Citation Nr: 0001302 Decision Date: 01/14/00 Archive Date: 01/27/00 DOCKET NO. 96-06 254 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Whether new and material evidence has been submitted to reopen the appellant's claim for entitlement to service connection for an acquired psychiatric disorder, including schizophrenia and post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. C. Graham, Counsel INTRODUCTION The appellant served on active duty from June 1966 to June 1968. The instant appeal as to the tinnitus claim arose from a September 1994 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in San Juan, Puerto Rico, which, in part, denied a claim for service connection for tinnitus. The Board of Veterans' Appeals (Board) notes that the veteran had also initiated appeals as to the other issues adjudicated in that rating action. However, by written statement dated in April 1996, the veteran withdrew his appeals as to those claims. 38 C.F.R. § 20.204 (1999). The instant appeal as to the psychiatric disorder claim arose from a July 1996 rating decision which found that new and material evidence adequate to reopen the psychiatric disorder claim had not been submitted. FINDINGS OF FACT 1. The evidence of record does not suggest an etiological relationship between the veteran's current complaints of tinnitus and his period of active military service, to include exposure to noise from artillery fire therein. 2. In a May 1990 decision the Board denied service connection for a chronic psychiatric disorder, including PTSD. 3. The evidence submitted since the May 1990 Board decision is new and bears directly and substantially on the question of whether an acquired psychiatric disorder was incurred in or aggravated by service. 4. The service medical records do not show that the veteran incurred a chronic acquired psychiatric disorder in service, and a psychosis was not manifest to a compensable degree within one year of separation. 5. The veteran was diagnosed with PTSD and schizophrenia after service. 6. The veteran did not engage in combat with the enemy. 7. There is no credible supporting evidence that the in- service stressors claimed by the veteran actually occurred. 8. There is no competent medical evidence of a nexus between schizophrenia and service. CONCLUSIONS OF LAW 1. A well grounded claim for service connection for tinnitus has not been presented. 38 U.S.C.A. § 5107 (West 1991). 2. The May 1990 Board decision, which denied service connection for a chronic psychiatric disorder, was final. 38 U.S.C.A. §§ 7103(a), 7104(b) (West 1991 & West Supp. 1999); 38 C.F.R. § 20.1100 (1999). 3. The evidence submitted to reopen the claim for service connection for an acquired psychiatric disorder is new and material and the claim is reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1999). 4. The claim of entitlement to service connection for an acquired psychiatric disorder, excluding PTSD, is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 5. PTSD was not incurred during the veteran's active military or naval service. 38 U.S.C.A. §§ 1110, 1154(b), 5107(a) (West 1991); 38 C.F.R. § 3.304(f) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection for tinnitus The appellant contends, in substance, that service connection is warranted for tinnitus because that disorder began during his period of active duty and has continued intermittently to the present. Under 38 U.S.C.A. § 1110, compensation will be provided if it is shown that the veteran suffers from a disease or injury incurred in or aggravated by service. In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). Before service connection may be decided, however, the initial question for resolution is whether the veteran has submitted a well-grounded claim in accordance with 38 U.S.C.A. § 5107 (West 1991), and Murphy v. Derwinski, 1 Vet. App. 78 (1990). "[I]n order for a claim to be well grounded, there must be competent evidence of a current disability (a medical diagnosis); of incurrence or aggravation of a disease or injury in service (lay or medical evidence); and of a nexus between the in-service disease or injury and the current disability (medical evidence)." Caluza v. Brown, 7 Vet. App. 498, 506 (1995)(citations omitted). In regard to establishing a well-grounded claim, the second and third Caluza elements (incurrence and nexus evidence) can also be satisfied under 38 C.F.R. § 3.303(b) (1999) by (1) evidence that a condition was "noted" during service or during an applicable presumption period; (2) evidence showing post-service continuity of symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Only if the claimant submits a well-grounded claim does VA have the duty to assist him in developing the facts pertinent to that claim. 