Citation Nr: 0003447 Decision Date: 02/10/00 Archive Date: 02/15/00 DOCKET NO. 97-24 915 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for headaches. 3. Entitlement to service connection for a hysterectomy. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL The veteran and T.F., her former spouse ATTORNEY FOR THE BOARD J.M. Daley, Associate Counsel INTRODUCTION The veteran had active service from October 1983 to January 1987. These matters are before the Board of Veterans' Appeals (Board) on appeal from a July 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), located in Portland, Oregon. In connection with her appeal, the veteran presented testimony via video conference before a member of the Board in lieu of an in-person hearing in October 1999; the transcript of that hearing is associated with the claims file. The Board notes that the veteran has withdrawn her appeal pertinent to service connection for hearing loss. See 38 C.F.R. § 20.204 (1999). Also, the RO denied entitlement to service connection for a left knee disorder and lumbar strain in a rating decision dated in April 1998 and properly notified the veteran of that determination. As discussed during the October 1999 hearing, the veteran did not appeal those determinations and such are not before the Board. The veteran's representative indicated that an application to reopen those claims with new and material evidence would be submitted. The veteran is free to present such application to the RO at any time. FINDINGS OF FACT 1. The veteran has presented competent evidence of diagnosed PTSD that has plausibly been related to claimed instances of sexual abuse during service. 2. There is no competent evidence of record relating a post- service hysterectomy to the veteran's period of service to render the claim plausible or capable of substantiation. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for PTSD is well grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.304(f) (1999). 2. The claim of entitlement to service connection for a hysterectomy is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Pertinent Regulations Service connection In order to establish service connection for a claimed disability the facts must demonstrate that a disease or injury resulting in current disability was incurred in the active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). Where there is a chronic disease shown as such in service so as to permit a finding of service connection, 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). This rule does not mean that any manifestation in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The chronicity provision of 38 C.F.R. § 3.303(b) is applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the Court's case law, lay observation is competent. If the chronicity provision is not applicable, a claim may still be well grounded if (1) the condition is observed during service, (2) continuity of symptomatology is demonstrated thereafter and (3) competent evidence relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 489 (1997); see also Grottveit v. Brown, 5 Vet. App. 91, 93 (1993) (where the issue involves questions of medical diagnosis or an opinion as to medical causation, competent medical evidence is required). Service connection may also be granted for a disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Well groundedness "[A] person who submits a claim for benefits under a law administered by the Secretary shall have the 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); Carbino v. Gober, 10 Vet. App. 507 (1997); Anderson v. Brown, 9 Vet. App. 542, 545 (1996). 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 of [section 5107(a)]." Murphy v. Derwinski, 1 Vet. App. 79, 81 (1990). In short, a claim must be accompanied by supportive evidence and such evidence "must 'justify a belief by a fair and impartial individual' that the claim is plausible." Tirpak v. Derwinski, 2Vet. App. 609, 611 (1992). For a claim to be well grounded, there generally must be (1) a medical diagnosis of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. See Anderson, supra; Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table). In any case, a claim for service-connection for a disability must be accompanied by evidence which establishes that the claimant currently has the claimed disability. Absent proof of a present disability there can be no valid claim. See, e.g., Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ; Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). Medical evidence is required to prove the existence of a current disability and to fulfill the nexus requirement. Lay or medical evidence, as appropriate, may be used to substantiate service incurrence. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). For the purposes of determining whether this claim is well- grounded, the Board must presume the truthfulness of the evidence, "except when the evidentiary assertion is 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). If a claim is not well grounded, the application for service connection must fail, and there is no further duty to assist the veteran in the development of her claim. 38 U.S.C.A. § 5107, Murphy v. Derwinski, 1 Vet. App. 78 (1990). PTSD 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") has held that the three elements of a well-grounded claim of service connection for PTSD are: 1) a current, clear medical diagnosis of PTSD; 2) credible supporting evidence that the claimed in-service stressor actually occurred; and 3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. Cohen v. Brown, 10 Vet. App. 128, 129 (1997). Examination in January 1998 resulted in a diagnosis of PTSD related by the examiner to sexual assault(s) reported by the veteran to have occurred during service. The veteran's statements are presumed credible for the purpose of determining well groundedness. Thus, the diagnosis, stressor and nexus requirements have been met and the claim is well grounded. To this extent, the appeal is allowed. Hysterectomy On the report of medical history completed in July 1983, the veteran denied having or having had changes in her menstrual pattern or treatment for a female disorder. In October 1983 she presented with complaints of menstrual cramps of six hours' duration; her menstrual period had started. She was noted to have a history but denied any trauma. In September 1984 the veteran, then aged 19, was admitted for hospitalization