**UNITED STATES COURT OF VETERANS APPEALS**

No. 91-386

[Phyllis D. Ashley, Appellant]{.smallcaps},

[v.]{.smallcaps}

[Jesse Brown,]{.smallcaps}

[Secretary of Veterans Affairs, Appellee.]{.smallcaps}

On Appeal from the Board of Veterans\' Appeals

(Decided December 2, 1993 )

*Roberta L. Valente*, *Ruth E. Eisenberg*, and *Gershon M. Ratner*,
National Veterans Legal Services Project, were on the briefs for
appellant.

*James A. Endicott, Jr.*, General Counsel, *Norman G. Cooper*, Acting
Assistant General Counsel, *Andrew J. Mullen*, Deputy Assistant General
Counsel, and *Angela Foehl* were on the brief for appellee.

Before NEBEKER, *Chief Judge*, and IVERS and STEINBERG, *Judges.*

IVERS, *Judge*: Phyllis D. Ashley, the widow of veteran David Lee
Ashley, appeals an October 24, 1990, decision of the Board of Veterans\'
Appeals (BVA or Board) which denied her claim for burial benefits and
dependency and indemnity compensation benefits (DIC), on the ground that
the veteran\'s death was not caused by service-connected post-traumatic
stress disorder (PTSD). *Phyllis D. Ashley*, BVA 90-35610
(Oct. 24, 1990). Counsel for appellant filed a brief and a reply brief
urging remand. The Secretary filed a brief urging affirmance. The Court
has jurisdiction over the case pursuant to 38 U.S.C.A. § 7252(a) (West
1991). For the reasons set forth below, the Court vacates the decision
of the BVA and remands the case for readjudication consistent with this
opinion.

**I. Background**

The veteran served in the United States Army from July 13, 1965, to July
12, 1968. R. at 1, 55. His induction examination was negative for any
medical or psychological defects. R. at 2-8. During his service, the
veteran served a ten-month tour of duty in the Republic of Vietnam. R.
at 56; *see* R. at 107. The record contains evidence from which it can
reasonably be concluded that the veteran experienced disturbing events
during that tour of duty. First, he accidently ran over a Vietnamese
civilian while driving a gasoline truck. R. at 213. Second, he saw a
friend killed on a street in Saigon. R. at 203. Third, he was exposed to
enemy fire while working on a utility pole. R. at 213-14. Finally, the
veteran and his older brother, Frank Ashley, were both on duty
simultaneously in Vietnam. R. at 89. Because of this, Frank Ashley was
given permission by the Marine Corps to return stateside. Frank Ashley
gave his younger brother, David Ashley, the veteran here, the
opportunity to come home. Four hours after David Ashley\'s departure
from Saigon, on September 28, 1967, his brother was killed in action. R.
at 83, 92-93.

A review of the records for 1967 from the Joint Services Environmental
Support Group (JSESG) indicates that the veteran served in a signal
company whose mission was, among others, to \"provide direct and general
maintenance support to all supported units; provide over-flow direct
support maintenance that is beyond the capacity of supported division
maintenance battalions, non-di-visional \[sic\] units and other direct
support battalions in the Saigon/Cholon/Tan Son Nhut area.\" R. at 238.
In July 1967, two members of the company were injured when a \"terrorist
threw a homemade grenade at them in Cholon. Both received the Purple
Heart.\" R. at 240. In August 1967, the company came under sniper fire,
and one member was killed in action. R. at 240.

The veteran\'s service medical records (SMRs) indicate that on February
14, 1968, he was seen in a U.S. Army Hospital (name and place are
illegible) for \"nervousness and tremors.\" R. at 24. He was prescribed
Librium (no amount noted). R. at 24. Librium is prescribed for the
relief of anxiety. [Physicians\' Desk Reference 2020 (1993)]{.smallcaps}
\[hereinafter PDR\]. On February 23, 1968, he reported to the Troop
Dispensary at Fort Eustis, Virginia, for the same problem. R. at 24. The
prescription was changed from Librium to Thorazine 25 mg. TID \[three
times a day\]. Thorazine is a psychotropic drug used for the
manifestations of psychotic disorders. PDR at 2327. Psychotropic means
capable of modifying mental activity. [Dorland\'s Illustrated Medical
Dictionary 1386 (1988).]{.smallcaps} He was honorably discharged in July
1968. R. at 1.

