Harold Daye v. R. James Nicholson , 2006 U.S. Vet. App. LEXIS 1295 ( 2006 )

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO . 05-2475
HAROLD DAYE, APPELLANT ,
V.
R. JAMES NICHOLSON ,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Decided November 22, 2006 )
Harold Daye, pro se.
Tim S. McClain, General Counsel; R. Randall Campbell, Assistant General Counsel;
Gayle E. Strommen, Deputy Assistant General Counsel; and Elle R. O' Flaherty, all of Washington,
D.C., were on the brief for the appellee.
Before GREENE, Chief Judge, and LANCE and FARLEY* Judges.
FARLEY, Judge: The pro se appellant, Harold Daye, appeals from an August 26, 2005,
decision of the Board of Veterans' Appeals (Board or BVA) that denied entitlement to service
connection for post-traumatic stress disorder (PTSD). This appeal is timely and the Court has
jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). For the reasons set forth below, the Court
will vacate the August 26, 2005, Board decision, and remand the matter.1
*
Pursuant to 38 U.S.C. § 7257(b)(1), Judge John J. Farley, III, was recalled to service as a
judge of the Court for a period of 90 days effective September 5, 2006.
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While the Court's Internal Operating Procedures (IOP) provide general guidance, they do
not confer rights or obligations and may be modified by the Court. See IOP Preamble. Here, the
Court has refrained from entering the 30-day stay contemplated by IOP II.(f) because of the Board's
advancement of the appellant's claim on its docket pursuant to 38 U.S.C. § 7107 and 38 C.F.R.
§ 20.900(c) (2006), the appellant's advanced age, and the disposition of the appeal.
I. BACKGROUND
The appellant served on active duty in the U. S. Army from May to August 1946, and from
October 1950 to July 1952. Record (R.) at 16. He served for 10 months and 25 days in Korea with
the 159th Field Artillery Battalion and received the Korea Service Medal. See R. at 144. In
November 2003, he filed a claim for entitlement to service connection for PTSD. R. at 121-24. In
February 2004, he submitted a January 2004 private medical evaluation that diagnosed "Post-
Traumatic Stress Disorder, Chronic, Severe" and reported that the appellant had given a history of
"numerous horrific experiences and [having] witnessed injuries to and deaths of numerous fellow
soldiers and others" in Korea. R. at 128-29. In response to a VA regional office (RO) request, the
appellant submitted the following statement in support of claim:
I served in the Korean War for about eleven months. I was discharged in July 1952.
I was assigned to [Headquarters and Headquarters Battery, Division Artillery, 24th
Infantry Regiment, 159th Field Artillery Battalion]. We were attached to the 25th Inf.
Div. in Seoul, Korea. My [Military Occupational Speciality (MOS)] was Field
Wireman (4641). I worked with a Forward Observer Team (FO). Our job was
directing and adjusting artillery rounds on the enemy. I witnessed many of the enemy
being injured or killed. Whenever the enemy spotted the location of our FO, they
would direct incoming on us. We had [wounded in action (WIA) and killed in action
( KIA)], Pvt. McKinney was one such WIA, Exhibit A. I also knew Pvt. McDaniel,
Exhibit A. He had worked security for our FO team but he was not working with our
team the day that he got wounded. I never saw him after he was wounded. My
Hillsborough high school classmate, James Thompson, Exhibit B[,] was also injured.
I was not with him when he got hurt but I did see him after he was hurt. I was with
James' [Commanding Officer] (I Company) when he died. I had tried to administer
first aid to him. He died while I was working on him. I have tried to remember his
name but I cannot. I do remember that he was a white officer. Most of the enlisted
with the 24th Inf. Regt. [were] black.
R. at 141. Exhibit A accompanying the appellant's statement consisted of a copy of a list of the
names of casualties from the 159th Field Artillery Battalion, apparently obtained from the Internet.
Included on the list are the names of "PV2 Lindsey McDaniel" (seriously wounded on October 4,
1951, and separated for disability) and "PV2 Herbert McKinney" (seriously wounded on September
21, 1951, and returned to duty.) R. at 138. Exhibit B consists of a similar list of casualties from the
24th Infantry Regiment. Included is the name of James Thompson, Jr., from Orange County, North
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Carolina, who was seriously wounded on June 20, 1951, and ultimately returned to duty. R. at 139.
The appellant entered service from Orange County, North Carolina. R. at 144.
