BVA9502984 DOCKET NO. 93-09 573 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for a seizure disorder. 3. Entitlement to service connection for a headache disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Raymond F. Ferner, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a July 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office in Waco, Texas, which denied the benefits sought on appeal. The veteran, who had active service from April 1943 to December 1945, appealed that decision to the BVA, and the case was received at the Board in May 1993. Rating decisions dated in September 1949 and June 1967 previously denied service connection for "nervousness." The veteran was timely notified of each decision and of his appellate rights, but did not appeal either decision. The RO has denied the veteran's claim for service connection for PTSD without regard to any effect of the prior denials of service connection for nervousness may have on the veteran's current claim. Since the Board cannot identify any prejudice the veteran may have experienced by the RO's reviewing of the veteran's claim for service connection for PTSD on a de novo basis, and the fact that PTSD was added to the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders subsequent to the June 1967 rating decision, the Board finds that the RO's failure to apply the two-step analysis set forth in Manio v. Derwinski, 1 Vet.App. 140 (1991) amounts to harmless error, and the Board will similarly review the veteran's claim for service connection for PTSD. Indeed, a return of the veteran's claim to the RO to apply the Manio two-step analysis would exalt form over substance and would amount to needless delay. See 38 C.F.R. § 20.1(b) (1994). Reference has been made to a neck injury the veteran reports he sustained during service. This matter may be construed as an informal claim for service connection, but this matter is not currently before the Board because it has not been prepared for appellate review. This matter will be referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran essentially contends that the RO was incorrect in not granting the benefits sought on appeal. The veteran maintains, in substance, that he developed psychiatric, seizure and headache disorders during his period of military service. The veteran relates that he has developed PTSD and a seizure disorder as a result of his combat service as a tank radioman and driver, and that he sustained injuries to his head during service which have resulted in a headache disorder. The veteran reports that he has continued to experience symptomatology referable to the three disorders since his separation from service and that he has occasionally required treatment. Reference is made to the evidence of record as supporting these contentions. Therefore, a favorable determination has been requested. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed all of the evidence of record. Based on its review of the evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the claim for service connection for PTSD, and that the veteran has not submitted evidence of a well-grounded claim for service connection for seizure and headache disorders. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. Service medical records contain no evidence of the presence of psychiatric, seizure or headache disorders. 3. A seizure disorder was not manifested within one year of the veteran's separation from service. 4. The veteran is not currently shown to have PTSD. 5. The veteran is not currently shown to have a chronic headache disorder. CONCLUSIONS OF LAW 1. PTSD was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303, 3.304 (1994). 2. The veteran has not submitted evidence of a well-grounded claim for entitlement to service connection for a seizure disorder. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (1994). 3. The veteran has not submitted evidence of a well-grounded claim for entitlement to service connection for a headache disorder. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303, 3.304 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a preliminary matter, the Board finds that the veteran's claim for service connection for PTSD is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, the Board finds that the veteran's claim for service connection for PTSD is not implausible when his contentions and the evidence of record are viewed in the light most favorable to that claim. The Board is also satisfied that all relevant facts with respect to this claim for service connection have been properly and sufficiently developed. With respect to the veteran's claims for service connection for seizure and headache disorders, the preliminary question to be answered is whether the veteran has presented well-grounded claims. In this regard, the veteran 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) (West 1991); Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). If the veteran has not presented well- grounded claims for service connection for seizure and headache disorders his appeal with respect to these claims must fail and be dismissed. See Boeck v. Brown, 6 Vet.App. 14, 17 (1993); Grivois v. Brown, 6 Vet.App. 136, 140 (1994). The Board finds and concludes that the veteran's claims for service connection for seizure and headache disorders are not well grounded. Accordingly, since the Board does not have jurisdiction over the question of whether or not