On October 28, 1987, the veteran was admitted to Portsmouth Psychiatric
Center (PPC) for alcohol dependence after his daughter attempted
suicide, claiming that she was unable to deal with the veteran\'s
drinking and dependence. R. at 126-29. The PPC nursing admission
assessment form stated the reason for hospitalization as \"alcohol and
the war.\" R. at 130. On November 16, 1987, he was discharged because of
lack of insurance coverage and prescribed Antabuse, 250 mg. every
evening. R. at 122-25. Antabuse is a drug used to stop people from
drinking while they are being treated for alcoholism. [Robert O\'brien &
Sidney Cohen, The Encyclopedia of Drug Abuse 29 (1984).]{.smallcaps}
Preparatory to the early discharge, a social worker noted \"unresolved
conflicts over Vietnam war experience.\" R. at 152.

On February 28, 1988, the veteran was shot and killed during a domestic
dispute with his spouse, appellant here, Phyllis D. Ashley. R. at 63-64.
Phyllis Ashley was arrested and charged with murder and use of a firearm
during a felony. R. at 64. The police report indicates that the veteran
was under the influence of alcohol, and had a .38 caliber revolver on
his waist. R. at 66-68. The wife grabbed the revolver and shot the
veteran in the back after he stabbed her in the hand with a knife. R. at
66-69, 82. On March 23, 1988, appellant filed, on behalf of herself and
her two children, David Ashley and Carrie Ashley, an [Application for
Dependency and Indemnity Compensation or Death Pension by Surviving
Spouse or Child]{.smallcaps} , claiming that the veteran\'s death was
service connected as a result of PTSD. R. at 73, 77. On July 25, 1988, a
grand jury refused to indict Phyllis Ashley on the charges. R. at 101.
On January 10, 1989, a Department of Veterans Affairs (VA) Regional
Office (RO) Administrative Decision held that the widow did not
wrongfully cause the veteran\'s death, and thus was not precluded by 38
C.F.R. § 3.11 from receiving DIC benefits. R. at 102.

In support of her DIC application, appellant submitted letters from
herself, the veteran\'s parents, her children, and friends that the
veteran was an alcoholic, that he carried knives and guns, and that he
threatened to use them when he was upset. R. at 84-91, 199. A letter
from Willie Ashley, the veteran\'s father, stated that his son had not
been the same since he returned from Vietnam. He indicated:

> He had threatened to kill his children, his wife and me many times. He
> has even held a 38 pistol to my neck for more than ten minutes. He
> drank and wasted a lot of his pay check. I paid for most of the things
> he wanted when he didn\'t have the money to get them. He was violent
> if I didn\'t have the money to get them. He was violent if I didn\'t
> give him the things he asked for.
>
> David never acted like himself after he came home from the war.
> Something happened to his mind and he couldn\'t get the war off his
> mind.

R. at 83. On May 2, 1989, the RO denied service-connected disability and
held:

> We, therefore, see no connection between the vet\'s behavior after
> service which led to his demise and his active military service.
> Furthermore, there is absolutely no evidence to establish the
> existence of PTSD. There is no evidence confirming his actual
> involvement in a life threatening situation while in service.

R. at 107. On October 12, 1989, appellant filed a Notice of
Disagreement, and the RO issued a Statement of the Case. R. at 111-12.