to determine if she was in labor. At that time she gave a history of menses that were usually regular in onset and duration. She stated that she had not had her menstrual period for several months because of being in basic training, and that she had had only one regular period prior to getting pregnant. Her records were not available. She was discharged several days later. In October 1984 she underwent a cervical caesarian section, without complications. In April 1986, while pregnant, the veteran presented after experiencing spotting of one weeks' duration. She also reported lower abdominal pain. She described similar problems during her first pregnancy and reported that she had been on a heavy work schedule. The impression was to rule out premature labor or placenta previa. Records shows impressions of yeast infection/vaginitis and threatened abortion for which the veteran was treated. In October 1986 the veteran reported for follow-up of her pelvic pain complaints, without noted diagnosis. In a report of medical history form dated in December 1986, the veteran reported having or having had gynecologic difficulties, specifically having had a caesarian section in October 1984 and a tubal ligation in September 1986, subsequent to the August 1986 birth of her second child. Available records show that in March 1989 the veteran was examined at the Camp Pendleton Naval Hospital for complaints of chronic pelvic pain as a dependent of her military spouse. She underwent surgical diagnostic scope, which revealed normal ovaries, interruption of both tubes, no endometriosis and a clear cul-de-sac. There were no complications noted following that diagnostic surgery. Also of record are private records from J.D., M.D. and from Kaiser Permanent dated in the period February 1995 to June 1996, but not showing findings or diagnoses pertinent to gynecologic treatment, or reflecting notation of a prior hysterectomy. In October 1999, the veteran testified via video conference before a member of the Board. With respect to her hysterectomy, the veteran stated that prior to enlistment in the military her menstrual cycles were very irregular, and that during and after boot camp she had a lot of different problems to include with duration and onset. She further stated that after discharge she had similar problems and was evaluated and treated with hormones to help regulate her cycle until hysterectomy was finally recommended. Transcript at 9. She related that her hysterectomy was performed in December 1991 and was recommended by a physician at Kaiser Permanente. Transcript at 11. In other statements she has reported that such hysterectomy was performed in December 1992. First, the Board notes that the existing record, although documenting both in-service and post-service complaints of pelvic pain, as well as in-service problems with pregnancies, is negative for medical records reflecting that the veteran underwent a hysterectomy. Moreover, there is no competent evidence of any etiologic relationship between the veteran's in-service complaints relevant to her menses or pregnancies and her post-service complaint of pelvic pain in 1989, or any hysterectomy performed in 1991 or 1992, years after service. The veteran herself, at the time of her video conference hearing, has argued that her physician at Kaiser-Permanent determined a hysterectomy was the only way to resolve her problems. However, the record does not reflect that the veteran possesses a recognized degree of medical knowledge that would render her opinions on medical diagnoses or etiology competent. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Her assertion, "...filtered as it (is) through a layman's sensibilities, of what a doctor purportedly said is simply too attenuated and inherently unreliable to constitute 'medical' evidence" and cannot serve to well ground the claim. Kirwin v. Brown, 8 Vet. App. 148 (1995); Robinette v. Brown, 8 Vet. App. 69, 77 (1995). There is, in short, no competent medical evidence of a nexus between a hysterectomy performed subsequent to discharge and the veteran's period of service. Absent such her claim must fail. See Caluza, supra. Here the Board recognizes that the Court has held that there is some duty to assist the veteran in the completion of her application for benefits under 38 U.S.C.A. § 5103 (West 1991 & Supp. 1999) even where the claim appears to be not well- grounded. Such limited duty arises where a veteran has identified the existence of evidence that could plausibly well-ground the claim. See generally, Beausoleil v. Brown, 8 Vet. App. 459 (1996); and Robinette v. Brown, 8 Vet. App. 69 (1995), as modified in this context by Epps v. Brown, 9 Vet. App. 341, 344 (1996). Certainly, VA has the duty to advise the veteran of the need for the evidence to "complete the application." Robinette v. Brown at 80. In this case the RO requested records from Kaiser Permanente and from the military facility where the veteran was treated as a dependent spouse, to include for the 1991 year claimed by the veteran as the time of her hysterectomy. The claims file contains responses from those facilities indicating that all available clinical records for the requested time periods were provided to the RO. The records obtained do not include any records pertinent to a hysterectomy. The veteran has not further identified any medical evidence that has not been submitted or obtained, which will support a well-grounded claim. Thus, the VA has satisfied its duty to inform the veteran under 38 U.S.C.A. § 5103(a). See Slater v. Brown, 9 Vet. App. 240, 244 (1996). ORDER The veteran has submitted a well grounded claim for service connection for PTSD. Service connection for a hysterectomy is denied. REMAND Once a claim is found to be well grounded, the duty to assist attaches. See 38 U.S.C.A. § 5107(b) (West 1991). In Patton v. West, 12 Vet. App. 272 (1999), the Court held that special consideration must be given to claims for PTSD based on claimed sexual assault. In particular, the Court considered the changed provisions of VA Manual M21-1, particularly Part III, paragraphs 5.14c and 7.46c (2). Paragraph 5.14c states that, in cases of sexual assault, development to alternate sources for information is critical. The provision then provides an extensive list of alternative sources competent to provide credible evidence that may support the conclusion that the event occurred, to include medical records, civilian police reports, reports from crisis