Citation Nr: 0004073 Decision Date: 02/16/00 Archive Date: 02/23/00 DOCKET NO. 95-31 412 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona THE ISSUES Entitlement to service connection for posttraumatic stress disorder. Entitlement to an increased disability evaluation for right knee injury, status post medial meniscectomy with chondromalacia, currently evaluated as 20 percent disabling. WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Mark D. Chestnutt, Counsel INTRODUCTION The veteran served on active duty from February 1964 to July 1966. This appeal stems from a December 1994 rating decision of the RO that denied the claims at issue. Although service connection had previously been denied for a psychiatric disability in a June 1978 rating decision, the current service-connection claim for posttraumatic stress disorder represents a new claim. Therefore, no new and material evidence is required to reopen. Cf. McCartt v. West, 12 Vet. App. 164 (1999); Routen v. Brown, 10 Vet. App. 183 (1997), aff'd Routen v. West, 142 F.3d 1434 (1998). As discussed infra, the Board of Veterans' Appeals (Board) has determined that additional development is necessary for the veteran's well-grounded claim for an increased rating for his service-connected right-knee disability. Proscelle v. Derwinski, 2 Vet. App. 629 (1992); Schafrath v. Derwinski, 1 Vet. App. 589 (1991); but cf. Glover v. West, 185 F.3d 1328 (1999). Therefore, this issue will be addressed in the REMAND portion of this decision. In May 1998 statement, the veteran claimed entitlement to service connection for bulimia. This issue has apparently not been adjudicated by the RO, or certified or developed for appeal. It is not properly before the Board and is hereby referred to the RO for appropriate consideration. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's claim of service connection for posttraumatic stress disorder has been obtained. 2. The veteran has submitted evidence of a current diagnosis of posttraumatic stress disorder, lay evidence of inservice stressors, and an apparent medical nexus between service and the current diagnosis. 3. The veteran has not been credibly shown to have engaged in combat in service. 4. The alleged inservice stressors have not been credibly alleged; they have not been verified, nor have specific stressors been medically linked to current posttraumatic stress disorder. CONCLUSION OF LAW Posttraumatic stress disorder was not incurred or aggravated in service. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board finds, as discussed in more detail infra, that the veteran's claim of service connection for posttraumatic stress disorder is "well grounded" within the meaning of 38 U.S.C.A. § 5107. Cohen v. Brown, 10 Vet. App. 128 (1997). The Board is also satisfied that all relevant evidence has been properly developed and that there is no further duty to assist in order to comply with the duty to assist as mandated by 38 U.S.C.A. § 5107. I. Facts Service medical records are negative for reference to any psychiatric disability; available morning reports reveal little relevant information. The June 1966 separation examination does show a scar was present over the coccyx. Service personnel records indicate that the veteran's service was entirely in the United States Army. His awards and decorations included the Vietnam Service Medal. His military occupational specialty in Vietnam was radio operator. The veteran was hospitalized by the VA from August to September 1974 with a personality disorder, explosive personality. His condition was said to have been in good remission at discharge. Morning reports reflect that the veteran went from duty to sick in quarters in January and February 1966. A personality disorder was also diagnosed on VA psychiatric examination in June 1978. A May 1994 VA clinical record indicates that a recent memory deficit was to be ruled out, as was the possibility of posttraumatic stress disorder. A June 1994 VA intake evaluation recorded the veteran's current symptoms, which included nightmares, intrusive thoughts ,social withdrawal, anger, rage, sleep disturbance and depression. Under the heading "recognizable stressors; significant combat experiences" the examiner noted that between 1964 and 1966 the veteran reportedly witnessed the wounded, "i.e. legs blown off, blood dripping from the bodies." It was also indicated thereunder that he had witnessed soldiers killed in action. The examiner indicated that the veteran had recurrent distressing dreams of the event. The veteran's symptoms included feeling detachment from others, constricted affect, sleep disturbance, irritability, and an exaggerated startle response. His "homecoming experience" reportedly included social rejections, and his post-military adjustment was reported as having been very poor. Objective evaluation was negative. The Axis I diagnoses included posttraumatic stress disorder, chronic; bulimia and depression. The veteran submitted a statement in June 1994 regarding alleged stressors he experienced while in service. These reportedly included inspecting damaged areas, witnessing the "full engagement" of the enemy, recovering "downed Huey's" in enemy territory, watching combat as the "1rst of the 19th was decimated by the enemy while repelling into combat in Bong Song Valley [sic]". He described witnessing an autopsy involving a "blood filled table". He discussed attempting to recover a helicopter in Dhin Bhin, and being fired upon. He said that he cut his arm and was sent to a hospital. While at the hospital, he reportedly witnessed shrapnel- removal surgery on a soldier who was not anesthetized. He also recalled "going to the ROK S2 and watching as NVR's were being tortured." The veteran was examined by the VA in July 1994. He indicated that he thought he had had posttraumatic stress disorder since 1991. He complained of poor