On November 30, 1989, appellant appealed to the BVA, claiming that,
although the veteran was not definitively diagnosed with PTSD, his
traumas, survival guilt, and alcoholism were all manifestations of PTSD.
R. at 117. In support of her appeal, appellant submitted additional
evidence consisting of a report from Dr. David Grady, a psychologist who
served as a participating researcher and contributor on the
congressionally mandated National Vietnam Veterans Readjustment Study.
R. at 195. Dr. Grady\'s additional credentials consisted of eight years
of experience as a VA-certified Veterans Service Officer and seven years
as a member of the VA\'s Advisory Committee on the Readjustment Problems
of Vietnam Veterans. *Id*. Dr. Grady stated that in his expert opinion
the veteran had been suffering from PTSD as defined by the Diagnostic
and Statistical Manual of Mental Disorders (DSM-III-R), and that his
alcohol dependence was a manifestation of his PTSD. R. at 195-97. Dr.
Grady based his opinion on his evaluation of the veteran\'s military
records, post-service treatment records, and personal statements from
family and friends. R. at 195. In a decision dated October 24, 1990, the
Board denied service connection for the cause of the veteran\'s death,
stating that symptoms characteristic of PTSD were not noted in the
clinical record, and that the facts did not warrant an independent
medical expert evaluation or Chief Medical Director opinion in the case.
*Ashley*, BVA 90-35610, at 5. A timely appeal to this Court followed.

**II. Analysis**

Determinations regarding whether a particular disability was incurred in
or aggravated by service and the degree of impairment for purposes of
rating such a disability are findings of fact. *Stegman v. Derwinski*, 3
Vet.App. 228, 229-30 (1992); *Harrison v. Principi*, 3 Vet.App. 532, 533
(1992); *Lovelace v. Derwinski*, 1 Vet.App. 73, 74 (1990); *Gilbert v.
Derwinski*, 1 Vet.App. 49, 52-53 (1990). Factual findings of the BVA
will not be overturned by this Court unless they fail to meet the
\"clearly erroneous\" standard of review. *Gilbert*, 1 Vet.App. at
52-53. Under this standard, \"if there is a \'plausible\' basis in the
record for the factual determinations of the BVA, even if this Court
might not have reached the same factual determinations, \[the Court\]
cannot overturn them.\" *Id*. at 53.

Pursuant to 38 U.S.C.A. § 7104(d)(1) (West 1991), a final decision of
the Board must include \"a written statement of the Board\'s findings
and conclusions, and the reasons or bases for those findings and
conclusions, on all material issues of fact and law presented on the
record. . . .\" This Court has held that the BVA must \"articulate with
reasonable clarity its \'reasons or bases\' for decisions, and in order
to facilitate effective judicial review, the Board must identify those
findings it deems crucial to its decision and account for the evidence
which it finds to be persuasive or unpersuasive.\" *Gilbert*, 1 Vet.App.
at 57. Where the Board fails to fulfill this duty, the Court may be
precluded from effectively reviewing the adjudication. *Meeks v. Brown*,
5 Vet.App. 284, 288 (1993); *Browder v. Brown*, 5 Vet.App. 268, 272
(1993). For the reasons set forth below, the Court holds that the BVA
did not provide adequate \"reasons or bases\" for its conclusions, in
light of all the evidence presented relevant to appellant\'s claim.

The Board in this case did not address evidence of possible stressors in
service or provide reasons or bases for its conclusion that the veteran
did not experience stressors while in the service or for its apparent
determination that the veteran\'s evidence was inadequate evidence of
stressors. In particular, the Board did not mention JSESG records
indicating that he may have seen combat with guerillas, been exposed to
sniper fire, and participated in guarding his compound from the enemy.
R. at 238-41. The Board should also have discussed the relevance of
evidence that two men from the veteran\'s company had received Purple
Hearts, and that one member of the company was killed by enemy fire,
evidence which, on its face, would constitute evidence of the occurrence
of stressful episodes. Department of Veterans Affairs Adjudication
Procedure Manual (M21-1), Part VI, para. 7.46e.