intervention centers, testimonial statements from confidants, and copies of personal diaries or journals. As the veteran has presented competent evidence of a PTSD diagnosis, related by a medical professional to her claimed stressors, the question in this appeal is whether there is credible, and corroborative evidence in support of the veteran's claimed non-combat stressor(s). The veteran has completed a PTSD questionnaire form with specific allegations and reports as to her in-service handling of the events. She has also identified several individuals involved in the incidents and/or individuals who knew her during that time period. VA is not required to accept the veteran's own statements as credible and conclusive proof of the existence of such stressors. See Moreau v. Brown, 9 Vet. App. 389 (1996); Zarycki v. Brown, 6 Vet. App. 91 (1993). However, a review of the veteran's claims file does not indicate that the development and approach specific to sexual assault claims was accomplished. The information provided by the veteran, and review of her history under the guidelines set out in Patton are potentially probative of her claim. Thus, prior to final consideration of the veteran's PTSD claim, remand for additional development is necessary. Pertinent to headaches, in connection with mental status evaluation in December 1997, the examiner noted the veteran's history of severe headaches. At that time the veteran argued that her muscle tension/headaches were associated with her in-service psychic trauma. Such matter is inextricably intertwined with the issue of entitlement to service connection for PTSD, herein remanded for further development. The Court has held that VA must develop all issues which are reasonably raised from a liberal reading of the entire record, where these issues are inextricably intertwined with the issues on appeal, Myers v. Derwinski, 1 Vet. App. 127 (1991), and that all inextricably intertwined matters must be adjudicated by the VA prior to any determination by the Board on the merits of the claim. Harris v. Derwinski, 1 Vet. App. 181, 183 (1991). Thus, the question of entitlement to service connection for headaches, to potentially include on a secondary basis, is deferred pending completion of the requested remand actions pertinent to the veteran's PTSD claim. Accordingly, this case is returned for the following development: 1. The RO should develop the veteran's contentions regarding the reported sexual incidents in service. Care should be taken that this development be as compassionate as possible. The attention of the RO is directed to M21-1, paragraph 5.14c, Exhibits A.3 and A.4 for sample development letters. A field examiner should be utilized if a personal interview is deemed necessary to obtain any supporting evidence or if specific records or statements sought cannot otherwise be provided. The veteran should be advised that this information is vitally necessary to obtain supportive evidence of the stressful event and that she must be as specific as possible because without such details an adequate search for supporting information cannot be conducted. All alternate sources set forth in M21-1, paragraph 5.14c should be utilized. 2. The RO should review the file and prepare a summary including all associated documents and then make a specific determination, in accordance with the provisions of 38 C.F.R. § 3.304(f), with respect to whether the veteran was exposed to a stressor, or stressors, in service, and, if so, what was the nature of the specific stressor or stressors established by the record. In reaching this determination, the RO should address any credibility questions raised by the record. 3. After the foregoing development has been completed to the extent possible, and if it is determined that there is credible supporting evidence that a claimed stressor actually occurred, the RO should arrange for the veteran to be afforded a VA psychiatric examination by a female psychiatrist who has not previously examined the veteran to determine the correct diagnosis of any psychiatric disorder present and to determine whether the diagnostic criteria for PTSD are satisfied. With this request, the RO should provide the examiner with a list of all stressors that have been identified. The examination report must reflect a review of pertinent material in the claims folder. If PTSD is found, the examiner is requested to express an opinion as to whether such is related to the veteran's military service, specifically whether a diagnosis of PTSD is supportable solely by the stressor(s) that have been recognized. The examiner should be asked to comment on the significance, if any, in the diagnostic assessment of evidence that is indicative of behavioral changes (see M21-1, paragraph 5.14c(8)(9)). The report of examination should include the complete rationale for all opinions expressed. All special studies or tests, to include psychological testing and evaluation, should be accomplished. Prior to the examination, the RO must inform the veteran, in writing, of all consequences of her failure to report for the examination in order that she may make an informed decision regarding her participation in said examination. 4. When the above requested development is completed, to the extent possible, the RO should review the case and undertake additionally indicated development. The RO is advised that where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance, and further remand will be mandated. Stegall v. West, 11 Vet. App. 268 (1998). After any indicated corrective action has been completed, the RO should again review the record and re- adjudicate the issues of entitlement to service connection for PTSD and for headaches. If any benefit sought on appeal is not granted, the veteran and her representative should be provided with an appropriate supplemental statement of the case and afforded opportunity to respond thereto. The veteran 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). The case should then be returned to the Board for further appellate consideration. The purposes of this remand are to obtain additional information and to assist the veteran in the development of the claim. No inference should be drawn regarding the merits of the claim, and no action is required of the veteran until further notified. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court 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. HOLLY E. MOEHLMANN Member, Board of Veterans' Appeals