Citation Nr: 0007013 Decision Date: 03/15/00 Archive Date: 03/23/00 DOCKET NO. 98-18 213 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for a psychiatric disability, to include post-traumatic stress disorder or bipolar disorder. 2. Entitlement to service connection for a disability due to undiagnosed illness, claimed as generalized joint problems to include a knee disorder, a skin rash, chest pains and difficulty breathing. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jason R. Davitian, Associate Counsel INTRODUCTION The veteran served on active duty from November 1990 to November 1994, including in the Southwest Asia theater of operations during the Persian Gulf War period, with prior and subsequent service in the National Guard. This case is before the Board of Veterans' Appeals (BVA or Board) on appeal from July 1998 and December 1998 rating decisions of the Department of Veterans Affairs (VA) Regional Office in Louisville, Kentucky (RO), which denied the benefits sought on appeal. The issue of entitlement to service connection for a psychiatric disability, to include PTSD or bipolar disorder, will be addressed in the remand following this decision. FINDING OF FACT The veteran's claim for service connection for a disability due to an undiagnosed illness, claimed as generalized joint problems to include knee disorder, skin rash, chest pains and difficulty breathing, is not plausible. CONCLUSION OF LAW The veteran's claim for service connection for a disability due to an undiagnosed illness, claimed as generalized joint problems to include knee disorder, skin rash, chest pains and difficulty breathing, is not well-grounded. 38 U.S.C.A. § 5107(b) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION A claimant with active service may be granted service connection for disease or disability when the evidence reflects that the disease or disability was either incurred in or aggravated by military service. 38 U.S.C.A. § 1110, 1131 (West 1991); 38 C.F.R. § 3.303, 3.304 (1999). In addition, title I of Public Law 103-446, "The Persian Gulf War Benefits Act," authorizes the Secretary of VA to compensate any Persian Gulf veteran suffering from a chronic disability resulting from an undiagnosed illness or combination of undiagnosed illnesses that became manifest either during active duty in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more within a presumptive period as determined by the Secretary. As a result, VA regulations now authorize compensation for disabilities resulting from undiagnosed illness for Persian Gulf veterans. 38 C.F.R. § 3.317 (1999). VA shall pay compensation in accordance with chapter 11 of title 38, United States Code, to a Persian Gulf veteran who exhibits objective indications of chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms, provided that such disability: became manifest either during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2001; and by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(1). "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(2). Disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. The 6-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(3). Signs or symptoms which may be manifestations of undiagnosed illness include, but are not limited to: fatigue, signs or symptoms involving skin, headache, muscle pain, joint pain, neurologic signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. 38 C.F.R. § 3.317(b). However, compensation shall not be paid under this section: if there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; or if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the veteran's most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or if there is affirmative evidence that the illness is the result of the veteran's own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(c). In all claims for VA benefits, the claimant has "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); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990); Grivois v. Brown, 6 Vet. App. 136, 140 (1994). A claimant must satisfy three elements for a claim for direct (nonpresumptive) service connection to be well-grounded. Initially, there must be competent (i.e. medical) evidence of a current disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) and Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). Secondly, there must be evidence of an incurrence or aggravation of a disease or injury in service, as shown through lay or medical evidence. Layno v. Brown 6 Vet. App. 465, 469 (1994). Finally, there must be evidence of a nexus between the in-service injury or disease and the current disability, as shown through medical evidence. Latham v. Brown, 7 Vet. App. 359, 365 (1995). Turning to the veteran's service medical records, the report of a May 1991 redeployment medical examination, as well as the report of an April 1996 periodic medical examination, note that the veteran's upper extremities, lower extremities, feet, spine and other musculoskeletal systems, lung and chest, and skin and lymphatics were normal on clinical evaluation. Similarly, reports of medical history provided by the veteran in May 1991 and April 1996 provide no subjective complaints or physician's summary of any pertinent defects or diagnoses. Otherwise, the veteran's service medical records show that he was assessed with a possible viral syndrome in July 1992, after he complained of cold symptoms and chest congestion. In October 1993, he was assessed with a viral upper respiratory infection after he complained of a mild cough, frontal headaches and left ear pain. He was treated for pseudofolliculitis barbae in 1993, 1994 and 1997. The veteran's post-service VA examination reports and outpatient medical records show treatment for and/or complaints relating to skin rashes, non-specific joint pain, polyarthralgias and bilateral lower extremity weakness and numbness. However, they do not provide competent evidence, such as a medical opinion, showing a nexus or link between current complaints and findings and the veteran's service. Ideally, such an opinion would be based on a review of the record. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In the absence of such a nexus, the record provides no basis for a grant of service connection under the regulations pertaining to direct (nonpresumptive) service connection. The Board is cognizant of the personal opinions set forth by the veteran and his friends and family that his joint problems, skin rash, chest pains and difficulty breathing are the result of military service in the Persian Gulf. However, while the veteran and his friends and family are competent to describe their observations relative to his health, as laypersons, they are not competent to provide an opinion requiring medical knowledge, such as a medical diagnosis or etiology. Id. Regarding the regulations pertaining to service in the Persian Gulf, the Board notes that compensation under 38 C.F.R. § 3.317 is not available in this case for a disability due to an undiagnosed illness, claimed as including a skin rash. The report of a January 1998 VA examination describes rashes on the veteran's anterior and posterior chest, as well as the soles of his feet, and provides a diagnosis of tinea versicolor and tinea pedis. An undated Persian Gulf Registry provides a diagnosis of tinea versicolor. As the veteran's rashes have been attributed to known clinical diagnoses, service connection under section 3.317 is not warranted. Regarding a disability due to an undiagnosed illness, claimed as including chest pain, the Board notes that compensation under 38 C.F.R. § 3.317 is unavailable. The report of the January 1998 VA examination indicates that the veteran's chest was within normal limits. The examiner linked the veteran's chest pain to an anxiety mood disorder, based on examination and history. As the veteran's chest pain has been attributed to a known clinical diagnosis, service connection under section 3.317 is not warranted. Regarding a disability due to an undiagnosed illness, claimed as including joint problems and trouble breathing, the Board notes that compensation under 38 C.F.R. § 3.317 is unavailable. Despite the veteran's subjective complaints, there is no competent medical evidence that he currently suffers from a disability due to an undiagnosed illness that results in joint problems or trouble breathing. There is no clinical demonstration of post-service trouble breathing, or joint problems comprised of parasthesias, numbness or knee disorders. For example, after recounting the veteran's complaints of trouble breathing, the report of the January 1998 VA general medical examination referred to the report of a January 1998 VA PTSD examination. The latter observes that the veteran offered many physical complaints such as joint pain, chest pain, difficulty breathing and other physical disorders. However, psychiatric testing of the veteran indicated that he was probably likely to have some somatic complaints. The final Axis III diagnosis was various physical complaints, unsubstantiated. Similarly, the report of a December 1998 VA orthopedic examination provides that passive and active range of motion of all joint regions was excellent. No joint swelling, warmth or redness was detected. A screening neurologic examination did not detect any significant loss in the fingers or toes. The examiner summarized that no significant joint deformities were detected and that the veteran did not have any significant arthritis or joint problems at that time. The examiner stated that he had no clear explanation for the veteran's parasthesias or numbness in the extremities. "Congress specifically limits entitlement for service- connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. § 1110 (formerly § 310). In the absence of proof of a present disability, there can be no valid claim (emphasis in original)." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As there are no objective indications of chronic disability resulting from joint problems or trouble breathing, service connection cannot be granted for a disability due to an undiagnosed illness claimed as including joint problems or trouble breathing. Finally, the Board acknowledges that veteran and his friends and family maintain that he currently has a disability due to an undiagnosed illness as the result of his active service in the Persian Gulf. While they are competent to describe their observations, as laypersons they are not competent to provide an opinion requiring medical knowledge, such as a medical diagnosis or etiology. Espiritu, 2 Vet. App. at 492. Accordingly, their testimony does not constitute competent medical evidence of current disability, due to an undiagnosed illness. The Board views its discussion as sufficient to inform the veteran of the elements necessary to complete his application for a claim for service connection for the claimed disability. See Robinette v. Brown, 8 Vet. App. 69, 77-78 (1995). ORDER Evidence of a