Citation Nr: 0003281 Decision Date: 02/09/00 Archive Date: 02/15/00 DOCKET NO. 98-05 776 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for residuals of a burn on the left hand. 3. Entitlement to service connection for migraine headaches. 4. Entitlement to service connection for residuals of a right leg injury. 5. Entitlement to service connection for a knee disorder. 6. Entitlement to service connection for an eyelid chalazion. 7. Entitlement to service connection for glaucoma. 8. Entitlement to service connection for hypertension. 9. Entitlement to service connection for diabetes mellitus. 10. Entitlement to service connection for anxiety, including post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD P. A. Kultgen, Associate Counsel INTRODUCTION The appellant had active service from February 1968 to February 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal of a December 1997 rating decision from the Los Angeles, California, Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for hypertension, eyelid chalazion, diabetes mellitus, low back condition, burn left hand, migraine headaches, glaucoma, right leg injury, knee condition, and mild anxiety. In his VA Form 9, substantive appeal, received in April 1998, the appellant stated that he wished to modify his claim for service connection for anxiety to include PTSD. By rating decision in March 1999, the RO denied service connection for PTSD. At the November 1999 hearing the appellant stated that he attributed a growth on his shoulder to Agent Orange exposure. Transcript, p. 11. In as much as such represents a claim for service connection for a growth on the shoulder, that issue is referred to the RO for further development and adjudication as necessary. FINDINGS OF FACT 1. The record contains no medical evidence of a current disability of the low back, left hand, right leg, or knees. 2. The record contains no current diagnosis of migraine headaches. 3. The record contains no competent medical evidence providing a nexus between the appellant's current diagnoses of glaucoma, chronic eyelid chalazion, hypertension, and diabetes mellitus and any incident of the appellant's military service, including reported exposure to Agent Orange. 4. The record contains no competent diagnosis of PTSD or any psychiatric disorder manifested by anxiety. CONCLUSION OF LAW The claims of entitlement to service connection for a low back disorder, residuals of a burn on the left hand, migraine headaches, residuals of a right leg injury, knee disorder, eyelid chalazion, glaucoma, hypertension, diabetes mellitus, and anxiety/PTSD are not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background The appellant's service entrance examination in February 1968 noted a blood pressure reading of 120/80 and a tattoo on the left arm. On a report of medical history, completed at that time, the appellant reported a history of high blood pressure. The appellant's service medical records in January 1971 note complaints of feeling nervous and difficulty sleeping. A diagnosis of mild anxiety was reported and medication was prescribed. On the appellant's separation medical examination in January 1971, the only noted abnormality was an identifying mark, scar or tattoo on the left forearm. Blood pressure reading was 130/82. No diagnoses or defects were noted. On a report of medical history, completed at the same time, the appellant denied a history of high blood pressure, eye trouble, back trouble, headaches, "trick" or locked knee, frequent trouble sleeping, frequent or terrifying nightmares, depression or excessive worry, loss of memory, and nervous trouble. The appellant's DD Form 214 noted that the served in the Republic of Vietnam from March 1969 to March 1970 and was awarded the Vietnam Service Medal and the Vietnam Campaign Medal, along with other commendations and medals. His specialty was listed as supply specialist, with civilian related occupation noted as stock clerk. The appellant's service personnel records indicate that he served as a supply clerk for Headquarters and Headquarters Troop, 2nd Squadron, 1st Cavalry from April 1969 to March 1970 in Vietnam. In June 1997, the appellant filed an initial claim for VA benefits for service connection for high blood pressure, a burn on the left hand, glaucoma, migraine headaches, surgically removed growth over the eye, diabetes mellitus, lower back pain, "nerves," a right leg injury, and knee conditions. In response to his claim, the RO sent letters in July 1997 requesting treatment records from J.S.L., M.D., R.B., M.D., P.J.C., M.D., and from the VA Medical Center (MC). The VAMC stated that the appellant had three outpatient appointments in 1990, but no medical documentation could be located for the appellant. By letter dated in January 1997, P.J.C., M.D., stated that he had evaluated the appellant for complaints of poor vision. Vision was 20/20 corrected in both eyes with new glasses. A slit lamp examination showed a chronic eyelid chalazion, but the remainder of the eye examination was normal. Dr. P.J.C. reported newly diagnosed glaucoma, currently under treatment. Treatment records from January to June 1997 noted a diagnosis of glaucoma and a history of excision of a sty or chalazion two-to-three years previous. A private treatment record, dated in February 1997, noted a history of hypertension, which the appellant stated was first diagnosed during military service. A blood pressure reading of 160/98 