Citation Nr: 0001072 Decision Date: 01/13/00 Archive Date: 01/27/00 DOCKET NO. 95-35 686 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for headaches. 3. Entitlement to a temporary total evaluation for hospitalization from June to July of 1992, pursuant to 38 C.F.R. § 4.30 (1999). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. P. Kennedy, Associate Counsel INTRODUCTION The veteran served on active duty from September 1974 to June 1976. This case comes before the Board of Veterans' Appeals (Board) from an appeal of a March 1995 rating decision by the Little Rock, Arkansas, Regional Office (RO) of the Department of Veteran Affairs (VA), in which the RO denied service connection for PTSD and headaches, and denied a temporary total evaluation under 38 C.F.R. § 4.30. The Board notes that in the March 1995 rating decision, the RO also denied entitlement to non-service connected pension. However, this pension claim was granted in a July 1999 rating action by the RO. The Board also notes that the evidence shows that the veteran seeks service connection for a seizure disorder. As this issue has not been addressed by the RO, it is referred to the RO for appropriate action. FINDINGS OF FACT 1. The veteran has not submitted evidence of a current PTSD diagnosis related to service. 2. The veteran has not submitted competent medical evidence that his current headache condition is related to service. 3. The veteran has not submitted evidence that his hospitalization from June to July of 1992 was for treatment of a service connected disability. CONCLUSIONS OF LAW 1. The veteran's claim for service connection for PTSD is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The veteran's claim for service connection for headaches is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 3. The criteria for a temporary total evaluation based on hospitalization requiring convalescence have not been met. 38 C.F.R. § 4.30 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The first two issues before the Board are whether the veteran is entitled to service connection for PTSD and for headaches. A veteran who submits a claim for benefits to the VA shall have the burden of offering sufficient evidence to justify a belief by a fair and impartial individual that the claim is well grounded. See 38 U.S.C.A. § 5107(a) (West 1991). In the absence of evidence of a well-grounded claim, there is no duty to assist the veteran in developing the facts pertinent to his claim, and the claim must fail. Epps v. Gober, 126 F.3d 1464, 1467- 68 (Fed. Cir. 1997). The veteran must demonstrate three elements to establish that a claim is well grounded. First, the veteran must present medical evidence of a current disability. Second, the veteran must produce medical or, in some instances, lay evidence of an in-service incurrence or aggravation of a disease or injury. Finally, the veteran must offer medical evidence of a nexus between the claimed inservice disease or injury and the current disability. Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Epps, 126 F.3d at 1468-69. A veteran may also establish a well-grounded claim for service connection under the chronicity provision of 38 C.F.R. § 3.303(b) (1999), which is applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service or during an applicable presumption period, and that the same condition currently exists. Such evidence must be medical unless the condition at issue is a type as to which, under case law, lay observation is considered competent to demonstrate its existence. If the chronicity provision is not applicable, a claim still may be well grounded pursuant to the same regulation if the evidence shows that the condition was observed during service or any applicable presumption period and continuity of symptomatology was demonstrated thereafter, and includes competent evidence relating the current condition to that symptomatology. Savage v. Gober, 10 Vet.App. 488, 495-98 (1997). I. PTSD The elements required to establish service connection for PTSD are 1) a current, diagnosis of PTSD, which is presumed to include both the adequacy of the PTSD symptomatology and the sufficiency of a claimed inservice stressor; 2) credible supporting evidence that the claimed inservice stressor actually occurred; and 3) competent medical evidence of a causal nexus, or link, between the current symptomatology and the specific claimed inservice stressor. 38 C.F.R. § 3.304(f) (1999); Cohen v. Brown, 10 Vet. App. 128, 138 (1997). After reviewing the evidence of record, the Board finds that the veteran's PTSD claim is not well grounded. The Board first notes that the most recent VA psychiatric examination, from April 1994, did not find evidence of PTSD. The examiner noted the veteran's complaints of poor memory, auditory hallucinations, delusions, night sweats and nightmares. The Board notes that the veteran did not associate any of these psychiatric symptoms with his military service. The examiner found no problems with the veteran's memory, orientation, affect or thought processes, but did find that the veteran's insight and judgment were limited. The veteran was diagnosed with polysubstance abuse and personality disorder, not otherwise specified. The examiner then specifically noted that he found no evidence of PTSD during the examination. This evidence shows the lack of a current PTSD disability. The Board also notes that the previous VA psychiatric examination, dating back to July 1985, also resulted in a finding that the evidence did not support a psychiatric diagnosis of PTSD. The only evidence of record revealing a PTSD diagnosis is in an April 1983 VA psychiatric examination report. However, that report reveals that the veteran complained of depression, sleeplessness, anxiety, nightmares, auditory hallucinations and suicide ideations as the result of a gunshot wound that he sustained while he was the victim of a robbery attempt in 1981. The examiner diagnosed the veteran with PTSD as the result of this robbery incident. The Board finds that this 1983 PTSD diagnosis is not based on a claim of inservice stressors. The PTSD diagnosis has been refuted twice by VA examiners since the 1983 diagnosis, and the veteran's claim is based on a traumatic event that occurred after service discharge. Thus, the Board need not analyze whether the veteran has