ptsd Combat Status (38 U.s.c. § 1154(b))

[Guest allanopie]

COMBAT STATUS (38 U.S.C. § 1154(b))



CLAIMANT TESTIMONY MUST BE CONSIDERED
§ The veteran appealed the denial of his claim for PTSD. . The veteran claimed PTSD due to stress from combat which was otherwise not corroborated. The Moran Court found that the Board erred when it only considered MOS and absence of medals to determine combat status. The Court found that the Board's failure to consider the credibility of the veteran's testimony regarding his engagement in combat was a failure to consider all of the evidence of record and the Board did not provide adequate reasons or bases for its decision. Moran v. Principi, 17 Vet.App. 149, 154-55 (2003) citing Gaines v. West, 11 Vet.App. 353, 359 (1998) (failed to address appellant's sworn testimony regarding combat status); Cohen v. Brown, 10 Vet.App. 128, 145-46 (1997); Dizoglio v. Brown, 9 Vet.App. 163, 166 (1996).

DUTY TO ASSIST "PARTICULARLY GREAT" WHEN SMRS UNAVAILABLE IN § 1154(b) CASE
§ "he Secretary's duty to assist under the facts of this case was particularly great in light of the unavailability of the veteran's exit examination and full Army medical records and the applicability of section 354(b) (now § 1154(b)). Against this background, it was incumbent on VA to insure that its current examination and the report thereof was as complete and thorough as possible in dealing with the veteran's contentions." Moore v. Derwinski, 1 Vet.App. 401, 406 (1991).

EVIDENTIARY STANDARD OF PROOF RELAXED IN § 1154(b)
§ ". . . 38 U.S.C. § 1154(b), by relaxing the evidentiary requirements for adjudication of certain combat-related VA-disability-compensation claims, specifically allows combat veterans, in certain circumstances, to use lay evidence to establish service incurrence of a disease or injury -- that is, what occurred in service -- both as to the evidence that a claimant must submit in order to make such a claim well grounded and as to the evidence necessary in order for service connection of a disease or injury to be awarded." Velez v. West, 11 Vet.App. 148, 153 (1998) citing Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Jensen v. Brown, 19 F.3d 1413, 1416-17 (Fed.Cir.1994); Chipego v. Brown, 4 Vet.App. 102, 105 (1993); Sheets v. Derwinski, 2 Vet.App. 512, 515 (1992); Smith (Morgan) v. Derwinski, 2 Vet.App. 137, 140 (1992). "Section 1154(b) provides:

In the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service[]connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury 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. Service[]connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service[]connection in each case shall be recorded in full.


Velez, supra, quoting 38 U.S.C. § 1154(b). "The regulation implementing section 1154(b) is at 38 C.F.R. § 3.304(d) (1997)." Velez, supra.

G.C. PREC 12-99, DETERMINATION AS TO WHETHER A VETERAN "ENGAGED IN COMBAT WITH THE ENEMY"
"ENGAGED IN COMBAT WITH THE ENEMY"


§ "a. The ordinary meaning of the phrase "engaged in combat with the enemy," as used in 38 U.S.C. § 1154(b), requires that a veteran have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. Nothing in the language or history of that statute or any Department of Veterans Affairs (VA) regulation suggests a more specific definition. The issue of whether any particular set of circumstances constitutes engagement in combat with the enemy for purposes of section 1154(b) must be resolved on a case-by-case basis. VA may issue regulations clarifying the types of activities that will be considered to fall within the scope of the term." G.C. Prec 12-99 page 8, ¶ a.

PROOF OF COMBAT


§ "b. The determination as to what evidence may be satisfactory proof that a veteran "engaged in combat with the enemy" necessarily depends on the facts of each case. Determining whether evidence establishes that a veteran engaged in combat with the enemy requires evaluation of all pertinent evidence in each case, and assessment of the credibility, probative value, and relative weight of the evidence." G.C. Prec 12-99 page 8, ¶ b.