was reported. No history of diabetes mellitus was reported at that time, but the appellant reported increased thirst and urination. The physician noted a chalazion of the left upper eyelid. The physician reported diagnoses of hypertension and rule out diabetes mellitus and referred the appellant for an ophthalmology examination for glaucoma and a left upper lid chalazion. The physician reported a diagnosis of diabetes mellitus the following week. Treatment records, dated in March 1997, from Cedars Sinai Medical Center noted new onset of type II diabetes mellitus. In his notice of disagreement, received in March 1998, the appellant stated that his current disabilities were a result of exposure to Agent Orange during service in Vietnam. The appellant attached a letter from the U.S. Army and Joint Services Environmental Support Group (ESG) stating that B Troop, 2nd Squadron, 1st Cavalry, which the appellant stated was his unit, received mortar and sapper attack resulting in 6 personnel killed and 27 personnel wounded from July 4-10, 1969. The letter further noted the areas of herbicide defoliation missions from 1965 to 1970. The appellant also submitted copies of pharmacy information sheets noting that he was prescribed medication for treatment of diabetes mellitus and high blood pressure. The appellant submitted a report entitled "Summary of Reported Agent Orange Symptoms and Effects" and a press release apparently obtained from the VA Web page (www.va.gov), stating the uses of Agent Orange, VA services for Vietnam veterans, and VA responses to concerns about Agent Orange. In a statement attached to his VA Form 9, substantive appeal, received in April 1998, the appellant stated that approximately one week after arriving in Vietnam, he was sent to Pleiku, and a truck he was supposed to be on was ambushed and several individuals were wounded or killed, including two friends of the appellant. He reported that a few days later, while on patrol, he came across dead bodies, and he and his patrol became lost. The appellant stated that, while in Vietnam, he ran into two friends from high school and college, who had been wounded or had become "hysterical." He reported that he constantly thought of the attack in July 1969 that left six soldiers killed and approximately 30 wounded. The appellant noted that he saw herbicide defoliation spraying while he was in Vietnam. He stated that he had "reverential awes" whenever he heard choppers, war movies, killings, loud noises, or fights. In a statement received in April 1998, C.B. stated that he met the appellant while serving with B Troop, 2nd of the 1st Cavalry and later (October 1969) was placed under the appellant's charge in the rear area of Hq. & Hq. Company, 2nd of the 1st Cavalry. C.B. reported that he was the driver for the appellant and several times per week had to travel 40 miles to get supplies. At a hearing before the undersigned in November 1999, the appellant testified that he was first diagnosed with hypertension in 1997. He stated that hypertension was noted on his physical examination at service enlistment, but the physician attributed it to the excitement of entering military service. He reported that he was given Valium during service in Vietnam to calm him down and that one of the medics indicated surprise that the appellant was admitted to the military with high blood pressure. Transcript, p. 3. The appellant stated that his physician could not specify whether his hypertension was related to his service in Vietnam. Transcript, p. 4. The appellant testified that approximately ten years previous he had a growth on his eye and three surgeries were performed to remove it. He stated that he really began to have weak vision and eye problems after his diagnosis with diabetes. Transcript, p. 5. The appellant testified that he first began to experience symptoms of diabetes mellitus - thirst, slowness, and eye problems - in the early part of 1997. Transcript, p. 6. He stated that his glaucoma was due to diabetes. Transcript, p. 13. He stated that his physician had not offered an opinion as to when the diabetes started, but the appellant believed it had been present for "quite a while." Transcript, p. 7. The appellant testified that he injured his back and right leg/knee when he slid down a ravine in Vietnam and landed on a log. Transcript, pp. 8, 14. The appellant stated that the medic gave him some painkiller in the field and he received follow-up treatment at the aid station. Transcript, p. 8. He reported that he first sought treatment for his back and leg in 1997 and he attributed soreness prior to that time to working out. He noted that he was not presently receiving treatment for a back condition. Transcript, p. 9. The appellant reported that he experienced swelling in the knee, beginning in the 1980s. Transcript, p. 17. The appellant testified that he had no problems with his left knee and that the right leg condition claimed was the same as the knee condition claimed. The appellant testified that he burned his left hand, during service in Vietnam, in attempting to light a cigarette. Transcript, p. 9. He stated that a medic put some ointment on it, but he had no current limitation, no scar or any residuals from the burn to the hand. Transcript, pp. 10-11. The appellant testified that he had headaches for approximately 10 years, for which he took over-the-counter medication. He attributed these headaches to working out, worry, and Agent