sleep, waking in the middle of the night with cold sweats, and nightmares of combat experiences. His nightmares apparently included seeing dead people telling him to help them, Vietnamese being tortured, and helicopters being shot. He complained of intrusive thoughts, irritability, a sense of estrangement, hypervigilance, chronic anxiety, and depression. He stated that he would startle easily. Objective evaluation was essentially negative. He was diagnosed with posttraumatic stress disorder, chronic and severe in degree. On Axis IV, his psychosocial stressors were said to be severe; combat experiences were noted, as were a lack of a support system and financial problems. At an August 1995 RO hearing the veteran testified, in essence, that while in France, in the winter of 1964/1965, he engaged in "war games." He said that his unit had been overrun by the "enemy," and that they had threatened to shoot him. He indicated that he was "shot" with a blank, and had a scar in the middle of his back from the flash burn. He indicated that he was scared and fought with these other soldiers. Around Christmas of 1965/1966, he indicated, he was apparently in Vietnam and came under fire. He said he cut his arm at that time, and went to a hospital. While at the hospital, he reportedly witnessed a soldier whose arms had been "blown off" and was profusely bleeding. He indicated that the soldier was not given medication for pain, and was screaming. The veteran indicated that he could "see" and "hear" this incident the day of the hearing. The veteran indicated that he received stitches for his arm at that time. He also discussed having witnessed an autopsy. Around February 1966 he came under fire, he asserted, but there were no casualties. The veteran discussed how Korean officers in Vietnam reportedly interrogated prisoners, including the Korean's alleged use of electric shock, but it was not clear exactly what the veteran actually witnessed. The veteran mentioned a Lieutenant Rightenaur who had been with him at the time, apparently when this was to have been happening. The veteran said, however, that he was "15 or 20 minutes away from all of this" and apparently could not recall specific dates. He discussed surveying a lot of damage, perhaps in late January 1966, following a big battle. When asked about the Combat Infantryman Badge, he indicated that he had been a Navy corpsman, and did not "know" the Army. He stated that apparently while riding in trucks, he had been subjected to sniper fire, but that no one ever had really been hurt. He indicated that he had been on guard convoys. In October 1995 the RO contacted the United States Army and Joint Services Environmental Support Group (or ESG, now known as the United States Armed Services Center for Research of Unit Records or USASCRUR) and included the veteran's statement regarding alleged stressors in the military, and a copy of the hearing transcript. The ESG, in July 1996, wrote to the RO and stated that the veteran's name was not listed in available United States casualty files. The ESG was unable to document that the veteran was a perimeter guard or participated in perimeter patrols. The letter notes that available Vietnam Era records "are often incomplete or do not contain information such as prisoners being tortured during questioning. Unless reported, this type of brutality is extremely difficult to verify. Anecdotal incidents, although they may be true, are not researchable. ... Stressors such as [the veteran's] witnessing casualties or an autopsy are seldom found in the combat records." A September 1996 report from the ESG includes copies of Operational Reports--Lessons Learned, for the veteran's units. It was noted that the veteran's unit, the 509th Engineering Company, had been subjected to sniper fire during the period of September 14-19 and October 6-18, 1966, which resulted in eighteen unit soldiers wounded in action. Additionally, the Operational Reports--Lessons Learned for the I Field Force in Vietnam, for the period ending December 1965, reportedly showed combat incidents in the area of Bong Son and the Dhin Bhin province. The ESG indicated that to research casualties, the veteran would need to provide specific dates, full names, whether the person in question was killed or wounded, units assigned, and a description of the incidents. In February 1997 the RO requested such data from the veteran. In May 1997 the veteran responded in a letter that he witnessed, on February 22, 1966, a soldier from the 101st Airborne having multiple pieces of shrapnel removed without anesthesia, at the 63 "med evac" hospital. This was also reportedly the date he was injured when recovering a helicopter. A July 1997 VA counselor-intern's statement reiterates the diagnosis of posttraumatic stress disorder, mentioning the veteran's current symptomatology. II. Law and analysis A. Well-grounded claim Service connection will be granted for disabilities resulting from personal injury suffered or disease contracted, or for aggravation of a preexisting injury suffered or disease contracted, in line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303; see 38 C.F.R. § 3.304(f), discussed infra. In order for a service-connection claim to be well grounded, there generally must be a medical diagnosis of a current disability, medical or sometimes lay evidence of incurrence or aggravation of a disease or injury in service, and a medical nexus between the inservice injury or disease and the current disability. The nexus requirement may be satisfied by a presumption that certain diseases manifesting themselves within certain prescribed periods are related to service. Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir. 1996) (table). In the context of posttraumatic stress disorder, well groundedness requires a current diagnosis of posttraumatic stress disorder, lay evidence of an inservice stressor (presumed credible at the well-groundedness stage), which in a posttraumatic stress disorder case is the equivalent of inservice incurrence or aggravation, and medical evidence of a nexus between service and the current posttraumatic stress disorder disability. Cohen v. Brown, 10 Vet. App. 128, 136- 37 (1997). The veteran has satisfied this burden. He has a clear, unequivocal diagnosis of posttraumatic stress disorder. He has asserted various stressors which are presumed to be true for the purposes of determining well groundedness. Third, as June 1994 VA intake evaluation shows, a mental-health professional has associated the veteran's service to posttraumatic stress disorder. Similarly, the July 1994 VA examination indicated that the veteran's current stressors included his alleged combat experiences. The Board notes that linking a specific inservice stressor to posttraumatic stress disorder is not required at this stage. Pursuant to Cohen, only a medical nexus between the disability and service is required. Cohen, 10 Vet. App. at 136-37. The Board finds that the evidence obtained provides this nexus. A well-grounded claim of service connection for posttraumatic stress disorder has been presented. Caluza; Cohen, supra. B. Merits of claim Under 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d), the adverse effect of the absence of service clinical records of disability incurred during combat may be overcome by satisfactory lay or other evidence sufficient to prove service incurrence if consistent with the circumstances, conditions or hardships of service. To this end all doubt will be resolved in the veteran's favor. 38 U.S.C.A. § 5107(b). A medical nexus, however, is generally required for service connection, even when the claim pertains to combat. Libertine v. Brown, 9 Vet. App. 521 (1996). Service connection for post-traumatic stress disorder requires medical evidence establishing a clear diagnosis of the condition, credible supporting evidence that the claimed inservice stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed inservice stressor. If the claimed stressor is related to combat, service department evidence that the veteran engaged in combat or that the veteran was awarded the Purple Heart, Combat Infantryman Badge, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed inservice stressor. 38 C.F.R. § 3.304(f). With respect to the first element, the veteran has a clear diagnosis of posttraumatic stress disorder. Thus he has successfully met the first criterion to prevail on the merits. The next element of service connection for posttraumatic stress disorder, however, concerns whether the claimed inservice stressors actually occurred. An opinion by a mental-health professional based on a postservice examination of the veteran cannot be used to establish the occurrence of a stressor. Cohen v. Brown, 10 Vet. App. at 145, citing Moreau v. Brown, 9 Vet. App. 389, 395-96 (1996). In this regard, the Board must determine whether or not the veteran actually engaged in combat, as he claims. The veteran's military occupational specialty was that of a radio operator. He received no awards or citations that would indicate he served in combat either. Although he claims to have performed various duties that amounted to combat, there is nothing in the record which supports such assertions. The veteran asserted at his hearing that he had been a Navy corpsman, but the record clearly reflects that he served only in the United States Army. The Board thus finds that the veteran has little credibility regarding the nature of his service. Further, many of the stressors he alleges were not combat-related, per se. The "war games" in which he said he was involved, were apparently training exercises to have taken place in France, outside of the Republic of Vietnam operations theatre. The two verified occasions during which the veteran's unit reportedly came under sniper fire, as documented in the second ESG report, are not times in which the veteran claims to have incurred an inservice stressor--he was not in Vietnam at that time nor was he even in service. Although the ESG documented combat in areas such as Bong Son and Dhin Bhin in December 1965, there is no indication that the veteran's unit was specifically involved therein. In fact, the veteran eventually clarified that the shrapnel surgery he was to have witnessed took place on February 22, 1966--well after the December 1965 ESG- documented hostilities. In his statements, however, he indicates that the surgery for his cut arm--when he witnessed the surgery--took place the same time, i.e. February 1966. Since there is no credible evidence showing that the veteran served in combat, it is required that his claimed stressors be verified in order for his claim to prevail on the merits. No such verification has been obtained. The veteran's anecdotal experiences apparently do not easily lend themselves to research, and the veteran has not clearly specified anyone who might be able to corroborate such events. Although he did mention a Lieutenant Rightenaur, who may have witnessed Koreans in Vietnam allegedly torturing people, the veteran did not specify when this was to have occurred, or in what unit this serviceman was. Likewise, the veteran's other stressors, such as witnessing shrapnel- removal surgery and an autopsy are unsupported by anything other than the veteran's own assertions. His assertion of receiving stitches for his arm cut, i.e. when he witnessed supposedly traumatic events while in a hospital, is not supported by the service medical records. There is no medical evidence therein, or since that time, of his arm being stitched while in service. The veteran's recounting of "war games" have not been verified. To the contrary, his medical records show nothing of treatment for a flash burn. The only scar shown at separation was over the