Citation Nr: 0002177 Decision Date: 01/28/00 Archive Date: 02/02/00 DOCKET NO. 95-28 299 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for skin disability of the groin. 2. Entitlement to service connection for headaches. 3. Entitlement to service connection for a sleep disorder. 4. Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. W. Loeb, Counsel INTRODUCTION The veteran served on active duty from April 1966 to January 1969. This case was remanded by the Board of Veterans' Appeals (Board) in May 1997 to the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, for additional development, to include an attempt to obtain additional stressor information from the veteran prior to attempting to obtain verification of the veteran's stressors from the Commandant of the Marine Corps. The veteran failed to respond to two VA requests for additional stressor information sent between June and November 1997. The case is again before the Board. FINDINGS OF FACT 1. The claims for service connection for skin disability of the groin, headaches, and a sleep disorder are not plausible. 2. All available evidence necessary for an equitable determination of the issue of entitlement to service connection for PTSD has been obtained by VA. 3. The veteran did not engage in combat with the enemy, and there is no credible evidence corroborating any of the veteran's alleged service stressors. CONCLUSIONS OF LAW 1. The veteran has not submitted evidence of a well-grounded claim for service connection for skin disability of the groin, headaches, or a sleep disorder. 38 U.S.C.A. § 5107(a) (West 1991). 2. PTSD was not incurred in or aggravated by the veteran's military service. 38 U.S.C.A. §§ 1110, 1154, 5107(a) (West 1991); 38 C.F.R. § 3.304(f) (1998); 38 C.F.R. § 3.304(f) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran's DD Form 214 indicates that he was a basic bands man with the 3d Marine Division at Headquarters Company; he was not awarded any medals indicative of combat. Service medical records reveal that he reported frequent or severe headaches on his March 1966 medical history report prior to service entrance, which were also described as occasional headaches with sinusitis. Service medical records do not show that he was found to have a headache disorder on the entrance examination or thereafter. Service medical records, including the report of examination for discharge, are negative for evidence of the other disabilities at issue. VA outpatient records from October 1990 to October 1998 reveal complaints of nervousness and of a rash on the shoulder blades in January 1994; major depression/PTSD was diagnosed in January 1994. The veteran's complained of headaches, diarrhea, and vomiting in December 1997. The veteran testified at a personal hearing at the RO in October 1995 that he was exposed to stressors in service, including having to dig up the graves of some Vietnamese, having a friend of his killed two weeks after the veteran left Vietnam, having another friend die of a drug overdose soon after the friend returned from Vietnam, having the base where he was stationed in Vietnam hit by mortars and rockets, and having to go on patrols during the day and being assigned perimeter watch at night. According to a report of a March 1996 psychiatric evaluation by Maria Mynatt, M.D., the veteran alleged that he had PTSD and Agent Orange exposure due to service in Vietnam. The diagnoses were chronic PTSD; a single episode of major depression, moderate, without psychosis; alcohol and marijuana abuse, in early remission; and a history of Agent Orange exposure with skin changes. A May 1996 disability determination for the Social Security Administration denied disability benefits because the veteran was not considered disabled; the primary diagnosis was PTSD and the secondary diagnosis was major depression. According to a January 1998 letter from the Records Correspondence Section of the Personnel Management Support Branch of the United States Marine Corps, by direction of the Commandant of the Marine Corps, the information on file on the veteran's service stressors was insufficient. It was noted that there was no verification of the following incidents: the digging up of a Vietnamese grave because a pipeline was being built; the veteran's participation in combat; or the death of Ron Harris, who the veteran claimed died of a drug overdose soon after he left Vietnam. On VA psychiatric examination in November 1998, the diagnoses were PTSD and major depressive disorder. Also on file are command chronologies for the 3d Marine Division from April 1, 1968, to January 31, 1969. These records do not mention the veteran by name, refer to any of the veteran's alleged stressors, or provide any indication that the veteran participated in combat. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by military service. 38 U.S.C.A. § 1110 (West 1991). 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). As a preliminary matter, the Board must determine whether the appellant has submitted evidence of a well-grounded claim. If he has not, his claim must fail, and VA is not obligated to assist him in the development of the claim. 