Citation Nr: 0001058 Decision Date: 01/13/00 Archive Date: 01/27/00 DOCKET NO. 95-28 071 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for post traumatic stress disorder (PTSD). 2. Entitlement to a permanent and total disability evaluation for pension purposes. REPRESENTATION Appellant represented by: Georgia Department of Veterans Service WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD L. M. Barnard, Counsel INTRODUCTION The veteran served on active duty from January 1970 to August 1971. This appeal arose from a March 1994 rating decision of the Atlanta, Georgia, Department of Veterans Affairs (VA), Regional Office (RO), which denied entitlement to service connection for PTSD. In January 1995, the RO denied entitlement to a permanent and total disability evaluation for pension purposes. In July 1998, the veteran testified at a personal hearing at the RO. In October 1999, he testified before a member of the Board of Veterans' Appeals (Board) via a Video Conference hearing. The issue of entitlement to a permanent and total disability evaluation for pension purposes will be subject to the attached remand. FINDING OF FACT The veteran has not been shown by credible evidence to suffer from PTSD which can be related to his period of service. CONCLUSION OF LAW The veteran has not submitted evidence of a well grounded claim for service connection for PTSD. 38 U.S.C.A. §§ 1110, 5107(a) (West 1991); 38 C.F.R. § 3.304(f) (1999). REASONS AND BASES FOR FINDING AND CONCLUSION The threshold question to be answered in this case is whether the appellant has presented evidence of a well grounded claim; that is, one which is plausible. If he has not presented a well grounded claim, his appeal must fail and there is no duty to assist him further in the development of his claim because such additional development would be futile. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet. App. 78 (1990). As will be explained below, it is found that his claim is not well grounded. According to the applicable regulation, service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in- service stressor; and credible supporting evidence that the claimed in-service stressor occurred. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. If the evidence establishes that the veteran was a prisoner-of-war under the provisions of 38 C.F.R. § 3.1(y) and the claimed stressor is related to that prisoner-of-war experience, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f) (1999). The veteran's DD-214 indicated that he was not involved in any campaigns or combat and had not received any injuries. He was awarded the National Defense Service Medal, the Vietnam Service Medal and the Vietnam Campaign Medal. He received no combat badges. His military occupational specialty was communications center specialist. His personnel records noted that he served in Vietnam from July 20, 1970 to August 29, 1971. He served with the 275th and 550th Signal Companies as a communications specialist. In November 1994, the veteran submitted a statement concerning his claimed inservice stressors. He stated that while he was stationed at Phu-Loi, a Private or Specialist [redacted] entered his hooch to warn him of incoming mortar fire; as he turned to leave, he was hit and killed by the mortar fire. This reportedly occurred in either June or July of 1971. In February or March 1971, he was in a truck that accidentally ran over a woman and a child while attempting to avoid sniper fire. This occurred in Song-Be. The veteran's service medical records contained no complaints of a psychiatric nature. His April 1969 preinduction examination and his August 1971 separation examination noted that he was psychiatrically normal. The veteran was hospitalized by VA between April and May 1987. He was admitted because of suicidal ideation, depression, sadness, nervousness in social situations, insomnia, increased alcohol use and anhedonia. He indicated that he first became depressed in Vietnam. Since then, he would be depressed once in awhile every year. When this depression worsened, he began to drink more heavily. The physical examination was essentially normal. The mental status examination found that he was oriented in three spheres. His hands were trembling and he frequently cried during the interview. His speech was taut and constrained, his mood was depressed and anxious and his affect was appropriate to mood. His thought processes were relevant but he needed guiding due to jumping from subject to subject. He referred to illusions of people calling him. The diagnoses were major depression and alcohol abuse. A PTSD evaluation was performed in January 1994. He was cooperative throughout the assessment and did appear to be experiencing a good deal of distress as he discussed his symptoms and history. He had difficulty responding to questions due to an inability to focus, which