Wednesday, January 26, 2011

22% New York Veterans Have Mental Health Problems

Full article at: Nearly a Quarter of New York Veterans Face Mental Health Challenges; More Coordination of Resources Needed, Study Finds
Wed Jan 26 09:44:47 2011 Pacific Time

SANTA MONICA, Calif., Jan. 26 (AScribe Newswire) -- Military veterans from New York state who served in Iraq and Afghanistan are at high risk for mental health problems, according to a new study conducted by the RAND Corporation and funded by the New York State Health Foundation.

Nearly a quarter of veterans (22 percent) in New York state were found to have a probable diagnosis of post-traumatic stress disorder and/or major depression. Compared to similar individuals in the general population, the veterans studied were at an eight-fold greater risk of probable PTSD and a two- to four-fold greater risk of major depression.

While many services are available to those in need, more than 40 percent of veterans report being unaware of what help is available or uncertain about how to navigate the systems that provide assistance. Outreach to connect veterans with services and better coordination among government and community agencies is needed, according to the study, which is the first to look at the needs of returning veterans and their families in New York state.

"This study underscores that many returning veterans have mental health needs that require substantial attention from both the Department of Veterans Affairs and other service providers in New York state," said Terry Schell, the study's lead author and a senior social scientist at RAND, a nonprofit research organization. "While many services are available, more needs to be done to make sure veterans get the help they need." "

Mayhue v. Shinseki, No. 09-0014, Mischaracterization of Claim

Excerpts from Decision below:

"Because the Board misapplied a regulation when determining the effective date for Mr. Mayhue's service-connected post-traumatic stress disorder, and because the Board mischaracterized Mr. Mayhue's request for a total disability rating based on individual unemployability as a claim for an increased disability rating, the Court will vacate the September 12, 2008, Board decision on these issues and remand the
matters for further development and readjudication consistent with this decision.


++++++++++++++++++++++++++++++++++

----------------------------------------------------


UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-0014
SAMUEL L. MAYHUE, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans’ Appeals
(Decided January 18, 2011 )

Kenneth M. Carpenter, of Topeka, Kansas, was on the brief for the
appellant.
Nathan Paul Kirschner, with whom Will A. Gunn, General Counsel, R. Randall
Campbell, Assistant General Counsel, and David L. Quinn, Deputy Assistant General
Counsel, all of Washington, DC, were on the brief for the appellee.

Before HAGEL, MOORMAN, and LANCE, Judges.

HAGEL, Judge: Samuel L. Mayhue appeals through counsel a September 12,
2008, Board of Veterans' Appeals (Board) decision that denied entitlement to (1) an
earlier effective date for service-connected post-traumatic stress disorder, (2) a higher initial disability rating for post-traumatic stress disorder, and (3) an earlier effective date for a total disability rating based on
individual unemployability. Record (R.) at 3-27. The Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a) to review the September 2008 Board decision.
Because the Board misapplied a regulation when determining the effective date for Mr. Mayhue's service-connected post-traumatic stress disorder, and because the Board mischaracterized Mr. Mayhue's request for a total disability rating based on individual unemployability as a claim for an increased disability rating, the Court will vacate the September 12, 2008, Board decision on these issues and remand the
matters for further development and readjudication consistent with this decision.
However, because the Board's failure to apply 38 C.F.R. § 4.3 was not "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," and because the Board provided an adequate statement of reasons or bases for denying Mr. Mayhue a 100% disability rating for post-traumatic stress disorder, the Court will affirm that portion of the Board decision.

I. FACTS
Mr. Mayhue served on active duty in the U.S. Army from April 1968 to
February 1970,
including service in Viet Nam. In November 1994, Mr. Mayhue submitted an
initial claim for VA
benefits for post-traumatic stress disorder. In February 1995, a VA
regional office denied the claim
because Mr. Mayhue failed to attend a scheduled VA medical examination and "
failed to provide
specific information concerning specific traumatic incidents in service
which produced the stress
that resulted in the claimed post-traumatic stress disorder." R. at 1675.
In May 1995, Mr. Mayhue
was provided with a VA medical examination where he described three
traumatic events from his
service in Viet Nam: (1) Mr. Mayhue let a friend sleep in his bed one
night while he was on guard
duty and that night his friend was "blown up and killed" when the area
containing his bed was
shelled (R. at 1795-96); (2) Mr. Mayhue was attacked while on "road duty"
and he fled and hid
rather than fighting with the rest of his group, many of whom were injured (
R. at 1796); and (3) Mr.
Mayhue pushed a Vietnamese child who had explosives "tied all over his
body" off of the lead truck
in a convoy and watched the child "literally disintegrate[]" in the
explosion (R. at 1796). In August
1995,the regional officeonceagain denied Mr. Mayhue's claim for benefits
forpost-traumaticstress
disorder, explaining that, "[a]lthough there is indication of possible
stressor(s) in service indicated
in the exam report, the information provided [to] the examiner is not
capable of verification[;] that
is[,] specific names, dates, and places were not provided." R. at 1664. Mr.
Mayhue did not appeal
this decision and it became final.
In September2000,Mr. Mayhuerequested to reopen his previously denied
claimforbenefits
for post-traumatic stress disorder. In September 2001, the regional office
denied Mr. Mayhue's
claim to reopen because it found that he had not submitted new and
material evidence and had failed
to complete and return a stressor questionnaire. In April 2002, Mr. Mayhue
submitted a completed
stressor questionnaire,which included his unit informationand descriptions
ofthe stressors reported
in the May 1995 VA medical examination. In August 2002, Mr. Mayhue
submitted an additional
statement that, during service, he witnessed a collision between a piece
of heavy machinery and a
taxi cab that decapitated a Vietnamese woman and that he was caught
unarmed in the middle of an
2


