Citation Nr: 0007681 Decision Date: 03/22/00 Archive Date: 03/28/00 DOCKET NO. 97-31 355 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES Entitlement to service connection for an allergic skin rash. Entitlement to service connection for acquired psychiatric and/or brain disorder. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD A. Pitts, Associate Counsel INTRODUCTION The veteran had active service from August 1958 to June 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 1997 rating decision of the Columbia, South Carolina Department of Veterans Affairs (VA) Regional Office (RO). The rating decision denied service connection for an allergic skin rash and for psychosis or other brain disorder due to lead poisoning. The veteran submitted a notice of disagreement with the rating decision in September 1997. In October 1997, the RO provided him with a statement of the case. Later that month, he filed his substantive appeal. A personal hearing was held at the RO in June 1999. FINDINGS OF FACT The evidence of record does not make a plausible showing that the veteran suffers from any current disability related to the skin. The evidence of record makes a plausible showing that the veteran's current psychiatric and/or brain condition is related to his active service. CONCLUSIONS OF LAW A well-grounded claim of entitlement to service connection for an allergic skin rash has not been presented. 38 U.S.C.A. § 5107(a) (West 1991). A well-grounded claim of entitlement to service connection for an acquired psychiatric and/or brain disorder has been presented. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Background The veteran filed his claims in April 1997. The veteran has claimed entitlement to service connection for a psychiatric and/or brain condition asserting that his disability resulted from his having inhaled the fumes of lead-based fuel during service. The Board notes that veteran's Form DD-214 documented that the veteran was a fuel supply specialist during service. Service medical records of the veteran were included in the claims file. The report of his June 1958 entrance examination was negative for all psychiatric, neurological, and skin conditions, as was the report of his June 1962 separation examination. The records documented that in May 1959, the veteran was treated for a laceration of the head. They also showed that later in the month, he was seen with complaints of hives. He was found not to have hives. Rather, small maculopapules which appeared to be of an allergic origin were identified on his trunk. He was given calamine lotion and benadryl. No subsequent complaints pertaining to the skin were documented in the chronological record until October 1960, when the veteran was prescribed an ointment for dermatophytosis. The records reflected that in November 1960, the veteran again was examined for a skin condition; this was on his hands. The condition was thought probably to be contact dermatitis, and the veteran was prescribed a solution of lanolin in hydrophilic carbenicillin. In April 1961, he was diagnosed with "chemical conjunctivitis" - - although the affected part of the body was not specified in the record - - and prescribed sulfacetamide, prednisolone, and neomycin. Private medical records associated with the claims file showed that in March 1983, while an inpatient at Self Memorial Hospital in Greenwood, South Carolina, the veteran received a psychiatric consultation with a Dr. Baber and was diagnosed with major affective disorder, moderate, recurrent. Dr. Baber treated the veteran with therapy and medication. The veteran was discharged five days after being admitted. In his discharge summary, Dr. Baber re-stated the diagnoses upon admission but added that the veteran's condition was in partial remission. The veteran was discharged with prescriptions for Xanax (alprazolam) and Sinequan (doxepin hydrochloride). Private medical records associated with the claims file also showed that the veteran was treated twice at Self Memorial Hospital in 1990 for psychiatric problems. In April 1990, he was admitted to the emergency room with a diagnosis of major depressive disorder, severe, psychotic and anxiety disorder with panic attacks. Dr. Baber's diagnosis was major depressive disorder with periods of psychosis. He prescribed Prozac (fluoxetine), Klonopin (clonazepam), and Haldol (haloperidol) for the veteran. The veteran was an inpatient from August 1990 to September 1990, under the care of Dr. Baber. His admitting diagnosis was major depressive disorder, psychotic, recurrent. Upon discharge, his primary diagnosis was major depressive disorder with periods of psychosis. Upon discharge, the medications prescribed for the veteran earlier in April 1990 were continued. The claims file also contained a March 1997 record prepared by Dr. Baber to St. Luke's Psychiatric and Counseling Center in Tryon, North Carolina. During this time, Dr. Barber said that the veteran had been his patient since 1983, and the veteran had been seeing a Dr. LeGuard for emotional problems in 1966. He also alluded to a possible history of lead poisoning and recommended that the veteran be evaluated for encephalopathy due to lead poisoning. Specifically, Dr. Baber requested that a heavy metal blood screen and a head scan to rule out brain damage from lead poisoning be performed. Two VA examinations were conducted in May 1997 in connection with the instant claims. The impression stated in the report of the first of these examinations was that the veteran had depression (rather than dementia). The examiner considered the possibility that the veteran had received lead poisoning in the past and currently had a peripheral neuropathy (which could be caused by chronic lead poisoning) or a metabolic encephalopathy (which could be caused by acute lead poisoning). However, the examining physician noted that the veteran's service medical records had not been made available and declined to formulate a diagnosis without them. The second examination was conducted by another examiner. He stated in the history that the veteran had been treated by another physician, Dr. LeGuard, but he had died and his medical records