15-21 049
15-21 049
| Board of Vet. App. | Aug 31, 2017Background
- Veteran served active duty Dec 1954–Aug 1958 with service in Korea Aug 1955–Aug 1956; claim for service connection for PTSD and related conditions is on appeal from an Aug 2013 RO decision.
- Veteran alleges PTSD from combat-related and fear-of-hostile-military-activity stressors (specific incident Sept 1955: ambush, two Korean collaborators killed, unit allegedly killed 14–15 attackers).
- VA obtained service records, a July 2013 VA psychiatric exam (diagnosed PTSD but relied on Veteran’s combat assertions), and attempted unit-history verification but found no corroborating unit records for the period in question.
- Veteran waived further development to verify in-service stressors in Nov 2016, asserting his claim rests on fear-of-hostile-activity (not direct combat); RO ceased additional verification after waiver.
- Board found Veteran’s statements inconsistent with service personnel records (job as supply specialist, commendation for supply duties, Good Conduct Medal, no combat awards) and concluded the claimed stressors are not corroborated and the Veteran’s recollections not credible.
- Board denied service connection for PTSD; remanded claims for (1) service connection for other psychiatric disorders (anxiety/depression) and (2) ischemic heart disease (claimed secondary to psychiatric disorder) for VA examination and further development.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to service connection for PTSD | Veteran: PTSD from in-service combat incidents and/or fear of hostile military activity; lay testimony sufficient under 38 C.F.R. § 3.304(f)(3) | VA/Board: No credible, verifiable in-service stressor; records and unit history do not corroborate combat/exposure; Veteran waived further development | Denied — no verified in-service stressor; preponderance of evidence against claim |
| Adequacy of VA development/exam | Veteran’s counsel: VA exam and development sufficient or need not corroborate fear-based stressor | Board: VA satisfied duty to notify and assist; July 2013 exam adequate but its PTSD diagnosis relied on inaccurate factual history | Development/exam duty satisfied for PTSD claim; exam not credited as verifying stressor |
| Credibility of Veteran’s stressor allegations | Veteran: consistent claims and notarized affidavit describing multiple firefights and fear while serving near DMZ | VA/Board: Inconsistent with service occupation, personnel records, awards, and contemporaneous documents; recollection not credible | Board found Veteran not credible regarding alleged combat exposure |
| Service connection for non-PTSD psychiatric disorder and IHD (secondary) | Veteran: Anxiety/depression and cardiologist/counselor statements link psychiatric condition to heart disease | VA/Board: Record contains diagnoses/symptoms suggesting possible service link but no nexus opinion yet | REMANDED — obtain psychiatric exam/opinion and develop IHD secondary claim after psychiatric nexus determined |
Key Cases Cited
- Scott v. McDonald, 789 F.3d 1375 (Fed. Cir.) (VA notice requirements and procedures)
- Barr v. Nicholson, 21 Vet. App. 303 (Vet. App.) (requirement that VA examinations be adequate and based on the record)
- Stegall v. West, 11 Vet. App. 268 (Vet. App.) (requirement of compliance with Board/Court remands)
- D'Aries v. Peake, 22 Vet. App. 97 (Vet. App.) (substantial vs. strict compliance with remand directives)
- Gilbert v. Derwinski, 1 Vet. App. 49 (Vet. App.) (burden of proof and benefit-of-the-doubt rule)
- McLendon v. Nicholson, 20 Vet. App. 79 (Vet. App.) (standard triggering VA duty to provide a medical nexus exam)
- Hayes v. Brown, 5 Vet. App. 60 (Vet. App.) (combat/lay evidence standards for PTSD stressor verification)
- Suozzi v. Brown, 10 Vet. App. 307 (Vet. App.) (no need to corroborate every factual detail of a lay account of combat)