made the interview process slow and difficult. His legal history included four arrests for failure to pay child support and for domestic violence. He noted that his alcohol abuse had begun in service. The interviewer noted that the veteran's self-reported psychosocial data was inconsistent and might not be entirely accurate. Due to nervousness and difficulty in answering questions, his data had to be viewed cautiously. The CAPS and Mississippi Scale suggested the presence of PTSD: he endorsed symptoms of re-experiencing the war (intrusive thoughts, nightmares); avoidance of stimuli; increased arousal (poor sleep, irritability, hypervigilance, startle response); and poor concentration. The MMPI-2 was deemed to be valid; this showed high levels of distress, significant depression, anxiety, social alienation, dissociative symptoms, auditory hallucinations, paranoid symptoms (such as suspiciousness of the intentions of others) and trouble controlling his anger. These symptoms were noted to be frequently seen in those with PTSD and a major affective disorder. The Axis I diagnoses were PTSD; major depression, recurrent, with psychotic features; and alcohol abuse in partial remission. VA examined the veteran in January 1994. He indicated that he still got depressed and could not sleep at night. His chief complaints were of bad dreams and anxiety. He stated that he could not get Vietnam out of his head. The mental status examination noted that he talked and related well. His affect was adequate and appropriate and his mood indicated depression. He related that he had talked about suicide but his father had stopped him from carrying out his threats. His thinking was not concrete and there was no evidence of looseness of associations, blocking or rambling. He denied significant auditory or visual hallucinations and his reality testing was adequate. The diagnosis was PTSD "if we accept and the stressors in the service can be verified." VA outpatient treatment records developed between December 1993 and September 1994 noted the veteran's treatment for complaints of depression, anxiety, nightmares, flashbacks and panic symptoms. The diagnoses were PTSD, recurrent depression with psychotic features (hallucinations); and a probable panic disorder. The veteran was examined by VA in November 1994. He noted that he had been a teletype operator and had never been involved in combat operations. He reported that he had been under fire on several occasions while in Vietnam and that some of his men had been killed. He had not received any outstanding commendations and he could not recall any one thing being more disturbing than any other. Bad dreams and depression were still a problem. He like to hunt, fish and garden and reported that he enjoyed some socializing. The mental status examination noted that he talked and related well. His affect was adequate and appropriate and his mood indicated some depression. Thinking was not concrete and there was no evidence of looseness of associations, blocking or rambling. He denied hallucinations and reality testing was adequate. The diagnosis was PTSD, "if we accept his subjective symptoms as fact and the stressors in service can be verified." The veteran was hospitalized at a VA facility between January and April 1995, at which time he claimed that he been in a combat situation before his plane even landed in Vietnam; he recounted that the plane was struck by incoming fire and a bullet passed right over his window. He reiterated the same stressors noted in his November 1994 written statement. He reported suffering from nightmares, flashbacks and ongoing intrusive thoughts. The mental status examination noted that he was alert but anxious; his motor activity was increased due to his anxiety. Speech was noted to be spontaneous and his thought processes were logical. His emotional tone was appropriate to his thought content. His mood was one of mixed anxiety and depression. Thought content dealt with PTSD symptoms and with Vietnam combat issues. He denied hallucinations. This admission consisted of a 14 week long PTSD rehabilitation program. By the time of his discharge, he was still experiencing severe symptoms, but he had learned how to better cope with them. The Director of the VA PTSD program submitted a statement in the veteran's behalf in April 1995. It was noted that he had recently completed the PTSD program. His observations of the veteran's participation in group therapy suggested that he suffered from severe and chronic PTSD associated with his experiences in Vietnam. He reported frequent nightmares and intrusive thoughts related to traumas in Vietnam. He displayed marked signs of emotional numbing, with feelings of detachment and alienation from others. He reported efforts to avoid thoughts or feelings associated with past traumas and had a restricted range of affect. Marked difficulties with