Wood v. Derwinski

1 Vet. App. 406, 1991 U.S. Vet. App. LEXIS 70, 1991 WL 149879

Opinions

ORDER

PER CURIAM.

On March 28, 1991, this Court affirmed the decision of the Board of Veterans’ Appeals (BVA) that denied appellant compensation for Post Traumatic Stress Disorder (PTSD). This affirmance was based in part on a factual finding by the BVA that there was no independent corroboration of “stressors” arising from appellant’s military service. A review of the record by this Court determined that this finding was plausible under Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). See Wood v. Derwinski, 1 Vet.App. 190, 192-93 (1991).

Appellant has timely requested reconsideration of our opinion under U.S.Vet. App.R. 35(a) (Interim) (final rules effective May 1, 1991). He cites 38 U.S.C. § 354(b) (1988) for the proposition that no independent “evidence of a stressor is necessary if the evidence shows that the veteran was engaged in combat with the enemy and the claimed stressor is related to combat.”

Appellant’s reliance on § 354(b) and the implementing regulations is misplaced. It is clear that two conditions must exist before the statute applies: (1) the appellant must have been engaged in combat with the enemy and (2) the injury (in this case the “stressors” triggering the PTSD) must have been consistent with the “circumstances, conditions, or hardships of such [combat] service.” As we noted in our opinion, the nature of the circumstances of his service were considered in our decision. See Wood, at 192-93. There is nothing whatever in the record, including importantly, the appellant’s own statements concerning the “stressors”, that show he was engaged in combat with the enemy when the putative stressful events occurred. One incident he relies upon was entirely unrelated to combat; the other was a scene he claims to have observed that was the aftermath of a combat action that he had not participated in but had “happened on” after the action was over. It should also be noted that in the latter event he was not present pursuant to official duty but was, at best, an unofficial observer.

The Motion for Reconsideration is DENIED.