sufficient evidence of the incurrence of an inservice stressor, or whether there is competent medical evidence of a nexus between as current PTSD disability and inservice stressors. The Board finds that the veteran's PTSD claim is not well grounded. See Caluza and Epps, supra. II. Headaches As for evidence of a current headache disability, the veteran stated in a July 1999 statement in support of his claim that he currently suffers from frequent headaches. He testified during his February 1999 Personal Hearing before the RO that his headaches are felt over the scar above his left eye and all across the top of his forehead, affecting his vision, and that they have often caused him to have to lie down and avoid noise for relief. He also testified that he takes prescription medication for his headache pain. The most recent neurological examination report of record, part of an April 1994 VA examination, did not reveal any evidence regarding a potential source of the veteran's reported headaches. However, a headache disability is considered a medical condition that cannot be verified by medical diagnosis. For purposes of a well-grounded claim, the Board presumes the veteran's statements to be credible evidence of a current headache disability. See Meyer v. Brown, 9 Vet App. 425, 429 (1996). Thus, the Board finds that the veteran has submitted sufficient evidence to satisfy the first element of a well-grounded claim. The veteran must also provide evidence of an inservice disease or injury for purposes of a well-grounded claim. He testified during his February 1999 RO hearing that his headaches began when he was hit in the head with a rock and knocked unconscious during military service in 1975. He related that he developed an immediate headache from that incident, but then the headache went away only to return 7-8 week later. His service medical records from December 1975 show that the veteran was treated for a head laceration, and complained of headaches nausea, after being hit above the left eye with a rock. The Board finds that there is sufficient evidence of an inservice injury to satisfy the second element of a well-grounded claim. Where the veteran's claim fails is in the third and final element of a well grounded claim, namely competent medical evidence of a nexus between a current disability and the inservice disease or injury. Despite evidence of a history headaches, the Board does not find any evidence from a competent medical authority that connects the veteran's current headache condition to his inservice headaches after he was hit by a rock. The first evidence of record of a post service headache condition is in treatment records from Bill Dedman, M.D., dated in September 1989. These treatment records reflect that the veteran complained of headaches for the previous three days, and that he did not have a past history of headaches. The diagnostic assessment was headaches, probably muscular in origin, and the veteran was prescribed pain medication. During his RO hearing, the veteran described a most significant incident involving headaches. He stated that he was shot in the head and had a metal plate put in his head, which caused him to have headaches. Medical records from William T. Chapman, M.D. from January 1983 report that this shooting incident took place in October 1981, and required a left frontoparietal craniotomy. The veteran has presented no competent evidence concerning whether his current headaches are from an inservice rock incident, a post-service shooting incident, or any other cause. The only evidence before the Board in support of the veteran's claim is the veteran's own assertions. However, the veteran's assertions are insufficient to satisfy the nexus requirement because the veteran is a layperson with no medical training or expertise to determine medical causation. Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992). As the veteran has not submitted competent medical evidence of a nexus between his current headache condition and his active military service, his claim must be denied as not well grounded. See Caluza and Epps, supra. III. Temporary total evaluation The veteran contends that he is entitled to a temporary total disability evaluation based on postoperative convalescence by reason of his VA inpatient treatment from June 24, 1992 to July 30, 1992. After reviewing the evidence, the Board finds that he is not entitled to these benefits. Under 38 C.F.R. § 4.30 (1999), a total disability rating will be assigned when it is established that treatment of a service-connected disability resulted in (1) surgery necessitating at least one month of convalescence; (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. The evidence from VA hospital treatment records reveals that the veteran was admitted to a VA Detoxification Unit on June 24, 1992, for treatment of alcoholism and alcohol withdrawal symptoms. Following detoxification treatment, the veteran was transferred to the psychiatric unit for continued treatment. During the course of his treatment, the veteran complained of headaches, nightmares, nightsweats and hallucinations. He was discharged on July 30, 1992 with a diagnosis of organic affective disorder with visual hallucinations, and with plans for continued outpatient treatment for substance abuse. The Board notes, however, that the veteran was not treated during his hospitalization for a service connected disability. His only service connected disability is for a scar, left supraorbital region, which is rated as noncompensable. 38 C.F.R. § 4.30(a) requires treatment of a service connected disability in order to be eligible for benefits under this VA regulation. There is no evidence that the veteran was treated for his scar disability during this hospitalization period. Thus, the Board finds that the preponderance of the evidence clearly shows that the criteria for a temporary total evaluation based on hospitalization for a service connected disability have not been met. ORDER A well-grounded claim not having been submitted, service connection for PTSD is denied. A well-grounded claim not having been submitted, service connection for headaches is denied. A temporary total disability evaluation for hospitalization from June to July of 1992 is denied. ________________________ CONSTANCE B. TOBIAS Member, Board of Veterans' Appeals