Lead Opinion
STEINBERG, Judge, filed the opinion of the Court. HOLDAWAY, Judge, filed a concurring opinion.
The appellant, Vietnam veteran Jerry Gaines, Sr., appeals through counsel a December 31, 1996, decision of the Board of Veterans’ Appeals (BVA or Board) denying his claim for service connection for post-traumatic stress disorder (PTSD). Record (R.) at 2, 7-8. The appellant filed a brief and a reply brief, and the Secretary filed a brief. The parties agree that a remand is required but disagree about the bases for such a remand. This appeal is timely, and the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). For the reasons that follow, the Court will vacate the BVA decision and remand the matter for further development and readjudication.
I. Facts
The veteran served on active duty in the U.S. Marine Corps from August 1962 to October 1966. R. at 39. His service records do not reflect the award of any military decoration that would presumptively establish that he engaged in combat with the enemy; however, a notаtion in his personnel records, on a page captioned “Combat History — Expeditions”, stated that he had “[pjartieipated in operations against Viet Cong, Chu Lai, South Vietnam”, from March 26, 1966, to September 1, 1966. R. at 191; see also R. at 193. His personnel records note, and the Secretary concedes, that for at least part of his service in Vietnam his primary duties included “0331 [machine gunner]”. Secretary’s Brief (Br.) at 2; R. at 190.
In February 1994, he filed with a Department of Veterans Affairs (VA) regional office (RO) a claim for VA service-connected disability compensation or non-service-eonnect-ed pension for, inter alia, PTSD. R. at 144r-49. The VARO sought specific information with regard to stressors (R. at 151-52). He responded by letter that he had been a machine gunner attached to a division supply unit in Chu Lai, Vietnam (R. at 181); he further stated that he had been troubled by “so many people ... dying around [him]” and by the threat of being killed by white service members (R. at 182). A July 1995 RO decision denied the claim, noting that there was no diagnosis оf PTSD. R. at 208-10.
In an August 1995 VA compensation and pension medical examination for PTSD, the examining psychologist concluded: “The pattern of results [is] consistent with the profiles of veterans who suffer from [PTSD], and thus are supportive of this veteran’s application for compensation”. R. at 264. The VA examining psychiatrist diagnosed PTSD; in discussing the history of the illness, he noted:
Mr. Gaines served in Vietnam in 1965-66 for nine months toward the end of the [sic] his four-year enlistment. He was a machine gunner attached to a Division Supply Company stationed primarily at Chu Lai. The base was subject to sniper and mortar attacks and, at times, he manned the machine gun on the perimeter and though he would fire if there was any movement, he often could not see exactly what his target was. At times, he saw casualties and remains brought back to the base from the field. Mr. Gaines described some racial tension in his barracks and stated that he kept to himself as much as possible throughout his stay in Vietnam.*356 R. at 265-66. In October 1995, the RO аgain denied the claim, concluding as follows: “Although there is a clinical diagnosis of PTSD, there is no evidence of record to corroborate the veteran’s history of stressful events”. R. at 270. The veteran filed a timely appeal to the Board. R. at 282, 800. He provided a letter, jointly signed by a Ph.D. (apparently a psychologist) and a psychology trainee, stating that he had been diagnosed with PTSD and that he experienced “psychological distress when exposed to situations similar to those in Vietnam”. R. at 275.
In a May 1996 hearing before the RO, the veteran testified under oath that while in Vietnam he had provided machine-gun support to the supply company to which he was assigned, guarded the perimeter during which time he received fire, went on patrol, and went out oh trucks to make deliveries; he further testified that he had seen the dead bodies of those he had shot and that he had seen a friend, Lonnie Gay, from another company shot and killed. R. at 304-07. He also testified that once, when he was taken to a hospital ship for an eye appointment, he saw unbagged dead bodies and wounded people calling for help. R. at 807-08. He stated that he was fired upon while manning a truck-mounted machine gun in a truck convoy. R. at 308-09. He also stated that he was harassed by white Marines because he was black. R. at 309-10. The veteran’s representative noted at the hearing that the veteran had applied to the U.S. Department of the Navy to have his records corrected, “requesting that he be issued the Combat Action Ribbon”. R. at 310. After the hearing, the RO sought verification from the Marine Corps of the death of Lonnie Gay (R. at 316), but the record on appeal (ROA) does not suggest that VA otherwise attempted to confirm the alleged stressors. As to the death of Lonnie Gay, the Marine Corps reported that a U.S. soldier by that name was killed in Vietnam two years after the veteran had left the country. R. at 403.