ensuing firefight. However, in November 2002, the regional office again
denied his claim for
benefits for post-traumatic stress disorder because "the statements [he]
recently submitted about
events in Viet[ Nam] are not specific enough to identify a particular
event that could be corroborated
or the subject of a search for corroboration." R. at 1522. In November
2003, Mr. Mayhue appealed
this decision. In March 2005, the United States Armed Services Center for
Research of Unit
Records reported that it was unable to verify the stressors identified by
Mr. Mayhue in the April
2002 stressor questionnaire or the August 2002 addendum to the
questionnaire. However, the
Center for Research of Unit Records reported that: "We were unable to
locate unit records submitted
by the 69th Engineer Battalion (69th Engr Bn) during the time period
provided. However the 369th
Signal Battalion (369th Sig Bn) identified attacks at Can Tho, the base
camp of the 69th Engr Bn
during Mr. Mayhue's Viet[ Nam] tour." R. at 322. Based on this information,
in April 2005, the
regional office granted Mr. Mayhue's claim for benefits for post-traumatic
stress disorder, awarding
him a 50% disability rating with an effective date of September 5, 2000,
the date he requested to
reopen his previously denied claim.
In September 2005, Mr. Mayhue filed a Notice of Disagreement with this
decision, asserting
that he was entitled to (1) a higher initial disability rating for his
service-connected post-traumatic
stress disorder; (2) an effective date of November 15, 1994, for that
award; and (3) a total disability
rating based on individual unemployability. In December 2005, Mr. Mayhue
submitted evidence
that demonstrated that he had not been able to maintain employment since
June 2003 and that he had
not been employed at all since April 2005. In April 2006, the regional
office denied entitlement to
a total disability rating based on individual unemployability. After
holding an informal conference
with Mr. Mayhue's representative, the regional office issued a Statement
of the Case in May 2006
that increased his initial schedular rating for post-traumatic stress
disorder to 70% and denied
entitlement to an earlier effective date. Also in May 2006, the regional
office issued a separate
decision that awarded Mr. Mayhue a total disability rating based on
individual unemployability with
an effective date of April 1, 2005, because Mr. Mayhue "specifically
indicated [he] became too
disabled to work due to symptoms of [post-traumatic stress disorder]
effective '04/05.'" R. at 129.
In July 2006, Mr. Mayhue perfected his appeal.
In the September 2008 decision on appeal, the Board denied entitlement to
an earlier
effective date for his service-connected post-traumatic stress disorder, a
higher initial disability
3


rating for that disorder, and an earlier effective date for his total
disability rating based on individual
unemployability. With regard to the earlier effective date for post-
traumatic stress disorder, the
Board applied 38 C.F.R. § 3.156(c)(2) and found that, because Mr. Mayhue
had not provided
sufficient information to VA to verify his stressor until September 5,
2000, he was precluded from
seeking an earlier effective date under 38 C.F.R. § 3.156(c)(1). In
addition, the Board found that
Mr. Mayhue's post-traumatic stress disorder "most closely satisfies the 70
[%] rating criteria." R.
at 25. Finally, the Board concluded that Mr. Mayhue was not entitled to an
effective date for his
total disability rating based on individual unemployability prior to April
1, 2005, because "the
evidence does not show that he was totally unable to secure or maintain
gainful employment as a
result of his service-connected disabilities" prior to that date. R. at 16.
On appeal, Mr. Mayhue argues that the Board misapplied 38 C.F.R. § 3.156(
c) in
determining his effective date for post-traumatic stress disorder.
Appellant's Brief (Br.) at 5-9. Mr.
Mayhue also contends that the Board failed to apply the benefit of the
doubt rule contained in
38 C.F.R. § 4.3 to his claim for a higher initial disability rating for
post-traumatic stress disorder.
Id. at 10-13. Moreover, Mr. Mayhue asserts that the Board did not provide
an adequate statement
of reasons or bases for its decision to deny him a 100% disability rating
for post-traumatic stress
disorder because the decision "fails to address why [Global Assessment of
Functioning] scores
representing serious symptoms of social and occupational impairment did
not support a 100%
rating."1
Id. at 16, 13-17. Finally, Mr. Mayhue argues that the Board failed to
apply 38 C.F.R.
§ 3.156(b) when it treated his claim for a total disability rating based
on individual unemployability
"as different from his claim for a higher initial rating" for post-
traumatic stress disorder. Id. at 17,
17-19.
In response, the Secretary argues that the Board's decision should be
affirmed because Mr.
Mayhue has not carried his burden of demonstrating prejudicial error for
any of his claims.
Secretary's Br. at 3-15. Mr. Mayhue's reply brief reiterates his arguments
and asserts that the Court
A Global Assessment of Functioning score represents "the clinician's
judgment of the individual's overall level
of functioning" and is "useful in planning treatment and measuring its
impact[ ] and in predicting outcome." DIAGNOSTIC
AND STATISTICAL MANUAL OF MENTAL DISORDERS 30 (4th ed. 1994); see Richard
v. Brown, 9 Vet.App. 266, 267
(1996).
1
4


should apply the de novo standard of review to all issues on appeal
because they are questions of
law, not fact. Appellant's Reply Br. at 2-3.
II. ANALYSIS
A. 38 C.F.R. § 3.156(c)
Mr. Mayhue argues that the Board misapplied 38 C.F.R. § 3.156(c) in
determining his
effective date for post-traumatic stress disorder. Specifically, he
asserts that the amended version
of § 3.156(c) should not apply retroactively, or alternatively, if the
amended version of § 3.156(c)
does apply, that he does not fall within the purview of § 3.156(c)(2).
1. Effective Date for a Reconsidered Claim
To address Mr. Mayhue's arguments, the Court must first examine the
history of § 3.156(c)
and other related effective date regulations. At the time that Mr. Mayhue
submitted the stressor
questionnaire and addendum to the questionnaire, § 3.156(c) provided:
Where the new and material evidence consists of a supplemental report from
the
service department, received before or after thedecisionhas becomefinal,
the former
decision will be reconsidered by the adjudicating agency of original
jurisdiction.
This comprehends official service department records which presumably have
been
misplaced and have now been located and forwarded to the Department of
Veterans
Affairs. Also included are corrections by the service department of former
errors of
commission or omission in the preparation of the prior report or reports
and
identified as such. . . . Where such records clearly support the
assignment of a
specific rating over a part or the entire period of time involved, a
retroactive
evaluation will be assigned accordingly except as it may be affected by
the filing
date of the original claim.
38 C.F.R. § 3.156(c) (2002). At that time, "§ 3.400(q)(2) govern[ed] the
effective date of benefits
awarded when VA reconsider[ed] a claim based on newly discovered service
department records."
New and Material Evidence, 70 Fed. Reg. 35,388, 35,388 (proposed June 20,
2005). Read together,
§§ 3.156(c) and 3.400(q)(2) provided that the effective date for an
award of benefits based on newly
discovered service department records that were previously unavailable "
may relate back to the date
of the original claim or date entitlement arose even though the decision
on that claim may be final
under [38 C.F.R.] § 3.104." Id.
In June 2005, the Secretary proposed to amend § 3.156(c) "to establish
clearer rules
regarding reconsideration of decisions on the basis of newly discovered
service department records"
5


