Citation Nr: 0001368 Decision Date: 01/14/00 Archive Date: 01/27/00 DOCKET NO. 94-17 033 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana THE ISSUES 1. Entitlement to service connection for a skin disorder, as secondary to exposure to Agent Orange. 2. Entitlement to service connection for a psychiatric disorder, claimed as post-traumatic stress disorder (PTSD). 3. Whether new and material evidence has been submitted to reopen the claim of service connection for a right knee disorder. REPRESENTATION Appellant represented by: Montana Veterans Affairs Division WITNESS AT HEARINGS ON APPEAL Veteran ATTORNEY FOR THE BOARD C. Crawford, Counsel INTRODUCTION The veteran had active service from January 1971 to January 1975. The veteran thereafter served as a member in the United States Air Force National Guard of Montana. In a December 1992 rating decision, the RO denied entitlement to service connection for PTSD, bilateral hearing loss, a low back disorder, a right knee disorder, a right elbow disorder, and residuals of exposure to Agent Orange, toxic chemicals, and radioactivity. That same month the veteran disagreed with the denials, except for the denial of service connection for a back disorder and right knee disorder. In June 1993 a statement of the case was issued to the veteran and at his personal hearing in November 1993, he perfected the appeal. During the hearing, the veteran also disagreed with the denial of service connection for a low back disorder and raised the issue of service connection for a left knee disorder. In March 1994, effectuating the hearing officer's decision, the RO granted service connection for low back strain and rated the disability at 10 percent effective April 1, 1991, but confirmed and continued the denials of entitlement to service connection for the hearing loss, PTSD, a right elbow disorder, and exposure to toxic chemicals disorders. The hearing officer also denied entitlement to service connection for the veteran's back and left knee disorders. On appellate review in January 1997 the Board of Veterans' Appeals (Board) denied entitlement to service connection for bilateral hearing loss and residuals of exposure to toxic chemicals. The issues of entitlement to service connection for PTSD and left knee and right elbow disorders were remanded for additional development. (The Board noted that the issue of entitlement to service connection for a left knee disorder had been certified for appeal and as such, was ripe for appellate review.) The Board also referred the issue of service connection for residuals of Agent Orange exposure to the RO for appropriate development. In an August 1998 rating action, the RO denied entitlement to service connection for a skin disorder as secondary to Agent Orange exposure and determined that new and material evidence had not been presented to reopen the claim of entitlement to service connection for a right knee disorder. The veteran thereafter perfected an appeal associated with that rating determination. Regarding these claims, on substantive appeal in January 1999, the veteran indicated that he wanted to appear at a travel board hearing. Thereafter, a report of contact indicates that the veteran's request for a travel board hearing pertained only to the issues of entitlement to a skin disorder and a right knee disorder. In September 1999, however, the veteran indicated that he did not want a hearing with regard to the PTSD issue and stated that he wanted his claim transferred to the Board for immediate disposition. Considering the foregoing, the Board finds that the veteran has an outstanding request for a travel board hearing with regard to the skin and right knee issues. As such, the matters are addressed in the remand portion of the decision. It is also noted that in September 1999, the RO granted service connection for low back strain, a left knee disorder with degenerative changes due to trauma, and right elbow disability. Because the issues in controversy for those claims have been resolved, i.e., entitlement to service connection, the claims are no longer on appeal before the Board. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); 38 U.S.C.A. § 7105(d)(5) (West 1991). In November 1999, the RO received an additional statement from the veteran and duplicative medical evidence referable to his disorders. Any pertinent evidence submitted by the appellant or representative which is accepted by the Board, under the provisions of this section, as well as any such evidence referred to the Board by the originating agency under § 19.37(b) of this chapter, must be referred to the agency of original jurisdiction for review and preparation of a Supplemental Statement of the Case. 38 C.F.R. § 20.1304 (1999). However, upon review of the evidence, the Board finds that it is repetitive and duplicative of evidence previously assembled; therefore, the provisions of 38 C.F.R. § 20.1304 are inapplicable. FINDINGS OF FACT 1. The probative and persuasive medical evidence fails to demonstrate a current diagnosis of PTSD or a clear, current diagnosis of PTSD. 2. Dysthymia has been associated with the veteran's military service. CONCLUSION OF LAW The veteran's dysthymia, claimed as PTSD, was incurred in military service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303(b) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Law and Regulations Service connection may be established for a disability resulting from personal injury incurred or disease contracted in the line of duty or for aggravation of a preexisting injury or disease. 