Single Judge Application, Stressors Need Not Cause Physical Injury, Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011)

Excerpt from decision below: "Mr. Page consistently alleged that he suffered personal assaults by a drill instructor, which the Board noted in its decision. R. at 21. Without discussing 38 C.F.R. § 3.304(f)(5), the Board discredited the notion that the in-service personal assaults Mr. Page endured amounted to a stressor. First, the Board stated that Mr. Page failed to show treatment for any injuries from these assaults. Id. The regulation does not require that a servicemember be injured in a personal assault for the assault to constitute a stressor; instead it states that medical records are a type of alternative evidence that may be used to prove an in-service assault occurred. The Board's treatment of the absence of medical records as negative evidence, therefore, is an inappropriate application of the regulation. See Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011) ("[T]he Board may not consider the absence of evidence as substantive negative evidence."). Next, the Board stated that Mr. Page "admits that [the assault] was not directed solely at him, but that other Marines were treated the same." Id. The Court is unconvinced by the Board's logic that because other Marines were also assaulted that Mr. Page's assault somehow ceases to be stressful. Additionally, the Board cited "[t]he fact that none of the VA examiners gave credence to this alleged stressor speaks to its inadequacy." Id. The record, however, does not support that characterization of the evidence. None of the medical reports in the record stated that Mr. Page's in-service personal assaults lacked credence. See R. at 60-64, 902. Finally, the Board stated that the assault could not meet the DSM-IV definition of a PTSD stressor because Mr. Page "has not reported that he feared for his life." R. at 21. As stated above, fear for one's life is not required by DSM-IV. All the reasons provided for the Board's determination that Mr. Page's in-service personal assault did not amount to a stressor are, therefore, inadequate. =========================== ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS No. 11-0684 GEORGE E. PAGE, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before DAVIS, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. DAVIS, Judge: U.S. Marine Corps veteran George E. Page appeals through counsel from a January 21, 2011, Board of Veterans' Appeals (Board) decision in which the Board first determined that VA had satisfied its duty to assist Mr. Page in substantiating his claim and then denied service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD) because the record did not reveal a current diagnosis of PTSD. Mr. Page contests only the Board's findingastoPTSD, andpresents noarguments regardingotherpsychiatricdisorders. Forthereasons stated below, the Court will set aside the January 2011 Board decision and remand the matter for further proceedings consistent with this decision. I. ANALYSIS A. Inadequate Medical Examination Mr. Page first argues that the Board relied on an inadequate August 2010 VA medical examination. He alleges the medical examiner did not follow guidelines set forth in the Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV). Service connection for PTSD requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms andanin-servicestressor;and(3) crediblesupportingevidencethattheclaimedin-service stressor occurred. 38 C.F.R. § 3.304(f) (2011). "If the diagnosis of a mental disorder does not conform to DSM-IV or is not supported by the findings on the examination report, the rating agency shall return the report to the examiner to substantiate the diagnosis." 38 C.F.R. § 4.125(a) (2011). The Board found the August 2010 VA medical examination the most probative evidence in the record, and declared all other medical examination reports in the record inadequate. Record (R.) at 22. In the August 2010 report, the examiner stated that the two stressors Mr. Page consistently asserted as causes of his PTSD, witnessing the death of a friend in bootcamp and being informed that his cousin was killed in Vietnam, "don't meet stressor criteri[a]. There was no threat to physical integrity, pt's [patient's] life was not threatened and he didn't witness these incidents." R. at 63. Initially, the Court notes the VA medical examiner's statement that Mr. Page did not witness the death of his friend in boot camp is not supported by the record. R. at 60-61, 67, 133, 362, 527, 529, 537, 567, 1160; see Reonal v. Brown, 5 Vet.App. 458, 460-61 (1993) ( medical opinion based on an inaccurate factual premise has no probative value). The Court additionally notes that elsewhere in the same examination report, the VA examiner stated that Mr. Page "meets stressor criterion based on witnessing the death of his friend." R. at 64. Next, the Court agrees with Mr. Page that the VA medical examiner's statement that a stressor must involve threat to the physical integrity of the claimant is a misstatement of DSM-IV criteria. According to the DSM-IV, a stressor occurs when "the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others [and] the person's response involved intense fear, helplessness or horror." DSM-IV at 427-28 (emphasis added). The examiner failed to explain why Mr. Page being confronted with the event that his cousin had been killed in action did not satisfythis definition. Here, neither this Court nor the Board can draw a medical conclusion as to whether these facts, which appear to satisfythe DSM-IV criteria, indeed do so, and it is not clear whythe examiner used the incorrect definition of a stressor in rendering her diagnosis. It is the Board's responsibility to ensure that a medical opinion is "supported bythe findings on the examination report." 