Trytek v. Derwinski

3 Vet. App. 153, 1992 U.S. Vet. App. LEXIS 266, 1992 WL 204265
CourtUnited States Court of Appeals for Veterans Claims
DecidedAugust 25, 1992
DocketNo. 91-1502
StatusPublished

This text of 3 Vet. App. 153 (Trytek v. Derwinski) 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
Trytek v. Derwinski, 3 Vet. App. 153, 1992 U.S. Vet. App. LEXIS 266, 1992 WL 204265 (Cal. 1992).

Opinion

MEMORANDUM DECISION

STEINBERG, Associate Judge.

The appellant, Vietnam veteran Dennis L. Trytek, appeals from a May 13, 1991, decision of the Board of Veterans’ Appeals (BVA or Board) denying entitlement to service-connected disability compensation for post-traumatic stress disorder (PTSD). The BVA decision will be vacated and the record remanded to the BVA for expedited readjudication, including fulfillment of the duty to assist the claimant, and issuance of a new decision supported by an adequate statement of reasons or bases.

The veteran served on active duty in the United States Army from July 28, 1968, to March 2, 1970. R. at 1. He served in Vietnam with the 108th Artillery Group from February 16, 1969, to March 2, 1970. R. at 1. His service records state that his military occupational specialty was communications center specialist. R. at 2-4. His records do not indicate whether he ever engaged in combat with the enemy during his Vietnam service.

In March 1988, the veteran submitted a claim to the Veterans’ Administration (now Department of Veterans Affairs) (VA) Regional Office (RO) for service-connected disability compensation for PTSD. R. at 39-40. In June and July 1989, the veteran was hospitalized for more than a month at the psychiatric unit of a VA Medical Center (MC), at which time a VA psychiatrist diagnosed him as suffering from PTSD, resulting in flashbacks about his Vietnam service. R. at 47. After his discharge from that hospitalization on July 31, 1989, the veteran was kept on daily medication for his PTSD symptoms. R. at 78. On November 13, 1989, the veteran underwent a special VA psychiatric examination for rating purposes. R. at 84-91. The examining psychiatrist, Dr. P.K. Chandarana, diagnosed the veteran as suffering from “[delayed post-traumatic stress disorder along with substance abuse disorder in [the] form of alcohol and polydrug abuse including Opium”. R. at 87.

In a November 30, 1989, memorandum, the VARO adjudication officer returned the examination report to the examiner for clarification, stating:

Report of VA psychiatric examination must be returned because diagnosis of [PTSD] is not supported in the report. The report does not give a description of a specific stressor (or stressors) which is responsible for the claimed condition. (Simply the fact of Vietnam service is not sufficient basis for assumption of a stressor not clinically identified and/or verified by service records.) Further, [155]*155the exam report does not describe the content of veteran’s reported flashbacks so that their relationship to the precipitating stressor can be clearly defined. Please furnish amended examination report which includes a complete (or as detailed as possible) description of the particular stressor (or stressors) responsible for the veteran’s diagnosed [PTSD]. Also, please include a description of the content of veteran’s symptoms, showing how they relate to the initial precipitating stressor. (In this regard, please note that veteran reported to examiner he was a truck driver in Vietnam and his service personnel records show he was a communications specialist with an artillery unit and was not awarded any medals or awards signifying combat duty.)

R. at 88 (emphasis in original). On December 22, 1989, Dr. Chandarana amended his November 13, 1989, examination report by writing on that report:

After reviewing my own and other reports once more I make a correction and cancel my prior diagnosis of [PTSD]— since 1) he has no clear cut symptoms[,] 2) there were no clear precipitating factors^] 3) there is no hypersensitivity[,] or 4) there is no numbing of emotion

R. at 91.

In a January 8, 1990, statement in support of his claim, the veteran related numerous combat experiences and stressors: He stated that his unit “was often under fire and returning fire on the move”, that he “directly engaged in sustained combat”, that he was once blown off a bunker during a rocket attack, that on patrols after combat he saw people he had killed, and that as a truck driver he had to load his truck with body bags containing dead American soldiers. R. at 92-95. In a March 27, 1990, decision, the RO denied service connection for PTSD. R. at 96-97.

The veteran subsequently submitted several lay statements from persons who knew him prior and subsequent to his Vietnam service, and statements from a VA social worker and a VA art-therapy instructor. R. at 105-112. A November 1990 statement from Robert T. Kelly stated that he had served with the veteran in an artillery unit in Vietnam, that each soldier in their unit had been required to serve guard and patrol duties, that their base was subject to regular attacks, and that on one occasion the appellant was blown from a bunker during a rocket and mortar attack when they were on guard duty. R. at 111-12. The veteran also submitted November 1990 statements from a physician in the infectious disease section of a VAMC, that the veteran “is followed for [PTSD]” (R. at 113); from a social worker at a VA Veterans Outreach Center (Vet Center), that the veteran suffers from PTSD and had participated in Vet Center treatment programs since April 1985 (R. at 114-15); and from a Vet Center psychologist, that the veteran attends a PTSD treatment group (R. at 116).

On November 28, 1990, the veteran appeared at a personal hearing before the RO and testified under oath as to several instances of combat in Vietnam, as well as other stressful incidents. He testified that his unit had been exposed to constant shelling in Vietnam, that he once saw a jeep and three soldiers destroyed by a land mine, that he often had to load bodies in body bags onto his truck, and that he and his unit had fired upon villages in Vietnam, and that he had observed dead women and children who were killed in those attacks. R. at 117-43.

In its May 13, 1991, decision, the BVA denied service connection for PTSD, stating that “a review of the service records fails to support a finding that the veteran was exposed to combat stressors.” Dennis L. Trytek, BVA 91-15908, at 4 (May 13, 1991). The Board stated that the veteran had “significant additional stressors in his life”, including a history of drug use and serious medical conditions. The Board further stated:

Absent evidence of a significant stressor in service, in the Board’s opinion, the evidence presented in this case clearly establishes that the veteran does not suffer from a [PTSD] resulting from military service.

Trytek, BVA 91-15908, at 5.

The Board is required to base its decisions on “all evidence and material of [156]*156record”, 38 U.S.C. § 7104(a) (formerly § 4004); 38 C.F.R. § 3.303(a) (1991), and to provide an adequate statement of the reasons or bases for its findings and conclusions. 38 U.S.C. § 7104(d)(1) (formerly § 4004). To comply with these requirements, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any evidence favorable to the veteran. See Abernathy v. Derwinski, 2 Vet.App. 391, 394 (1992); Hatlestad v. Derwinski,

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Bluebook (online)
3 Vet. App. 153, 1992 U.S. Vet. App. LEXIS 266, 1992 WL 204265, Counsel Stack Legal Research, https://law.counselstack.com/opinion/trytek-v-derwinski-cavc-1992.