and "to include the substance of current 38 C.F.R. 3.400(q)(2) in revised
§ 3.156(c)." Id.
Specifically, the Secretary proposed to clarify "VA's current practice
regarding newly received
servicedepartmentrecords" byremovingthe "new and materialevidence"
requirementin§3.156(c),
elaborating on the definition of "service department records" to include
unit records and declassified
service records, removing the apparent limitation that the service
department records be
"misplaced," and eliminating the requirement to submit a supplemental
report from the service
department as a prerequisite to reconsideration and retroactive evaluation
of disability. Id. at
35,388-89. Ofparticular importanceto this appeal, the Secretaryalso "
revised" §3.156(c) byadding
§ 3.156(c)(1), which provides:
Notwithstanding any other section in this part, at any time after VA
issues a decision
on a claim, if VA receives or associates with the claims file relevant
official service
department records that existed and had not been associated with the
claims file when
VA first decided the claim, VA will reconsider the claim, notwithstanding
paragraph
(a) of this section.
38 C.F.R. § 3.156(c)(1) (2010).2
In the proposed rule, the Secretary explained that § 3.156(c)(1)
specifically applied to "unit records, such as those obtained from the
Center for Research of Unit
Records (CRUR) that pertain to military experiences claimed by a veteran.
Such evidence may be
particularly valuable in connection with claims for benefits for post
traumatic stress disorder." 70
Fed. Reg. at 35,388. The Secretary then renumbered § 3.400(q)(2) as § 3.
156(c)(3), which provided
that the effective date for an award based on § 3.156(c)(1) is "the date
entitlement arose or the date
VA received the previously decided claim, whichever is later, or such
other date as may be
authorized by the provisions of this part applicable to the previously
decided claim." 38 C.F.R. §
3.156(c)(3) (2010); see also 70 Fed. Reg. at 35,389 ("Benefits awarded
upon reconsideration of a
claim . . .under current § 3.156(c) are effective on the dates specified
in current § 3.400(q)(2).
Because we propose to include [this rule] in § 3.156(c), we additionally
propose to remove that
effective date provision from current § 3.400(q).").
These amendments were not intended to be substantive changes to VA's well-
established
practice of reconsidering claims based on newly discovered service
department records and
2
Paragraph (a), which is not relevant here, provides that "a claimant may
reopen a finally adjudicated claim
by submitting new and material evidence" and defines "new evidence" and "
material evidence." 38 C.F.R. § 3.156(a)
(2010).
6


assigning an effective date as early as the date that the initial claim
was filed. As the Secretary
explained: "In practice, when VA receives service department records that
were unavailable at the
time of the prior decision, VA may reconsider the prior decision, and the
effective date assigned will
relate back to the date of the original claim, or the date entitlement
arose, whichever is later." Id.
In the final rule, the Secretary reiterated his intention to merely
clarify VA's current practice: "[T]he
purpose of this rule is to clarify long-standing VA rules . . . which
authorize VA to award benefits
retroactive to the date of a previously decided claim when newly
discovered service department
records are received." New and Material Evidence, 71 Fed. Reg. 52,455, 52,
455 (Sept. 6, 2006).
Moreover, in Vigil v. Peake, the Court explained that "the Secretary
revised § 3.156(c) with
a stated purpose of, inter alia, clarifying the regulation to reflect
current practices." 22 Vet.App. 63,
65 (2008). The Court also noted that, "[a]t oral argument, the Secretary
agreed that his clarifying
statements in the proposed rule should govern the interpretation of the
pre-amended § 3.156(c)
wherever relevant in this case." Id. The Court then applied the clarifying
statements in the proposed
rule and held that pre-amended § 3.156(c), like amended §§ 3.156(c)(1)
and (c)(3), "authorizes an
effective date [for a reconsidered claim based on newly discovered service
department records] as
early as the date of the original claim up to the date of the claim to
reopen." Id. Consequently, the
Court concludes that, under either pre-amendment or amended § 3.156(c), a
claimant whose claim
is reconsidered based on newly discovered service department records may
be entitled to an
effective date as early as the date of the original claim.
2. 38 C.F.R. § 3.156(c)(2)
Having determined that Mr. Mayhue may be entitled to an earlier effective
date for his claim
for benefits for post-traumatic stress disorder under either pre-amendment
or amended § 3.156(c),
theCourtnextaddresses the parties argumentsregarding the
applicabilityof38C.F.R.§3.156(c)(2).
Section 3.156(c)(1) is limited by § 3.156(c)(2), which provides:
Paragraph (c)(1) of this section does not apply to records that VA could
not have
obtained when it decided the claim because the records did not exist when
VA
decided the claim, or because the claimant failed to provide sufficient
information
for VA to identify and obtain the records from the respective service
department, the
Joint Services Records Research Center, or from any other official source.
38 C.F.R. § 3.156(c)(2) (2010) (emphasis added). As the Secretary
explained in the proposed rule
amending § 3.156(c), "[t]his limitation would allow VA to reconsider
decisions and retroactively
7


evaluate disability in a fair manner, on the basis that a claimant should
not be harmed by an
administrative deficiency of the government, but limited by the extent to
which the claimant has
cooperated with VA's efforts to obtain these records." 70 Fed. Reg. at 35,
389.
Although the parties disagree about whether § 3.156(c)(2) applies
retroactively, the Court
declines to address this argument. Even assuming the Secretary's view that
§ 3.156(c)(2) applies
retroactively or that it codified VA's long-standing practice of limiting
reconsideration of claims
based on a claimant's lack of cooperation–the view least favorable to
the veteran–the Court finds
that § 3.156(c)(2) was not for application in this case and, therefore,
the Board erred in applying it.
Specifically, the Board applied § 3.156(c)(2) and concluded that Mr.
Mayhue was not entitled to an
effective date for benefits for post-traumatic stress disorder earlier
than September 5, 2000, because
"[u]ntil that date, [he] had failed to provide sufficient information for
VA to identify and obtain the
service department records that could verify his in-service stressor,
despite being asked for this
information and repeatedly being informed that his claim had been denied
due to his failure to
submit this information." R. at 14. The Board further explained that the
information he provided
with his request to reopen his previously denied claim for post-traumatic
stress disorder, which VA
used to verify his stressor, "included his unit assignment, his dates and
locations of service in Viet[
Nam], and a detailed description of his duties and experiences while in
Viet[ Nam]." Id. The Board
then concluded that this information "allowed for corroboration of his
combat service through
service department research." Id.
The Court acknowledges that Mr. Mayhue did not comply with VA's repeated
requests to
submitadditional informationto verify his claimedstressors, including
witnessing his friend'sdeath,
fleeing from an attack while on road duty, pushing a Vietnamese child off
of a truck and watching
the child explode, and witnessing the decapitation of a Vietnamese woman
by heavy machinery.
However, VA ultimately awarded Mr. Mayhue benefits for post-traumatic
stress disorder based on
attacks on the base camp where his unit was stationed in Viet Nam, not on
any of the above-
mentioned stressors. Specifically, VA stated:
Since the [Center for Research of Unit Records] verified that the 369th
Signal
Battalion was subjected to enemy attacks at Can Tho, which was the base
camp of
the 69th Engineering Battalion during the time you were there, it is
determined that
you were indeed subjected to these attacks also. Accordingly, under these
circumstances, service connection for [post-traumatic stress disorder] is
granted.
8


