Veteranclaims’s Blog

April 27, 2012

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

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