Duran v. BrownDuran v. Brown
The appellant, veteran Arthur E. Duran, appeals from a January 28, 1993, decision of the Board of Veterans’ Appeals (BVA or
The appellant contends, inter alia, that the Board erred in finding that he had not submitted new and material evidence and in failing to address a claim that clear and unmistakable error (CUE) had occurred in previous adjudications. (Although the appellant’s brief argued that the claims for secondary service connection and a non-service-connected pension were improperly remanded, appellant’s counsel conceded at oral argument that these claims were appropriately before the RO; therefore, these claims are not presented for our review.) The Court will vacate and remand the decision of the Board regarding the issue of new and material evidence and will dismiss the appellant’s claim that CUE occurred in the January 28, 1987, RO decision as the Court finds this allegation does not survive as a viable claim in light of the recent decision of the United States Court of Appeals for the Federal Circuit in Smith v. Brown,
I. Factual and Procedural Background
The appellant served on active duty from July 1966 to May 1969. Record (R.) at 15, 16. The report of his induction physical notes mild pes planus and defective vision and the discharge physical is essentially negative for defect or disease, noting only that the appellant had poor vision correctable to 20/20 with glasses. Record (R.) at 18-19, 41-42. Although the appellant’s discharge Form 214 indicates he had no foreign or sea service, R. at 16, his service records, to the contrary, indicate medical treatment at Camp Smedley D. Butler, USMC, located in Okinawa, Japan, and assignment with the Pacific Fleet Marine Force, from .July 1967 to August 1968. R. at 31, 35-36, 38-39, 87-88, 92, 125-26, 130. In March 1969, the appellant’s brother died in combat during his tour of service in Vietnam. See R. at 300, 325-26. The appellant, while still on active duty, was assigned to accompany his brother’s body home for burial. See R. at 87-88, 125-26. In April 1969 the appellant requested, and in May 1969 received, a discharge from service as a sole surviving son. R. at 91.
At some point following service, VA awarded the appellant service connection for a fracture of the right lower leg and a fracture of the lip of the right talus, respectively rated 20% disabling as of December 20, 1985, and 10% disabling as of November 8, 1984, for a combined total rating of 30%. See R. at 111, 162-63. Beginning in August 1985 and continuing through the inception of this appeal, the appellant has received numerous diagnoses of PTSD from both VA and private physicians. See R. at 55, 58, 82, 140, 146, 150, 174, 213, 236, 239, 264-71, 310, 354. Dr. Lynn Baumgartner performed a psychiatric examination of the appellant for VA on November 21, 1986, and diagnosed “post-traumatic stress neurosis, moderately severe, chronic” on the basis of a history of the appellant’s having gone “to Vietnam to collect [his brother’s] body bag and escort the body bag back to the States- [The appellant] states that he has continued to have nightmares of seeing the body bag and the process of claiming the body.” R. at 140-42. In January 1987, the RO denied service connection for PTSD, in part relying on the absence of a “life-threatening” stressor. R. at 162-63. The appellant appealed this decision. R. at 179. This denial was confirmed by rating decision dated June 5, 1987. R. at 192. On June 19, 1987, VA issued a Supplemental Statement of the Case (SSOC). R. at 199.