R. at 318.
The information that the Center for Research of Unit Records ultimately
used to verify Mr.
Mayhue's stressor–i.e., his unit number and the dates of his duty in
Viet Nam–was always a part of
the claims file. See R. at 332 (personnel file stating that Mr. Mayhue was
stationed in Viet Nam
with the 69th Engineering Battalion from March 1, 1969, to February 17,
1970); see also R. at 1674
(December 27, 1994, internal VA request for Mr. Mayhue's personnel file).
Therefore,
notwithstanding the fact that Mr. Mayhue did not cooperate fully with VA's
requests for information
to verify other claimed stressors, VA's failure to verify his stressor was
the result of an
administrative error in locating his unit records. As the Secretary stated
in the proposed rule
amending § 3.156(c), the reason VA reconsiders decisions based on newly
discovered service
department records is "that a claimant should not be harmed by an
administrative deficiency of the
government." 70 Fed. Reg. at 35,389. Such an administrative deficiency
occurred in the instant
case and predated Mr. Mayhue's failure to cooperate with VA. Moreover, the
information contained
in the claims file at the time of the initial claim was ultimately
sufficient to verify Mr. Mayhue's
stressor. Therefore, it was VA's administrative error in failing to verify
Mr. Mayhue's stressor with
the information it had at the time of his initial claim, not Mr. Mayhue's
subsequent failure to provide
additional informationsufficient to verify other claimedstressors,
thatprevented VA fromverifying
his stressor until March 2005. Consequently, the Board erred when it
applied § 3.156(c)(2), and the
Court will therefore vacate and remand that portion of the Board's
decision for readjudication
consistent with this decision.
B. 38 C.F.R. § 3.156(b)
Mr. Mayhue next argues that the Board failed to apply 38 C.F.R. § 3.156(b)
when it treated
his request for a total disability rating based on individual
unemployability "as different from his
claim for a higher initial rating" for post-traumatic stress disorder.
Appellant's Br. at 17; see also
38 C.F.R. § 3.156(b) (2010) ("New and material evidence received prior to
the expiration of the
appeal period, or prior to the appellate decision if a timely appeal has
been filed . . . , will be
considered as having been filed in connection with the claim which was
pending at the beginning
of the appeal period.").
9


Mr. Mayhue is correct that a request for a total disability rating based
on individual
unemployability "is not a separate claim for benefits, but rather involves
an attempt to obtain an
appropriate rating for a disability." Rice v. Shinseki, 22 Vet.App. 447,
453 (2009) (per curiam). In
the instant case, Mr. Mayhue requested that his previously denied claim
for benefits for post-
traumatic stress disorder be reopened in September 2000, which was
eventually granted in April
2005 based on information received from the Center for Research of Unit
Records. In September
2005, during the one-year appeal period following the decision awarding Mr.
Mayhue an initial
disability rating for post-traumatic stress disorder, Mr. Mayhue filed a
Notice of Disagreement that
asserted for the first time that he was entitled to a total disability
rating based on individual
unemployability based on his service-connected post-traumatic stress
disorder. In December 2005,
Mr. Mayhue submitted new evidence that demonstrated that he had not been
able to maintain
employment since June 2003 and that he had not been employed at all since
April 2005. After
further development, in May 2006 the regional office awarded Mr. Mayhue a
total disability rating
based on individual unemployability with an effective date of April 1,
2005, finding that the date
he "became too disabled to work due to symptoms of [post-traumatic stress
disorder]." R. at 129.
In July 2006, Mr. Mayhue completed his appeal challenging the initial
rating and effective date for
his post-traumatic stress disorder and the effective date of his total
disability rating based on
individual unemployability for post-traumatic stress disorder. In a
September 2008 decision, now
on appeal, the Board denied these claims.
As in Rice, this procedural history demonstrates that Mr. Mayhue's request
for a total
disability rating based on individual unemployability was part of his
initial application for benefits
for post-traumatic stress disorder, not a part of a new claim for
increased compensation. See
22 Vet.App. at 453-54. Because the evidence of unemployability was
submitted to VA within one
year of the April 2005 regional office decision granting benefits for post-
traumatic stress disorder,
it is considered when determining the appropriate rating to be assigned
for his service-connected
post-traumatic stress disorder; it is not a separate claim for increased
compensation, but is evidence
that must be considered in the adjudication of the original claim when
determining the proper rate
of disability compensation. Moreover, "[n]ew evidence that shows
unemployability relating to the
underlying condition during the pendency of the original claim is material
on its face," and Mr.
10


Mayhue submitted precisely this type of evidence in December 2005. Id. at
454. Accordingly, the
Board was required to apply 38 C.F.R. § 3.156(b). As the Court stated in
Rice:
When entitlement to [a total disability rating based on individual
unemployability]
is raised during the adjudicatory process of the underlying disability or
during the
administrative appeal of the initial rating assigned for that disability,
it is part of the
claim for benefits for the underlying disability. And, when it is raised
during the
one-year appeal period following a decision on the claim, VA is required
to consider
the potential applicability of 38 C.F.R. § 3.156(b).
22 Vet.App. at 454.
Here, the Board mischaracterized Mr. Mayhue's request for a total
disability rating based on
individual unemployability as a claim for an increased rating. As a result,
the Board limited its
examination of the evidence of record pertaining to this request to the
one-year period prior to
September 1, 2005, the date that Mr. Mayhue first raised the issue of
entitlement to a total disability
rating based on individual unemployability. However, because Mr. Mayhue's
request for a total
disability rating based on individual unemployability was part of his
initial application for benefits
for post-traumatic stress disorder, the Board was required to consider
evidence of unemployability
as far back as the date of the underlying initial claim, i.e., as far back
as September 2000 when he
requested that VA reopen his previously denied claim. See Rice, 22 Vet.App.
at 456-57; see also
38 U.S.C. § 5110(a) ("[T]he effective date of an award based on an
original claim . . . shall be fixed
in accordance with the facts found, but shall not be earlier than the date
of receipt of application
therefor."); 38 C.F.R. § 3.400(b)(2)(I) (2010). Consequently, the Board's
failure to consider the
evidence of record of Mr. Mayhue's inability to maintain employment
between September 2000 and
April 2005 was prejudicial error. See R. at 152 (statement describing Mr.
Mayhue's employment
between June 2003 and April 2005); R. at 155 (VA form detailing Mr.
Mayhue's employment since
2000); see also 38 U.S.C. § 7261(b)(2) (requiring the Court to "take due
account of the rule of
prejudicial error"); Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir.
2004). The Court will
therefore vacate that portion of the Board's decision that denied
entitlement to an earlier effective
date for a total disability rating based on individual unemployability and
remand the matter for
readjudication consistent with this decision.
11


