Williams v. Brown

4 Vet. App. 270, 1993 U.S. Vet. App. LEXIS 53, 1993 WL 38539
United States Court of Appeals for Veterans Claims·Decided February 18, 1993·No. No. 91-901·Published·Cited by 33 cases

Opinion

NEBEKER, Chief Judge:

This case presents for review a February 1, 1991, Board of Veterans’ Appeals (BVA or Board) decision which denied appellant’s claim for entitlement to service connection for post-traumatic stress disorder (PTSD). Upon consideration of the pleadings and the record on appeal, the Court concludes that the Board failed to provide an adequate statement of reasons or bases, as required by Gilbert v. Derwinski, 1 Vet.[271] App. 49 (1990), for rejecting statements by medical personnel diagnosing appellant with PTSD; and failed to consider the application of the evidentiary equipoise rule of 38 U.S.C.A. § 5107(b) (West 1991).

I.

Appellant was a member of the United States Army from August 1965 to July 1968, and served a tour in Vietnam. His induction examination noted no psychiatric abnormalities. R. at 2, 4. On his separation examination, however, he reported suffering from “depression or excessive worry” and “nervous trouble”; the medical examiner noted “anxiety-OK.” R. at 6, 7.

In 1984, he filed a claim for Veterans’ Administration (now Department of Veterans Affairs) (VA) compensation for a service-connected “mental or nervous disorder.” R. at 11, 13. The Regional Office (RO) denied service connection after finding that his “[sjervice medical records [showed] no complaint of, treatment for or diagnosis of a ... nervous condition.” R. at 14. He amended his claim on December 24, 1985, and sought service connection for PTSD. The RO then asked him to describe any stressors he experienced during combat. R. at 17. In response, he described how his unit was ambushed by hostile fire, how he saw his friend, Lakeland, shot between the eyes, and his feelings of helplessness while carrying Lakeland’s dead body. R. at 19-20.

In February 1986, he was given a special psychiatric examination by a psychologist, who diagnosed his condition as an adjustment disorder stemming from unemployment. R. at 27, 28. The psychologist noted appellant’s combat experiences, but stated, “There is no evidence of hallucinations, delusions or other psychotic symptomatolo-gy present.” Id. Appellant was subsequently denied service connection for PTSD. R. at 29-30. He did not appeal.

In March 1989, he was hospitalized for recurring hiccups along with gastric discomfort. The examining physician, Dr. Dan Jablonski, M.D., noted the probability that a “strong psychological component” was associated with appellant’s hiccups. R. at 33. In April 1989, Dr. Jablonski examined appellant again and noted the possibility of an “adjustment disorder stemming from Vietnam” or possibly PTSD. He referred appellant to a VA staff psychologist, Michael Daly, Ph.D., for a consultation.

Dr. Daly diagnosed appellant with “PTSD, chronic, delayed onset.” R. at 35. Dr. Daly’s examination report remarked on appellant’s heavy combat exposure and frequent contact with the dead and wounded. He stated that appellant reported “frequent combat related nightmares,” “described several combat traumatic events which would be classified as outside the range of human experience,” and “[mjeets DSM III-R [Diagnostic and Statistical Manual of Mental Disorders] criteria for PTSD.” R. at 35. He documented the following observations to support his diagnosis: “impacted grief, crying when talking about dead friends in Vietnam,” “socially isolated,” “nightmares and awoke in cold sweats,” “[increased] autonomic arousal,” “insomnia,” “rage,” “intrusive thoughts,” “emotional numbness,” “avoidance behavior,” and a “sense of a foreshortened future.” R. at 35. At Dr. Daly’s suggestion, appellant obtained individual and group therapy from Donald J. Warn, a VA registered nurse therapist.

Appellant reopened his claim on April 4, 1989. The RO requested that a Board of Psychiatric Specialists (BPS) examine the veteran and “offer an opinion as to whether a diagnosis of PTSD is warranted.” R. at 37. The BPS exam was performed by Dr. Luca Alverno, M.D., and the report indicated that a Dr. Craig Larson “will be reviewing the record and interview the veteran at a different time.” R. at 38. Dr. Alverno stated that appellant had recurrent dreams of Vietnam; that after leaving Vietnam, “he was having these dreams almost everynight [sic]”; that he sleeps poorly; and that he otherwise “has no feelings for sex and has a poor appetite.” Id. Dr. Alverno further stated that appellant acknowledged experiencing “hallucinatory perceptions and hiccup[s] as a consequence of drinking.” R. at 39. No other symp[272] toms of psychosis were noted. Dr. Alvemo concluded that “[although the veteran might have been in contact with seriously stressful situations during the Vietnam campaign, he did not exhibit the full symptoms justifying [a diagnosis of PTSD].” Id. What appears to be a signature of Dr. Craig Larson appears at the end of the report. R. at 40. In August 1989, VA issued a rating decision again denying service connection for PTSD.

Appellant subsequently reopened his claim, submitting a report, dated December 12, 1989, from Mr. Warn, who had been treating him for his psychological disorder. In Mr. Wain’s opinion, appellant was “experiencing PTSD per DSM III-R.” R. at 46. Mr. Warn listed numerous specific symptoms and noted that appellant “shares his combat experiences/feelings in a soft tone of voice, blunted affect, at times breaking down and crying when talking about loss of friends.” Id. The VA again denied the claim by relying upon the July 1989 BPS exam. R. at 48-49.

In February 1990, Dr. Daly, the VA staff psychologist who had examined appellant earlier, prepared a second report, in which he concurred with Mr. Wam’s findings and opinion. R. at 50. Dr. Daly further noted that “[p]art of Mr. Williams problem is his tendency to minimize [and] deny pertinent symptoms because he would prefer to avoid any stimuli associated with his Vietnam experience.” R. at 50. Dr. Daly noted that this behavior was not in appellant’s best interest and explained that it was a “psychological defense against feeling the deep pain and grief that are buried inside his mind.” He further opined that appellant’s difficulties discussing his Vietnam traumas were consistent with the DSM-III-R criteria for a PTSD diagnosis. R. at 51.

A subsequent RO decision considered Dr. Daly’s letter, but again denied service connection for PTSD. On August 10, 1990, he appealed his claim to the BVA. That appeal disputed the July 1989 BPS examination as unrepresentative of his condition:

I wasn’t asked very much about Vietnam and did not want to talk about it anyway. Much of [the BPS exam] dealt with how I grew up. I never said I ever had hallucinations due to drinking.... I do not have any drinking problems and none of my symptoms are related to anything but PTSD. In regards to whether I have a startle response, hypervigilance, re-experiencing stressful situations, I was never asked.

R. at 60. The Board affirmed the RO decision on February 1, 1991.

II

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Williams v. Brown, 4 Vet. App. 270, 1993 U.S. Vet. App. LEXIS 53, 1993 WL 38539 (Cal. 1993).

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