Citation Nr: 0002974 Decision Date: 02/07/00 Archive Date: 02/10/00 DOCKET NO. 94-07 742 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD G. A. Wasik, Associate Counsel INTRODUCTION The veteran served on active duty from September 1968 to July 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal of a December 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In December 1992, the RO denied service connection for a back disorder, hypertension, PTSD and for exposure to Agent Orange. In May 1993, the veteran submitted a notice of disagreement with the denial of service connection for PTSD and also with the denial of service connection for a back disorder. A statement of the case was mailed to the veteran in June 1993. The veteran perfected his appeal of the denial of service connection for PTSD with the submission of his substantive appeal in June 1993. The veteran did not perfect his appeal with the denial of service connection for a back disorder by the timely filing of a substantive appeal. The issue of entitlement to service connection for a back disorder is not currently before the Board. The issue on appeal was before the Board in March 1996, March 1997 and also in July 1998. It was remanded each time for additional evidentiary development. FINDING OF FACT The claim of entitlement to service connection for PTSD is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. CONCLUSION OF LAW The claim for service connection for PTSD is not well- grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION Factual Background Review of the service medical records demonstrates that the veteran was found to be without defects at the time of the entrance examination conducted in April 1968. On the Report of Medical History portion of the entrance examination, the veteran indicated that he had had nervous trouble of some type in the past. No pertinent defects were noted on the report of the separation examination conducted in April 1972. Review of the service personnel records shows that the veteran served in the Republic of Vietnam during active duty as evidenced by his receipt of the Vietnam Service Medal and the Vietnam Campaign Medal. The veteran also had combat exposure during active duty as demonstrated by his receipt of the Combat Action Ribbon and the Fleet Marine Force Combat Medal. A June 1992 VA mental disorders examination report provides an Axis I diagnosis of depressive disorder, not otherwise specified. The veteran reported his stressor was due to the enemy dropping bombs on him. The examiner noted that the veteran presented with some symptoms often seen in veterans with PTSD but he did not meet the full criteria for a diagnosis of the disorder. The examiner reported the veteran denied any re-experiencing any particularly traumatic episodes experienced in Vietnam in the form of memories or nightmares. VA outpatient treatment and hospitalization records have been associated with the claims file. On a hospitalization report dated in July 1993, it was noted that the veteran complained of signs and symptoms of PTSD including intrusive thoughts, questionable flashbacks and somewhat restless sleep. An August 1993 Medical Certificate includes a pertinent diagnostic impression of rule out PTSD. Possible or incomplete PTSD was included as an impression on a clinical record dated in September 1993. It was noted on that record that the veteran was not in heavy combat in Vietnam but had been shot at and had also discharged his weapon at the enemy. A separate treatment record also dated in September 1993 included a pertinent impression of rule out PTSD. On a Medical Certificate dated in September 1993, a registered nurse included a pertinent diagnostic impression of PTSD. No stressors were reported. Criteria The threshold question that must be resolved with regard to a claim is whether the veteran has presented evidence of a well-grounded claim. See 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). A well-grounded claim is a plausible claim that is meritorious on its own or capable of substantiation. See Murphy, 1 Vet. App. at 81. An allegation of a disorder that is service connected is not sufficient; the veteran must submit evidence in support of a claim that would "justify a belief by a fair and impartial individual that the claim is plausible." See 38 U.S.C.A. § 5107(a); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). The quality and quantity of the evidence required to meet this statutory burden of necessity will depend upon the issue presented by the claim. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). In determining whether a claim is well grounded, the claimant's evidentiary assertions are presumed true unless inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19, 21 (1993). In order for a claim to be well grounded, there must be competent evidence of a current disability (a medical diagnosis); of incurrence or aggravation of a disease or injury in service (lay or medical evidence); and of a nexus between the in-service injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498 (1995). In order to obtain service connection, there must be both evidence of a disease or injury that was incurred in or aggravated by service, and a present disability which is attributable to such disease or injury. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. A claim for service-connection for a disability must be accompanied by evidence which establishes that the claimant currently has the claimed disability. See Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); see also Brammer v. Derwinski, 3 .Vet. App. 223, 225 (1992) (absent proof of a present disability there can be no valid claim). Where the determinant issue involves a question of medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible or possible is required to establish a well-grounded claim. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Lay assertions of medical causation cannot constitute evidence to render a claim well grounded under 38 U.S.C.A. § 5107(a) (West 1991); if no cognizable evidence is submitted to support a claim, the claim cannot be well grounded. Id. Under the provisions for direct service connection for PTSD, 60 Fed. Reg. 32807-32808 (1999) (codified at 38 C.F.R. § 3.304(f)), service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (diagnosis of mental disorder); 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 this 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. See Moreau v. Brown, 9 Vet. App. 389, 394 (1996). The VA regulation was changed in June 1999 to conform to the Court's determination in Cohen v. Brown, 10 Vet. App. 128 (1997). As the Cohen determination was in effect when the RO reviewed this case, the Board finds no prejudice to the veteran in proceeding with this case at this time. See Bernard v. Brown, 4 Vet. App. 384 (1993). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after consideration of all of the evidence and material of record in an appropriate case before VA, 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 such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3 (1999). Analysis In the normal course of events, it is the veteran's burden to keep VA apprised of his whereabouts. "If he does not do so, there is no duty on the part of the VA to turn up heaven and earth to find him." Hyson v. Brown, 5 Vet. App. 262, 265 (1993). VA's duty to assist is not always a one-way street; the veteran has an obligation to assist in the adjudication of his claim. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). He/she must be prepared to meet his/her obligations by cooperating with VA's efforts to provide an adequate medical examination and submitting to the Secretary all medical evidence supporting his/her claim. Olson v. Principi, 3 Vet. App. 480 (1992). When entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination or reexamination, action shall be taken in accordance with paragraph (b) or (c) of this section as appropriate. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. For purposes of this section, the terms examination and reexamination include periods of hospital observation when required by VA. 38 C.F.R. § 3.655(a). When the examination was scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655(b). Review of the claims file demonstrates that the RO has attempted on numerous times at various addresses to contact the veteran to schedule him for VA examination. While some of the attempts at communication have been returned by the U. S Postal Service as being undeliverable, other communications alerting the veteran to the requirement of a VA examination have not been returned. The veteran did not provide any reason for his failure to appear for the examination. The veteran's representative has been unable to locate the veteran. The Board finds the veteran has failed to report for scheduled VA examinations without good cause, and failed to cooperate in the development of pertinent evidence. The Board will proceed to evaluate his claim based on the evidence currently of record. 38 C.F.R. § 3.655(b). Initially, the Board notes the veteran is a combat veteran as demonstrated by his receipt of the Combat Action Ribbon. His claimed stressor is related to this combat and is consistent with the circumstances, conditions, and hardships of the veteran's service. As there is no clear and convincing evidence to the contrary, the Board finds the veteran's lay testimony alone establishes the occurrence of the claimed in- service stressor (being subjected to enemy bombs). Despite the above, however, the Board finds that the veteran's claim of entitlement to service connection for PTSD is not well-grounded. A September 1993 Medical Certificate includes a diagnostic impression of PTSD. However, careful review of the September 1993 record fails to evidence any link between PTSD and active duty. The September 1993 record is lacking any discussion of PTSD stressors. There was no notation as to the veteran's military service. While this evidence provides a diagnosis of PTSD, PTSD was not linked to active duty. The impressions of rule out PTSD included in the August and September 1993 clinical records are not diagnoses of the disorder. They are preliminary findings. The September 1993 clinical record which includes the impression of possible or incomplete PTSD does not equate to an actual diagnosis of the disorder. The Court has held that medical opinions expressed in speculative terms cannot establish a plausible claim; service connection may not be based on resort to speculation or remote possibility. See 38 C.F.R. § 3.102 (1998); see also Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Obert v. Brown, 5 Vet. App. 30, 33 (1993); Bostain v. West, 11 Vet. Appellant. 124, 127 (1998). The Board notes the June 1992 VA examination which was conducted specifically to determine if the veteran had PTSD did not result in a diagnosis of the disorder. The veteran denied at that time experiencing any memories or nightmares of traumatic events which occurred during active duty. As stated above, service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (diagnosis of mental disorder); 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. While there is of record a diagnosis of PTSD and a verified stressor based on the veteran's combat status, there is still no competent evidence of record linking PTSD to active duty. The veteran alleges that he has PTSD as the result of his experiences during active duty. However, he has presented no competent medical evidence to support his allegation of having PTSD which is due to his military service. As it is the province of trained health care professionals to enter conclusions which require medical opinions as to causation, Grivois v. Brown, 6 Vet. App. 136 (1994), the veteran's lay opinion is an insufficient basis upon which to find this claim well grounded. Espiritu v. Derwinski, 2 Vet. App. 492 (1992); King v. Brown, 5 Vet. App. 19, 21 (1993). Accordingly, as a well grounded claim must be supported by evidence, not merely allegations, Tirpak, the veteran's claim for service connection for PTSD must be denied as not well grounded. The only evidence of record which indicates that the veteran currently has PTSD as a result of his active duty is the veteran's own allegations. The veteran is a lay person and as stated above, a lay person is not competent to make a medical diagnosis or to relate a medical disorder to a specific cause. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Although the Board considered and denied the appellant's claim on a ground different from that of the RO, which denied the claim on the merits, the veteran has not been prejudiced by the decision. This is because in assuming that the claim was well grounded, the RO accorded the appellant greater consideration than his claim in fact warranted under the circumstances. Bernard v. Brown, 4 Vet. App. 384 (1993). In light of the implausibility of the appellant's claim and the failure to meet his initial burden in the adjudication process, the Board concludes that he has not been prejudiced by the decision to deny his appeal for service connection for PTSD. The Board further finds that the RO advised the appellant of the evidence necessary to establish a well grounded claim, and the appellant has not indicated the existence of any post service medical evidence that has not already been requested and/or obtained that would well ground his claim. McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997); Epps v. Gober, 126 F. 3d. 1464 (Fed. Cir. 1997). Because the veteran has not submitted a well grounded claim of service connection for PTSD, VA is under no obligation to assist him in the development of the facts pertinent to the claim. 38 U.S.C.A. § 5107(a). The Board is cognizant, however, that the Court has held that VA may have an obligation under 38 U.S.C.A. § 5103(a) to advise the claimant of evidence needed to complete a claim. Beausoleil v. Brown, 8 Vet. App. 459 (1996). The Court has held that the section 5103(a) duty requires that, when a claimant identifies medical evidence that may complete an application but is not in the possession of VA, VA must advise the claimant to attempt to obtain that evidence. Brewer v. West, 11 Vet. App. 228 (1998). In this case, the record shows that the veteran has identified no such evidence. As the veteran's claim for service connection for PTSD is not well grounded, the doctrine of reasonable doubt is not applicable to his case. ORDER The veteran not having submitted a well grounded claim of entitlement to service connection for PTSD, the appeal is denied. RONALD R. BOSCH Member, Board of Veterans' Appeals