EVIDENCE IS PERTINENT IF IT IS PROBATIVE AND MUST BE CONSIDRED


§ "c. There is no statutory or regulatory limitation on the types of evidence that may be used in any case to support a finding that a veteran engaged in combat with the enemy. Accordingly, any evidence which is probative of that fact may be used by a veteran to support an assertion that the veteran engaged in combat with the enemy, and VA must consider any such evidence in connection with all other pertinent evidence of record." G.C. Prec 12-99 page 8, ¶ c.

PARTICIPATION IN "OPERATION" OR "CAMPAIGN" MAY NOT BE SUFFICIENT


§ "d. Whether a particular statement in service-department records indicating that the veteran participated in a particular "operation" or "campaign" is sufficient to establish that the veteran engaged in combat with the enemy depends upon the language and context of the records in each case. As a general matter, evidence of participation in an "operation" or "campaign" often would not, in itself, establish that a veteran engaged in combat, because those terms ordinarily may encompass both combat and non-combat activities. However, there may be circumstances in which the context of a particular service-department record indicates that reference to a particular operation or campaign reflects engagement in combat. Further, evidence of participation in a particular "operation" or "campaign" must be considered by VA in relation to other evidence of record, even if it does not, in itself, conclusively establish engagement in combat with the enemy." G.C. Prec 12-99 page 8-9, ¶ d.

BENEFIT OF THE DOUBT RE: COMBAT DETERMINATION


§ "e. The benefit-of-the-doubt rule in 38 U.S.C. § 5107(b) applies to determinations of whether a veteran engaged in combat with the enemy for purposes of 38 U.S.C. § 1154(b) in the same manner as it applies to any other determination material to resolution of a claim for VA benefits. VA must evaluate the credibility and probative value of all pertinent evidence of record and determine whether there is an approximate balance of positive and negative evidence or whether the evidence preponderates either for or against a finding that the veteran engaged in combat. If there is an approximate balance of positive and negative evidence, the issue must be resolved in the veteran's favor." G.C. Prec 12-99 page 8, ¶ e.

MEDICAL NEXUS EVIDENCE REQUIRED TO SERVICE CONNECT§ "he provisions of section 1154(b) do not provide a substitute for medical nexus evidence, but rather serve only to reduce the evidentiary burden for combat veterans with respect to the second Caluza requirement , the submission of evidence of incurrence or aggravation of an injury or disease in service". Huston v. Principi, 17 Vet.App. 195, 205 (2003) quoting Clyburn v. West, 12 Vet.App. 296, 303 (1999); citing Wade v. West, 11 Vet.App. 302, 305 (1998).
MOS NOT DETERMINATIVE
§ "ngagement in combat is not necessarily determined simply by reference to the existence or nonexistence of certain awards or MOSs ...." Dizoglio v. Brown, 9 Vet.App. 163, 166 (1996).

THREE STEP ANALYSIS IN CLAIM WITH § 1154(b) APPLICATION
§ "In Collette v. Brown, the Court of Appeals for the Federal Circuit stated:

1154(b) sets forth a three-step, sequential analysis that must be undertaken when a combat veteran seeks benefits under the method of proof provided by the statute. As the first step, it must be determined whether the veteran has proffered "satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease." 38 U.S.C. § 1154(b). As the second step, it must be determined whether the proffered evidence is "consistent with the circumstances, conditions, or hardships of such service." Id. The statute provides that 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. . . .


. . . . s the third step of the analysis, it must be determined whether . . . service[]connection by "clear and convincing evidence to the contrary."


Velez v. West, 11 Vet.App. 148, 153 (1998), quoting Collette v. Brown, 82 F.2d 389, 392-93 (Fed.Cir.1996). "Subsequently, this Court, in Libertine v. Brown, concluded as follows regarding Collette:

It is unclear whether in setting forth this analysis the Federal Circuit intended to alter the medical nexus requirement set forth in Caluza (holding that section 1154(b) relates only to what happened in service ("what happened then") and does not excuse need for medical evidence of nexus to service, and that term "service connection" in that statute means "service incurrence or aggravation.") The Federal Circuit's silence regarding this issue, in the face of its positive affirmation of Caluza with respect to the meaning of "satisfactory" evidence . . . and its holding, as Caluza had suggested, 7 Vet.App. at 510-12, that the weighing of contrary evidence cannot be considered under § 1154(b) as part of the first two steps but only as part of rebuttal of service incurrence under the clear-and-convincing evidence standard, can be fairly read as not affecting Caluza's medical nexus analysis, a reading that the Court adopts.