had been destroyed. The examiner observed that the veteran was taking Pamelor (nortriptyline hydrochloride) for his symptoms. The veteran was assigned a Global Assessment of Functioning (GAF) Scale score of 50. The examination produced a diagnosis of major depressive disorder versus mood disorder due to lead poisoning. Included in the claims file was a March 1999 report of a screening of the veteran's blood performed at the VA Medical Center (VAMC) in Augusta, Georgia. The report stated that the veteran's blood contained no mercury, 22 milligrams of lead (as compared with a normal range of 0-54 milligrams), and 64 milligrams of arsenic (as compared with a normal maximum level of 50 milligrams). At the June 1999 hearing, as well as in a written statement that he submitted at the hearing, the veteran recounted an incident in which he said while in service, he was exposed intensively to the fumes of fuel and also incurred an injury to his head. He testified that in May 1959, while refueling a tanker rig, he lacerated his head by bumping it on a compartment door. In reacting to this injury, he indicated, he leaned over and inhaled the fumes that were coming through an open hatch. He said that he was treated for the head wound at an Air Force hospital and several days later, was seen again in May 1959 for a skin condition, which he described as hives. He testified that during his treatment at the Air Force hospital, a physician told him that he had received a "lethal" dose of lead poisoning and would probably have problems as a result later in life. The veteran stated that he began to be seen for mental problems after service in 1966 and received a disability retirement from his job because of those problems in 1990. He said that he had been treated for skin problems over the years as well. The veteran testified that in 1997, when his a physician referred him for blood testing at Self Memorial Hospital in Greenville, South Carolina, he was found to have traces of lead in his bloodstream. He testified that that his blood was screened twice more, at the VA Medical Center (VAMC) in Augusta, Georgia for heavy metal and that traces of lead were detected each time. The veteran said that prior to his disability retirement, he had been employed as a mechanic for a chemical company but his job had not involved working with lead. In contrast, the veteran indicated, he was exposed to lead-based fuel continually during service in working as a fuel supply specialist. II. Analysis In general, service connection can be awarded for disability resulting from personal injury or disease incurred or aggravated during active service or an applicable presumptive post-service period. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1117, 1131, 1133 (West 1991); 38 C.F.R. §§ 3.303(a), 3.306, 3.307, 3.308, 3.309 (1999). With chronic disease shown as such in service (or within the applicable post-service presumptive period under 38 C.F.R. § 3.307), subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (1999). If a disability is not shown to be chronic during service or an applicable post-service presumptive period, service connection may nevertheless be granted where a disorder has been observed in service or an applicable post- service presumptive period and the symptomatology associated with that disorder is manifested with continuity post- service. Id. Regulations also provide that service connection may be granted for a disease diagnosed after discharge from service where all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). However, a person who submits a claim for benefits under a law administered by the Secretary shall have the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. The Secretary shall assist a claimant in developing facts pertaining to a well-grounded claim. 38 U.S.C.A. § 5107(a). The issue before the Board on this appeal is whether the veteran has established such a claim or claims. If a claim is not well grounded, the appeal will fail with respect to that claim, because the Board would have no jurisdiction to proceed to adjudicate its merits. Boeck v. Brown, 6 Vet. App. 14 (1993). A well-grounded claim need not be established conclusively for the claimant's initial burden of producing evidence to be met. It is sufficient if the evidence of record establishes a plausible claim, one which is either meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78 (1990). In particular, the evidence of record must show: a current disability; the incurrence (or, in the case of preexisting conditions, the aggravation) of an injury or disease during service; and a nexus between the in-service injury or disease and the current disability. Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Evidence of record will be accepted as credible for the purposes of determining whether a claim is well grounded, except where the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the evidentiary source. King v. Brown, 5 Vet. App. 19 (1993). However, incompetent evidence will not be considered in an assessment of whether a claim is well grounded. Grottveit v. Brown, 5 Vet. App. 91 (1993). When the issue is medical in nature, such as medical etiology or diagnosis, expert medical evidence is required. Caluza, 7 Vet. App. at 506; Voerth v. West, 13 Vet. App. 117 (1999). In contrast, when the issue is factual in nature, such as whether an incident or injury occurred in service, lay evidence is competent. See Grottveit, 5 Vet. App. 91. a. Claim of entitlement to service connection for an allergic skin rash Turning to the veteran's claim of entitlement to service connection for an allergic skin rash, the Board finds that the record is devoid of medical evidence of a current disability involving the skin. In the absence of competent evidence of a current disability, there can be no well- grounded claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Therefore, the veteran's appeal will be denied as to this claim. b. Claim of entitlement to service connection for acquired psychiatric and/or brain disorder Turning to the veteran's claim of entitlement to service connection for an acquired psychiatric and/or brain disorder, the