Citation Nr: 0007044 Decision Date: 03/15/00 Archive Date: 03/23/00 DOCKET NO. 94-07 528 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include a claimed post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Martin Wegbreit, Attorney WITNESSES AT HEARING ON APPEAL The veteran and his wife ATTORNEY FOR THE BOARD K. J. Alibrando, Counsel INTRODUCTION The veteran served on active duty from June 1974 to June 1976 and October 1990 to April 1991. This appeal originally came before the Board of Veterans' Appeals (Board) on appeal from July and December 1993 rating decisions of the RO. At the personal hearing at the RO before the undersigned Member of the Board in August 1996, the veteran withdrew the issue of service connection for a skin condition from appellate consideration. The Board remanded the case for additional development in January 1997. FINDINGS OF FACT 1. The veteran has presented evidence to show that his claim of service connection for an acquired psychiatric disorder is plausible and capable of substantiation. 2. The veteran currently has disability manifested by mechanical low back syndrome which is shown to be the likely result of injury suffered in service. CONCLUSIONS OF LAW 1. The veteran has presented evidence of a well-grounded claim of service connection for an acquired psychiatric disorder, to include PTSD. 38 U.S.C.A. §§ 1110, 1131, 5107(b), 7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.304(f) (1999). 2. The veteran's mechanical low back syndrome is due to injury which was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.102, 3.303 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background A careful review of the service medical records shows that they are negative for findings or diagnoses of a psychiatric disorder, to include PTSD, during either period of active service. An August 1974 entry shows that the veteran was treated for complaints of low back pain after heavy lifting. The impression was that of low back strain. On separation examination in February 1976, the clinical evaluation of the spine was normal. On separation examination in April 1991, the clinical evaluation of the spine was normal. An October 1992 Report of Medical History during service in the Army National Guard shows that the veteran reported injuring his back during in March 1991 while operating a "5th wheel". He reported back pain since that injury. An April 1993 examination report noted a diagnosis of recurrent lower back pain. An April 1993 Memorandum of the Virginia Army National Guard showed that the veteran was found medically unfit for retention. A January 1993 private psychiatric examination of the veteran was conducted in conjunction with an application for Social Security disability. The veteran reported that he had been sent to Kuwait and Saudi Arabia as part of Operation Desert Storm. He reported that, while he was there, he was a truck driver and transporter of ammunitions and that he developed a good deal of anxiety for fear that somebody would take a shot at him from the roadways and cause an explosion. He also reported injuring his back during service in the Persian Gulf. The examiner concluded that the veteran was showing symptoms of military stress disorder related to experiences in Desert Storm. It was also found that he had long-standing general anxiety disorder with psychophysiological features such as ulcers. A June 1993 private psychiatric examination report shows that the veteran was seen for psychological assessment and testing. The report did not address any reported stressors. The diagnoses included that of PTSD, in partial remission. A March 1994 decision of the Social Security Administration noted a diagnosis of PTSD pursuant to the June 1993 examination and found that the veteran's disabilities included PTSD. In a May 1997 statement and in connection with his recent hearing testimony in August 1996, the veteran asserted that, while serving in the Persian Gulf during Operation Desert Storm, he saw what he initially thought was a plane flying overhead and was later told that it was a SCUD missile that hit a barracks and killed over 100 people. He also testified that he was told of possible snipers in a town near where he was stationed and to be careful. Reportedly, he never saw any snipers. He testified that he was close to the hostilities on four occasions, approximately 2 miles away, and saw fires. He added that had he injured his back when he twisted it while trying to unhook a trailer. On VA examination in April 1997, the veteran reported injuring his back during service. He reported that, since that injury, he had had a history of recurrent pain in the low back. The assessment was that recurrent mechanical low back syndrome of lumbar spine. The examiner indicated that, if there was documentation of the reported injury inservice, the diagnosis of recurrent low back disability was due to his service-related injury. On VA psychiatric examination in April 1997, the veteran reported that during service he was a truck driver, hauling ammunition in a 10 or more truck convoy. The veteran reported that he was not involved in direct fighting activities. The veteran again reported seeing what he learned was a SCUD missile that was responsible for killing soldiers. He indicated that he did not see the