38 U.S.C.A. § 5107(a); Grottveit v. Brown, 5 Vet. App. 91 (1993); Tirpak v. Derwinski, 2 Vet. App. 609 (1992). The United States Court of Appeals for Veterans Claims (Court) has stated repeatedly that 38 U.S.C.A. § 5107(a) unequivocally places an initial burden on a claimant to produce evidence that a claim is well grounded. See Grivois v. Brown, 6 Vet. App. 136 (1994); Grottveit v. Brown, 5 Vet. App. 91, at 92 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, at 610-611 (1992). A well-grounded claim is a plausible claim, that is, a claim which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The Court has stated that the quality and quantity of evidence required to meet this statutory burden depends upon the issue presented by the claim. Grottveit at 92-93. Where a determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is plausible or possible is required. Id. Further, in order for a direct service connection claim to be considered plausible, and therefore well grounded, there must be evidence of both a current disability and evidence of a relationship between that disability and an injury or disease incurred in service or some other manifestation of the disability during service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). Although the veteran's service medical records reveal that he reported headaches on his March 1966 medical history, he was not found to have a headache disorder during service and there is no post-service medical evidence showing that he has been found to have a headache disorder. Moreover, there is no medical evidence of a skin disorder of the groin or a sleep disorder during service and no post-service medical evidence documenting the presence of either of these claimed disabilities. In this regard, the Board notes that Agent Orange exposure with skin changes was diagnosed by history only psychiatric evaluation in March 1996. Although the veteran contends that he has headaches, skin disability of the groin, and a sleep disorder, the veteran, as a lay person, is not qualified to provide medical opinions or diagnoses. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1992). Since the record contains no competent evidence of these claimed disabilities, the claims are not well grounded. The Board views its foregoing discussion as sufficient to inform the veteran of the elements necessary to complete an application to reopen his claim for service connection for the above disabilities. Robinette v. Brown, 8 Vet. App. 69, 79 (1995). The Board finds that the veteran's claim for service connection for PTSD is well grounded within the meaning of 38 U.S.C.A. § 5107(a). The Board is also satisfied that all available evidence necessary for an equitable decision on this issue has been obtained. In this regard, the Board notes that due to the veteran's failure to respond to the RO's request for more specific information concerning his alleged service stressors, further development to verify his alleged service stressors would serve no useful purpose. Entitlement to service connection for PTSD requires medical evidence establishing a clear diagnosis of the condition with credible supporting evidence that the claimed inservice stressor actually occurred and a link, established by medical evidence, between the current symptomatology and the claimed inservice stressor. 38 C.F.R. § 3.304(f) (1998). The evidence necessary to establish the occurrence of a stressor during service to support a claim of entitlement to service connection for PTSD will vary depending on whether the veteran was "engaged in combat with the enemy." See Gaines v. West, 11 Vet. App. 353, 358 (1998); Hayes v. Brown, 5 Vet. App. 60, 66 (1993). If it is determined through military citation or other supportive evidence that a veteran engaged in combat with the enemy, and the claimed stressors are related to combat, the veteran's lay testimony regarding the reported stressors must be accepted as conclusive evidence as to their actual occurrence and no further development or corroborative evidence will be necessary, provided that the testimony is found to be satisfactory and consistent with the circumstances, conditions or hardships of such service. 38 U.S.C.A. § 1154(b) (West 1991); 38 C.F.R. § 3.304(d), (f) (1998); Doran v. Brown, 6 Vet. App. 283, 289 (1994). 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 inservice stressor. 38 C.F.R. § 3.304(f). Section 1154 requires that the veteran have actually participated in combat with the enemy, meaning participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality, and would not apply to veterans who served in a general "combat area" or "combat zone" but did not themselves engage in combat with the enemy. VAOPGCPREC 12- 99. Where a determination is made that the veteran did not "engage in combat with the enemy," or the claimed stressor is not related to combat, the veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). 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 stressor. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). During the pendency of this appeal, § 3.304(f) was amended, effective March 7, 1997. As amended, § 3.304(f) provides: Service connection for post-traumatic stress disorder requires medical evidence diagnosing the condition in accordance with § 4.125(a) of this chapter; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service 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 in-service stressor. 64 Fed. Reg. 32807-32808 (1999). The record contains post-service medical evidence of PTSD. The veteran testified at an RO hearing in October 1995 as to his service stressors. However, the record reflects that he did not receive any award or decoration indicative of combat and there is no other corroboration of the veteran's participation in combat. Additionally, he failed to respond to two attempts from VA in 1997 to obtain additional information on his service stressors. A letter from the Commandant of the Marine Corps, dated in 1998, indicates that there is no record of a Ron Harris and that there was no verification of the veteran's alleged stressors. In addition, there is no corroboration of the any of the alleged stressors in the 3d Division command chronologies or in any other evidence of record. Without evidence establishing that the veteran engaged in combat with the enemy or corroborating evidence of a stressor supporting the diagnosis of PTSD, the claim must be denied. ORDER Service connection for headaches, skin disability of the groin, a sleep disorder, and PTSD is denied. SHANE A. DURKIN Member, Board of Veterans' Appeals