38 U.S.C.A. § 1110. The regulations state that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Continuity of symptomatology is required where the condition noted in service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The law and regulations provide that service connection may also be granted for a chronic disease, including psychoses, if manifest to a degree of 10 percent or more within one year from the date of separation from such service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.307, 3.309 (1999). Pursuant to 38 U.S.C.A. § 5107(a), an appellant 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); Robinette v. Brown, 8 Vet. App. 69, 73 (1995); Anderson v. Brown, 9 Vet. App. 542, 545 (1996). A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). For a claim to be well grounded, there must be (1) competent evidence of current disability (a medical diagnosis), (2) of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and (3) of a nexus between the in- service injury or disease and the current disability (medical evidence.) Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). In the alternative, there must be evidence that shows that a veteran had a chronic condition in service, or during an applicable presumptive period, and still has such condition. See Savage v. Gober, 10 Vet. App. 488 (1997). For PTSD, a well-grounded claim requires the presence of three elements: (1) medical evidence of a current disability; (2) 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 (3) medical evidence of a nexus between service and the current PTSD disability. However, eligibility for a PTSD service connection award requires more; specifically, (1) a current, clear medical diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. See Gaines v. West, 11 Vet. App. 353 (1998); Cohen (Douglas) v. Brown, 10 Vet. App. 128 (1997); see also Caluza, supra; cf. 38 C.F.R. § 3.304(f) (1999) (The regulation does not require "clear" diagnosis). The presumption of credibility is presumed when determining whether a claim is well grounded. See Robinette v. Brown, 8 Vet. App. 69, 75-76 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). The presumption of credibility does not apply where a fact asserted is beyond a person's competency or where the evidence is inherently false. Samuels v. West, 11 Vet. App. 433 (1998). Factual Background On his August 1992 Report of Medical History associated with his service as a member in the reserves, the veteran noted that he had symptoms of depression and excessive worrying and stated that he saw a psychiatrist for delayed stress syndrome from Vietnam. However, on that same report, the examiner noted that the veteran denied a personal or familial history of psychosis and history of disturbances of consciousness. It is also noted that service medical records associated with the veteran's active duty are silent with regard to a psychiatric disorder. The service administrative records, particularly the DD-214, show that the veteran received the National Defense Service Medal, Vietnam Service Medal, and Vietnam Commendation Medal. The Enlisted Performance Record shows that throughout his tour from September 1971 to January 1975, the veteran served on the USS Long Beach CCN9. Although on VA examination for pain syndrome in March 1993 assessments made included history of PTSD, VA hospital reports show that from April to May 1993 the veteran was hospitalized for depression and multiple somatic complaints. On hospital admission, it was noted that the veteran had classic symptomatology of a depressive disorder, probably secondary to marital problems and being unable to work and be a productive person, which had caused him to lose his feelings of worthwhileness. Previously, the veteran was a productive individual who had provided for his family but now he was unable to do so. As such, he had developed a symptom complex of depression. The discharge diagnoses included depressive disorder. In November 1993, December 1993, and February 1995 statements, T. R., a Veterans Outreach Counselor with a Masters in Education, essentially recalled that the veteran was assigned to the Nuclear Cruiser "The Longbeach" for three nine month tours from 1971 to 1974. T. R. noted that the mission of the ship was to patrol the Gulf of Tonkin off the North Vietnamese coast, to provide radar support for air strikes into North Vietnam military targets, and to provide for radar support for detecting incoming missile and aircraft attacks coming from North Vietnam against the Longbeach or other American or ally ships. While aboard, the veteran worked as a machinist mate, member of missile and gun crew, stood watch to detect any enemy aircraft or ships, and provided support for destroying enemy ground targets. The veteran was also involved in attacks by enemy aircraft, attacks by two North Vietnamese gunboats, and attacking North Vietnam with missiles and guns. Many of the sites were located near villages and during these attacks many civilians were killed or injured, including women and children. In the interview, the veteran also recalled incidents when he had found a friend who had hung himself in a compartment of the ship, when the ship lost