Case: 20-3505 Remand for Marine Corps Veteran's Appeal of PTSD Denial

Case: 20-3505

Facts of Case

The Veteran served honorably in the Marine Corps during the Vietnam Era. While in boot camp, his drill sergeant went beyond what it took to prepare a young Marine for war and beat African American and Asian marines in particular. The drill sergeant would use a noose to strangle Marines and call them racial epithets. He forced the Veteran to witness the torture of an Asian Marine, and harassed him into being an accomplice. The drill sergeant beat the Veteran in particular and deprived him of water more so than other non-minority Marines.

The Veteran acted out against authority figures afterwards by disobeying Orders, fighting, and stealing, which was uncharacteristic of him. His post-service life was riddled with arrests, anger issues, and dissociative behavior caused by PTSD. He suffered from nightmares, insomnia, paranoid hallucinations, agoraphobia, easy agitation, and concentration issues, which began immediately after service.

The Veteran filed a claim for PTSD, but the VA and Board denied his claim because there was no evidence of an in-service event - he never reported the incidents for fear of punishment and was too concerned about treating for a mental health issue in service like so many other veterans.

Alex Argued That Evidence of A Personal Assault in Service May be Proven from Sources Other than the Veteran’s Service Records

According to the VA, personal trauma is “harm perpetrated by a person who is not considered part of an enemy force.” Manual M21-1, VIII.iv.1.B.1.a. Examples of personal trauma include, “assault,” “battery,” and “harassment.” See Manual M21-1, VIII.iv.1.E.1.a. See Also Hall v. Shinseki, 717 F.3d 1369, 1371-74 (2013); Acevedo v. Shinseki, 25 Vet. App. 286, 292 (2012).

The U.S. Court of Appeals for the Federal Circuit also made clear that the VA may not conclude that an in-service personal assault or personal trauma did not occur based on either (1) the absence of service records documenting the alleged assault or trauma; or (2) a veteran’s failure to report the alleged assault or trauma. AZ v. Shinseki, 731 F.3d 1303 (2013).

Instead, if a PTSD claim is based on an in-service personal assault, evidence from sources other than the veteran's service records may corroborate the veteran's account of the stressor incident. Evidence of behavioral changes, such as a deterioration in work performance and unexplained economic or social behavior changes, may constitute credible evidence of the stressor. 38 C.F.R. § 3.304(f)(5).

Court Rules Against the Board & in Favor of the Veteran

The U.S. Court of Appeals for Veterans Claims agreed that the Board’s statement of reasons and bases were inadequate because it did not address whether the Veteran’s disciplinary actions and odd social behavior after boot camp corroborated his account of the in-service event.

The Court vacated the Board’s denial of PTSD and remanded the claim back down to the Board to address the corroborating evidence of an in-service event.

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