In the December 31, 1996, BVA decisiоn here on appeal, the Board acknowledged that the veteran had a current diagnosis of PTSD (R. at 4) but found that he had not engaged in combat:
While the Vietnam Service Medal signifies that the veteran was assigned for duty in the Republic of Vietnam, neither this award, nor the M-14 Rifle Expert Badge and the National Defense Service Medal, in and of themselves signify exposure to combat. The report that the veteran “participated in operations” against an enemy forсe does not indicate that he was involved in “combat operations.” Thus, the available service department evidence of the veteran’s service does not indicate the veteran engaged in combat or that the veteran was awarded the Purple Heart, Combat Infantryman Badge, or similar combat citation.
R. at 6. The BVA stated that it was “not obligated to accept the veteran’s uncorroborated account of his Vietnam experiences” (R. at 7) and thus concluded: “In the absence of [evidence of combat service], the VA cannot accept the veteran’s claimed combat stressor without verification of the claimed in[-]service stressor” (R. at 6). The Board noted that the death of Lonnie Gay had taken place two years after the veteran’s departure from Vietnam (R. at 6-7) but did not discuss any of the other stressors, concluding that his “description of the events of his service lacks the specificity required fоr verification; as a result, his claimed stressors have proved unverifiable”. R. at 7.
II. Analysis
On appeal to this Court, the appellant argues that the Court should revisit its decision in Moreau v. Brown,
A. Claim for PTSD Service Connection
1. Well-Grounded PTSD Claim.
Section 5107(a) of title 38, U.S.Code, provides in pertinent part: “[A] person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded.” The Court has defined a well-grounded claim as follows: “[A] plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusivе but only possible to satisfy the initial burden of [section 5107(a)].” Murphy v. Derwinski,
As to a PTSD claim, the Court has held that such a claim was well grounded where the veteran “submitted medical evidence of a current disability; lay evidence (presumed to be credible for these purposes) of an in-service stressor, which in a PTSD case is the equivalent of in-service incurrence or aggrаvation; and medical evidence of a nexus between service and the current PTSD disability”. Cohen (Douglas) v. Brown,
2. Merits Adjudication.
However, even though the Court concludes that the appellant has presented a well-grounded claim for service connection for PTSD, “eligibility for a PTSD service-connection award requires” more; specifically, “(1) [a] current, clear medical diagnosis of PTSD ...; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current sympto-matology and the specific claimed in-service stressor.” Cohen,
In the instant case, the veteran’s lay testimony as to in-service stressors suffices to well ground his claim, see Cohen, supra; however, as to adjudication on the merits, “[i]f the claimed stressor is not combat related, a veteran’s lay testimony ... is insufficient to establish the occurrence of the stres-sor and must be corroborated by ‘сredible supporting evidence’ ”, id. at 142 (citing Mor-
B. Interpretation and Application of 38 V.S.C. § 1154(b)
The determination as to whether a veteran was engaged in combat with the enemy is particularly significant in PTSD cases in light of the provisions of 38 U.S.C. § 1154(b) that specifically allow combat veterans, in certain circumstances, to use lay evidence to establish service incurrence оf a disease or injury by relaxing the evidentiary requirements for adjudication of certain combat-related VA-disability-compensation claims — both as to the evidence that a claimant must submit in order to make such a claim well grounded and as to the evidence necessary in order to establish service connection of a disease or injury. See Caluza, supra; see also Jensen v. Brown,
In the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of serviee[ ] connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incur-rence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is nо official record of such incur-rence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service[ jeonnection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service[ jeonnection in each case shall be recorded in full.
