Zarycki v. Brown

6 Vet. App. 91, 1993 U.S. Vet. App. LEXIS 805, 1993 WL 525048
CourtUnited States Court of Appeals for Veterans Claims
DecidedDecember 20, 1993
DocketNo. 92-976
StatusPublished
Cited by36 cases

This text of 6 Vet. App. 91 (Zarycki 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
Zarycki v. Brown, 6 Vet. App. 91, 1993 U.S. Vet. App. LEXIS 805, 1993 WL 525048 (Cal. 1993).

Opinion

FARLEY, Judge:

This is an appeal from an April 21, 1992, decision of the Board of Veterans’ Appeals (BVA or Board) which denied entitlement to service connection for post-traumatic stress disorder (PTSD). A timely appeal to this Court followed. The Court has jurisdiction pursuant to 38 U.S.C.A. § 7252(a) (West 1991). On March 31, 1993, appellant, through counsel, filed a brief. On June 1, 1993, the Secretary filed a motion for summary affirmance, for acceptance of the motion in lieu of a brief, and for a stay of proceedings pending a ruling on this motion. On July 8, 1993, appellant filed a reply brief. For the reasons discussed below, the Court will vacate the BVA decision and remand the matter for readjudication consistent with this opinion.

I. FACTUAL BACKGROUND

Appellant served on active duty in the United States Army from September 1967 to June 1970. R. at 11. From February 1968 to February 1969, he was a member of Headquarters Battery, 7th Battalion, 15th Artillery Brigade, stationed in the Republic of Vietnam. R. at 27. From April to September 1969, appellant was assigned to Fort Hood, Texas. Id. From September 1969 to June 1970, appellant was reassigned to the Vietnam theater as a member of Headquarters and Headquarters Company, Second Battalion, 22nd Infantry Brigade, 25th Infantry Division. Id. Appellant’s military occupational specialties are listed as field wire-man and switchboard operator. Id. Appellant received the National Defense Service Medal, the Vietnam Service Medal, the Army Commendation Medal, and the Vietnam Campaign Medal. R. at 11. Both his enlistment and separation examinations were negative for any psychiatric disorders. R. at 12-15, 21-24.

In April 1983, appellant filed with a VA Regional Office (RO) an application for compensation for PTSD. R. at 30-33. On the application form, appellant noted that he had experienced flashbacks about Vietnam and dreams of dead bodies. R. at 31. In support of his application, he submitted a summary of his hospitalization at a VA medical facility from April 15-21, 1983. According to the summary, appellant was admitted because of fear of losing control, depression and poor impulse control resulting from the stress accompanying his impending divorce. R. at 34. It was noted that appellant had a history of alcohol and drug abuse, financial difficulties, difficulty in finding employment, and domestic violence. Id. Although appellant had reported experiencing flashbacks and nightmares, none were reported during the period of hospitalization. Id. It was also noted that appellant had a criminal history including stealing, breaking and entering, robbery, and shoplifting. Id. The treating physician commented that appellant was

cooperative, somewhat anxious, trying to impress [him] of the severity of his Vietnam experiences and how dangerous he could be, showing poor impulse control, with a lot of underlying hostility, a basically angry person, who felt that the government owed him something and that he is basically different from the rest of the patients.

Id.

In July 1983, appellant filed with the RO a second application for compensation for [94]*94PTSD; in describing the nature and history of his disability, he reported that he was experiencing flashbacks, nightmares, detachment, anger, and memory impairment. R. at 37-39. In September 1983, the RO sent to appellant a letter requesting that he provide detailed information regarding specific incidents in service which he believed were related to his current psychiatric disorder. Supplemental R. at 1-2. That same month, appellant underwent a VA special neuropsy-chiatric examination. R. at 40-41. In relating appellant’s military and medical history, the examining neuropsychiatrist, Dr. S. Loeb, noted in pertinent part:

The veteran was in the Army from September of 1967 to June of 1970. He was in Vietnam for 2 years, in Cambodia, with the 25th Infantry, in 1970 and later with the 2d Battalion, 22nd Infantry, Mechanized. He worked S-5 Intelligence and Reconnaissance. In 1968 he was in a three-quarter track vehicle and ended up in a rice paddy. He was unconscious for minutes. He doesn’t know of having a skull fracture, had a laceration, did not receive a Purple Heart, but did get medals. He had the Bronze Star for performing above and beyond the call of duty, in a flrefight. He has nightmares twice daily, wakes up in cold sweats. His wife, he dreams, is in a hooch and there are 2 squads of MVA [sic] coming toward him and he has no ammunition in his weapon. He sees friends that were killed. A friend named Keith got killed. An RPG put a hole in his head. He has flashbacks every day. One was triggered off by holes that he saw in the aluminum siding, reminding him of wounds and the flrefights connected with them. He was placed in a rice paddy. He feels guilty about surviving, feels guilty about killing innocent people, but he isn’t sure that he did, because he couldn’t actually see who was killed.

R. at 40. Dr. Loeb rendered a diagnosis of “[PTSD], in a person with substance use, alcohol and mixed drugs and history of emotional instability, with considerable anxiety and depression.” R. at 41.

In a rating decision dated October 1988, the RO denied service connection for, inter alia, PTSD. R. at 46. The RO noted: “Post[-]traumatic stress disorder has been diagnosed on VA examination, but the diagnosis is not supported by any confirmed stressors or Vietnam experiences, by the evidence of record.” R. at 48. Thereafter, in support of his claim, appellant submitted copies of his criminal records. R. at 49-55. In December 1988, the RO again denied service connection for PTSD, finding that “[n]o new factual basis has been presented that warrants service connection for post[-]traumatic stress disorder or other condition, as criminal behavior and difficulties with the justice system resulting from criminal behavior does not constitute an adequate stressor for the grant of service connection for ... PTSD.” R. at 56.

On November 8, 1989, the RO received appellant’s Notice of Disagreement with the denial of his claim for service connection for PTSD. R. at 63. In January 1990, the RO provided appellant with a Statement of the Case (R. at 64-68), and he perfected an appeal to the BVA shortly thereafter. R. at 69. In October 1990, appellant’s service representative presented oral arguments for subsequent presentation to and review by the BVA. R. at 72. In a decision dated December 11, 1990, the BVA remanded appellant’s claim to the RO for further evidentiary development and readjudication. R. at 74-76. Prior to readjudication, the Board specifically directed that

1. The veteran should be asked to submit a detailed statement regarding the traumatic events that he claims to have experienced in Vietnam, including names of others involved, units, dates, etc. He should also be asked to submit the citation for his claimed Bronze Star Medal since that award is not shown in his service personnel records. If adequate information is received, it should be forwarded to the U.S. Army and Joint Services Environmental Support Group in Washington, D.C. for verification.
2. The veteran should be given a comprehensive examination by a board of two psychiatrists to determine the nature and extent of any psychiatric disabilities which he may have. Psychological studies with [95]*95post-traumatic stress disorder subseales should be performed.

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Bluebook (online)
6 Vet. App. 91, 1993 U.S. Vet. App. LEXIS 805, 1993 WL 525048, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zarycki-v-brown-cavc-1993.