these benefits sought on appeal are warranted, the veteran's claims for service connection for seizure and headache disorders are dismissed. See 38 U.S.C.A. § 7105(d)(5) (West 1991). I. PTSD The veteran contends that he has PTSD as a result of his combat service during World War II. The veteran's service records show that he served as a tank driver with Company B of the 640th Tank Destroyer Battalion in the Asiatic-Pacific Theater of Operations. While the veteran did not receive combat citations or awards which would be conclusive evidence that he engaged in combat with the enemy, 38 C.F.R. § 3.304(f) (1994), given the veteran's military occupational specialty and the nature of those duties as set forth on the WD AGO Form 100 (Separation Qualification Record), and the unit to which the veteran was assigned, the Board will assume for purposes of discussion of the veteran's claim for service connection that he did engage in combat with the enemy. See Zarycki V. Brown, 6 Vet.App. 91, 98 (1993) ("[T]he evidence necessary to establish the occurrence of a recognizable stressor during service to support a claim of entitlement to service connection for PTSD will vary depending on whether or not the veteran was engaged in combat with the enemy.") Although the veteran may have been exposed to stressful incidents during service which would support a diagnosis of PTSD, the medical evidence for consideration does not demonstrate that the veteran has ever been diagnosed as having PTSD. The veteran's service medical records contain no evidence of any psychiatric complaints, treatment, clinical findings or a diagnosis during the veteran's period of service, as might be expected in cases of PTSD due to its delayed onset, but nor do VA and private medical records dated following service show that the veteran has been diagnosed as having PTSD. There is a December 1990 statement from Ned Snyder, M.D., which relates that he had treated the veteran for "extreme nervousness probably in 1947" and a May 1949 statement from H. B. Allen, M.D., which diagnosed the veteran as having a psychoneurosis, and a VA examination performed in connection with the veteran's current appeal diagnosed the veteran as having generalized anxiety with panic attacks. The examiner indicated only that there were some PTSD traits described by the veteran. In the absence of evidence of a current disability, i.e., a diagnosis of PTSD, service connection for PTSD is not warranted. See Brammer v. Derwinski, 3 Vet.App. 223, 225 (1992). The Board acknowledges that there are statements of record from individuals who relate that the veteran experienced nervousness during and shortly following service and statements from the two private physicians which relate treatment for nervousness and a psychoneurosis after service in 1947 and 1949. However, the veteran is not currently shown to have the disorder he is seeking to have established as a service-connected disability and the veteran candidly testified that to his knowledge a physician has not diagnosed him as having PTSD. Transcript at 4. Absent a diagnosis of PTSD, service connection is not warranted. II. Seizure Disorder The veteran's service medical records and medical records dated following service do not document that the veteran has ever been diagnosed as having a seizure disorder. The veteran also testified that he had never experienced a seizure while under medical care. Transcript at 9. See 38 C.F.R. § 4.121 (1994) ("To warrant a rating for epilepsy, these seizures must be witnessed or verified at some time by a physician.") In the absence of medical evidence which shows that a seizure disorder was present during service, within one year of the veteran's separation from service, or offers an opinion, at a minimum, that the veteran currently has a seizure disorder which is in some way related to service, the Board concludes that the veteran has not submitted evidence of a well-grounded claim to establish entitlement to service connection for a seizure disorder. Consequently, his claim for this benefit must be dismissed. III. Headache Disorder As with the veteran's claim for service connection for a seizure disorder discussed in Part II, the veteran's service medical records contain no evidence which demonstrates that a chronic headache disorder was manifested during service. Also, medical records dated following service fail to demonstrate that the veteran has ever had, or currently has a chronic headache disorder, or any headache disorder related to injuries he may have sustained during service. Lack of such evidence does not preclude the possibility that the veteran experienced occasional acute headaches during or following service, but no evidence has been submitted which demonstrates that the veteran currently has any type of chronic headache disorder related to his period of military service. As such, the veteran has not submitted a well- grounded claim for service connection for a headache disorder and his claim for this benefit also must be dismissed. ORDER Service connection for PTSD is denied. Evidence of a well-grounded claim for service connection for a seizure disorder not having been submitted, the veteran's appeal for this benefit is dismissed. Evidence of a well-grounded claim for service connection for a headache disorder not having been submitted, the veteran's appeal for this benefit is dismissed. CHARLES E. HOGEBOOM Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.