Board finds that the claim is well-grounded, that is, plausible. Sufficient competent evidence of current disability, the first element of a well-grounded claim, is of course supplied by the medical diagnoses documented in the record. As to the second element of a well-grounded claim, competent evidence of record establishes that the veteran incurred an injury during service. That evidence is the uncontroverted hearing testimony and written statement of the veteran that he was exposed to, and inhaled, an intensive amount of fuel in May 1959 and was exposed to lead-based fuel continually in service in performing as a fuel supply specialist. The veteran's hearing testimony and written statement also established that the veteran received an injury to his head during service. This also was documented in the veteran's service medical records. Therefore, an inservice injury potentially related to the veteran's current disability has been shown, and the second requirement for a well-grounded claim has been met. To satisfy the third requirement of a well-grounded claim in this case, the evidence of record must make a plausible showing of a nexus, or causal connection, between injury received by the veteran during service and the veteran's current psychiatric and/or brain disability. Here, as has been observed, medical evidence is required. The Board finds that such a showing has been made by the diagnosis stated in the second of the two May 1997 examination reports. The diagnosis was of major depressive disorder (versus mood disorder) due to lead poisoning. No other medical evidence controverts this diagnosis. Therefore, the third element of a well-grounded claim is present in the record. Insofar as a well-grounded claim of entitlement to service connection for an acquired psychiatric and/or brain disorder has been presented, the veteran's appeal, to that extent, will be granted. ORDER As a well-grounded claim has not been presented, service connection for an allergic skin rash is denied. To the extent that the Board has found that well-grounded claim of entitlement to service connection for an acquired psychiatric and/or brain disorder has been presented, the appeal is granted. REMAND Once there is a well-grounded claim, VA acquires a duty to assist a claimant in the development of evidence pertinent thereto. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). This duty includes obtaining medical records, Littke v. Derwinski, 1 Vet. App. 90 (1990) and a contemporaneous examination. Green v. Derwinski, 1 Vet. App. 121 (1991). After a careful review of the evidence of record, the Board has determined that additional development must be completed by the RO. It appears that additional private medical records for the veteran may exist that have not been associated with the claims file. In the statements he has given in connection with his claim, the veteran asserted that he had been an inpatient four times at Self Memorial Hospital. As is reflected in the above decision, the claims file disclosed records for only two inpatient stays at this hospital. Also, the report of the second May 1997 examination report stated that the veteran's medical history included a hospital admission in 1991 and electroconvulsive therapy in 1992. Moreover, the veteran has claimed to have been treated at Chestnut Hill Psychiatric Treatment Center in Travelers Rest, South Carolina and at the hospital associated with Emory University in Atlanta, Georgia. Furthermore, the note created by Dr. Baber in March 1997 at Luke's Psychiatric and Counseling Center in Tryon, North Carolina, referred to in the decision above, suggests the physician may have treated the veteran there. However, no records reflecting the asserted treatment have been associated with the claims file. The RO should attempt to identify all such records and should associate with the claims file the records that it obtains. Also missing from the claims file are the complete records of treatment of the veteran by private physicians who the record indicated were the veteran's personal physicians over the years. As noted in the decision above, Dr. Baber stated in March 1997 that the veteran had been his patient since March 1983. It does not appear that the complete treatment records from Dr. Baber's records are in the claims file. Also, although documentation of the veteran's medical history indicated that the records of his previous physician, Dr. LeGuard, were not available because the physician had died and his records had been destroyed, the Board is not prepared to conclude that this is the case. As indicated in the decision above, the veteran may have begun seeing Dr. LeGuard in 1966. The physician's records concerning the veteran are pertinent to his claim. In the statements that he has given in connection with his claim, the veteran indicated that he had retired because of disability in 1990. He testified at his personal hearing in June 1999, that he was in receipt of Social Security Administration disability benefits. The RO should seek a copy of the relevant disability determination, by the Social Security Administration and/or a private insurer, and the medical records on which the disability determination was based and, if obtained, should associate such records with the claims file. It appears that documentation of blood tests in addition to the March 1999 report from the VA Medical Center (VAMC) in Augusta, Georgia referred to in the decision above may exist. In the statements he has given in connection with his claim, the veteran asserted that his blood was screened for heavy metals on three occasions. He stated that his blood was screened once at Self Memorial Hospital and twice at the Augusta, Georgia VAMC. Documentation of other blood tests was not present in the claims file, however. In addition, it appears that the RO was notified in June 1997 by the National Personnel Records Center (NPRC) in St. Louis, Missouri that some of the veteran's service medical records might be unavailable because of the possibility they were destroyed in the fire that occurred there in 1973. When service medical records are unavailable and presumed destroyed through no