38 U.S.C.A. § 5107(a) (West 1991); Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997); Morton v. West, 12 Vet. App. 477 (1999). A review of the service medical records was negative for tinnitus. A review of the post-service medical evidence first shows that the veteran reported tinnitus in October 1990 "of several days duration." A follow-up VA ear, nose, and throat consultation assessed intermittent tinnitus. Subsequent VA treatment records also show a diagnosis of tinnitus. During his March 1998 personal hearing, the veteran testified that he developed "a whistle" in his ear six months after arriving in Vietnam. He stated that he was exposed to noise from a runway and to noise from mortar blasts. He testified that he heard the buzzing or whistling in his ear off and on, and he reported that his symptoms were greater in the left ear. The Board finds that the veteran's claim of entitlement to service connection for tinnitus is not well grounded because there is no medical evidence of a nexus between his currently assessed tinnitus and service, including exposure to noise in service. As regards continuity of symptomatology under 38 C.F.R. § 3.303(b), while the veteran has reported that he continued to have intermittent tinnitus after service, medical evidence is required to link presently diagnosed tinnitus with post-service symptoms. Savage, 10 Vet. App. at 497-98. The veteran's wartime service is noted; however, the provisions of 38 U.S.C.A. § 1154 are for consideration if the merits stage of the analysis is reached and do not assist the veteran in establishing the threshold requirement for evidence which connects the current disability to injury or disease during active service. See Arms v. West, 12 Vet. App. 188, 197 (1999); Kessell v. West 13 Vet. App. 9 (1999). There are no post-service treatment records showing complaints or a diagnosis for tinnitus until 1990. Thus, there is no medical evidence which corroborates the veteran's contention that tinnitus has been manifested since service. There are no records showing treatment for complaints of tinnitus between the late 1960's and 1990. In the absence of records showing ongoing and continuing treatment for ringing in the ears, there is no medical evidence which suggests that the current manifestation of tinnitus is etiologically related to the veteran's period of service, or that tinnitus had its onset therein. The appellant, as a layman, is not competent to offer opinions on medical causation, and the Board may not accept unsupported lay speculation with regard to medical issues. See Espiritu v. Derwinski, 2 Vet. App. 482 (1992). Furthermore, lay assertions of medical causation or medical diagnosis cannot constitute evidence to render a claim well grounded. Lathan v. Brown, 7 Vet. App. 359, 365 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). For these reasons, the Board finds that the available evidence is not indicative of a positive relationship between the veteran's current complaint of tinnitus and his period of active military service which ended in 1968. The Board views its discussion above sufficient to inform the appellant of the elements necessary to complete his application for service connection for tinnitus. Robinette v. Brown, 8 Vet. App. 69 (1995). Whereas the Board has determined that the appellant's claim for service connection is not well grounded, VA has no further duty to assist the appellant in developing facts in support of this claim. Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). Although where a claim is not well grounded VA does not have a statutory duty to assist a claimant in developing facts pertinent to the claim, VA may be obligated under 38 U.S.C.A. § 5103(a) to advise a claimant of evidence needed to complete his application. This obligation depends on the particular facts of the case and the extent to which the Secretary has advised the claimant of the evidence necessary to be submitted with a VA benefits claim. Robinette v. Brown, 8 Vet. App. 69 (1995). Here, the appellant had not made VA aware of specific, additional evidence that is not of record which could serve to well ground his claim. The RO fulfilled its obligation under section 5103(a) in a November 1995 statement of the case which informed the appellant that the reason his claim for tinnitus had been denied was that there was no evidence to show that his tinnitus was related to service. As the appellant has not submitted the necessary medical opinion or other evidence in support of his claim, it must be considered not well grounded. 38 U.S.C.A. §§ 1310, 5107 (West 1991); 38 C.F.R. §§ 3.312, 20.101 (1998). Since this claim is not well grounded, it must, accordingly, be denied. Grottveit v. Brown, 5 Vet. App. 91 (1993); Boeck v. Brown, 6 Vet. App. 14 (1993). New and material evidence for an acquired psychiatric disorder Generally, a final decision issued by the Board may not thereafter be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C.A. §§ 7103(a), 7104(b) (West 1991 & West Supp. 1999); 38 C.F.R. § 20.1100 (1999). One exception to this rule is 38 U.S.C.A. § 5108 (West 1991), which states, in part, that "[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim." See Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991). 