Here, the BVA decision failed to include an analysis of the March 27,
1989, hearing testimony, including a discussion of the credibility and
the probative value of the testimony of the veteran\'s father, and of
appellant regarding the veteran\'s behavior after returning from
Vietnam. R. at 220. A claimant\'s sworn testimony is evidence which the
Board must consider, and the Board must \"provide adequate reasons or
bases for its rejection of the appellant\'s testimonial evidence.\"
*Pruitt v. Derwinski*, 2 Vet.App. 83, 85 (1992). The VA\'s statutory
\"duty to assist\" the veteran under 38 U.S.C.A. § 5107(a) to develop
the facts pertinent to his claim must extend the liberal reading given
to a veteran\'s substantive appeal \"to include issues raised in all
documents or oral testimony submitted prior to the BVA decision.\" *EF
v. Derwinski*, 1 Vet.App. 324, 326 (1991); *see Suttmann v. Brown*,
5 Vet.App. 127, 132 (1993). In addition, the BVA decision did not
provide reasons or bases for rejecting supporting documents from friends
and family. *Ashley*, BVA 90-35610, at 4-5.

According to 38 U.S.C.A. § 1154(b) (West 1991), the Board is required to
consider lay evidence of service connection or aggravation. The section
indicates:

> 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 . . . .

*Id*. (Emphasis added). Section 3.304(d) reiterates that satisfactory
lay evidence alone will be accepted as sufficient proof of service
connection:

> *Combat*. Satisfactory *lay or other evidence* that an injury or
> disease was incurred or aggravated in combat will be accepted as
> sufficient proof of service connection if the evidence is consistent
> with the circumstances, conditions or hardships of such service even
> though there is no official record of such incurrence or aggravation.

38 C.F.R. § 3.304(d) (1993) (emphasis added).

In a case similar to the case at bar, *Sheets v. Derwinski*, 2 Vet.App.
512 (1992), where a World War II veteran committed suicide and his wife
filed a claim for service connection for her husband\'s death,
contending that the suicide was the result of PTSD, this Court held that
under 38 U.S.C.A. § 1154(b), the fact that lay evidence is unsupported
by clinical records does not allow the conclusion that the lay evidence
is therefore uncorroborated and necessarily an insufficient
justification for service connection. *Sheets* also held that the
widow\'s claim and the evidence in support of her position that the
veteran\'s suicide resulted from allegedly service-incurred PTSD
required consideration of the benefit-of-the-doubt doctrine, especially
where the BVA cited no evidence or facts by which to impeach or
contradict Mrs. Sheets\' claim. *Sheets*, 2 Vet.App. at 514, 517. This
case also held that the BVA failed in its duty to assist the veteran\'s
widow in developing the facts pertinent to her claim. *Id*.

In support of the Board\'s decision, the Secretary argues that, because
appellant\'s SMRs do not reveal a diagnosis of PTSD during service,
because clinical records establish alcohol dependence rather than PTSD,
and because the cause of death of the veteran was a bullet wound,
service connection is unwarranted. Secretary\'s Brief at 14-15. On the
other hand, appellant contends that the veteran\'s death was service
connected; she argues that the veteran died from a gunshot wound due to
his violence and that, but for his experiences in Vietnam, he would not
have been so violent. She further contends that PTSD was his primary
illness and that his alcohol abuse was an attempt to self-medicate his
service-incurred PTSD. As support for these contentions, appellant
points to the testimony of her father-in-law, the supporting
documentation from friends and family, and the opinion of Dr. Grady. R.
at 77-92, 195-98. Appellant also contends that the Secretary has neither
solicited nor produced an opinion contrary to Dr. Grady\'s diagnosis
that the veteran\'s alcohol abuse is secondary to his PTSD. *Ashley*,
BVA 90-35610, at 1-6.