power while he was seven docks down and he had no light to return to the ship's deck, and when the ship was fired upon by surface-to-air missiles and artillery. The veteran further added when he returned from abroad, he was spat upon, called names, and made to feel ashamed. The counselor then noted that the veteran had severe depression and that his situations in Vietnam were outside the realm of human experience. The veteran had sleep deprivation for long hours, feared for his life at times, and felt sheer terror. He re-experienced combat traumas by flashbacks and dreams of situations associated with combat tours. The veteran also indicated that when seeing pictures of ships or when near bodies of moving water the same feelings of terror as in combat were aroused. He became very distressed, avoided any association with stimuli associated with Vietnam, and suppressed his thoughts or feelings of combat situations. The veteran also could not identify emotions associated with trauma. He lacked interest in his family and isolated himself from others. He had divorced once and was now in a confrontational relationship with his current spouse. The veteran also displayed a doom and gloom attitude with very little hope for the future; had persistent symptoms of increased arousal; required medication for sleeping; had periods of rage, irritability and outbursts of anger; had difficulty with concentrating and required longer than normal time to accomplish tasks; and exhibited physiologic reactions, as when around moving bodies of water or large boats or ships, he became nauseous, agitated, lost equilibrium and had sweats. He had suicidal ideation on many occasions, employment difficulties and low self-esteem, and drank alcohol during his combat re-experiences. The veteran also had a victim mentality, as he had no control of his life, was isolated from his community and family, and had physical difficulties associated with military and combat periods. The diagnosis was severe PTSD. VA outpatient treatment reports dated from February 1992 to May 1993 show treatment for depression. At his personal hearing in November 1993, the veteran testified that he developed PTSD during his last tour of duty in Vietnam. He recalled that during that tour he served on double duty, including increased watch and suffered from sleep deprivation. As a result, he became nervous and quiet. The veteran also recalled receiving a "Dear John" letter from his spouse and added that he currently had marital difficulties with his current spouse. On VA examination in December 1993, the veteran recalled his in-service experiences and underwent a mental status examination. The diagnosis was "seems to be consistent with PTSD." The examiner then stated that the veteran had nightmares and intrusive thoughts about a near-drowning experience. The veteran also avoided talking about service and experienced social uncomfortableness. He stated it was hard to work around people and said that he worked a job for 4 years where he was not required to talk to others. The veteran also had a history of major depressive disorder, treated with Zoloft, which seemed to be in remission and as secondary to physical pain. The examiner wrote that the veteran's PTSD symptomatology "seemed to be consistent with the accident he had on the ship." Also of record are the veteran's April 1995 vocational and rehabilitation reports showing that a psychologist found that the veteran's current symptoms, history, and Minnesota Multiphasic Personality Inventory test results "appear to fit the criteria for PTSD." The veteran was noted to have classic PTSD symptoms. The veteran's Social Security Administration (SSA) reports dated from February 1992 to March 1995 are also of record, as well as a November 1996 Memorandum and Order showing that the veteran was denied entitlement to Social Security benefits. On VA examination in June 1997, a history of PTSD was noted. VA medical reports dated from February 1993 to December 1997 show continued treatment for depression. The veteran's February 1998 VA examination report also does not reference PTSD. In June and July 1998 statements, the veteran's mother, uncle, siblings, and ex-wife all wrote that after service, the veteran's attitude and demeanor had changed. The veteran was withdrawn and reclusive. They also, in essence, stated that prior to service the veteran maintained steady work but subsequent to service he had difficulty retaining employment. In May 1999, the Director of the Department of Army verified that the USS Long Beach ship served in Vietnam during the veteran's tour of duty. It participated in Anti-Air Warfare and Search and Rescue operations. The ship also served as a positive identification radar advisory zone unit. The Long Beach participated in the initial 1972 bombing raids on Hanoi and Haiphong. The directory also verified that the North Vietnamese MIG-21 aircraft were downed. Many pilots were rescued from Coastal wasters and inland areas during the Long Beach's Vietnam deployment. The rescues were often coordinated by the Long Beach Combat Information Center. The ship's combat team earned the reputation as the "Professionals of the Gulf". It was also noted that the Long Beach was a nuclear ship. On Agent Orange examination in June 1999, PTSD and depression currently being followed and treated was noted. VA examination in July 1999 shows