Citation Nr: 0006518 Decision Date: 03/10/00 Archive Date: 03/17/00 DOCKET NO. 98-13 038 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Stephen L. Higgs, Associate Counsel INTRODUCTION The veteran served on active duty from November 1952 to November 1954. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in April 1998 by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. This case was the subject of a January 2000 Board hearing. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The claim for service connection for PTSD is not plausible. 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 FINDINGS AND CONCLUSION Factual Background The veteran contends he has PTSD as a result of stressful combat experiences during his period of service in Korea. His DD Form 214 reflects that he was awarded the United Nations Service Medal, the Korean Service Medal with one Bronze Service Star, the National Defense Service Medal, the Combat Infantry Badge, and the good Conduct Medal. The only service medical record present in the claims file is the veteran's November 1954 service discharge examination. Clinical evaluation of the veteran's psychiatric condition was normal at the examination. After at least two attempts, the RO has been unable to obtain the balance of the veteran's service medical records, which have apparently been lost or destroyed. During a February 1986 VA examination the veteran was oriented times three, alert and cooperative. The examiner did not diagnose any psychiatric disability. During a VA examination in March 1998, the veteran gave a history of being involved in the Korean Conflict as a light weapon infantry specialist. He indicated that he was in combat, and that he frequently witnessed death and depravity. He said that one of his friends was killed in the Conflict, though this friend was not in his unit. He said he saw people being killed and was not sure if he killed anyone. He indicated that he had never had any psychiatric care anywhere or at any time. He was noted to have a history consistent with alcohol problems, to include getting hangovers, being advised by various people to stop drinking, and having received two DUIs. After objective examination, and a review of the claims folder, the examiner's diagnosis was alcohol dependence. In discussing why the veteran was found not to have PTSD, the examiner indicated that the veteran did not have recurrent and intrusive thoughts about the war. The veteran said that he didn't think about the war much anymore. He did not have distressing dreams about the war. The dreams of Korea stopped 30 years ago. The veteran did not describe any flashback experiences. He did not avoid thoughts or feelings associated with Korea. He had no amnesia for his experiences in Korea. The examiner also noted several other specific reasons why the criteria for a diagnosis of PTSD were not met, such as no exaggerated startle response, not being detached or estranged form others, not having a restricted range or affect, expecting to live a decent life, and not having a foreshortened sense of the future. During a July 1998 VA psychiatric examination, the veteran gave a history of having experienced combat, and on several occasions being subject to incoming fire. He also described ongoing drinking. Subjective complaints included bad dreams of Chinese coming after him and dead bodies and seeing incoming fire. He said he would awake in a cold sweat, but that the dreams were vague. He said he did not drink heavily. After objective examination and psychological testing (the psychological testing revealed a score not supportive of a problem with PTSD, but did reflect indicators such as anxiety, depression, and possible past problems with alcohol or drugs, which were noted to be commonly correlated with PTSD), the examiner's diagnosis was alcohol abuse, by history. The examiner commented that the veteran was under stress during the war, but noted that there were no specific, life threatening experiences. However, the veteran did have a drinking problem. The examiner indicated that she could not diagnose him as having PTSD, and that the veteran did not meet the criteria for a diagnosis of PTSD contained in DSM- IV. During his January 2000 Board hearing, the veteran testified that he first noted psychological problems when he came back from Korea and his mother said that he was a different person, though he thought he was acting like everyone else. The veteran said he drank a lot during service, and continued to drink heavily, albeit to a lesser extent, after service. The veteran indicated that he had never sought treatment for psychiatric problems. The veteran contended that during his first two VA psychiatric examinations the examiners were predisposed against his claim for service connection for PTSD. The veteran said he could not stand the sound of guns going off in quick succession, which bothered him when he went hunting. He said he had flashbacks and bad dreams about being down on the ground, unable to get up, in the presence of soldiers shaking their heads. He said he could not remember anything like horror stories of shells going off in his face. Analysis 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); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1991). 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 medical 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 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). If the veteran has not presented a well-grounded claim, his appeal on the pertinent issues must fail and there is no duty to assist him further in the development of the claim. 38 U.S.C.A. § 5107(a). See Epps v. Gober, 126 F.3d 1464 (1997). In order for a claim for service connection 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); 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 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); if no cognizable evidence is submitted to support a claim, the claim cannot be well-grounded. Id. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1110 (West 1991). Regulations also provide that service connection may be granted for any 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). A disorder may be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumptive period, and that the veteran still has such a disorder. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997). Such evidence must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. Savage. If the disorder is not chronic, it may still be service connected if the disorder is observed in service or an applicable presumptive period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present disorder to that symptomatology. Id. The Court of Appeals for Veterans Claims has articulated a number of considerations that must be addressed when adjudicating a claim for service connection for PTSD. Eligibility for service connection for PTSD requires the presence of three elements: (1) a current, clear medical diagnosis of PTSD (presumed to include the adequacy of the PTSD symptomatology and the sufficiency of a claimed in- service stressor); (2) credible supporting evidence that a claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. See Cohen v. Brown, 10 Vet. App. 128 (1997); Moreau v. Brown, 9 Vet. App. 389, 394-95 (1996). The evidence necessary to establish the occurrence of a recognizable stressor during service will vary depending on whether the veteran "engaged in combat with the enemy." See Hayes v. Brown, 5 Vet. App. 60 (1993). 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. 38 C.F.R. § 3.304(f). If the claimed stressor is not combat related, the veteran's lay testimony regarding his inservice stressor is insufficient, standing alone, to establish service connection and must be corroborated by credible evidence. Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996); Doran v. Brown, 6 Vet. App. 283, 289 (1994). 38 U.S.C.A. § 1154(b) provides that in the case of any veteran who engaged in combat with the enemy in active service during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service- connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incidence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service. Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. Collette v. Brown, 83 F.3d 389 (Fed. Cir. 1996). The ordinary meaning of the phrase "engaged in combat with the enemy," as used in 38 U.S.C.A. § 1154(b), requires that a veteran have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. VAOPGCPREC 12-99. In the present case, the Board does not doubt that the veteran engaged in combat with the enemy during the Korean Conflict, and that the veteran's experiences in Korea were deeply stressful. However, the determinative fact in this case is that there is no diagnosis of PTSD of record. Without a current diagnosis of PTSD, the claim for service connection for PTSD must be denied as not well grounded. Caluza; Epps. The veteran has expressed dissatisfaction with his two prior VA examinations. However, in the absence of a well grounded claim, the Board has no legal basis upon which to order a third psychiatric examination. The duty to assist the veteran in development of his claim is dependent upon submission of evidence sufficient to render the claim well grounded. 38 U.S.C.A. § 5107(a); Epps. The Board acknowledges the veteran's contention that he has PTSD as a result of inservice combat stressors. However, the veteran, as a lay person, is not competent to provide medical opinions, so that his assertions as to medical causation cannot constitute evidence of a well-grounded claim. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). ORDER The claim for service connection for PTSD is denied. RENÉE M. PELLETIER Member, Board of Veterans' Appeals