In order to establish service connection for the cause of a veteran\'s
death, the evidence must show that a disability incurred in or
aggravated by service was either the principal cause of death or a
contributory cause of death. 38 C.F.R. § 3.312(a) (1993). A
service-connected disability will be considered to be the principal
cause of death when it, either singly or jointly with some other
condition, was the immediate or underlying cause of death or was
etiologically related to the cause of death. 38 C.F.R. § 3.312(b)
(1993). In defining what constitutes a \"contributory cause of death,\"
VA regulations provide:

> Contributory cause of death is inherently one not related to the
> principal cause. In determining whether the service-connected
> disability contributed to death, it must be shown that it contributed
> substantially or materially; that it combined to cause death; that it
> aided or lent assistance to the production of death. It is not
> sufficient to show that it casually shared in producing death, but
> rather it must be shown that there was a causal connection.

38 C.F.R. § 3.312(c)(1) (1993).

The Board erred by employing its own unsubstantiated medical opinion to
answer whether alcohol dependence resulting from PTSD may have been the
\"primary or contributory\" cause of the veteran\'s death. In *Colvin v.
Derwinski*, 1 Vet.App. 171 (1991), we held that the Board may not
substitute its own medical judgment for independent medical evidence.
*See also* *Cosman v. Principi*, 3 Vet.App. 503, 506 (1992); *Hatlestad
v. Derwinski*, 3 Vet.App. 213, 217 (1992) (*Hatlestad II*); *Budnik v.
Derwinski*, 3 Vet.App. 185, 187 (1992); *Quarles v. Derwinski*, 3
Vet.App. 129, 139 (1992); *Tobin v. Derwinski*, 2 Vet.App. 34, 39
(1991). While the Board is not required to accept the medical authority
supporting a claim, it must provide its reasons for rejecting such
evidence and, more importantly, must provide a medical basis other than
its own unsubstantiated conclusions to support its ultimate decision.
*Colvin,* 1 Vet.App. at 175; *see also* *Simon v. Derwinski*, 2 Vet.App.
621, 622 (1992); *Hatlestad v. Derwinski*, 1 Vet.App. 164, 169 (1991)
(*Hatlestad I*); *Gilbert*, 1 Vet.App. at 57; *Murphy v. Derwinski*, 1
Vet.App. 78, 81 (1990). The BVA is obliged under 38 U.S.C.A. § 5107(a)
to assist claimants in developing the facts pertinent to their claims.
Under this provision, a claimant bears the initial burden of submitting
evidence \"sufficient to justify a belief by a fair and impartial
individual that the claim is well grounded.\" 38 U.S.C.A. § 5107(a)
(West 1991). \"A well\[-\]grounded claim is a plausible claim, one which
is meritorious on its own or capable of substantiation. Such a claim
need not be conclusive but only possible to satisfy the initial burden\"
required by the statute. *Sheets,* 2 Vet.App. at 517; *Moore v.
Derwinski*, 1 Vet.App. 401, 405 (1991); *Murphy*, 1 Vet.App. at 81.
Here, the Court holds that appellant, by means of Dr. Grady\'s opinion
and citations to medical treatises, has provided competent medical
evidence, i.e., evidence which may justify a belief in a fair and
impartial individual that the claim is \"plausible\" or \"possible,\" to
meet the threshold well-grounded-claim requirement with respect to her
claim for service connection for the cause of the veteran\'s death.
Moreover, in its discussion, the BVA stated that \"\[s\]everal symptoms,
such as mood swings, flat affect, restlessness, night sweats, anxiety
and tremors have been highlighted, but they are consistent with the
diagnosis of alcohol dependence and are not specific to *only* PTSD.\"
*Ashley,* BVA 90-35610, at 5 (emphasis added).

In *Sheets*, the Court held that the issues presented an appropriate
case in which to seek an advisory medical opinion as to the relationship
between the \"veteran\'s combat experience, his behavior, and his death
on the one hand, and the causes and symptoms associated with PTSD on the
other.\" *Sheets*, 2. Vet.App. at 517. Here, as in *Sheets,* \"such
action would be a viable way for the BVA to fulfill its duty to assist
the appellant.\" *Id*.; *see* 38 U.S.C.A. § 5107(a).