The RO requested that the Army "FURNISH PAGES FROM THE PERSONNEL FILE SHOWING UNIT
OF ASSIGNMENT , DATES OF ASSIGNMENT , PARTICIPATION IN COMBAT OPERATIONS, WOUNDS IN
ACTION , AWARDS AND DECORATIONS AND OFFICIAL TRAVEL OUTSIDE THE U .S ." R. at 143. The
response is recorded as: "STANDARD SOURCE DOCUMENT (S ) ARE NOT AVAILABLE . OTHER
DOCUMENTS ARE <>." Id. The "other documents" consisted of copies of the appellant's
DD 214, Certificate of Release or Discharge, and his 1946 Certificate of Disability Discharge. R.
at 144-45. In a July 2004 rating decision, the RO denied his PTSD claim. R. at 149-53. In its
August 26, 2005, decision, the Board denied entitlement to service connection for PTSD. R. at 1-12.
II. APPLICABLE LAW
To support a claim for service connection for PTSD, a claimant must present evidence of
(1) a current diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor
actually occurred; and (3) medical evidence of a causal nexus between the current symptomatology
and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2006); see Cohen v. Brown, 10 Vet.App.
128, 138 (1997); see also 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411 (2006) ("Schedule of
ratings for mental disorders – PTSD"). Pursuant to 38 U.S.C. § 5103A, "[t]he Secretary shall make
reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's
claim for a benefit under a law administered by the Secretary." Where, as here, an appellant's records
are "NOT AVAILABLE " (R. at 143), the Secretary's duty to assist is heightened. Washington
v. Nicholson, 19 Vet.App. 362, 369-71 (2005)(when service medical records are presumed lost or
destroyed VA's duty to assist is heightened); Moore v. Derwinski, 1 Vet.App. 401, 406 (1991).
If the evidence establishes that the veteran engaged in combat with the enemy and his
claimed stressor is related to that combat, the veteran's lay testimony alone generally is sufficient to
establish the occurrence of the claimed in-service stressor. 38 U.S.C. § 1154(b); 38 C.F.R.
§ 3.304(f); Sizemore v. Principi, 18 Vet.App. 264 (2004). If, however, the claimed stressor is not
combat related, its occurrence must be corroborated by credible supporting evidence. See Cohen,
10 Vet.App. at 142. When a claim for PTSD is based on a noncombat stressor, "the noncombat
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veteran's testimony alone is insufficient proof of a stressor." Moreau v. Brown, 9 Vet.App. 389, 396
(1996). Corroboration does not require, however, "that there be corroboration of every detail
including the appellant's personal participation in the [activity]." Suozzi v. Brown, 10 Vet.App. 307,
311 (1997); see also Pentecost v. Principi, 16 Vet.App. 124, 128 (2002).
The Board's findings concerning combat status and the sufficiency of corroborative evidence
are findings of fact that the Court reviews under the "clearly erroneous" standard of review pursuant
to 38 U.S.C. § 7261(a)(4). See Pentecost, 16 Vet.App. at 129; Moreau, 9 Vet.App. at 395. "A
factual finding 'is "clearly erroneous" when although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite and firm conviction that a mistake has been
committed.'" Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting United States v. U.S. Gypsum
Co., 333 U.S. 364, 395 (1948)).
The Board must consider all evidence of record and discuss in its decision all "potentially
applicable" provisions of law and regulation. Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991);
see 38 U.S.C. § 7104(a). The Board is also required to include in its decision a written statement
of the reasons or bases for its findings and conclusions on all material issues of fact and law
presented on the record; that statement must be adequate to enable an appellant to understand the
precise basis for the Board's decision, as well as to facilitate informed review in this Court. See
38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet. App. 517, 527 (1995); Gilbert v. Derwinski,
1 Vet.App. 49, 56-57 (1990). Where, as here, a veteran's records are lost, "the Board has a
heightened duty to explain its findings." Cromer v. Nicholson, 455 F.3d 1346, 1351 (Fed. Cir. 2006);
see also Kowalski v. Nicholson, 19 Vet.App. 171, 179 (2005); Moore, supra; O'Hare v. Derwinski,
1 Vet.App. 365, 367 (1991). The Board must analyze the credibility and probative value of the
evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons
for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet.App.
498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Gabrielson v. Brown, 7
Vet.App. 36, 39-40 (1994); Gilbert, supra.