C. Reasonable Doubt
Mr. Mayhue next contends that the Board failed to apply 38 C.F.R. § 4.3
to his claim for a
higher initial disability rating for post-traumatic stress disorder.
Appellant's Br. at 10-13;
Appellant's Reply Br. at 8-10. Specifically, he argues that the Board "
render[ed] § 4.3 meaningless"
by applying "the general benefit of the doubt provisions under 38 U.S.C. §
5107(b)" instead of § 4.3.
Appellant's Reply Br. at 10. The Court disagrees.
Section § 4.3 in pertinent part provides: "When after careful
consideration of all procurable
and assembled data, a reasonable doubt arises regarding the degree of
disability such doubt will be
resolved in favor of the claimant. See § 3.102 of this chapter." 38 C.F.R.
§ 4.3 (2010). Section
3.102 defines the term "reasonable doubt" as used in § 4.3 as doubt "
which exists because of an
approximate balance of positive and negative evidence which does not
satisfactorily prove or
disprove the claim." 38 C.F.R. § 3.102 (2010); see Ortiz v. Principi, 274
F.3d 1361, 1364 (Fed. Cir.
2001) (stating that § 3.102 "restates" the provisions of 38 U.S.C. §
5107(b) (benefit of the doubt)
in terms of "reasonable doubt"). Therefore, contrary to Mr. Mayhue's
assertion, where, as here, the
Board concludes that the evidence is not in equipoise, specific
consideration of § 4.3 is not
warranted. See Schoolman v. West, 12 Vet.App. 307, 311 (1999) (explaining
that where the
preponderance of the evidence is against an appellant's claims, "the
benefit of the doubt doctrine
does not apply").
In the instant case, the Board found that "the preponderance of the
evidence is against
granting an initial rating in excess of 70 percent." R. at 19. In support
of this finding, the Board
thoroughly discussed Mr. Mayhue's disability picture and adequately
explained why his symptoms
"most closely satisf[y] the 70 percent rating criteria." R. at 25. In
light of the Board's thorough
consideration of the evidence of record and Mr. Mayhue's statement that he "
is not contesting the
Board's finding that there was a preponderance of evidence against an
initial rating in excess of 70
percent," the Board's failure to apply § 4.3 was not "arbitrary,
capricious, an abuse of discretion, or
otherwise not in accordance with law." Gilbert, 1 Vet.App. at 58.
D. Reasons or Bases
Finally, Mr. Mayhue argues that the Board failed to provide an adequate
statement ofreasons
or bases for its decision to deny him a 100% disability rating for post-
traumatic stress disorder
because the decision "fails to address why [Global Assessment of
Functioning] scores representing
12


serious symptoms of social and occupational impairment did not support a
100% rating."
Appellant's Br. at 16. However, the record does not support this
contention.
Section 4.7, title 38 of the Code of Federal Regulations provides that, "[
w]here there is a
question as to which of two evaluations shall be applied, the higher
evaluation will be assigned if
the disability picture more nearly approximates the criteria required for
that rating. Otherwise, the
lower rating will be assigned." The Board acknowledged this regulation,
then painstakingly
described Mr. Mayhue's medical history and disability picture, including
his Global Assessment of
Functioning scores. After reviewing the evidence of record, the Board
explained:
[T]heBoard finds that these symptoms reflect a level of impairment that
mostclosely
approximates a 70 percent disability rating throughout the entire period
on appeal.
As noted in the rating criteria listed above, symptoms such as suicidal
ideation,
impaired impulse control, and difficulty in adapting to stressful
circumstances are
contemplated by the 70 percent disability evaluation. In addition,
deficiencies in
work, thinking, and mood are noted throughout the period on appeal, and
serious
deficiencies in these areas are also appropriately compensated by the 70
percent
evaluation.
While these records demonstrate significant impairment, they do not show
the total
occupational and social impairment required for a 100 percent disability
evaluation.
While [Mr. Mayhue] experienced significant problems getting along with his
supervisor at work, records reflect that his main difficulties working at
the store
arose from a hand disability rather than [post-traumatic stress disorder].
The Board
also notes that [Mr. Mayhue] appeared to have been in a stable
relationship and had
a good relationship with his children. He spent time on activities with
his stepson,
and he had a good relationship with his other children.
The record reflects that [Mr. Mayhue] demonstrates symptoms of the 70
percent
rating criteria, including auditory hallucinations, difficulty in adapting
to stressful
circumstances, and suicidal ideation. However, the Board notes that [he]
does not
exhibit many symptoms of the 70 percent rating, including obsessional
rituals that interfere with routine activities;speech intermittently illogical,obscure, or irrelevant; spatial disorientation; or neglect of personal appearance and hygiene. The Board realizes that the symptoms noted in the rating criteria are not intended to be an exhaustive list, but are examples of the types and severity of symptoms that indicate a certain level of disability. However, the Board believes that the overall severity of the veteran's symptoms, when taking into account both the symptoms that satisfy the 100 percent criteria and those that do not rise to the level of the 70 percent rating, most closely satisfies the 70 percent rating criteria.
13


R. at 24-25. This discussion demonstrates that the Board, in fact,
considered the "serious symptoms of social and occupation[al] impairment" that Mr. Mayhue's Global Assessment of Functioning scores represent. Appellant's Br. at 16. Moreover, it is clear from the preceding discussion that Mr. Mayhue's contention that "there is no reference concerning why the rating criteria for a 100% rating
did not more nearly approximate Mr. Mayhue's disability picture" is simply
incorrect. Because the Board thoroughly discussed Mr. Mayhue's disability picture and explained why his symptoms more nearly approximate a 70% disability rating than a 100% disability rating, the Court concludes that the Board's statement of reasons or bases for its determination that Mr. Mayhue was not entitled to an initial disability rating for post-traumatic stress disorder in excess of 70% was adequate. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (
Fed. Cir. 1996) (table); Gilbert, 1 Vet.App. at 57.