38 U.S.C. § 1154(b); see also 38 C.F.R. § 3.304(d) (1997).
The Board is required to provide a written statement of the reasons or bases for its findings аnd conclusions on all material issues of fact and law presented on the record; the statement must be adequate to enable an appellant to understand the precise basis for the Board’s decision, as well as to facilitate review in this Court. See 38 U.S.C. § 7104(d)(1); Cohen,
As to making a determination whether the advantages of section 1154(b) should be afforded, that Court has stated that the Board “must make specific findings of fact as to whether or not the veteran was engaged in combat ... [and] must provide adequate reasons or bases for its finding, including a clear analysis of the evidence which it finds persuasive or unpersuasive with respect to that issue”. Zarycki supra. The Court has also stated that a determination of combat status is to be made “on the basis of the evidence of record”, Cohen,
In the instant case, the evidence in the ROA relating to the veteran’s status as a combat veteran is undisputed and entirely in his favor, as follows: (1) His testimony that he engaged in combat (R. at 304-10); (2) personnel records (page captioned “Combat History—Expeditions”, stating that the veteran “[p]articipated in operations against Viet Cong, Chu Lai, South Vietnam”, R. at 191); and (3) his machine-gunner MOS for at least part of the time that he was in Vietnam, as noted in his personnel records (R. at 190) and conceded by the Secretary (Secretary’s Br. at 2).
Despite the evidence in support of the veteran’s position that he was engaged in combat, the Board made no mention of the . benefit-of-the-doubt rule under 38 U.S.C. § 5107(b), see Cohen,
If the Board decides on remand that this veteran is entitled to the adjudicative benefit of section 1154(b), “he is entitled to have his lay statements accepted, without the need for further corroboration, as satisfactory evidence thаt the claimed [in-service] events occurred, unless his descriptions are not consistent with the circumstances, conditions, or hardships of service or unless the BVA finds by clear and convincing evidence that a particular asserted stressful event ... did not occur”. Cohen,
As to the appellant’s request that the Court revisit Moreau, supra, as to whether an in-service stressor can be established solely on the basis of a veteran’s testimony with corroboration thereof from an examining psychiatrist, the Court need not address this point in view of the above deficiencies (relating to combat status) in the Board’s decision that, if remedied, may obviate the need for corroboration of in-service stressors asserted by the veteran. (The Court notes, however, that even if it were inclined to reexamine its Moreau conclusion, recently reaffirmed in Cohen,
C. Fee Agreement
On March 11, 1998, the Court ordered the appellant either to show cause why the fee agreement between him and his attorney that was filed with the Court on March 5, 1997, should not be found to be unreasonable under Shaw v. Gober,
In its March 11, 1998, order, the Court specifically emphasized a provision in the March 5, 1997, fee agreement that precluded an offset for costs and expenses advanced by the appellant if any recovery by the attorney under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d), was for less than the amount claimed in the application. That provision has been corrected in the March 27, 1998, fee agreement. However, the Court also noted in its March 1998 order that Shaw had concluded that a “fee agreement is ‘unreasonable’ on its face to the extent that it may be read as precluding an [EAJA award offset against a contingent fee] where the Court remands with a direction that the BVA award benefits that the Court finds are required as a matter of law”. Shaw,
III. Conclusion
Upon consideration of the ROA and the submissions of the parties, the Court vacates the December 31, 1996, BVA decision and remands the matter of service connection for PTSD' for expeditious further development
VACATED AND REMANDED.
Concurrence Opinion
concurring: I concur in the opinion in all but one respect. The majority finds error in the Board’s failure to discuss its “conclusion” that participating in “operations against the Viet Cong” did not necessarily indicate that the appellant was involved in combat operations. The Board’s conclusion was, in fact, an unexceptionable statement requiring no discussion or explanation. All personnel in a combat theater, and many outside it, are engaged in “operations.” That is why they are there, whatever their assignment or military specialty. That includes many who are remote from the exposure to the actuality or the threat of hostile fire. In effect, all the Board said was that simply “being there” was not, of itself, evidence that the appellant was exposed to the stress of combat. That is a truism requiring no explanation.