Nevertheless, in the instant case the Board concluded:

> A private psychologist opined in August 1990 that the veteran was
> suffering from PTSD at the time of his death. His opinion is based, in
> part, on statements from relatives and friends of the veteran, who
> described a noticeable change in the veteran\'s personality when he
> returned from Vietnam, his problems with drinking, uncontrollable
> temper, guilt over surviving his brother, startle response to sudden
> loud noises, flashbacks, nightmares and social isolation. . . .
> However, the only clinical evidence recorded while the veteran was
> alive, records from a private psychiatric center from late 1987, do
> not demonstrate PTSD. The final diagnosis then was alcohol dependence.
> The private psychologist stated in August 1990 that it was not unusual
> for the veteran, while undergoing treatment for alcoholism, not to
> identify problems with PTSD, but the symptoms characteristic of PTSD
> were not noted in clinical records, even though the veteran was a
> patient for three weeks. Several symptoms, such as mood swings, flat
> affect, restlessness, night sweats, anxiety and tremors have been
> highlighted, but they are consistent with the diagnosis of alcohol
> dependence and are not specific to only PTSD. Although the reason for
> hospitalization was stated as \"alcohol and the war,\" and
> \"unresolved conflicts over Vietnam war experience\" was noted in
> progress notes, the constellation of symptoms characteristic of PTSD
> was not clinically demonstrated. Additionally, there was no
> relationship shown between his psychiatric symptoms and specific
> stressors experienced during his Vietnam service.

*Ashley*, BVA 90-35610, at 4-5. Having said that, the Board, in its
effort to contradict Dr. Grady\'s opinion that the veteran suffered
symptoms of PTSD, does not point to any evidence in the record that
appellant\'s alcoholism could not be diagnostic of, or secondary to,
PTSD or could not have stemmed from PTSD. This Court has held:

> Even where there is a lack of official records to corroborate that an
> injury or disease was incurred or aggravated during service (including
> a period of combat), the \[Secretary\] is required to accept as
> sufficient proof of service connection satisfactory lay or other
> evidence that an injury or disease was incurred or aggravated during
> such period of service, if the evidence is consistent with the
> circumstances, conditions, or hardships of such service.

*Hayes v. Brown*, 5 Vet.App. 60, 66 (1993); 38 U.S.C.A. § 1154(b); 38
C.F.R. § 3.304(d). It is not the function of this Court to speculate on
the relationship between any service-connected disabilities a veteran
may have and his or her cause of death; rather, it is the function of
this Court to decide whether the Board\'s factual determinations on the
issue constitute clear error. *See Shoemaker v. Derwinski*, 3 Vet.App.
248, 254 (1992); *Gilbert*, 1 Vet.App. at 53.

This Court has held that the failure of the BVA in certain cases to
consider the benefit-of-the-doubt doctrine and set forth clearly its
reasons for not applying it constitutes error. *Sheets*, 2 Vet.App. at
516; *see O\'Hare v. Derwinski*, 1 Vet.App. 365, 367 (1991). The
doctrine requires that where there \"is an approximate balance of
positive and negative evidence regarding the merits of an issue material
to the determination of the matter, the benefit of the doubt in
resolving each issue shall be given to the claimant.\" 38 U.S.C.A.
§ 5107(b) (West 1991). The BVA decision, in stating that the veteran\'s
symptoms \"are not specific to only PTSD,\" indicates that the evidence
may be in equipoise, and that the appellant may be entitled to the
benefit of the doubt. In *Williams v. Brown*, 4 Vet.App. 270, 273-74
(1993), the Court held that \"where there is significant evidence in
support of an appellant\'s claim, as there is here, the Board must
provide a satisfactory explanation as to why the evidence was not in
equipoise.\"

**III. Conclusion**

Accordingly, upon consideration of the record, appellant\'s brief, and
the Secretary\'s brief, the Court holds that the decision of the BVA is
VACATED, and the case is REMANDED for readjudication consistent with
this opinion.