III. CONCLUSION
On consideration of the foregoing, the portions of the September 12, 2008,
Board decision that denied entitlement to earlier effective dates for post-traumatic
stress disorder and a total disability rating based on individual unemployability are VACATED and the matters are
REMANDED for readjudication consistent with this decision. The remainder
of the Board decision
is AFFIRMED.
14

Single Judge Application, Engaged in Combat, Moran v. Peake, 525 F.3d

Excerpt from Decision below:

"Here, the Board defined "engaged in combat with the enemy" as "requir[ing]
that the veteran have taken part in a fight or encounter with a military foe or hostile unit or instrumentality," a definition that Mr. Pate concedes is "quite similar" to the definition of that term provided by the Federal Circuit in Moran v. Peake. R. at 16; Appellant's Br. at 7; see 525 F.3d 1157, 1159 (Fed. Cir.
2008) (holding that "the term 'engaged in combat with the enemy' in [
section] 1154(b) requires that the veteran have personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality, as determined on a case-by-case basis")."
=======================================================


Skip navigation
U.S. Court of Appeals for Veterans Claims
View | Download | Details Previous document | Next document
. 09-0687
PateTL_09-687.pdf
Search Terms: INJURY CreationDate: 01/18/2011 16:34:56
Creator: PrintServer150
ModDate: 01/25/2011 13:31:25
Producer: Corel PDF Engine Version 15.0.0.431; modified using iText 2.1.7
by 1T3XT
Title:
X_XMPTK: Adobe XMP Core 4.2.1-c043 52.372728, 2009/01/18-15:08:04
X_XMPMETA_XMP_CREATEDATE: 01/18/2011 16:34:56
X_XMPMETA_XMP_MODIFYDATE: 01/25/2011 13:31:25
X_XMPMETA_XMP_CREATORTOOL: PrintServer150
X_XMPMETA_XMP_METADATADATE: 01/25/2011 13:31:25
X_XMPMETA_DC_FORMAT: application/pdf
X_XMPMETA_PDF_PRODUCER: Corel PDF Engine Version 15.0.0.431; modified
using iText 2.1.7 by 1T3XT
X_XMPMETA_PDFAID_PART: 1
X_XMPMETA_XMPMM_DOCUMENTID: uuid:176c6643-6c2f-41df-85e6-463d51f5b7f0
X_XMPMETA_XMPMM_INSTANCEID: uuid:6f0e79fd-d706-4237-b988-bf98f9c4d1e5

----------------------------------------------------


Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-0687
TERRY L. PATE, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before HAGEL, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
HAGEL, Judge: Terry L. Pate appeals through counsel an October 31, 2008,
Board of
Veterans' Appeals (Board) decision that found that the regional office did
not commit clear and
unmistakable error in its December 1982 decision. Record ®.) at 3-23. The
Court has jurisdiction
pursuant to 38 U.S.C. §§ 7252(a) and 7266(a) to review the October 2008
Board decision. Because
the Board's determination that the December 1982 regional office decision
did not contain clear and
unmistakable error is not arbitrary,capricious, an abuse of discretion, or
otherwise not in accordance
with law, and because it is supported by an adequate statement of reasons
or bases, the Court will
affirm the October 31, 2008, Board decision.
I. FACTS
Mr. Pate served on active duty in the U.S. Army from July 1967 to July
1970, including
service in Viet Nam. Mr. Pate's military personnel file indicates that he
participated in the Tet
Counter Offensive and Phases III through VI of the Vietnam Counter
Offensive.
In July 1981, Mr. Pate submitted a claim for VA benefits for post-
traumatic stress disorder.
In September 1981, Mr. Pate submitted a statement that he was exposed to "
constant rocket and
small arms fire" while on active duty in Viet Nam during the Tet Counter
Offensive. R. at 649. He


also recounted an incident where he was "hit by small arms fire" and a
grenade while driving a
military vehicle and fled the attack and hid in the jungle overnight until
he was picked up the next
day by military police. R. at 649-50. Mr. Pate also stated that he was
placed on a mortar team at
a microwave site, where he was "always being rocketed and under small arms
fire" and "often
encountered small fire fights" when he exited the perimeter to pump water.
R. at 650. In February
1982, a VA medical examiner diagnosed Mr. Pate with "[p]ost[-]traumatic
stress disorder,
characterized by[] adequate stressor, insomnia, nightmares, marital
instability, alcohol abuse, poor
job record, depression[,] and suicidal impulses." R. at 615.
In December 1982, a VA regional office denied Mr. Pate's claim for
benefits for post-
traumatic stress disorder. The regional office noted that
[Mr. Pate] stated that in the Long Dinh area he was subject to constant
rocket fire for
a long period, had later been pinned down over night by enemy fire when
his jeep
had been hit, was frequently assigned to defend a microwave installation
and
exposed there to enemy fire. . . . During his compensation and pension
examination
in February 1982, he stated that after two months of working at a base
camp in
Viet[ Nam] he was assigned to a mortar team and spent the rest of his time
working
in that capacity. He said that his unit was stationed near the Ho Chi Minh
trail[] and
was involved in combat every week or two. He said that his friend was
killed by a
mortar close to him during a fire fight.
R. at 587. Nevertheless, the regional office denied Mr. Pate's claim for
benefits for post-traumatic
stress disorder because "[t]he available evidence shows that more
immediate stressors than those
experienced in Viet[ Nam] 13 years ago precipitated his present
psychiatric disability" and,
therefore, "[h]is post-traumatic stress disorder is not due to service." R.
at 588. In rendering its
decision, the regional office did not make an explicit finding regarding
whether Mr. Pate was
involved in combat in Viet Nam, but instead noted that he served as a
wireman and that there was
"no record of wounds or combat decorations" during his service overseas. R.
at 587. Mr. Pate did
not appeal this decision and it became final.
In March 1999, Mr. Pate sought to reopen his previously denied claim for
benefits for post-
traumatic stress disorder. In October 1999, the regional office reopened
his claim and awarded him
a 50% disability rating for post-traumatic stress disorder, effective
March 26, 1999. In so doing, the
regional office noted:
2


