West v. Brown

7 Vet. App. 70, 1994 U.S. Vet. App. LEXIS 677, 1994 WL 424203
CourtUnited States Court of Appeals for Veterans Claims
DecidedAugust 8, 1994
DocketNo. 92-890
StatusPublished
Cited by27 cases

This text of 7 Vet. App. 70 (West 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
West v. Brown, 7 Vet. App. 70, 1994 U.S. Vet. App. LEXIS 677, 1994 WL 424203 (Cal. 1994).

Opinion

IVERS, Judge:

Carleton J. West, Jr., appeals a June 4, 1992, decision of the Board of Veterans’ Appeals (BVA or Board) denying service connection for post-traumatic stress disorder (PTSD). Carleton J. West, Jr., BVA 92-13812 (June 4, 1992). (The BVA decision also granted an effective date prior to June 2, 1988, for service connection for degenerative disc disease of the lumbar spine. The appellant, however, has not appealed this issue.) We have jurisdiction over the case pursuant to 38 U.S.C. § 7252(a). The Secretary has filed a motion for summary affirmance. For the reasons set forth below, we vacate the June 1992 decision of the BVA and remand the case for readjudication consistent with this opinion.

I. FACTUAL BACKGROUND

The appellant served on active duty in the United States Marine Corps from October [73]*7325, 1950, to October 11, 1951. R. at 19. He participated in combat between May 30, 1951, and June 17, 1951. R. at 123. A December 22,1983, letter from a VA psychiatrist indicates that the appellant was diagnosed with dysthymic disorder and generalized anxiety. R. at 44; see also R. at 47-48.

Apparently, the appellant filed a claim for service connection for an unspecified nervous disorder in February 1984. See R. at 62, 70. A July 1985 VA psychiatric examination report provided a diagnosis of “[m]ajor depression with generalized anxiety and several symptoms of post traumatic stress disorder, delayed type.” R. at 51. Regarding the PTSD symptoms, the psychiatrist opined:

These symptoms may have been masked in his early years following Korea by his heavy drinking, but he does not recall them being apparent during the 20 years when he drank very little and does not understand why they have begun to occur since he has been depressed. He denies ever having had any mental symptoms while in the service, and his military medical record does not indicate any mental symptoms.

R. at 52. The record on appeal does not indicate the disposition, if any, of the claim, but it appears that the claim was denied because the appellant’s November 1989 PTSD claim was later characterized as a “reopened” claim. R. at 62.

On November 10,1989, the appellant wrote to a VA regional office (RO) and indicated that he wished to seek compensation for PTSD. R. at 53. On January 23, 1990, the appellant underwent a VA compensation and pension examination. See R. at 55. In the resulting examination report, a VA psychiatrist and a VA psychologist wrote:

The veteran served in the United States Marine Corps during the period of the Korean War on the U.S.S. [Bon Homme] Richard CV-31, an aircraft carrier. He states that in his duty on the aircraft carrier, which was active in attacks on North Korea, he saw many men killed because of crashes and loose ordinance [sic] including bombs that fell from landing aircraft at times. He indicates that the Marines were used primarily when the carrier landings were made to pick up debris and they were responsible for picking up any loose bombs that fell from the aircraft. Some of these weighed 500 pounds and others 250 pounds. He hurt his back lifting an active bomb along with another man to throw it over the side. As a result of this his service connected injury was apparently amply documented and he was discharged medically in 1951. The veteran, following service, indicates that he had dreams of planes crashing and the bombs on the deck and people being burned in the aircraft. ...

Ibid. The report continued: “I find that [the appellant] was exposed to significant traumatic events, that he reexperienees these events by dreams and intrusive thoughts.” R. at 57. Regarding the stressors, the report concluded: “Initial stressor level 5 or 6, extreme to catastrophic — moving armed bombs, being exposed to aircraft crashes on an aircraft carrier during a period of war, enduring circumstances, significant chronic physical illness, loss of status, and a successful lifestyle.” Ibid.