Velez, at 154 quoting Libertine, 9 Vet.App. 521, 524-25 (1996), appeal dismissed for lack of jurisdiction, 132 F.3d 50 (1997) (table). "This Libertine/Caluza interpretation of section 1154(b) and the Federal Circuit's opinion in Collette has become deeply embedded in this Court's case law." Velez, supra, citing e.g., Turpen v. Gober, 10 Vet.App. 536, 539 (1997) (holding that, absent medical-nexus evidence, there was "no reasonable possibility that consideration of § 1154(b) by the Board could change the outcome of the case on the merits"); Brock v. Brown, 10 Vet.App. 155, 162 (1997) ("reduced evidentiary burden provided for combat veterans by 38 U.S.C. § 1154(b) relate only to the question of service incurrence, 'that is, what happened then--not the questions of either current disability or nexus to service, as to both of which competent medical evidence is generally required'" (quoting Caluza, 7 Vet.App. at 507)); Cohen (Douglas) v. Brown, 10 Vet.App. 128, 138 (1997) ("ection 1154(b) provides a factual basis upon which a determination can be made that a particular disease or injury was incurred or aggravated in service but not a basis to link etiologically the condition in service to the current condition").

§ "... § 1154(b) sets forth a three-step, sequential analysis that must be undertaken when a combat veteran seeks benefits under the method of proof provided by the statute. As the first step, it must be determined whether the veteran has proffered 'satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease.'" Collette v. Brown, 82 F.3d 389, 392-93 (Fed.Cir.1996)19 citing 38 U.S.C. § 1154(b). "As the second step, it must be determined whether the proffered evidence is 'consistent with the circumstances, conditions, or hardships of such service.'" Id citing § 1154(b). "The statute provides that if these two inquiries are met, the Secretary 'shall accept' the veterans evidence as 'sufficient proof of service-connection,' even if no official record of such incurrence exists." Id citing § 1154(b). "Thus, if a veteran satisfies both of these inquiries mandated by the statute, a factual presumption arises that the alleged injury or disease is service-connected." Id.

SEE ALSO: EVIDENCE, LAY TESTIMONY, COMBAT INJURY REQUIRES ONLY LAY TESTIMONY (38 U.S.C.A. § 1154(b) (WEST 1995); 38 C.F.R. § 3.304(D))
Source:

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Edited July 5, 2006 by allanopie

[Stretch]

Allen,

You seem to be reading my mind. I was looking for this. BVA has chosen my mental health condition to be linked to assault rather than Combat related injuries. For this reason, the BVA has messed up big time. My 6 lay statements of buddies were disregarded, because of the more harsh decision related on assault.

You must have read my BVA decision. hehe Thanks to BT's.

Thanks Allen

[Guest allanopie]

Hello Stretch,

I don't believe the BVA can decide your mental health condition.

A statement from a, "Psychologist" takes precedence on mental conditions. Including chronic pain from injury's, exposure to toxins AO, fuels, MS, DJD, DDD, PN, fibromyalgia, etc..

I may be wrong, but I think a Psychologists opinion on the effects of combat or assualt & what effect one may have on the other in relation to your current mental health, would have to stand.

But, since theres this little issue of "no" accountibility, you know how that works.

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Allen,

You seem to be reading my mind. I was looking for this. BVA has chosen my mental health condition to be linked to assault rather than Combat related injuries. For this reason, the BVA has messed up big time. My 6 lay statements of buddies were disregarded, because of the more harsh decision related on assault.

You must have read my BVA decision. hehe Thanks to BT's.

Thanks Allen