38 C.F.R. § 4.125(a). Remand is required for the Board to obtain a new medical examination. 2 In addition, the Court notes that the examiner found Mr. Page did not " currently" have PTSD but had a history of PTSD. R. at 64. A "current" disability exists for the purposes of service connection if the diagnosed disability is present at any time during the pendency of the claim, even if the disability resolves prior to adjudication. McClain v. Nicholson, 21 Vet.App. 319 (2007). In such a case, staged ratings may be appropriate. See id. at 321; Fenderson v. West, 12 Vet.App. 119, 126 (1999). The Board failed to determine when Mr. Page satisfied the criteria for PTSD. Therefore, on remand, the Board must also clarifythe period for which the examiner determined that Mr. Page had PTSD and consider staged ratings. See id. B. Application of 38 C.F.R. § 3.304(f)(3) Mr. Page next argues that the Board erred in not applying 38 C.F.R. § 3. 304(f)(3) to his claim that the death of his cousin was a stressful experience. This regulatory subsection eliminates the requirement that evidence corroborate a claimed in-service stressor if a claimed stressor is related to the veteran's fear of hostile military or terrorist activity. See 75 Fed. Reg. 39,843-01 (2010) (codified at 38 C.F.R. § 3.304(f)(3)). The regulation defines "fear of hostile military or terrorist activity"asacircumstancewhere"aveteranexperienced,witnessed, orwasconfrontedwith anevent or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from . . . incoming artillery, rocket, or mortar fire . . . and theveteran's responseto theeventorcircumstanceinvolvedapsychologicalorpsycho-physiological state of fear, helplessness, or horror." 38 C.F.R. § 3.304(f)(3) (2011). The Board did not discuss this regulation in its decision. The Secretary, in his brief, alleges that this regulation was intended to apply only to veterans serving in combat environments. The requirement that the veteran must have engaged in combat with the enemy is present in a separate subsection of the regulation, 38 C. F.R. § 3.304(f)(2), which refers to circumstances in which "the veteran engaged in combat with the enemy." However, such a requirement is not contained in 38 C.F.R. § 3.304(f)(3), which contemplates only "fear of hostile military or terrorist activity." Additionally, the Federal Register does not support the Secretary's assertion. See 75 Fed. Reg. 39,843-01 (2010). The comments accompanying 38 C.F.R. § 3.304(f)(2) state: "The rule has no geographic requirement and is not limited to service in a combat zone or on land. Rather, it 3 applies to all persons who served in active military, naval or air service." Id. at 3. The comments also state that "'circumstance' means 'a condition, fact, or event'" and that "fear may result from conditions to which the veteran was exposed during service." Id. Furthermore, "[t]he regulation is not limited to events or circumstances perpetrated by a foreign enemy." Id. at 4. Mr.Pageassertedthatwhilehewasonactiveduty, astaffnoncommissionedofficerinformed him that his cousin1 had been killed in Vietnam by mortar fire. R. at 516, 527. It appears then that Mr. Page was indeed confronted with an event or circumstance that involved actual death to another from incoming mortar fire, as described in 38 C.F.R. § 3.304(f)(3). The Board noted in its decision that after learning of his cousin's death, Mr. Page became enraged and retrieved a weapon to kill the Marine who had informed him of the death because the Marine was laughing about it. R. at 10. It is not the role of this Court to determine whether that reaction evidenced psycho-physiological fear, helplessness, or horror such that 38 C.F.R. § 3.304(f)(3) is satisfied. The Board, therefore, must consider the application of this regulation on remand. C. Reasons or Bases 1. 38 C.F.R. 3.304(f)(5) On review of the Board decision, the Court notes various additional reasons-or-bases deficiencies. On remand the Board must address these issues. In its decision, the Board did not discuss the applicabilityof 38 C.F.R. § 3.304(f)(5), relevant to PTSD based on in-service personal assaults. This regulation states: "If a [PTSD] claim is based on in-service personal assault, evidence from sources other than the veteran's service records may corroboratetheveteran's account ofthestressorincident." 38C.F.R.§3.304(f)( 5). Examplesofsuch evidence include, but are not limited to, records from hospitals or physicians, and evidence of behavior changes following the claimed assault. Id. The Board appears unconvinced that the deceased Marine in question was actually Mr. Page's cousin. The Board stated: "The Veteran claims this was his cousin; however, he has not submitted any documentation to support that assertion." R. at 20. The Court notes, however, that the deceased Marine had the same last name as Mr. Page, that the circumstances of his death as documented on the Vietnam Veteran's Memorial information contained in the record match those recounted by Mr. Page, and that VA previously acknowledged in a memorandum for the record that it had "verified the death of his cousin." R. at 496, 516. 