DD214 and service personnel records do not specifically document combat
or other
stressor events adequate to support a diagnosis of [post-traumatic stress
disorder].
However, [Mr. Pate] has furnished statements of events during his tour of
duty in
Viet[ Nam] which have been accepted as valid stressors consistent with the
time,
places, circumstances and hardships of service. [Mr. Pate] served in Viet[
Nam] from
January 11, 1968 to February 10, 1969 with [a military occupation
specialty] of
wireman. A review of his personnel file shows [he] was engaged in the [Tet]
Counteroffensive and other unnamed campaigns.
R. at 544. In June 2000, the regional office assigned Mr. Pate staged
disability ratings for post-
traumatic stress disorder of 70% from March 26, 1999, to October 12, 1999;
100% from October
13, 1999, to December 31, 1999; and 70% from January 1, 2000, to the
present. The regional office
also awarded Mr. Pate a total disability rating based on individual
unemployability effective March
26, 1999.
Mr. Pate appealed this decision, arguing that he was entitled to an
earlier effective date
because the regional office committed clear and unmistakable error in its
December 1982 decision
by not finding that he engaged in combat sufficient to trigger a lower
evidentiary threshold for proof
of service connection. See 38 U.S.C. § 354(b) (1982) (current version at
38 U.S.C. § 1154(b)
(2006)). In July 2005, the Board found no clear and unmistakable error in
the December 1982
regional office decision. Mr. Pate appealed and in February 2008, the
Court vacated the Board's
July 2005 decision because the Board did not provide an adequate statement
of reasons or bases for
its decision.
In October 2008, the Board issued the decision currently on appeal. The
Board, in pertinent
part, provided a definition of "combat" for purposes of 38 U.S.C. § 354(b
), recounted the evidence
before the regional office in December 1982, and once again determined
that the regional office did
not commit clear and unmistakable error in its December 1982 decision
because:
The facts did not show that [Mr. Pate] participated in combat, and there
was no objective
evidence substantiating his claimed in-service stressors. There is also no
indication that the
[regional office] misapplied the law, especially considering the more
restrictive version of
the law in effect then as applicable to claimants seeking service
connection for [post-
traumatic stress disorder].
R. at 21-22. Essentially, the Board characterized Mr. Pate's clear and
unmistakable error argument
as a disagreement with how the regional office weighed the evidence of
combat participation, which
3


cannot be the basis for a claim of clear and unmistakable error. R. at 18 (
citing Damrel v. Brown,
6 Vet.App. 242 (1994)).
On appeal, Mr. Pate argues that the Board's decision that the regional
office did not commit
clear and unmistakable error in its December 1982 decision is arbitrary,
capricious, an abuse of
discretion, or otherwise not in accordance with law because the regional
office misapplied 38 U.S.C.
§ 354(b).1
Appellant's Brief (Br.) at 4-12. Specifically, he contends that his lay
statements alone
were sufficient to trigger the lower evidentiary threshold for proof of
service connection contained
in section 354(b). Id. In his reply brief, Mr. Pate reiterates this
argument and asserts that the Court
should review the Board decision de novo because the question of whether
the Board correctly
applied section 354(b) is a question of law. Appellant's Reply Br. at 1-2.
In response, the Secretary argues that the Board's October 2008 decision
that the regional
office did not commit clear and unmistakable error in its December 1982
decision is not arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with
law. Secretary's Br. at 2-6.
Specifically, the Secretary asserts that Mr. Pate's disagreement with the
way the regional office
weighed the evidence before it in December 1982 cannot constitute clear
and unmistakable error.
Id. at 4-5.
II. ANALYSIS
Mr. Pate first contends that the October 2008 Board decision that there
was no clear and
unmistakable error in the December 1982 regional office decision is
arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law because the
regional office misapplied
38 U.S.C. § 354(b). Specifically, Mr. Pate asserts that he previously "
furnished adequate statements
consistent with the types, places and circumstances of his active duty
service . . . which had been
accepted as valid stressors . . . and were sufficient to establish that he
had engaged in combat to
In his brief, Mr. Pate argues that the Board's determination that the
December 1982 regional office decision
did not contain clear and unmistakable error is clearly erroneous.
Appellant's Br. at 4-12. However, the "clearly
erroneous" standard does not apply in this case. Instead, when the Court
reviews a Board determination that there was
no clear and unmistakable error in a prior final regional office decision,
the Court's review is limited to determining
whether the Board's conclusion in that regard is "arbitrary, capricious,
an abuse of discretion, or otherwise not in
accordance with law," 38 U.S.C. § 7261(a)(3)(A), and whether it is
supported by an adequate statement of "reasons or
bases," 38 U.S.C. § 7104(d)(1). See Eddy v. Brown, 9 Vet.App. 52, 57 (
1996). Accordingly, the Court will address Mr.
Pate's arguments under the appropriate standard of review.
1
4


trigger the benefit of the relaxed evidentiary burden under 38 U.S.C. §
354(b)." Appellant's Br. at
12. It is clear from this argument that Mr. Pate fundamentally
misunderstands the purpose and
function of section 354(b).
At the time of the regional office decision, section 354(b) provided:
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,orexpedition,theAdministratorshall accept as sufficient
proofofservice-
connection of any disease or injuryNext Hit alleged to have been incurred in or
aggravated
by such service satisfactory lay or other evidence of service incurrence
or
aggravation of such Previous HitinjuryNext Hit or disease, if consistent with the
circumstances,
conditions, or hardships of such service, notwithstanding the fact that
there is no
official record of such incurrence or aggravation in such service, and, to
that end,
shall resolve every reasonable doubt in favor of the veteran.
38 U.S.C. § 354(b) (1982). In Collette v. Brown, the U.S. Court of
Appeals for the Federal Circuit
(Federal Circuit) announced a "three-step, sequential analysis" for
applying this provision:2
(1) "determin[e] whether the veteran has proffered 'satisfactory lay or
other evidence of service
incurrence or aggravation of such Previous HitinjuryNext Hit or disease;'" (2) "determine[]
whether the proffered
evidence is 'consistent with the circumstances, conditions, or hardships
of such service;'" and (3) "if
these two inquiries are met, the Secretary 'shall accept' the veteran's
evidence as 'sufficient proof of
service-connection,' even if no official record of such incurrence exists."
82 F.3d 389, 392-93 (Fed.
Cir. 1996) (quoting 38 U.S.C. § 1154(b) (1994)). The Federal Circuit then
concluded that, "if a
veteran satisfies both of these inquiries mandated by the statute, a
factual presumption arises that
the alleged Previous HitinjuryNext Hit or disease is service-connected." Id. (emphasis added).
As Collette demonstrates, section 1154(b)–and its precursor section 354(
b)–does not lower
the evidentiary burden for demonstrating that a veteran engaged in combat
with the enemy as Mr.
Pate contends; rather, "a veteran's participation in combat is a
prerequisite for the application of [this
section]," which in turn lowers the evidentiary burden of showing an in-
service Previous HitinjuryNext Hit or disease.
Stone v. Nicholson, 480 F.3d 1111, 1113 (Fed. Cir. 2007). As the Federal
Circuit observed in Stone:
The plain language of [38 U.S.C. § 1154] demonstrates that in order for a
veteran to
be able to show service-connection for an Previous HitinjuryNext Hit using only lay evidence,
the veteran
2
In August 1991, 38 U.S.C. § 354(b) was renumbered to 38 U.S.C. § 1154(b)
without any substantive
amendment. See Pub. L. No. 102-83, 105 Stat. 404-06 (1991). In Collete,
the Federal Circuit analyzed section 1154,
which was formerly section 354.
5