well-grounded claim for service connection for a disability due to an undiagnosed illness, claimed as generalized joint problems to include knee disorder, skin rash, chest pains and difficulty breathing, not having been received, the appeal is denied. REMAND A preliminary review of the veteran's claim for service connection for a psychiatric disability shows that the report of a January 1998 VA PTSD examination does not provide an Axis I diagnosis of PTSD. The examiner concluded that, given the lack of specific stressors that exceeded the normal range of experience, the veteran did not meet the diagnostic criteria from DSM-IV for a PTSD diagnosis. In addition, the Board notes that a December 1998 rating decision denied the veteran service connection for PTSD in part because he did not identify any specific stressful events. After the RO denied service connection for PTSD, an undated Persian Gulf Registry report diagnosing PTSD was associated with the claims file. During a videoconference hearing before the undersigned Board member, the veteran and his representative testified that the veteran had been in combat during the Gulf War. In this regard, the representative pointed out that the veteran was awarded the Army Medal of Commendation for his "determined efforts to provide for the logistical needs of the battalion under fire...." A copy of this award is in the veteran's claims file. The veteran also identified a specific stressor as having occurred during the first night of the ground war when he and his T.C. drove over a land mine in a hemmie truck. The veteran also submitted a copy of an undated report from a VA staff psychiatrist providing that the veteran was being treated for PTSD and that his PTSD was severe enough to warrant release from his enlistment in the National Guard. In light of the above, and in order to give the veteran every consideration with respect to the present appeal, it is the Board's opinion that further development is necessary. Accordingly, this case is REMANDED for the following action: 1. The RO must make a specific determination, based upon the complete record, with respect to whether the veteran was engaged in combat with the enemy at any time and whether his reported stressor occurred during such activity so that further corroboration is not required. 2. If the RO is unable to conclude that the veteran had combat activity with the enemy, the information provided by the veteran concerning the specific circumstances of the claimed stressor and a copy of the service records documenting the veteran's assignments should be forwarded to the USASCRUR, for verification of the stressor claimed by the veteran. 3. Thereafter, if the RO determines that the record establishes the occurrence of any claimed stressful event, or that a certain stressor must be presumed, the RO must specify what stressor it has determined is established by the record, or must be presumed. In reaching this determination, the RO should address any credibility questions raised by the record. 4. If the RO determines that the record establishes the existence and nature of any stressor, the RO should schedule the veteran for an examination by an appropriate VA examiner, experienced in evaluating PTSD, to determine the diagnosis of all psychiatric disorders that are present. The examination should be conducted in accordance with DSM-IV. The RO must furnish the examiner a complete and accurate account of the stressor or stressors that it has determined are established by the record and the examiner must be instructed that only those events as reported in the record may be considered for the purpose of determining whether inservice stressors were severe enough to have caused the current psychiatric symptoms and whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied. It is imperative that the claims file be made available to the examiner for review in connection with the examination. In addition, the examiner is requested to address the above cited medical reports, and provide an opinion as to whether the veteran's psychiatric symptoms are unequivocally the result of PTSD, or are the result of some other psychiatric disability. The examination report should reflect review of pertinent material in the claims file, including the service and historical records which describe the details of the stressful events found to have been established by the originating agency. Any opinion expressed must be accompanied by a detailed rationale. All necessary tests and studies should be conducted. 5. After taking any development deemed appropriate in addition to that specified above, the RO should readjudicate the issue of entitlement to service connection for a psychiatric disability, to include PTSD or a bipolar disorder, with consideration of all applicable amended regulations, to include 64 Fed.Reg. 32807 - 32808 (1999) (codified at 38 C.F.R. § 3.304(f) (1999)). If the benefit sought is not granted, where a timely notice of disagreement is of record, the veteran and his representative should be furnished a supplemental statement of the case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The purpose of the REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The veteran is free to submit any additional evidence he desires to have considered in connection with his current appeal. No action is required of the veteran until he is notified. The appellant 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). U. R. POWELL Member, Board of Veterans' Appeals