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III. ANALYSIS
A. 38 U.S.C. § 1154(b), "Engaged in Combat"
As the appellant's combat status determines whether or not his accounts of stressors require
corroboration, that aspect of the Board's decision will be examined first. Although the appellant
claims that he was part of a Forward Observer Team, assisted in and watched the direction of lethal
fire upon the enemy, and was himself fired upon by the enemy, the Board found
that the record does not support a finding that the veteran engaged in combat while
on active duty. Although he reported various incidents while part of an FO team
during the Korean War, a thorough review of his service medical and personnel
records that are on file do not reflect that the veteran "personally participated in
events constituting an actual fight or encounter with a military foe or hostile unit or
instrumentality." VAOPGCRPEC 12-99 (Emphasis added.) Moreover, the record
does not indicate he received any awards or citations, such as a Purple Heart or
Combat Action Ribbon, which would confirm that he engaged in combat while on
active duty. Thus, based on the evidence currently of record, it does not appear he
is entitled to the benefit provided by 38 U.S.C.A. § 1154(b).
R. at 10.
The Board may have conducted a "thorough review," but it had to have been of an all-but
nonexistent record. The record before the Court could not reflect that the appellant "personally
participated" in combat in Korea because there are virtually no records from the appellant's service
in Korea; as the RO was informed, such records were "NOT AVAILABLE ." R. at 143. There are only
records of the appellant's hospitalization for an appendectomy during artillery training at Fort Sill
in February 1951 (R. at 84-101), and two records generated in Korea, one a dental record dated
September 14, 1951, noting the appellant's unit as "C Btry, 159th FA Bn" (R. at 101), and the other
from the 159th FA Battalion Aid station in December 1951.
"[W]hen VA is unable to locate a claimant's records, it should advise him to submit
alternative forms of evidence to support his claim and should assist him in obtaining sufficient
evidence from alternative sources." Washington, 19 Vet.App. at 370; see also Dixon v. Derwinski,
3 Vet.App. 261, 263 (1992). A remand is required here because there is no indication that the Board
recognized, much less ensured compliance with, the Secretary's heightened duty to assist under 38
U.S.C. § 5103A. Indeed, none of the communications from the RO to the appellant refer to the
possibility of securing evidence from alternative sources, e.g., buddy statements, and no effort was
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made to verify the appellant's claims through unit histories or other documents at the United States
Armed Services Center for Research of Unit Records or other official sources. The record does not
reflect any effort to verify the appellant's claim of combat service except for the single and largely
unsuccessful request for his personnel records.
The Board did have one potentially relevant document before it, the appellant's DD 214, and
the Board in part based its finding that the appellant did not engage in combat on the incontrovertible
fact that the DD 214 "does not indicate he received any awards or citations, such as a Purple Heart
or Combat Action Ribbon, which would confirm that he engaged in combat while on active duty."
R. at 10. Indeed, receipt of a Purple Heart or a Combat Action Ribbon would confirm engagement
in combat; the absence of such awards, however, does not preclude his having been in combat and
the Board erred to the extent that it found to the contrary.
The lack of a Purple Heart Award proves only that this appellant did not suffer a wound in
combat; it simply has no bearing on the issue of whether, as he claims, he participated in bringing
fire upon the enemy or was fired upon. That the appellant did not receive a Combat Action Ribbon
for his service in Korea during the Korean War proves even less, because that award has never been
authorized for members of the appellant's branch of service, the U.S. Army.2 See The Annual
Defense Authorization Act, Public Law 106-65, October 5, 1999. Of even more striking significance
is the fact that the Combat Action Ribbon was not even established until 1969 – almost two decades
after the appellant's service in Korea and his separation from the Army on July 31, 1952. See
SECNAVNOTE 1650, February 17,1969; Gaines v. West, 11 Vet.App. 353, 360 (1998). The Board
therefore erred when it found that an appellant had not engaged in combat because a DD214
generated in 1952 did not contain an award created in 1969. "Back to the Future" may be a concept
suitable for movies and theme parks but it cannot serve as the basis for denying the claims of
veterans.
2
Nor would this appellant, an artilleryman, have been eligible to receive the Combat Infantry
Badge (CIB) or the Combat Medical Badge (CMB) which also establish engagement in combat.
Only soldiers with an infantry Military Occupational Speciality (MOS) and assigned to an infantry
or special forces unit or a member of the Medical Department assigned to a medical unit during
combat would be eligible. See Section I, War Department Circular 209, October 27, 1943; ¶ 8-7,
Army Regulation 600-8-22.