must have engaged in combat with the enemy. The statute does not provide
a
relaxed standard of proof for determining whether a veteran engaged in
combat.
Id. (emphasis added) (internal citations omitted). Thus, the adjudicator
must make a threshold
determination that the veteran engaged in combat with the enemy before
applying section 1154(b),
and the veteran is not entitled to any relaxed standard of proof in
demonstrating engagement in
combat with the enemy. Id.; see also Simmons v. Peake, 292 Fed. App. 929,
930 (Fed. Cir. 2008)
(holding "that the relaxed evidentiary standard provided by [section] 1154(
b) does not apply when
attempting to establish entitlement to use that statute (i.e., by showing
a veteran 'engaged in
combat')").
Accordingly, Mr. Pate had the burden of proving that he engaged in combat
with the enemy
and the regional office had the concomitant duty to weigh the evidence
before it. Mr. Pate's
argumentthat he "furnished adequate statements consistent with the types,
places and circumstances
of his active duty service .. . sufficient to establish that he had
engaged in combat" is essentially a
disagreement with the way the regional office weighed his lay statements
regarding his service in
Viet Nam, which cannot constitute clear and unmistakable error.
Appellant's Br. at 12; see Russell
v. Principi, 3 Vet.App. 310, 313-14 (1992) (en banc). In addition, the
fact that Mr. Pate's lay
statements were "consistent with the types, places and circumstances of
his active duty service" is
immaterial to the threshold question of whether he engaged in combat with
the enemy. Appellant's
Br. at 12. As the Federal Circuit explained in Collette, the adjudicator
need not "determine[]
whether the proffered evidence is 'consistent with the circumstances,
conditions, or hardships of []
service'" until after theadjudicator makesthe prerequisite findingthatthe
veteran engagedincombat
with the enemy and finds that the first step of the three-step, sequential
analysis is satisfied–i.e, after
the adjudicator determines that the veteran proffered "satisfactory lay or
other evidence of service
incurrence or aggravation of such Previous HitinjuryNext Hit or disease." 82 F.3d at 392-93 (
quoting 38 U.S.C.
§ 1154(b) (1994)); see also Stone, 480 F.3d at 1113. Moreover, whether
the evidence is "consistent
with the circumstances, conditions, or hardships of [] service" relates to
the question of whether
there was an in-service Previous HitinjuryNext Hit or disease, not the threshold question of
whether the veteran engaged
in combat with the enemy. 38 U.S.C. § 1154(b); see Collette, 82 F.3d at
393.
Mr. Pate also contends that the Board's determination that there was no
clear and
unmistakable error in the December 1982 regional office decision is not
supported by an adequate
6


statement of reasons or bases. The Board's statement of reasons or bases
is adequate if it enables
a claimant 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); Gilbert v. Derwinski, 1 Vet.App.
49, 57 (1990); see also
Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (
Fed. Cir. 1996) (table)
(holding that, to comply with the reasons or bases requirement, the Board
must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant).
Here, the Board defined "engaged in combat with the enemy" as "requir[ing]
that the veteran have taken part in a fight or encounter with a military foe or hostile unit or instrumentality," a definition that Mr. Pate concedes is "quite similar" to the definition of that term provided by the Federal Circuit in Moran v. Peake. R. at 16; Appellant's Br. at 7; see 525 F.3d 1157, 1159 (Fed. Cir. 2008) (holding that "the term 'engaged in combat with the enemy' in [section] 1154(b) requires that the veteran have personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality, as determined on a case-by-case basis").
The Board
also thoroughly described the development of the law regarding claims for
benefits for post-
traumatic stress disorder, including the law extant in December 1982. See
R. at 11-14. The Board
then reviewed the evidence before the regional office in December 1982 and
concluded:
Based on the foregoing, the matter of whether [Mr. Pate] was a combat
veteran is a question to be answered by examining the facts of record.
The fact that a veteran asserts that he served in combat is not sufficient alone. His lay
statements are only accepted as sufficient proof of service incurrence once it is established that he engaged in combat with the enemy; the law and regulations in 1982 did not indicate that his statements were to be accepted as sufficient proof of combat service itself.
In this case, the facts considered in December 1982 did not establish that [
Mr. Pate]
had participated in "combat." Although [Mr. Pate] served in Viet[ Nam],
the
evidence of record in 1982 did not show that he actually engaged in combat
with the
enemy. As previously noted, his [military occupation specialty] was listed
as that
of a wireman, and there was no indication that he had received any medals
and/or
citations indicative of combat. Nor was there any evidence showing that he
had
sustained an injury in combat. Therefore, the Board finds that it was
reasonable to
conclude that [Mr. Pate] did not engage in combat with the enemy based
upon the
facts shown in 1982.
7


R. at 18. Because the Board analyzed the probative value of the evidence,
accounted for the
evidence that it found to be persuasive or unpersuasive, and provided the
reasons for its rejection
of any material evidence favorable to Mr. Pate, the Court concludes that
the Board's October 2008
decision is supported by an adequate statement of reasons or bases. See
Eddy v. Brown, 9 Vet.App.
52 ,57 (1996); Caluza, 7 Vet.App. at 506. Moreover, the Court concludes
that the Board's
determination that the December 1982 regional office decision did not
contain clear and
unmistakable error was not arbitrary, capricious, an abuse of discretion,
or otherwise not in
accordance with law. 38 U.S.C. § 7261(a)(3)(A).

III. CONCLUSION
On consideration of the foregoing, the October 31, 2008, Board decision is
AFFIRMED.

DATED: January 18, 2011
Copies to:
Kenneth M. Carpenter, Esq.
VA General Counsel (027)
8