actual explosion or the event. The Axis I diagnosis was that of generalized anxiety disorder. In June 1999, the U.S. Armed Services Center for Research of Unit Records responded to the RO's request to verify the veteran's reported stressors. It was indicated that the history of the 180th Transportation Battalion's mission included hauling food, ammunition and unit equipment to tactical assembly areas from Damman and was responsible for establishing and operating an Intermediate Staging Area in Jubayl. Also attached was an extract from the Casualties and Damage from SCUD attacks in the 1991 Gulf war. That report documented that in February 1991, a SCUD missile hit a U.S. military barracks in the area of Dhahran, killing twenty- eight soldiers and wounding ninety nine. On VA examination in March 1999, the veteran reported that, during service in the Persian Gulf, his duties were in motor transport to haul ammunition. He reported that he had served in an active combat zone. He reported that he saw a SCUD missile that went over his head and was, he believed, the one that killed approximately 100 people. His hearing testimony regarding hearing claims of sniper fire and being within a 2 miles of activity described as fire were also noted. The Axis I diagnosis was that of generalized anxiety disorder. The examiner concluded that a the criteria for a diagnosis of PTSD had not been met and added that the veteran's anxiety and worry were not confined to his military service, but were also related to health issues, finances, his VA claim and specific incidents like driving and being in social situations. In an addendum, the VA examiner added that previous examinations had indicated that the veteran had a longstanding general anxiety disorder and that the inability to perform employment due to his back complaints might have contributed to his current level of anxiety. Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. The chronicity provision of 38 C.F.R. § 3.303(b) is applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service, or within the presumptive period after service, and that he still has such condition. Service connection may also 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). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD. Service connection for PTSD requires medical evidence establishing a clear diagnosis of the condition, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed in- service stressor. If the claimed stressor is related to combat, service department evidence that the veteran engaged in combat or that the veteran was awarded the Purple Heart, Combat Infantryman Badge, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed in-service stressor. 38 C.F.R. § 3.304(f) (1998). Additionally, service connection for PTSD requires medical evidence establishing a clear diagnosis of the condition, credible supporting evidence that the claimed inservice stressor actually occurred, and a link, established by the medical evidence, between current symptomatology and the claimed in-service stressor. See Cohen v. Brown, 10 Vet. App. 128 (1997). If it is determined that a veteran did not engage in combat with the enemy, or the claimed stressor is not related to combat, as in this case, the veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. In such cases, the record must contain service records or other corroborative evidence which substantiates or verifies the veteran's testimony or statements as to the occurrence of the claimed stressors. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d),(f). Thus, it is necessary to address the matter of whether there is sufficient corroboration of the claimed stressors to satisfy the stressor requirement. Statutory law as enacted by the Congress also charges a claimant for VA benefits with the initial burden of presenting evidence of a well-grounded claim. 38 U.S.C.A. § 5107(a). This threshold requirement is critical since the duty to assist a veteran with the development of facts does not arise until the veteran has presented evidence of a well- grounded claim. Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). A well-grounded claim has been defined by the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, the "Court") as "a plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect the claim is "plausible" or "possible" is required. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). A claimant therefore cannot meet this burden merely by presenting lay testimony because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Consequently, lay assertions of medical causation cannot constitute evidence to render a claim well grounded under § 5107(a). Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). According to the Court in Caluza, a well-grounded claim of service connection requires competent evidence of the following: i) current disability (through medical diagnosis); ii) incurrence or aggravation of a disease or injury in service (through lay or medical evidence) and; iii) a nexus between the in-service injury or disease and the current disability (through medical evidence). Caluza v. Brown, 7 Vet. App. at 506. Moreover, the truthfulness of evidence offered by the veteran and his representative is presumed in determining whether or not a claim is well- grounded. King v. Brown, 5 Vet. App. 19, 21 (1993). Regarding service connection for PTSD, the veteran asserts that he currently suffers from PTSD as a result of traumatic events during service in Operation Desert Storm. Although the diagnosis of PTSD was shown of examination in 1993, the most recent VA examination in March 1999 found that the veteran did not meet the criteria for the diagnosis of PTSD. However, the medical evidence shows a diagnosis of a psychiatric disorder during active service. The first diagnosis of a psychiatric disorder was made in 1993 when it was reported that the veteran's symptoms were related to his experiences in Desert Storm. The most recent VA examination reported a diagnosis of generalized anxiety disorder. The VA examiner suggested at that time that the veteran's anxiety and worry were somewhat related to his military service and added later that his low back condition might have contributed to his current level of anxiety. Thus, the Board finds, as the veteran has presented evidence sufficient to show that his claim is plausible and capable of substantiation, that a well-grounded claim of service connection for an acquired psychiatric disorder has been submitted. II. Entitlement to service connection for a low back disability. The veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented a claim which is plausible. All relevant facts have been properly developed, and no further assistance is required to comply with the duty to assist as mandated by 38 U.S.C.A. § 5107(a). After a full review of the record, the Board concludes that service connection for a low back disability is warranted. The service medical records show that the veteran was treated for low back pain during his recent period of service, and the impression at that time was that of low back strain. The veteran asserts that he reinjured the back during his Persian Gulf service. The most recent VA examination report includes an opinion relating the veteran's current low back disability to the reported injury in service. Given the veteran's credible history of suffering a back injury in service, the Board finds that the currently demonstrated disability manifested by mechanical low back syndrome is the likely result injury which was incurred in service. Hence, the Board finds that service connection for mechanical low back syndrome is warranted. ORDER As a well-grounded claim of service connection for an acquired psychiatric disorder, to include PTSD, has been presented, the appeal to this extent is allowed, subject to further action as discussed hereinbelow. Service connection for mechanical low back syndrome is granted. REMAND In light of the action taken hereinabove, the Board notes that de novo review of the veteran's claim of service connection for an acquired psychiatric disorder by the RO is required. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board finds that further development of the record is required prior to appellate handling of this matter. Accordingly, this matter is remanded to the RO for the following action: 1. The RO should take appropriate steps to contact the veteran in order to have him identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his claimed psychiatric disorder since service. After obtaining any necessary authorization from the veteran, the RO should attempt to obtain copies of pertinent treatment records identified by the veteran in response to this request, which have not been previously secured. 2. The RO should schedule the veteran for a VA examination to determine the nature and extent of his claimed psychiatric disorder. All indicated tests must be conducted. The claims folder must be made available to and reviewed by the examiner prior to the requested study. Based on his/her review of the case, the examiner should provide an opinion, with adequate rationale, as to whether the veteran has innocently acquired psychiatric disability due to disease or injury which was incurred in or aggravated by service. The examiner should also state an opinion as to whether the now service-connected mechanical low back syndrome aggravates any innocently acquired psychiatric disorder. A complete rationale for any opinion expressed must be provided. The examination report should be associated with the claims folder. 3. After undertaking any necessary development, the RO should conduct a de novo review of the veteran's claim of service connection for an acquired psychiatric disorder. Due consideration should be given to all pertinent laws and regulations. If the benefits sought on appeal is not granted, the veteran and his representative should be issued a Supplemental Statement of the Case, which should include all pertinent laws and regulations, and be afforded a reasonable opportunity to reply thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if indicated. The veteran need take no action until he is further informed, but he may furnish additional evidence and argument while the case is in remand status. Kutscherousky v. West, 12 Vet. App. 369 (1999). No inference should be drawn regarding the final disposition of the claim as a result of this action. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims 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. STEPHEN L. WILKINS Member, Board of Veterans' Appeals