “regardless of the diagnostic labels used then or now to describe his illness, the question of whether psychological consequences of the preservice event were worsened by service has already been adjudicated.” R. at 540. Consequently, the Board ordered the RO to determine the exact nature of the appellant’s mental condition and the alleged PTSD stressors along with whether the appellant had submit[435]*435ted new and material evidence to reopen his non-PTSD psychiatric disorder claim. R. at 541-42. After the BVA remand, the RO received multiple medical reports showing that the appellant had PTSD as a result of his alleged Vietnam experiences. See R. at 585-86, 587, 588, 724-25.

In the February 1995 examination ordered by the BVA, Dr. A. Husain questioned the appellant as to whether he had seen any combat and whether he had ever been in Vietnam. The appellant admitted that he had not been in combat, but he did assert that he had been in Vietnam where he saw a “lot of killing.” R. at 988. Dr. Husain diagnosed the appellant with paranoid schizophrenia and dependent personality traits, listing the “stress of [m]ilitary experience” as an environmental factor. Significantly, Dr. Husain did not diagnose the appellant with PTSD, although he did remark that “there is much evidence to diagnose PTSD in my opinion.” R. at 985.

In July 1995, the RO continued the denial of service connection for PTSD because there was no diagnosis of PTSD at the February 1995 and November 1991 examinations. While acknowledging the previous PTSD determinations, the RO found there was no evidence showing that “PTSD was incurred in or aggravated by military service.” R. at 991. Notably, the RO did not comply with the 1994 BVA remand order requiring a new and material evidence determination as to the appellant’s previously claimed nervous disorder.

The March 1996 BVA decision here on appeal similarly neglected to discuss whether the appellant had submitted new and material evidence concerning his nervous condition claim, listing the issue as “service connection for [PTSD].” R. at 7. In its decision, the BVA determined that the appellant had submitted a well-grounded claim, but that the preponderance of the evidence was against the appellant’s PTSD claim. R. at 8. Although doubting whether the appellant had a clear diagnosis of PTSD, the Board did not resolve this question because, using The Diagnostic and Statistical Manual of Mental Disorders, third edition, (DSM-III), it found that there was no evidence of a stressor that would support a PTSD diagnosis. R. at 13-14. Further, the Board noted that none of the VA physicians “who used the term PTSD” had linked the appellant’s claimed psychiatric symptoms to an actual in-service stressor. R. at 14.

II. ANALYSIS

A. WeH-Grounded PTSD Claim

A Board determination whether a claim is well grounded is a conclusion of law subject to de novo review by the Court under 38 U.S.C. § 7261(a)(1). Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). “[A] person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded.” 38 U.S.C. § 5107(a). The Court has defined a well-grounded claim as follows: “[A] plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of [section 5107(a) ].” Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990).

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Bluebook (online)
11 Vet. App. 433, 1998 U.S. Vet. App. LEXIS 1147, 1998 WL 650875, Counsel Stack Legal Research, https://law.counselstack.com/opinion/samuels-v-west-cavc-1998.