sleep were noted and he endorsed symptoms of autonomic arousal when presented with stimuli associated with Vietnam. He also had trouble expressing anger appropriately. The veteran had reported that he had been exposed to combat immediately upon his arrival in Vietnam, commenting that the plane that he was in had been shot at. He was also close to incoming rounds and had been near a man that had been killed by one of these rounds. He also displayed irrational guilt about a woman and a child that had been struck by a vehicle he was riding in as it attempted to flee from sniper fire. He has also reported that he had stacked bodies. Alcohol and marijuana use began as an attempt to numb his feelings. He had intense anger, underlying guilt, unresolved grief and confusion about Vietnam, which had made it difficult to adjust to a civilian life. His intrusive thoughts and problems with concentration caused an inability to focus on a job. VA examined the veteran in May 1996. He indicated that nightmares and flashbacks had begun in 1985. However, he reported that the 1995 PTSD program had helped with his symptoms; in fact, he indicated that he did not have flashbacks very often and had not had nightmares in several weeks. He admitted that he tended to avoid those things that caused memories of his service. He described his sleep as fairly good and stated that he was not socially isolated. He denied hypervigilance, a startle response, a restricted range of affect, feelings of estrangement or detachment and a sense of a foreshortened future. He had received no combat injuries, although he claimed that he been stationed 12 miles from the Cambodian border and had been subjected to constant fire. The mental status examination noted that he was not in acute distress and that his eye contact and rapport were adequate. He displayed slight psychomotor slowing but there were no abnormal involuntary movements. His speech was normal, with no evidence of looseness of associations or flights of ideas. He described his mood as "pretty good." His affect was mildly restricted and he denied hallucinations or delusions. There was no evidence of a thought disorder, and he was alert and oriented in all spheres. Concentration was intact and he displayed no cognitive impairment. There was no evidence of malingering. The diagnoses were alcohol abuse in remission and a history of PTSD, if the subjective symptoms are accepted as fact and the wartime-related stressors are verified. The examiner commented that the veteran had met the criteria for a diagnosis of PTSD in the past, but had had significant improvement over the past year and was not currently reporting the degree of symptoms consistent with a diagnosis of this disorder. His improvement appeared to be directly related to his substance abuse cessation. In November 1997, the U.S. Army and Joint Services Environmental Support Group (currently known as the U.S. Armed Services Center for Research of Unit Records) submitted correspondence, accompanied by the Operation Report-Lessons Learned reports from the veteran's unit, which indicated that elements of the 2nd Signal Corps were engaged in fire and subjected to rocket/mortar attacks during the time that the veteran served with them, although the 275th and 550th Signal Companies were not specifically mentioned. However, the documents referring to attacks at Phu-Loi, which was the main base location for the 275th Signal Company, in October and December 1970 and April 1971 stated that there had been no causalities. In July 1998, the veteran testified at a personal hearing at the RO. He stated that his plane had been shot at as he arrived in Vietnam. He stated that another American soldier had shot at him. In July 1970, he was in a vehicle that ran over a woman and her baby. A soldier, whose name started with a "W," ran into his hooch to warn him of incoming mortars; as he left, he was hit and killed by that fire. The morning reports from the veteran's unit were then obtained. These showed that no one was killed or wounded whose last name began with a "W." The veteran then testified at a videconference hearing before a member of the Board in October 1999. He stated that he had just left a "MARS" unit when a rocket attack destroyed it. The soldier inside that he had just spoken to was killed. While he was stationed in Song-Be, he was shot at by another American soldier. He also indicated that he had gone into the field, at which time he was under constant sniper fire. Initially, in order to establish service connection, the following three elements must be satisfied: 1) the existence of a current disability; 2) the existence of a disease or injury in service, and 3) a relationship or nexus between the current disability and a disease contracted or an injury sustained in service. Caluza v. Brown, 7 Vet. App. 498 (1995); Grivois v. Brown, 6 Vet. App. 136 (1994); Grottveit v. Brown, 5 Vet. App. 91 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). In the instant case, there does not appear to be a clear diagnosis of PTSD in the record. The examinations conducted by VA did diagnose this disorder, on the condition that his claimed symptoms were accepted as fact and his reported stressors could be objectively verified. Significantly, the examination performed in May 1996 noted that his symptoms were not consistent with a diagnosis of PTSD, noting that his symptoms had abated once he discontinued his abuse of alcohol and other substances. Therefore, an unequivocal diagnosis of PTSD has not been made. As a consequence, the first prong of the test to establish well groundedness, the existence of a current disability, namely PTSD, has not been met. The record also does not show the incurrence of a stressor. Initially, it is noted that the veteran had not been engaged in combat with the enemy. The evidence indicates that his military occupation was communications specialist in a Signal company. He admitted that he had never been wounded and he was not awarded any combat badges. In fact, he admitted that he had not engaged in combat. According to Zarycki v. Brown, 6 Vet. App 91, 98 (1993), when it has been determined that a veteran was not engaged in combat, "...the veteran's lay testimony, by itself, will not be enough to establish the occurrence of the alleged stressor. (cite omitted). Instead, the record must contain service records which corroborate the veteran's testimony as to the occurrence of the alleged stressor." See also Swann v. Brown, 5 Vet. App. 229 (1993); Wood v. Derwinski, 1 Vet. App. 190 (1991). There is no evidence of record that the veteran experienced, witnessed or was confronted with an event or events that involved actual or threatened death or serious injury to self or others, which resulted in a response of intense fear, helplessness or horror. While the veteran has contended that the base at which he was stationed was subjected to rocket/mortar attacks and sniper fire (which was confirmed by the ESG), there is no indication that he was in any personal danger during these attacks. In fact, the available objective records reflect that none of these attacks during the time that he was stationed there resulted in any casualties or other damage. He had also asserted that an individual whose last name had begun with a "W" had been killed during a rocket attack right after he had warned the veteran of incoming fire. However, the objective morning reports did not confirm that any individual with a last name beginning with a "W" had been killed or wounded during the time of the veteran's service at Phu-Loi. The veteran had also expressed guilt over having been in a vehicle that had struck a woman and her child; however, an incident involving unnamed civilians is too vague an event to be corroborated. He had also indicated that an American soldier had shot at him while he was stationed at Song-Be. However, he failed to provide detailed information concerning this event. Therefore, the ESG was not able to corroborate its occurrence. The fact remains that he has not submitted any evidence that would corroborate either that his alleged stressors occurred or that he was in any personal danger from them. As a result, the second prong of the well groundedness test, the incurrence of an injury, that is, a stressor, has not been met. The third prong of the well groundedness test requires that there be a causal nexus between the clearly diagnosed PTSD and a veteran's inservice stressor. However, in this case, there is no unequivocal diagnosis of PTSD and no evidence of a corroborated stressor. Therefore, the question of whether there is a causal nexus is moot. The appellant has not informed VA of the existence of any specific evidence germane to any claim at issue that would complete an incomplete application for compensation, i.e., well ground an otherwise not well grounded claim, if submitted. Consequently, no duty arises in this case to inform that appellant that his application is incomplete or of actions necessary to complete it. See 38 U.S.C.A. § 5103(a) (West 1991); Beausoleil v. Brown, 8 Vet. App. 459 , 465 (1996); Johnson v. Brown, 8 Vet. App. 423, 427 (1995); cf. Robinette v. Brown, 8 Vet. App. 69 (1995) (when a claim is not well grounded and claimant inform VA of the existence of certain evidence that could well ground the claim, VA has duty under 38 U.S.C.A. § 5103(a) to inform claimant that application for compensation is incomplete and to submit the pertinent evidence). It is also found that there is no prejudice to the veteran in denying this claim as not well grounded, even though the RO decision was on the merits. Edenfield v. Brown, 8 Vet. App. 384 (1995). ORDER Service connection for PTSD is denied. REMAND The veteran has contended, in essence, that he is