that the veteran provided a history of being involved in active naval and air combat operations during service and stated that he incurred several stressors while in service. The veteran recalled incidents of (1) being under frequent attacks from enemy fighter aircraft on numerous occasions, (2) a malfunctioning missile returning to target the ship, and (3) while in the reserves being reactivated for the Persian Gulf War service and during that time, experiencing stress and anxiety. After reviewing the veteran's subjective complaints and mental status examination findings, the examiner stated while it appears that the veteran had several of the components of PTSD, none of them appeared overly dramatic during the presentation. The examiner added it was difficult to know the degree of exact exposure to stressors that the veteran claimed and there appeared to be some inconsistency in his story of deployment duties on the ship which would have placed him in internal compartments working although the veteran's accounts are not totally an impossible things for him to have witnessed. The examiner then added that certainly the experience in service and tours through Vietnam would have changed the veteran but that in and of itself does not seem indicative of any type of psychopathology. Rather they were normal life experiences of learning. The examiner also stated that the degree of the veteran's problems was also not clear although when his reserve unit was called to serve during the Gulf War, this was a likely precipitant for anxiety reaction and subsequent depression. The veteran had a lack luster life and a sense of failure. The examiner then stated that compared to the active combat cases he had interviewed the veteran did not seem to have the intensity to cross the threshold where the symptoms were sufficient to support a true diagnosis of PTSD. Although he seemed to have associated symptoms of chronic dysthymia which could be considered a reaction to his experiences, he did not appear to have any impairment of his thought process or ability to communicate rationally, coherently, and appropriately with others. No delusions or hallucinations or inappropriate behavior was demonstrated either. The veteran also denied any suicidal or homicidal thoughts and had no history of either. The examiner also stated that the veteran's appearance was sloppy although socially appropriate. He then noted that while in service, the veteran was reprimanded because of his sloppy appearance; thus, it appeared to be the veteran's longstanding characterological quality and not an acute decompensated state. The veteran was also fully oriented to person, place, time, and circumstance and his memory certainly seemed adequate both in long- and short-term components. He also did not appear to be impaired with obsessive or ritualistic behavior or thoughts and did not report panic attacks as disabling symptoms either. The veteran appeared somewhat chronically dysthymic, but did not appear to have grossly impaired impulse control. Low levels of motivation were noted. In the final diagnosis section, the examiner stated that it was very difficult to make the diagnosis because of the numerous social and interpersonal consequences it had for the veteran. The veteran certainly appeared to have completed and honorable tour of duty for the military during Vietnam war and was aboard a ship known to have been an active participate during combat area. Whether his experiences fell into or outside the range of normal experiences was impossible to say. The diagnosis was dysthymia which may have been a consequence of an anxiety attack that occurred when his reserve unit was called up and the Gulf War activation. The veteran also had complaints of chronic pain and probably chronic pain syndrome which may be displaced depressed syndrome. Analysis PTSD The veteran seeks entitlement to service connection for PTSD. After reviewing the evidence presented in this matter, the Board finds that the veteran's claim is well grounded. The veteran asserts that while in service he was involved in incidents such as the destruction of nine enemy aircraft, an attack by enemy gunboats, and the destruction of surface to air missile sites, the medical evidence shows a current diagnosis of PTSD and indicates that the veteran's PTSD is etiologically related to service. See also Hernandez-Toyens, 11 Vet. App. 379 (1998). As previously noted, eligibility for a PTSD service connection award requires a current, clear medical diagnosis of PTSD; credible supporting evidence that the claimed in- service stressor actually occurred; and medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. See Gaines, Cohen, both supra; cf. 38 C.F.R. § 3.304(f). When all of the evidence is assembled, [VA] is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). After reviewing the probative and persuasive evidence of record, the Board finds that the preponderance of the evidence is against the veteran's claim for service connection for PTSD and is not in equipoise. The medical evidence fails to show that a current or clear, current diagnosis of PTSD has been made. At the outset, the Board acknowledges the presence of medical reports recording a diagnosis of PTSD. The Board also acknowledges the veteran's assertions in which he maintains that while serving aboard the USS Long Beach, he participated in combat. Also