Orange exposure. Transcript, p. 11. He stated that his physician had attributed the headaches to diabetes and high blood pressure, but not to Agent Orange exposure. Transcript, p. 12. The appellant testified that, during service in Vietnam, he was in charge of supply for five troops, one of which was overrun. He stated that he was sent to that area and saw the bodies of friends. He reported that he was put on patrol once and his group became lost in the jungle. Transcript, pp. 17-18. He reported that he was treated for nervous trouble during service and was prescribed Valium, but he did not like the feeling that the medication caused. Transcript, p. 18. The appellant noted that he currently took no medication for anxiety. Transcript, p. 19. At the hearing the appellant submitted a copy of "Agent Orange Review," Vol. 15, No. 2 (August 1999). The review noted that a recently published National Institute for Occupational Safety and Health (NIOSH) morbidity study of two U.S. plants with TCDD-exposed production workers suggested a possible association between high levels of TCDD exposure and diabetes. (TCDD is the dioxin contaminant produced during the manufacture of one of the ingredients of Agent Orange.) The review further noted that the Australian government had recently recognized diabetes for service connection in Australian troops, who served in Vietnam. The review reported that a 1998 Institute of Medicine (IOM) update concluded that there was "inadequate or insufficient" evidence to determine whether an association exists between exposure to herbicides and diabetes mellitus and urged further research in the area. II. Analysis Service Connection Generally Service connection may be established where the evidence demonstrates that an injury or disease resulting in disability was contracted in the line of duty coincident with military service, or if pre-existing such service, was aggravated therein. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). Where certain diseases, such as hypertension, diabetes mellitus, and those affecting the organic nervous system, are manifested to a compensable degree within the initial post-service year, service connection may be granted on a presumptive basis. 38 U.S.C.A. §§ 1101, 1112 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.307, 3.309 (1999). When a disability is not initially manifested during service or within an applicable presumptive period, service connection may nevertheless be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in or aggravated by service. See 38 U.S.C.A. § 1113(b) (West 1991 & Supp. 1999); 38 C.F.R. § 3.303(d). The threshold question to be answered in the appellant's claim is whether he has presented evidence of a well-grounded claim. Under the law, a person who submits a claim for benefits shall have 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); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). A claim need not be conclusive but only possible to satisfy the initial burden of § 5107(a). Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). If a claim is not well grounded, the application for service connection must fail, and there is no further duty to assist the appellant in the development of his claim. 38 U.S.C.A. § 5107, Murphy, 1 Vet. App. 78 (1990). The United States Court of Appeals for the Federal Circuit (hereinafter "Federal Circuit" held that, "For a claim to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in[-]service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service [disease or injury] and the current disability. Where the determinative issue involves medical causation, competent medical evidence to the effect that the claim is plausible is required." Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997) quoting Epps v. Brown, 9 Vet. App. 341, 343-344 (1996); see 38 C.F.R. §§ 3.303, 3.307, 3.309; Caluza v. Brown, 7 Vet. App. 498, 506 (1995). For the purpose of determining whether a claim is well grounded, the credibility of the evidence is presumed. See Robinette v. Brown, 8 Vet. App. 69, 75 (1995). Service Connection for Disabilities Due to Exposure to Herbicide Agents Vietnam era service is from February 28, 1961 to May 7, 1975, for veterans, who served in the Republic of Vietnam during that time. A veteran who served in Vietnam between January 9, 1962 and May 7, 1975, and has a disease listed under §3.309(e) is presumed to have exposure to a herbicide agent during service, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during service. 38 C.F.R. § 3.307(6)(iii) (1999). The following diseases shall be service-connected, if a veteran was exposed to a herbicide agent during active military, naval, or air service, even though there is no record of such disease during service, provided that the requirements and limitations under § 3.307 are met: chloracne or other acneform disease consistent with chloracne; Hodgkin's disease; Non-Hodgkin's lymphoma; acute and sub- acute peripheral neuropathy; porphyria cutanea tarda; multiple myeloma, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and certain soft-tissue sarcomas. 38 C.F.R. § 3.309(e) (1999). Furthermore, the Secretary of the VA formally announced in the Federal Register, on January 4, 1994, that a presumption of service connection based on exposure to herbicides used in Vietnam was not warranted for certain conditions, or for "any other condition for which the Secretary has not specifically determined a presumption of service connection is warranted." 