On February 14, 1990, in denying service connection for PTSD, the RO rating decision indicated that the “history of stressors [is] inadequate to support the diagnosis because they do not show verifiable incidents of the nature required by current law.” R. at 64. The RO sent the appellant notification of its denial on March 6, 1990. R. at 65. In that letter, the RO wrote: “The evidence does not show that you suffered a combat wound, received a Purple Heart, [n]or is there any evidence of an award for valor.” Ibid. A May 8,1990, Statement of the Case, however, stated:

Objective evidence indicative of stressors, such as an award of the Purple Heart Medal for combat wounds, an award for valor in combat or other similar citation is lacking. To conclude, on the other hand, as you do that “only those who suffered a combat wound or received an award of valor” are entitled to service connection for [PTSD] is incorrect. Other evidence of distressful incidents, and again, we mean incidents productive of distress in almost everyone, could include, but are hardly [74]*74limited to verified duty assignment to a burn ward, duty in a graves registration unit, survival of sinking ship, confinement as a prisoner-of-war or the verified combat death of a close friend or relative which you witnessed and so on. It must be emphasized that the evidence must be objective and verifiable and such is not the present circumstance of your claim.

R. at 75.

On March 19, 1991, the Board remanded the PTSD claim for the appellant to “provide specific details of stressful events,” for the RO to seek military records relating to any such incidents, including “corroborating information by the United States Army and Joint Services Environmental Support Group,” and for the conduct of a psychiatric examination “by a board of two VA psychiatrists in order to clarify the diagnoses, and to determine whether the veteran has [PTSD] related to his military service.” R. at 95.

On April 25, 1991, the appellant’s service representative forwarded to the RO copies of deck logs and remark sheets from the U.S.S. Bon Homme Richard from March 28, 1951, through June 21,1951. R. at 98,102,104-19.

In connection with the BVA’s remand for further development, in a July 17, 1991, letter, a board of two VA psychiatrists wrote:

Mr. West was examined on 07/16/91 for an evaluation of a possible [PTSD]....
At the present time, Mr. West’s complaints are unchanged from previous evaluation. He described his traumatic experiences of seeing people killed in plane crashes while serving on an aircraft carrier during the Korean War, lifting heavy, activated bombs to throw them over the side of the ship, and the like. He continues to have dreams and intrusive images of these events, has chronicfinsomnia, has been isolated and estranged from other people. Mr. West appears unchanged from his previous psychiatric evaluations, and we concur with their diagnosis of [PTSD] related to his military service.

R. at 133. A rating decision on remand continued denial of service connection for PTSD. R. at 137.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

190923-33239
Board of Veterans' Appeals, 2021
190702-10727
Board of Veterans' Appeals, 2020
190115-1640
Board of Veterans' Appeals, 2019
07-36 635
Board of Veterans' Appeals, 2017
13-23 071
Board of Veterans' Appeals, 2016
08-33 242
Board of Veterans' Appeals, 2015
11-11 330
Board of Veterans' Appeals, 2015
12-24 527
Board of Veterans' Appeals, 2014
10-49 107
Board of Veterans' Appeals, 2012
09-00 805
Board of Veterans' Appeals, 2011
Kessel v. West
13 Vet. App. 9 (Veterans Claims, 1999)
Gaines v. West
11 Vet. App. 353 (Veterans Claims, 1998)
Boggs v. West
11 Vet. App. 334 (Veterans Claims, 1998)
Perry v. West
11 Vet. App. 319 (Veterans Claims, 1998)
Lee v. Brown
10 Vet. App. 336 (Veterans Claims, 1997)
Suozzi v. Brown
10 Vet. App. 307 (Veterans Claims, 1997)
Cohen v. Brown
10 Vet. App. 128 (Veterans Claims, 1997)
Anderson v. Brown
9 Vet. App. 542 (Veterans Claims, 1996)
Moreau v. Brown
9 Vet. App. 389 (Veterans Claims, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
7 Vet. App. 70, 1994 U.S. Vet. App. LEXIS 677, 1994 WL 424203, Counsel Stack Legal Research, https://law.counselstack.com/opinion/west-v-brown-cavc-1994.