unable to secure and follow substantially gainful employment due to his nonservice-connected disabilities. VA has a duty to assist the veteran in the development of all facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1994). This includes the duty to obtain a VA examination which provides an adequate basis upon which to determine entitlement to the benefit sought, as well as the duty to obtain all relevant treatment records. Littke v. Derwinski, 1 Vet. App. 90 (1991). Examinations by specialists are recommended in those cases which present a complicated disability picture. Hyder v. Derwinski, 1 Vet. App. 221 (1991). In Roberts v. Derwinski, 2 Vet. App. 387 (1992), the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999)(hereinafter "the Court"), held that each disability in a pension case must be assigned a percentage rating, and that the RO should discuss the diagnostic codes used to deny the claim. In the instant case, the objective records reveal that the veteran has been found to have a number of conditions, not all of which have been properly rated. These include a psychiatric disorder (variously diagnosed as PTSD and a dysthymic disorder), the residuals of hepatitis C, epidermal inclusion cysts, urinary tract infections, lumbar spine problems, arachnoiditis, kidney stones, tinea cruris and sinusitis. These conditions have not been evaluated in a number of years; thus the extent of their impact upon his ability to seek and retain gainful employment is unclear. Moreover, DeLuca v. Brown, 8 Vet. App. 202 (1995), held that in evaluating a disability involving a joint rated on limitation of motion, the Board erred in not adequately considering functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. The Court in DeLuca held that Diagnostic Codes pertaining to range of motion do not subsume 38 C.F.R. §§ 4.40 and 4.45 (1997), and that the rule against pyramiding set forth in 38 C.F.R. § 4.14 (1997) does not forbid consideration of a higher rating based on a greater limitation of motion due to pain on use, including during flare-ups. The Court remanded the case to the Board to obtain a medical evaluation that addressed whether pain significantly limits functional ability during flare-ups or when the joint is used repeatedly over a period a time. The Court also held that the examiner should be asked to determine whether the joint exhibits weakened movement, excess fatigability or incoordination. If feasible, these determinations were to be expressed in terms of additional range of motion loss due to any pain, weakened movement, excess fatigability or incoordination. These criteria were not referred to in the last VA examination of the veteran's back performed in May 1996. Under these circumstances, it is found that additional assistance would be helpful, and this case will be REMANDED to the RO for the following: 1. The RO should afford the veteran a complete general VA medical examination, to include, but not limited to, a psychiatric examination (for any diagnosed psychiatric disorder); a dermatological examination (for his epidermal inclusion cysts and tinea cruris); an ear, nose and throat examination (for his sinusitis); an examination by an internist (for the residuals of hepatitis C) and a urological examination (for his urinary tract infections and kidney stones) by qualified physicians. These examiners should render a joint opinion as to the effect that any diagnosed conditions have upon the veteran's ability to obtain and retain substantially gainful employment. All indicated special studies deemed necessary must be accomplished. The claims folder must be made available to the examiners prior to the examinations so that the veteran's entire medical history can be taken into consideration, and the examiners are asked to indicate in the examination reports that the claims file has been reviewed. The RO should inform the veteran of the importance of reporting to the requested examinations and should advise him of the consequences of failure to report (i.e, his claim may be denied). 2. The RO should then re-adjudicate the veteran's claim for entitlement to pension benefits, taking all applicable laws and regulations into consideration and after ensuring that each diagnosed disability has been assigned a disability evaluation. The diagnostic codes relied upon in making the determination must be completely discussed. 3. If the decision remains adverse to the veteran, he and his representative should be provided an appropriate supplemental statement of the case, and an opportunity to respond. 4. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, including if the requested examinations do not include all tests reports, special studies or opinions requested, appropriate corrective action is to be implemented. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. C. P. RUSSELL Member, Board of Veterans' Appeals