59 Fed. Reg. 341 (1994). None of the disabilities claimed by the appellant is subject to the presumption of service connection under 38 C.F.R. § 3.309(e). Notwithstanding the foregoing presumption, the Federal Circuit has held that specific VA regulations which provide for presumptive service connection do not preclude an appellant from establishing service connection with proof of actual, direct causation. Cf. Combee v. Brown, 34 F.3d 1039, 1040 (1995) (presumptive diseases due to radiation exposure). Service Connection for Low Back Disorder, Residuals of a Burn on the Left Hand, Migraine Headaches, Residuals of a Right Leg Injury, and Knee Disorder The record contains no medical evidence of a current disability of the low back, left hand, headaches, right leg, or knee. The appellant specifically testified at the November 1999 hearing that he had no current residuals of the left hand. The appellant reported intermittent pain in the lower back and right knee, but reported no diagnosis of a current disability. In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board recognizes that there is no duty to assist in a claim's full development if a well-grounded claim has not been submitted. See Morton v. West, 12 Vet. App. 477, 480 (1999). However, the United States Court of Appeals for Veterans Claims (known as the United Stated Court of Veterans Appeals prior to March 11, 1999) (hereinafter, "the Court") has held that there is some duty to inform the veteran of the evidence necessary for the completion of an application for benefits, under 38 U.S.C.A. § 5103 (West 1991), even where the claim appears to be not well grounded. Beausoleil v. Brown, 8 Vet. App. 459, 465 (1996); Robinette, 8 Vet. App. at 79-80. The appellant has not identified any medical evidence that has not been submitted or obtained, which would support a well-grounded claim. Although the appellant reported treatment for headaches in connection with his diabetes mellitus and hypertension, the records of treatment for these conditions note no complaints or diagnoses of headaches. Thus, VA has satisfied its duty to inform the appellant under 38 U.S.C.A. § 5103(a). See Slater v. Brown, 9 Vet. App. 240, 244 (1996). Service Connection for Eyelid Chalazion, and Glaucoma The appellant has submitted evidence of current diagnoses of eyelid chalazion and glaucoma. Newly diagnosed glaucoma and a chronic eyelid chalazion were noted by Dr. P.J.C. in January 1997. There is no evidence of record that the appellant's glaucoma was manifest to a compensable degree within the initial post- service year presumptive period. The first diagnosis of glaucoma was in 1997, twenty-six years after discharge from service. The appellant's service medical records contain no record of any complaints, diagnoses, or opinions of any eye problems or pathology. In addition, the record contains no competent medical evidence providing a nexus between the appellant's currently diagnosed glaucoma and chronic eyelid chalazion and any incident of service, including the appellant's reported exposure to Agent Orange. As noted previously, the Board recognizes that, although there is no duty to assist in a claim's full development if a well-grounded claim has not been submitted, there is some duty to inform the appellant of the evidence necessary for the completion of an application for benefits, even where the claim appears to be not well grounded. See Morton, 12 Vet. App. at 480; Beausoleil, 8 Vet. App. at 465; Robinette, 8 Vet. App. at 79-80. The appellant has not identified any medical evidence that has not been submitted or obtained, which would support a well-grounded claim by showing a nexus between the appellant's current glaucoma and chronic eyelid chalazion and any incident of his military service. Thus, VA has satisfied its duty to inform the appellant under 38 U.S.C.A. § 5103(a). See Slater, 9 Vet. App. at 244. Service Connection for Hypertension The appellant has submitted evidence of a current diagnosis of hypertension. A diagnosis of hypertension was noted on private treatment records in February 1997. There is no evidence of record that the appellant's hypertension was manifest to a compensable degree within the initial post-service year presumptive period. The first diagnosis of record of hypertension was in 1997, twenty-six years after discharge from service. The appellant's service medical records contain no diagnosis of hypertension. The appellant reported that a medic told him that he had high blood pressure during service, but the Court has recognized that the statement of a appellant as to what a doctor told him is insufficient to establish a medical diagnosis. Warren v. Brown, 6 Vet. App. 4, 6 (1993). In addition, the record contains no competent medical evidence of a nexus between the appellant's current diagnosis of hypertension and any incident of his military service. Although the appellant reported a history of hypertension since service, a bare transcription of a lay history is not transformed into "competent medical evidence" merely because the transcriber happens to be a medical professional. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The appellant's private physician offered no opinion as to any possible connection between the appellant's current diagnosis of hypertension and blood pressure readings during service. The appellant is not competent to provide an opinion as to the onset or etiology of his current diagnosis of hypertension. See Savage v. Gober, 10 Vet. App. 489, 497 (1997); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The appellant has not identified any medical evidence that has not been submitted or obtained, which would support a well-grounded claim by showing a nexus between the appellant's current hypertension and any incident of his military service. Thus, VA has satisfied its duty to inform the appellant under 38 U.S.C.A. § 5103(a). See Slater, 9 Vet. App. at 244. Service Connection for Diabetes Mellitus The appellant has submitted evidence of a current diagnosis of diabetes mellitus. Private treatment records in February and March 1997 reported a new onset of type II diabetes mellitus. There is no evidence of record that the appellant's diabetes mellitus was manifest to a compensable degree within the initial post-service year presumptive period. The first diagnosis of diabetes mellitus was in 1997, twenty-six years after discharge from service. The appellant's service medical records contain no diagnosis of diabetes mellitus. In addition, the record contains no competent medical evidence of a nexus between the appellant's current diagnosis of diabetes mellitus and any incident of his military service, to include reported exposure to Agent Orange. The private physician, treating the appellant, provided no opinion as to the etiology of the appellant's diabetes mellitus. The appellant testified that the physician had never offered an opinion as to the etiology of the appellant's diabetes mellitus. The appellant is not competent to provide an opinion as to the onset or etiology of his current diagnosis of diabetes mellitus. See Savage, 10 Vet. App. at 497; Grottveit, 5 Vet. App. at 93; Espiritu, 2 Vet. App. at 494. Although the "Agent Orange Review," submitted by the appellant at the November 1999 hearing, noted studies which suggested a possible association between Agent Orange exposure and diabetes mellitus, "medical treatise" statements that indicate the possibility of a link between in-service injury and current disability are too general and inconclusive to make a claim well grounded. Sacks v. West, 11 Vet. App. 314, 316 (1998); see also Beausoleil, 8 Vet. App. at 463. The holding in Sacks does not extend to situations where medical treatise evidence, standing alone, discusses generic relationships with a degree of certainty that, under the facts of the specific case, there is at least plausible causality based upon objective facts rather than on a lay medical opinion. Wallin v. West, 11 Vet. App. 509, 513-514 (1998); Sacks, 11 Vet. App. at 317. In this case, the medical evidence summarized in the "Agent Orange Review" provided only the possibility of such a link, but was found to be "inadequate or insufficient" to determine if an association existed between herbicide exposure and diabetes mellitus. The report noted that further study and research was necessary. Such evidence does not discuss the "generic relationships" with the requisite degree of certainty to provide a plausible claim for service connection for diabetes mellitus, under the facts of the instant case. The appellant has not identified any medical evidence that has not been submitted or obtained, which would support a well-grounded claim by showing a nexus between the appellant's current diabetes mellitus and any incident of his military service. Thus, VA has satisfied its duty to inform the appellant under 38 U.S.C.A. § 5103(a). See Slater, 9 Vet. App. at 244. Service Connection for Anxiety/PTSD The Board notes that, shortly before the appellant filed the instant claim, VA regulations concerning the type of evidence required to establish service connection for PTSD, were amended, effective March 7, 1997. 64 Fed. Reg. 32807 (June 18, 1999) (codified at 38 C.F.R. § 3.304(f)). Adjudication of a well-grounded claim for service connection for PTSD requires the evaluation of the evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran's military records, and all pertinent medical and lay evidence. See 38 U.S.C. § 1154(a) (West 1991); 38 C.F.R. §§ 3.303(a), 3.304(f) (1996); Hayes v. Brown, 5 Vet.App. 60, 66 (1993). Under the new regulation, service connection for PTSD requires: 1) Medical evidence diagnosing the condition; 2) A link, established by medical evidence, between current symptoms and an inservice stressor; and 3) Credible supporting evidence that the claimed inservice stressor occurred. 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 inservice stressor. 38 C.F.R § 3.304(f) (1999). The record contains no medical evidence diagnosing PTSD. Further, the record contains no medical evidence diagnosing any psychiatric condition manifested by anxiety. In the absence of proof of a present disability there can be no valid claim. Brammer, 3 Vet. App. at 225. The appellant has not identified any medical evidence that has not been submitted or obtained, which would support a well-grounded claim. He has identified no treatment for any psychiatric condition. Thus, VA has satisfied its duty to inform the appellant under 38 U.S.C.A. § 5103(a). See Slater, 9 Vet. App. at 244. ORDER Entitlement to service connection for low back disorder, residuals of a burn on the left hand, migraine headaches, residuals of a right leg injury, knee disorder, eyelid chalazion, glaucoma, hypertension, diabetes mellitus, and anxiety/PTSD is denied. John E. Ormond, Jr. Member, Board of Veterans' Appeals