veteran's coccyx--not the "middle" of his back, and that scar has never been shown to relate to a flash burn in any event. None of the claimed stressors have been verified. Moreover, the veteran's stressors have not been clearly linked to service. The strongest evidence the veteran has for this element of service connection is the June 1994 VA intake evaluation. The stressors specified, however, are general in nature and do not clearly match the particular incidents that the veteran claims to have happened. No specific dates, times or places are given in that report-- only a general range of years is provided, i.e. the years the veteran was in service. While that evaluation report is enough to help well ground the veteran's claim by providing a nexus between current posttraumatic stress disorder and service, it does not provide a link between any particular inservice stressor and the current symptomatology. The veteran's claimed stressors from the "war games" have not been medically linked to any current symptoms either. Therefore, the veteran has failed to meet two of the three elements required for his claim of service connection for posttraumatic stress disorder to prevail on the merits. 38 C.F.R. § 3.304(f). The Board notes that this analysis does not question the sufficiency of the claimed stressors as to whether they may support the diagnosis of posttraumatic stress disorder. Rather, there is no supporting evidence showing that they actually occurred, or clearly linking any specific inservice stressor to current posttraumatic stress disorder. See Cohen v. Brown, 10 Vet. App. at 143. As the evidence is not in equipoise, the benefit-of-the-doubt rule does not apply. 38 U.S.C.A. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.303, 3.304; Cohen; Moreau. ORDER Entitlement to service connection for posttraumatic stress disorder is denied. REMAND The most recent VA orthopedic examination was in 1994. Since that time, the matter of rating orthopedic disorders was addressed in DeLuca v. Brown, 8 Vet. App. 202 (1995). In DeLuca, the United States Court of Appeals for Veterans Claims (Court) held that in evaluating a service-connected left shoulder disability, the Board erred in not adequately considering functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. The Court found that Diagnostic Code 5201 does not subsume 38 C.F.R. §§ 4.40 and 4.45, and that the rule against pyramiding set forth in 38 C.F.R. § 4.14 does not forbid consideration of a higher rating based on a greater limitation of motion due to pain on use, including use during flare-ups. The Court remanded the case to the Board to obtain a medical evaluation that addressed such concerns, including whether the shoulder joint exhibited weakened movement, excess fatigability or incoordination. If feasible, these determinations were to be expressed in terms of additional range of motion loss due to any weakened movement, excess fatigability or incoordination. An examination is likewise necessary in the instant case to address these concerns with respect to the veteran's service- connected right-knee disability. Although the RO apparently attempted to provide the veteran with a VA examination in April 1999, pursuant to his then- pending claim for VA pension benefits, the veteran failed to report. It is not shown that the right knee was going to be specifically examined or that the veteran was notified of the repercussions of failing to report. See 38 C.F.R. § 3.655 (1999). In any event, a new examination where the examiner has been instructed, per this REMAND, as to the DeLuca requirements is necessary. To ensure that the VA has met its duty to assist the appellant in developing the facts pertinent to the claim, the case is REMANDED to the RO for the following development: 1. The veteran should be provided a VA examination to determine the nature and extent of all pathology of the service- connected right-knee disability. The claims file, including a copy of this REMAND, should be made available to the examiner before the examination, for proper review of the medical history. The examination report should reflect whether such a review of the claims file was made. All necessary tests should be conducted and all findings reported in detail. The examiner should describe, in degrees, any limitation of motion of the right knee. The examiner is also requested to: (1) express an opinion as to whether pain could significantly limit the functional ability of the right knee during flare-ups or when it is used repeatedly over a period of time, and express these determinations, if feasible, in terms of the additional loss of range of motion due to pain on use or during flare-ups; (2) determine whether as a result of the disability in question the veteran exhibits any weakened movement, excess fatigability or incoordination, and express these determinations, if feasible, in terms of the additional loss or range of motion due to any weakened movement, excess fatigability or incoordination. Reasons and bases for all conclusions should be provided, and the examiner should comment upon how the service-connected right-knee disability affects the veteran's ability to obtain or retain employment. The veteran is hereby informed that failure to report for the examination may result in a denial of the claim. 2. The RO should then readjudicate the veteran's claim for an increased rating for his service-connected right-knee disability. If the claim is not resolved to the veteran's satisfaction, he and his representative should be provided with a supplemental statement of the case and an appropriate opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The veteran need take no action until otherwise notified. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the RO. 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. THOMAS J. DANNAHER Member, Board of Veterans' Appeals