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Thus, the Court's review of the Board's cursory, flawed, and incomplete explanation compels
the conclusion that, in addition to failing to fulfill its heightened duty to assist, the Board also erred
in failing to fulfill its concomitant duty to provide a thorough statement of reasons or bases under
38 U.S.C. § 7104(d)(1) for its finding that this appellant did not engage in combat. See Cromer, 455
F.3d at 1351; Sizemore, 18 Vet.App. 272 (remanded in part because of an inadequate statement of
reasons or bases for finding that artilleryman was not engaging in combat when firing at the enemy).
In that regard, the Court observes that "boilerplate" language of the sort that resides in all of our
word processors and is increasingly finding its way into VA notice letters, Board decisions, and
briefs in (even decisions of) this Court, can be an efficient and effective way of conveying
information and conserving time, but only when it is used with precision. Just like a flower garden,
"boilerplate" must constantly be cultivated, weeded, and pruned. Above all, the drafter must ensure
that the "boilerplate" in the bouquet is chosen for relevance. That did not happen here where the
Board's combat award "boilerplate"language is completely irrelevant to the appellant's claim.
B. Corroboration of Stressors
Because the Board determined that the appellant was not a combat veteran, it required his
claimed in-service stressors to be corroborated by credible supporting evidence. R. at 10; see
Cohen, 10 Vet.App. at 142 (citing 38 C.F.R. § 3.304(f)). But the Board found "that there is no
independent evidence to verify the veteran's account of any of the alleged in-service stressors. As
there is no corroborating evidence, service connection is not warranted for PTSD." R. at 11
(emphasis added). Contrary to the Board's finding, however, there was evidence. The appellant
claimed generally that he was shot at; witnessed many of the enemy being injured or killed; knew
several soldiers who were wounded or killed; and administered first aid to an officer who died while
he was working on him. He submitted extracts purporting to confirm the wounds and dates of injury
of comrades he mentioned by name.
Perhaps the Board intended to find that the evidence was insufficient rather than nonexistent.
If so, that would only highlight the Secretary's already-noted failure to fulfill the duty to assist the
appellant, a duty that is heightened as a result of the missing records. See Washington, supra. In its
decision, the Board referred to the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475,
114 Stat. 2096, and 38 U.S.C. § 5103A, but, as the appellant argues, there was no effort to aid him
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in verifying the death of the commanding officer of the "24th Inf. Regt., Inf. Div., I Co" who the
appellant claims died while the appellant tried to administer first aid. R. at 141; see Appellant's Br.
at 6-7. Further, the Board found that the appellant did not provide sufficient details regarding his
purported stressors, including specific dates and locations, which would warrant a request for
verification through the United States Armed Services Center for Research of Unit Records or other
official sources. The Board, however, did not explain why the details provided by the appellant,
such as the date of Private McKinney's injury or the unit designation of the company commander,
were insufficient. Id. Nor did the Board explain why it did not secure and review the history of the
appellant's unit for possible alternative sources of evidence of combat or stressors. Had it done so,
the Board might well have confirmed that the 159th Field Artillery Battalion was a highly decorated
unit that "support[ed] the 24th Infantry Regiment through heavy fighting in six campaigns." See 25th
Infantry Division Association, Field Artillery, Unit History, at www.25ida.org.
IV. CONCLUSION
The Court holds that a remand is necessary because the Secretary did not satisfy his
heightened duty to assist this appellant and the Board failed to provide an adequate statement of
reasons or bases for its findings and conclusions. Noting that the Board advanced this appellant's
claim on its docket pursuant to 38 U.S.C. § 7107 and 38 C.F.R. § 20.900(c) due to his advanced age,
the Board also shall proceed expeditiously on remand in accordance with section 302 of the
Veterans' Benefits Improvement Act, Pub. L. No. 103-446, 302, 108 Stat. 4645, 4658 (1994) (found
at 38 U.S.C. § 5101 note) (requiring Secretary to provide for "expeditious treatment" for claims
remanded by Board or Court ). See Drosky v. Brown, 10 Vet.App. 251, 257 (1997); Allday, 7
Vet.App. at 533-34. Upon consideration of the foregoing, the August 26, 2005, Board decision is
VACATED and the matter is REMANDED to the Board for further proceedings consistent with this
opinion.
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