fault of the claimant, specific principles are observed by VA. The Department of Veterans Affairs Adjudication Procedure Manual provides that alternate sources of evidence may be utilized in fire-related cases. VA Adjudication Procedure Manual, M21-1, Part III, Paragraph 4.25 (c) and 4.29 (b) (October 6, 1993) previously numbered as 4.06 and 4.07. Also, VA should attempt to reconstruct the service medical record itself by seeking records directly from the facilities that rendered treatment to the claimant during service. See Cuevas v. Principi, 3 Vet. App. 542 (1992). In statements given in connection with his claim, the veteran indicated that during service he had been treated at Columbus Air Force Base in Mississippi, Loring Air Force Base in Maine, and a military facility in Puerto Rico. It does not appear that all inservice treatment records are in the claims file. The Board finds that the veteran should undergo additional VA examination. A current examination is required so that a future determination of the veteran's claim may be based on a record that contains a contemporaneous examination. Caffrey v. Brown 6 Vet. App. 377 (1994); see also Moore v. Derwinski, 1 Vet. App. 401 (1991) (where service medical records of the claimant once held by federal government entity are unavailable, it is incumbent on VA to ensure that the record of the claim includes a current examination). In view of the foregoing, the case is REMANDED to the RO for the following actions: 1. The RO should ask the veteran to identify all sources of private medical evaluation and/or treatment from the date of his discharge from service to the present and to furnish signed authorizations for release to VA of the records of such treatment. Specific attention should be paid to securing the complete records of Dr. Baber, Dr. LeGuard, and Self Memorial Hospital. Any and all medical records concerning the veteran at Chestnut Hill Psychiatric Treatment Center in Travelers Rest, South Carolina and Emory University in Atlanta, Georgia and at St. Luke's Psychiatric and Counseling Center in Tryon, North Carolina should also be sought. Documentation of the RO's efforts to obtain such records should be placed in the claims file, as should all records obtained. 2. The RO should ascertain whether the documentation in the claims file of the blood screening undergone by the veteran at the VAMC in Augusta, Georgia represents the complete treatment of the veteran at that VAMC. If it appears that the veteran received additional treatment at the VAMC, including additional blood testing, the RO should obtain the records thereof an associate them with the claims file. Also, the RO should ask the veteran to identify any other sources of inpatient and/or outpatient treatment that he has received at any other VA facility. A copy of this request should be placed in the claims file. The RO then should obtain all medical records concerning the veteran at the VA facilities that he has named. Once obtained, such records should be associated with the claims file. 3. The RO should advise the veteran that he can submit alternate evidence to support his contention that service connection is warranted for the alleged disability on appeal. This evidence may take the following forms; however, the veteran may submit any other evidence he finds appropriate: statements from service medical personnel, "buddy" certificates or affidavits, state or local accident and police reports, employment physical examinations, medical evidence from hospitals, clinics and private physicians by which or by whom the veteran may have been treated, especially soon after discharge, letters written during service, photographs taken during service, pharmacy prescription records and insurance examinations. 4. The RO should attempt to obtain any and all records of treatment of the veteran at Columbus Air Force Base in Mississippi, Loring Air Force Base in Maine, and any military facility in Puerto Rico. The RO should contact these facilities directly. Documentation of the RO's efforts to obtain such records should be placed in the claims file, as should all records obtained. 5. The RO should obtain a copy of any decision by the Social Security Administration or private insurer pertaining to the appellant, as well as the medical records relied upon concerning that claim. If a private insurer is involved, the RO first should ask the veteran to sign an authorization for the release of those records. 6. When the above-requested development has been completed, the RO should schedule the veteran for a VA psychiatric examination, to include (i) an opinion concerning the nature of the current mental disorder of the veteran and whether it represents a brain disorder as well as, or rather than, a psychiatric disorder, (ii) an opinion concerning the relationship between the current mental disorder of the veteran and his having been exposed to lead through insufflation or other means, and (iii) if appropriate, an opinion concerning the relationship between the current mental disorder of the veteran and any other injury or disease that the medical record indicates he incurred during service. All indicated tests and studies should be performed. The diagnoses should include all disorders currently present and, on Axis V, a score on the Global Assessment of Functioning (GAF) Scale, along with an explanation of the importance of the score as it pertains to social and industrial adaptability. The claims file should be made available to the examiner for use in the study of the veteran's case. Due written notice of the time and place of the examination should be given to the veteran, and a copy of the notification letter should be placed in the claims file. 7. The RO should then again evaluate the veteran's claim for entitlement to service connection for acquired psychiatric and/or brain disorder. If the claim remains denied, he and his representative should be provided with an appropriate supplemental statement of the case (SSOC), and allowed an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. 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. G. JIVENS-MCRAE Acting Member, Board of Veterans' Appeals