38 C.F.R. § 3.156(a) (1999) indicates that "new and material evidence" means evidence not previously submitted to agency decision makers which bears "directly and substantially" upon the specific matter under consideration. Such evidence must be neither cumulative nor redundant, and, by itself or in connection with evidence previously assembled, such evidence must be "so significant that it must be considered in order to fairly decide the merits of the claim." See generally Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The Board observes that service connection for a psychiatric disorder, diagnosed as paranoid schizophrenia, was initially denied in a May 1972 rating decision on the basis that the service medical records were silent for any psychiatric disorder and that schizophrenia was first manifested over a year after the veteran's separation from service. The veteran was informed of that decision, so the denial became final. 38 C.F.R. § 20.302(a) (1999). The veteran reported that he was treated in service for psychiatric problems at Madigan General Hospital. The RO developed records from Madigan General Hospital which revealed that the veteran had been hospitalized for an accidental, self-inflicted stab wound in 1968. The available records to not show complaints, treatment, or diagnosis of a psychiatric disorder as regards that incident. Numerous subsequent rating decisions denied the veteran's claims to reopen his claim for service connection for a psychiatric disorder. The record reveals that the veteran was notified of these decisions, thus they are final. In the early 1980s the veteran first sought service connection for PTSD. He reported numerous stressors which he asserted had occurred while he was in combat in Vietnam. The first medical evidence of a diagnosis of PTSD was a VA hospitalization record dated in 1985. By rating decision dated in June 1987, service connection for PTSD was denied. The veteran appealed that decision, and in a May 1990 decision, the Board denied the claim for service connection for a chronic psychiatric disorder, including PTSD. Thereafter, the appellant filed a claim to reopen the claim for service connection for an acquired psychiatric disorder, including PTSD. The question in this case is whether new and material evidence has been submitted since the May 1990 Board decision which would be sufficient to reopen the claim. In this case, evidence which was not of record at the time of the prior final denial included VA and private medical records dated from 1987 to 1998. The veteran also addressed his psychiatric disorder claim during his sworn RO hearing testimony in March 1998. The Board has taken particular note of the evaluation report of a private psychiatrist, dated in February 1998, which noted recurrent thoughts, sleep disturbances and flashbacks related to the veteran's Vietnam experiences and diagnosed PTSD. The Board observes that this evidence is new to the record, and, in view of the less stringent standard for materiality set forth in Hodge, the Board finds that this new evidence bears directly and substantially on the question of whether the veteran incurred a chronic psychiatric disorder as a result of service. Accordingly, the veteran's claim for service connection for an acquired psychiatric disorder is reopened. Having reopened the veteran's claim for service connection for an acquired psychiatric disorder, including PTSD, the Board observes that the next step following the reopening of the veteran's claim is consideration of the claim on a de novo basis. In this regard, the Board would point out that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110, 1131 (West 1991); 38 C.F.R. § 3.303(a) (1999). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1999). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). In Elkins v. West, 12 Vet. App. 209 (1999), the Court held that once a claim for service connection has been reopened upon the presentation of new and material evidence, the VA must determine whether, based upon all of the evidence of record, the claim is well grounded pursuant to 38 U.S.C.A. § 5107(a) (West 1991). Only after a determination that the claim is well grounded may the VA proceed to evaluate the merits of the claim, provided that the VA's duty to assist the veteran with the development of facts pertinent to his claim under 38 U.S.C.A. § 5107(a) (West 1991) has been fulfilled. See Winters v. West, 12 Vet. App. 203 (1999); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). The Board would point out that in a case where the underlying claim subject to reopening is clearly not well grounded, generally presuming the credibility of the evidence of record, a remand for application of 38 C.F.R. § 3.156(a) (1999) and Hodge is unnecessary because the failure to apply this regulation under such circumstances would not be prejudicial to the claimant. Winters, at 207. See 38 U.S.C.A. § 7261(b) (West 1991) (the Court shall take due account of prejudicial error); see also Edenfield v. Brown, 8 Vet. App. 384, 390-91 (1995); Bernard v. Brown, 4 Vet. App. 384, 394 (1993); cf. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). However, in this case, the 38 C.F.R. § 3.156(a) (1999) and Hodge standard was applied in the supplemental statement of the case dated in October 1998. The veteran has "the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual" that a claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991); Robinette v. Brown, 8 Vet. App. 69, 73 (1995). A well-grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of § [5107]." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). In the absence of evidence of a well-grounded claim, there is no duty to assist the claimant in developing the facts pertinent to his claim, and the claim must fail. See Grivois v. Brown, 6 Vet. App. 136, 140 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). To establish that a claim for service connection is well grounded, a veteran must demonstrate "medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury." Savage v. Gober, 10 Vet. App. 488, 493 (1997); see Epps v. Gober, 126 F.3d 1464, 1468-69 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); see also Grottveit v. Brown, 5 Vet. App. at 93. The nexus requirement may be satisfied by evidence showing that a chronic disease subject to presumptive service connection was manifested to a compensable degree within the prescribed period. See Traut v. Brown, 6 Vet. App. 495, 497 (1994); Goodsell v. Brown, 5 Vet. App. 36, 43 (1993). Acquired psychiatric disorder other than PTSD The Board finds the veteran's claim for service connection for an acquired psychiatric disorder, other than PTSD, to be not well grounded. There is no evidence that a chronic psychiatric disorder was incurred in service or that a psychosis was manifest to a compensable degree within one year of separation. The veteran's service medical records do not show a chronic psychiatric disorder, and no such disorder was found at the time of his separation examination. While the record does reveal that the veteran has been diagnosed with a psychosis, namely schizophrenia, there is no medical evidence which shows that it was manifest to a compensable degree within one year of service. 38 C.F.R. §§ 3.307, 3.309 (1999). Also, the veteran's claim for service connection for schizophrenia is not well grounded because the evidence of record reveals no nexus between the currently diagnosed schizophrenia and service. The Board views its discussion above sufficient to inform the appellant of the elements necessary to complete his application for service connection for an acquired psychiatric disorder other than PTSD. Robinette v. Brown, 8 Vet. App. 69 (1995). Whereas the Board has determined that the appellant's claim for service connection for an acquired psychiatric disorder other than PTSD, is not well grounded, VA has no further duty to assist the appellant in developing facts in support of that claim. Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). Although where a claim is not well grounded VA does not have a statutory duty to assist a claimant in developing facts pertinent to the claim, VA may be obligated under 38 U.S.C.A. § 5103(a) to advise a claimant of evidence needed to complete her application. This obligation depends on the particular facts of the case and the extent to which the Secretary has advised the claimant of the evidence necessary to be submitted with a VA benefits claim. Robinette v. Brown, 8 Vet. App. 69 (1995). Here, the appellant had not made VA aware of specific, additional evidence that is not of record which could serve to well ground his claim. As the appellant has not submitted the necessary medical opinion or other evidence in support of this claim, it must be considered not well grounded. 