In January 1988, the Board denied service connection for PTSD. R. at 207-11. The Board relied in part on the absence of a life-threatening stressor to the appellant to support their finding that the PTSD diagnosis was not “adequately supported by the objec
Attempting to reopen his claim (R. at 276), the appellant submitted two sworn statements from his sister describing his participation in the events surrounding the death of their brother and attesting to the extremely close relationship the appellant had had with his brother. See R. at 278, 325-26. In January 1991, the appellant and his wife provided sworn testimony before a VA hearing officer. The appellant testified for the first time that, when he met his brother’s body in San Francisco, he opened the coffin and body bag inside the coffin, but he could not tell if it was his brother because the body looked like “smashed meat.” He testified further that he did not recall how long he viewed the body; that he smelled formaldehyde; that he does not remember the funeral; that he has had no other traumatic experiences in his life such as a fire, flood, or automobile accident; and that he sees a bag in his nightmares and wonders if his brother is alive in Vietnam. R. at 289-93. The appellant’s wife testified that she met the plane in which the appellant escorted his brother’s body home; that the appellant was “very torn up and was yelling” at the funeral home; that he ordered his sister and mother not to open the casket; and that he kept saying that it was his brother because he had opened the casket in San Francisco and had gotten in trouble for so doing. R. at 288. Other evidence added to the record included an excerpt of the criteria for PTSD as listed in the Diagnostic and Statistical Manual of Mental DISORDERS (3rd ed. Rev.) [hereinafter DSM-III-R]. R. at 301-02. On March 15, 1991, a hearing officer’s decision confirmed the prior denial, and on March 25, 1991, the appellant filed a Notice of Disagreement. See R. at 337. A Statement of the Case was issued on May 1, 1991. R. at 335-38. The Board, in January 1993, rejected the appellant’s attempt to reopen his claim for entitlement to service connection for PTSD, finding that he had not submitted new and material evidence as required by
In addition, the appellant also argues that the issue of CUE under
During oral argument, counsel for the Secretary candidly and commendably conceded that the appellant’s claim of CUE had been pending unresolved before the RO since May 1991, and that the appellant was entitled to an adjudication of that claim. After oral argument, Deputy Assistant General Counsel David Engel submitted to the Court a copy of his letter, dated July 19, 1994, and addressed to adjudication officer Jimmy H. Shepherd, that states the appellant’s claims file was being forwarded for any adjudicative action “deemed proper” on the appellant’s pending claims.
However, on August 12, 1994, the United States Court of Appeals for the Federal Circuit issued its decision in Smith, supra. In Smith, the Federal Circuit held, inter alia,
II. New and Material Evidence
A previously and finally denied claim “may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered.”
When a claimant seeks to reopen a previously and finally denied claim, the Board is required to conduct a two-step analysis to determine whether new and material evidence has been presented. See Manio v. Derwinski,
In conducting the first part of the Manió two-step analysis under
There is also the issue of what evidence is to be considered in conducting the first part of the Manió test. Many, if not most, unsuccessful attempts to reopen would not add to the claims file any evidence which would affect future attempts to reopen; however, that possibility cannot be foreclosed. For example, while a diagnosis of a current disability might not be material to the issue of service connection, and thus not require reopening under
Relevant, non-duplicative evidence obtained since the previous final denial in 1988 includes, inter alia, (1) the July 1989 affidavit of Pete Montoya, Jr., attesting to having conversed with the appellant in Vietnam in November or December 1967, submitted to show that the appellant had been to Vietnam during service, R. at 250; (2) VA medical progress notes from 1989 and 1990 indicating that the appellant dreamed of his brother’s body being brought home and including a diagnosis of severe PTSD, see R. at 264-71; (3) a January 1991 affidavit of Norma Yates, the appellant’s sister, attesting that the appellant had escorted his brother’s body home and was a pallbearer at his brother’s funeral, R. at 278; (4) the appellant’s testimony before a VA hearing officer in January 1991, R. at 289-93; (5) the appellant’s wife’s testimony, R. at 288; (6) two newspaper clippings indicating the appellant’s brother had died in Vietnam and that the appellant was a pallbearer, R. at 300; (7) excerpts from the DSM-III-R, R. at 301-02; (8)an affidavit from Donald Stoops, D.O., stating that the appellant suffers from post-traumatic stress neurosis, R. at 319; (9) a May 1991 letter from Norma Yates relating that the appellant and his deceased brother were extremely close growing up, that the appellant took his brother’s death very hard and has not been the same since, and that the appellant has isolated himself from family and friends, R. at 325-26; and (10) a diagnosis from Arthur Bieganowski, M.D., that the appellant suffers post-traumatic Vietnam stress reaction, R. at 354. For purposes of determining whether the appellant has submitted new and material evidence to warrant reopening of his claim, the Court will focus on the testimony of the appellant and his wife before the VA hearing officer.