in May 1999, the Director of the Department of Army verified that the veteran's ship served in Vietnam during his tour and participated in Anti-Air Warfare and Search and Rescue Operations. Nevertheless, the probative and persuasive evidence does not support a current diagnosis of PTSD. As noted above, on VA examination in July 1999, after reviewing the veteran's medical and social history, the examiner concluded that although it was a difficult decision to make, the veteran's symptoms were insufficient to substantiate a diagnosis of PTSD. Instead, a diagnosis of dysthymia was made. Additionally, prior to 1999, the probative and persuasive evidence does not substantiate diagnoses of PTSD. In this regard, the Board points out that in March 1993, the assessment was "history of PTSD" and hospital reports thereafter show treatment for depression and record a diagnosis of depressive disorder. Although in November 1993, December 1993, and February 1995, T. R., who works as a Veterans Outreach Counselor, recorded a diagnosis of PTSD and indicated that the diagnosis was service-related, the Board points out that T. R. is an education specialist, not a doctor. The record does not show that T. R. is medically trained or medically qualified to render such a diagnosis and etiologically relate it to service. See generally Black v. Brown, 10 Vet. App. 279 (1997). As such, the finding rendered by T. R. regarding the veteran's diagnosis and its etiology is beyond his competence and therefore is not competent, probative medical evidence. The VA examiner's conclusion recorded in July 1999, which finds that a diagnosis of PTSD is not supported by the veteran's symptoms is competent, probative medical evidence. Owens v. Brown, 7 Vet. App. 429 (1995) (The United States Court of Appeals for Veterans Claims has held that opinions offered by VA examiners based on a review of all the evidence on file, that is a longitudinal review of the record, is considered to be an important factor in reaching an informed opinion). The Board also points out that on VA examination in December 1993 and on vocational rehabilitation assessments in 1995, a concrete diagnosis of PTSD was not made. Instead, in 1993, the examiner found that findings "seem[ed] to be consistent with PTSD" and the vocational and rehabilitation reports indicated that the veteran "appears to meet the criteria for PTSD." Finally, in this case, as previously noted, the Board acknowledges the veteran's alleged stressors and testimony presented on appeal. Nevertheless, the Board points out that the ultimate disposition in this case rests upon whether the medical evidence shows that a clear, current diagnosis of PTSD has been made. As discussed above, in this respect the preponderance of the evidence is against the veteran's claim and is not in equipoise. As a result of the foregoing, in spite of the veteran's assertions presented on appeal, including his hearing testimony and supporting statements indicating that the veteran's personality changed after service, service connection for PTSD is not warranted. Neither the veteran nor his supporters are capable of opining on a matter involving medical knowledge or causation. See Espiritu, supra. Given the aforementioned medical evidence which fails to show that a current or a clear, current diagnosis of PTSD has been made and the VA examiner's July 1999 conclusion, the medical evidence of record is insufficient to substantiate a diagnosis of PTSD. Thus, the veteran's claim for entitlement to service connection for PTSD is denied. Dysthymia However, in July 1999 the VA examiner noted that the likely precipitant for the veteran's anxiety and depression was being called up for service in the Gulf War. He noted that the veteran had associated symptoms of chronic dysthymia which could be considered a "reaction to his experiences." While the veteran's experiences may not have been considered to "have the intensity to cross the threshold where symptoms were sufficient to support a true diagnosis of PTSD," these experiences were apparently sufficient to result in dysthymia. The diagnosis on examination was dysthymia which may have been a consequence of an anxiety attack that occurred when his reserve unit was called up and the Gulf War activation. Under the law, service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Accordingly, this evidence is sufficient to associate the veteran's currently diagnosed dysthymia with his military service. To this extent and only to this extent, the appeal is allowed. ORDER Entitlement to service connection for dysthymia, claimed as PTSD, is granted. REMAND The veteran has requested a travel board hearing with regard to the issues of entitlement to service connection for skin and right knee disorders. In light of the above, the case is remanded for the following action: The veteran should be scheduled for a travel board hearing with regard to the issues noted above. The RO, by letter, should inform him and his representative of the date, time, and location of the hearing. All efforts made should be documented and all correspondence received should be associated with the claims folder. Thereafter, the case should be returned to the Board, if appropriate. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court 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. V. L. Jordan Member, Board of Veterans' Appeals