38 U.S.C.A. §§ 1310, 5107 (West 1991); 38 C.F.R. §§ 3.312, 20.101 (1999). Since this claim is not well grounded, it must, accordingly, be denied. Grottveit v. Brown, 5 Vet. App. 91 (1993); Boeck v. Brown, 6 Vet. App. 14 (1993). PTSD A well-grounded claim for PTSD requires the submission of medical evidence of a current disability; lay evidence (presumed to be credible for these purposes) of an in-service stressor, which in a PTSD case is the equivalent of in- service incurrence or aggravation; and medical evidence of a nexus between service and the current PTSD disability. Cohen v. Brown, 10 Vet. App. 128, 137 (1997). The veteran's file contains VA and private treatment records diagnosing PTSD, the veteran's allegations of various in-service stressful events related to his duty in Vietnam, and a statement from a private physician relating the PTSD diagnosis to the events reported by the veteran. Accordingly, his claim must be considered well-grounded. Upon review, the Board is satisfied that all relevant facts have been properly and sufficiently developed. Accordingly, no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Having presented a well-grounded claim, the veteran must fulfill additional regulatory requirements before service connection for PTSD may be granted. These include the requirements of competent medical evidence establishing a diagnosis of PTSD which conforms to DSM-IV and is supported by examination report findings, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between the veteran's current symptoms and the claimed in-service stressor. See 38 C.F.R. §§ 3.304(f), 4.125(a) (1999); Cohen, 10 Vet. App. at 137-138. As noted above, the medical evidence of record contains both diagnoses of PTSD and opinions of mental health care providers linking the diagnoses to the stressors related by the veteran. Accordingly, if the veteran's stressors can be confirmed, service connection must be granted. The veteran's statements offer a number of potential stressors. These include working as a guard, recovering bodies, and assisting the injured, sometimes under heavy fire, and seeing friends die. Relevant portions of the veteran's military personnel file were obtained by the RO from the National Personnel Record Center (NPRC). These show that the veteran was assigned to Vietnam with 171st Trans. Det. from January 1967 to February 1968. He received the Vietnam Campaign Medal and the Vietnam Service Medal for his service there. His primary duty during this time was as a supply and parts specialist, and there is no indication he was trained for or performed any other duty. The veteran testified during his hearing that he was assigned to guard duties. The veteran's service personnel records do not indicate that any the veteran was involved in combat in any way. Accordingly, no inference of combat can be drawn from the veteran's service records. The veteran does not claim to have been wounded, and there are no reports of wounds or treatment of any stress-related condition in the veteran's service medical records. Based on all the above, the Board finds initially that the veteran did not "engage[] in combat with the enemy" within the meaning of 38 U.S.C.A. § 1154(b). There is no evidence, other than the veteran's testimony and written statements, which could support such a finding, and there is substantial evidence, in the form of service administrative records showing that the veteran was assigned to essentially administrative duties, which supports a conclusion that he did not participate in combat. See Gaines v. West, 11 Vet. App. 353, 359 (1998). Accordingly, his testimony concerning the alleged stressors may not be accepted, standing alone, as sufficient proof of their occurrence. Id. The Board further finds that none of the other evidence in the claims file constitutes "credible supporting evidence," required by 38 C.F.R. § 3.304(f), that the veteran's stressor actually occurred. Corroborating the existence of a stressor need not be limited to that which is available in service department records. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Doran v. Brown, 6 Vet. App. 283, 288- 291 (1994). In this vein, the Board notes that a number of VA and private mental health care providers have accepted the veteran's reports of "combat" in Vietnam. However, credible supporting evidence of the occurrence of an in-service stressor cannot consist solely of after-the-fact reports of such stressors by the veteran to a medical care provider, even where the provider expresses "no doubts as to [the veteran's] honesty in his reports." See Moreau, 9 Vet. App. at 395-6. Accordingly, in the absence of evidence to support the veteran's alleged in-service stressors, service connection for PTSD must be denied. 38 C.F.R. § 3.304(f) (1999). The Board finds that the preponderance of the evidence is against the claim for service connection in this case and, accordingly, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107(b) (West 1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A claim for entitlement to service connection for tinnitus is denied. New and material evidence having been submitted, the claim for service connection for an acquired psychiatric disorder, including schizophrenia and PTSD, is reopened. A claim for entitlement to service connection for an acquired psychiatric disorder, including schizophrenia and PTSD, is denied. C. P. RUSSELL Member, Board of Veterans' Appeals