1 4 Mr. Page consistently alleged that he suffered personal assaults by a drill instructor, which the Board noted in its decision. R. at 21. Without discussing 38 C.F.R. § 3.304(f)(5), the Board discredited the notion that the in-service personal assaults Mr. Page endured amounted to a stressor. First, the Board stated that Mr. Page failed to show treatment for any injuries from these assaults. Id. The regulation does not require that a servicemember be injured in a personal assault for the assault to constitute a stressor; instead it states that medical records are a type of alternative evidence that may be used to prove an in-service assault occurred. The Board's treatment of the absence of medical records as negative evidence, therefore, is an inappropriate application of the regulation. See Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011) ("[T]he Board may not consider the absence of evidence as substantive negative evidence."). Next, the Board stated that Mr. Page "admits that [the assault] was not directed solely at him, but that other Marines were treated the same." Id. The Court is unconvinced by the Board's logic that because other Marines were also assaulted that Mr. Page's assault somehow ceases to be stressful. Additionally, the Board cited"[t]he fact that none of the VA examiners gave credence to this alleged stressor speaks to its inadequacy." Id. The record, however, does not support that characterization of the evidence. None of the medical reports in the record stated that Mr. Page's in-service personal assaults lacked credence. See R. at 60-64, 902. Finally, the Board stated that the assault could not meet the DSM-IV definition of a PTSD stressor because Mr. Page "has not reported that he feared for his life." R. at 21. As stated above, fear for one's life is not required by DSM-IV. All the reasons provided for the Board's determination that Mr. Page's in-service personal assault did not amount to a stressor are, therefore, inadequate. Furthermore, although evidence is present in the record of Mr. Page's change in behavior duringservice, the Board failed to discuss this evidence as it relates to proof of an in-service personal assault. See R. at 61-62 (in-service counseling records reflecting disciplinary problems six months after boot camp), 805 (statement of staff sergeant detailing Mr. Page's poor work performance and his request for a discharge nine months after boot camp). The Board provided inadequate reasons or bases for its determination that the assaults Mr. Page suffered in service could not have amounted to a PTSD stressor. On remand, the Board must reevaluate Mr. Page's claim in accordance with 38 C.F.R. § 3.304(f)(5). See Brannon v. West, 5 12 Vet.App. 32, 34 (1998) ("The Board is required to adjudicate all issues reasonably raised by a liberal reading of the appellant's substantive appeal, including all documents and oral testimony in the record prior to the Board's decision."). Mr. Page also argues that the Board erred in finding that VA satisfied its duty to notify him of the law and types of evidence he may submit to substantiate his claim under 38 C.F.R. § 3.304(f)(5). Mr. Page now is aware of the law and evidence he may submit on remand to substantiate his claim. Therefore the Court need not address this argument in detail. See Best v. Principi, 15 Vet.App. 18, 20 (2001). 2. Lay Statements The Board additionally provided inadequate reasons or bases for finding Mr. Page's statements lacking in credibility. R. at 22. The sole basis advanced for the Board's finding was that Mr. Page's statements were inconsistent. The record does not support this finding. First, the Board took issue with Mr. Page's account of his behavior after he was laughingly informed of his cousin's death. He related that his reaction was to retrieve a rifle from his barracks in order to kill the Marine who laughed, but he was thwarted by another Marine who hit him over the head to stop him. Mr. Page recounted that the next thing he knew, he woke up in the brig. The Board decision took issue with the fact that there is no documentation of Mr. Page's admittance to the brig around the time of his cousin's death. R. at 22-23. The Board's reasoning and use of negative evidence in this respect is flawed. The Court takes judicial notice that noncommissioned officers and those of higher rank have the authority to apprehend and take into custody servicemembers involved in "quarrels, frays or disorders" until properauthoritieshavebeennotified. MANUALFOR COURTS-MARTIAL,ch.V,sec.19(b),( d)(1969); see also Brannon v. Derwinski, 1 Vet.App. 314, 316 (1991) (courts may take judicial notice of facts of universal notoriety). The Manual for Courts-Martial does not require a record to be kept of such apprehension or custody as it is clearly contemplated as a temporary safety measure. Id. Based on the circumstances described by Mr. Page, it would appear that another Marine exercised this authority over him, and the absence of a record of the apprehension and custody does not therefore weigh against Mr. Page's account of the events. 