Had the Board properly applied Justus and assumed the testimony to be credible in conducting the first part of the Manió two-step analysis, it is clear that the Board could only have found the appellant’s description to have been new and material. Indeed, the Board itself stated that “[cjertainly, if the veteran observed his brother’s body under these circumstances shortly after his brother’s death, such an event would be shocking and outside the range of human experience.” R. at 11. The appellant’s testimony was certainly new, and clearly presented a reasonable likelihood of changing the outcome of his claim. See, e.g., Vecina v. Brown,
It appears that, despite its errors in failing to follow Justus and in finding no new and material evidence, the Board did adjudicate the merits of the claim after considering all the evidence and found the appellant’s testimony unpersuasive in light of all the other evidence of record. In this instance, however, the Court cannot hold the Board’s errors to have been harmless. See Guimond,
III. The Standards to be Used in Evaluating PTSD Claims
On remand, the Board will have the opportunity to address the proper standards to be used in evaluating mental disorders in general and the appellant’s claim of PTSD in particular. Although
Another problem was pointed out by the appellant’s representative in his claim of CUE in the 1987 RO decision which denied service connection for PTSD, at least in part,
In order to justify the diagnosis of [PTSD], four basic elements must be satisfied, including the existence of a recognizable stressor that would evoke significant symptoms of distress in almost any one. While the Board is cognizant of the effect the death of his brother could have had on the veteran, such an incident is not a life-threatening stressor to the veteran.
R. at 210 (emphasis added). In the 1993 denial of reopening here on appeal, the Board again utilized the “life-threatening stressor” language when it stated:
Although a brother’s death would evoke distress in most people, this incident cannot be considered a life-threatening stres-sor to the veteran such that a granting of service connection for PTSD would be appropriate.
R. at 12 (emphasis added). It is apparent from these passages that the Board considered the absence of a documented life-threatening stressor to be dispositive of the appellant’s claim for PTSD. Although the DSM-III-R notes that the most common trauma or stressor which causes PTSD is “a serious threat to one’s life or physical integrity,” it also lists several other traumas not involving a life-threatening stressor to the afflicted individual which would support a PTSD diagnosis. DSM-III-R, at 247-48; see also Manual M21-1, Part VI, para. 7.46(b)(1);
IV. The Appellant’s Clear and Unmistakable Error Claim
Pursuant to
This is a claim based on clear and unmistakable error on a rating decision dated January 28, 1987. In addition, we claim that all following ratings concerning this veteran’s PTSD case including BVA decisions are invalid based on the clear and unmistakable error in the rating of 1-28-87.
R. at 331. The January 1987 RO decision had been affirmed in a subsequent 1988 Board decision which, like the RO, denied the appellant’s underlying claim for service connection for PTSD in part because of the absence of a life-threatening stressor.
As noted in Part I, the record on appeal does not reflect that the RO has taken any action on the CUE claim. During oral argument, counsel for the Secretary, while not conceding that the letter quoted above was sufficiently specific to survive a “Fugo test,” (see Fugo v. Brown,
In Smith, supra, the Federal Circuit held that “the CUE review authority in
the Board is an appellate authority, and the AOJs are trial-level adjudicators. This too tends to preclude the inference that*224 the drafters of§ 3.105(a) intended CUE review to apply to both Board and AOJ decisions, since it would, oddly, permit an inferior to collaterally review the actions of a superior....
Id. at 1526. Therefore, an AOJ would be precluded from considering a claim of CUE arising from a previous AOJ decision which had been appealed to the BVA. Permitting the consideration of such a claim would result in the AOJ, the “inferior” tribunal, reviewing a final decision of the Board, the “superior” tribunal. This is precisely the type of collateral review which was proscribed under Smith.
After Smith, an appellant may still assert a claim of CUE under 38 C.F.R. 3.105(a) of a “prior, unappealed AOJ decision.” Smith,
V. Conclusion
On consideration of the parties’ oral arguments and briefs and the record on appeal, the January 28, 1993, decision of the Board of Veterans’ Appeals is VACATED and REMANDED for proceedings consistent with this opinion.