6 Next, the Board asserted that Mr. Page's statement that he enjoyed the military was contradicted by his military record. R. at 23. Preliminarily, the Court notes that whether a veteran "enjoyed" the military is an exceptionally subjective criterion on which to determine a veteran's credibility; however, the Board did make an indirect finding in the process of this analysis. The Board discredited Mr. Page's statement to a VA medical examiner in 1995 that he enjoyed military service until his cousin's death by alleging that his dissatisfaction with the Marine Corps started before his cousin's death. Id. The Board pointed out that Mr. Page's cousin was killed in September 1969 and that five months prior, in April 1969, Mr. Page sought counseling with a chaplain because "he had been dissatisfied with military life, and he saw the psychiatrist later that month and stated that he wanted out and was not going to do anything until he received a discharge." Id. The Board thus indirectly found that Mr. Page's cousin's death could not be a legitimate stressor for PTSD purposes because Mr. Page's behavioral changes (dissatisfaction with the Marine Corps) started before that event. The Board overlooked the fact that Mr. Page had consistently reported other stressors in addition to his cousin's death, namely that he witnessed the death of a friend in boot camp and was subjected to personal assaults in boot camp. The record reflects that Mr. Page attended boot camp in November 1968, approximately five months prior to his noted April 1969 " dissatisfaction" with the Marine Corps. R. at 1177. Also, the first disciplinary action taken against Mr. Page was six months after his experiences in boot camp, in May 1969. R. at 508. Mr. Page's behavioral change, therefore,postdatedhis claimed boot campstressors,eveniftheydid not postdatehiscousin's death. The first notation in the record that Mr. Page enjoyed serving in the military up until the point his cousin was killed is dated 1995. R. at 1144. Whether Mr. Page recalled the exact point he became dissatisfied with his service in the Marine Corps some 26 years later is an extremely tenuous reason for discrediting his statements, and, as the Court states above, the objective evidence actually supports that Mr. Page exhibited behavioral changes followingtwo stressful incidents in boot camp. Next, the Board stated that Mr. Page's recounting of in-service stressors is also inconsistent, further impugning his credibility. At various times between 2002 and 2010, Mr. Page recounted the death of his friend in boot camp during a training run and the death of another Marine. The death of the second Marine was noted by one VA medical examiner as occurring while the Marine was on 7 leave, and bya separate VA medical examiner as occurring "during drills." R. at 23-24. It is unclear from the medical reports whether the two Marines are in fact the same person. R. at 60, 133. Absent a more precise identification of the two Marines, the Board's reasoning that Mr. Page was inconsistent in these reports is inadequate. The Board next relied on an inconsistency in the record pertaining to how Mr. Page's cousin died in Vietnam. The Board pointed out that Mr. Page reported that his cousin was "blown up" during an enemymortar attack, but a March 2002 VA examination report stated that his cousin "died of exposure." R. at. 23. Given that on every occasion that Mr. Page described his cousin's death in his own words (during the Board hearing and in his handwritten statements in support of his claim) he consistentlystated his cousin was "blown up," the inconsistencyappears to be with the report, and not Mr. Page. R. at 527, 529, 732, 1039-40, 1159. The Board also takes issue with the fact that the August 2010 VA medical examination report did not note the death of Mr. Page's cousin as a stressor. Such minor inconsistencies are an inadequate reason for declaring a veteran not credible. See 38 U.S.C. § 7104(d)(1). The last reason advanced by the Board for Mr. Page's incredibility is asserted evidence that he seeks secondary gain. The Board stated that "there is evidence in the record that he believes he can get increased compensation from VA if he were to obtain" a PTSD diagnosis. R. at 25. A review of the record reveals the contrary, however. In 1998, VA granted Mr. Page entitlement to a permanent and total disabilityevaluation for non-service-connected pension ( R. at 544) and the only information contained in the record states that Mr. Page denied that a PTSD diagnosis "would have any effect on his benefits status." R. at 94. D. VA Duties Lastly, Mr. Page contests the Board's conclusion that VA satisfied its duty to assist him because VA did not get jail records from the city of Oceanside, California, regarding an assault that he suffered off base. In his brief, the Secretary asserts that it is unclear that the assault actually occurred. Because the Court is remanding Mr. Page's claim for further proceedings, Mr. Page will have the opportunity to adequately identify the records he seeks VA to obtain. See 38 C.F.R. § 3.159(c)(1) (2011). 8 II. CONCLUSION On consideration of the foregoing, the Court SETS ASIDE the Board's January 21, 2011, decision and REMANDS the matter to the Board for further proceedings consistent with this decision. A final decision by the Board following the remand herein ordered will constitute a new decision that, if adverse, may be appealed to this Court on the filing of a new Notice of Appeal with the Court not later than 120 days after the date on which notice of the Board's new final decision is mailed to Mr. Page. See Marsh v. West, 11 Vet.App. 468, 472 (1998). DATED: April 23, 2012 Copies to: Nicholas L. Phinney, Esq. VA General Counsel (027) 9