Citation Nr: 0007587 Decision Date: 03/21/00 Archive Date: 03/28/00 DOCKET NO. 98-20 425 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for chloracne. 2. Entitlement to service connection for a fungal infection of the feet and toenails. 3. Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Michelle L. Nelsen, Associate Counsel INTRODUCTION The veteran had active duty from October 1967 to January 1975. He had service in Vietnam from May 1968 to April 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. FINDINGS OF FACT 1. There is no competent medical evidence of a nexus between the veteran's alleged chloracne and his period of active duty service. 2. There is no competent medical evidence of a nexus between the veteran's alleged fungal infection of the feet and toenails and his period of active duty service. 3. The veteran's claim for service connection for PTSD is plausible. CONCLUSIONS OF LAW 1. The veteran's claim of entitlement to service connection for chloracne is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.102 (1999). 2. The veteran's claim of entitlement to service connection for a fungal infection of the feet and toenails is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.102 (1999). 3. The veteran's claim of entitlement to service connection for PTSD is well grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.102 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(a) (1999). Service connection may be demonstrated either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994) (specifically addressing claims based on ionizing radiation exposure). Direct service connection requires a finding that there is a current disability that has a definite relationship with an injury or disease or some other manifestation of the disability during service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). A disorder may be service connected if the evidence of record reveals that the veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Evidence that relates the current disorder to service must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. Savage, 10 Vet. App. at 495-97. 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establish that the disorder was incurred in-service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). However, a person claiming VA benefits must meet the initial burden of submitting evidence "sufficient to justify a belief in a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78, 91 (1990); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). A claim that is well grounded is plausible, meritorious on its own, or capable of substantiation. Murphy, 1 Vet. App. at 81; Moreau v. Brown, 9 Vet. App. 389, 393 (1996). For purposes of determining whether a claim is well grounded, the Board presumes the truthfulness of the supporting evidence. Arms v. West, 12 Vet. App. 188, 193 (1999); Robinette v. Brown, 8 Vet. App. 69, 75 (1995); King v. Brown, 5 Vet. App. 19, 21 (1993). In 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 injury or disease and the current disability (medical evidence). Epps v. Gober, 126 F.3d 1464, 1468 (1997); Caluza v. Brown, 7 Vet. App. 498, 504 (1995). Where the determinative issue involves a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). VA cannot undertake to assist a veteran in developing facts pertinent to his claim until and unless the veteran submits a well grounded claim. Morton v. West, 12 Vet. App. 477, 486 (1999). Initially, the Board finds that the veteran's claims for service connection for chloracne and a fungal infection of the feet and toenails are not well grounded. The first requirement of a well grounded claim is a current medical diagnosis. Epps, 126 F.3d at 1468. In this case, there is no medical evidence showing that the veteran currently is diagnosed as having chloracne or a fungal infection. A claim is not well grounded if there is no present disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Moreover, when there is no competent medical evidence of a current disability, there necessarily can be no competent medical evidence of a relationship between the disability and service. Absent such evidence, the claims are not well grounded. In his October 1997 statement, the veteran indicated that he had had a constant fungal infection since service in Vietnam. Continuity of symptoms may form a basis for service connection. However, the Board emphasizes that the provisions of 38 C.F.R. § 3.303(b) do not relieve a veteran of the burden of providing a medical nexus in order to establish a well grounded claim. Rather, a veteran diagnosed with a chronic disorder must still provide a medical nexus between the current disorder and the putative continuous symptomatology. Voerth v. West, 13 Vet. App. 117 (1999); McManaway v. West, 13 Vet. App. 60, 66 (1999). The Board acknowledges that the veteran believes that he suffers from the alleged disorders. However, there is no evidence of record to suggest that the veteran is a trained medical professional. Therefore, he is competent to relate or describe symptoms, but he is not competent to offer an opinion on matters that require medical knowledge, such as a diagnosis or a determination of etiology. Grottveit, 5 Vet. App. at 93; Espiritu, 2 Vet. App. at 494. The veteran asserts that the alleged disorders are related to exposure to Agent Orange in service. Diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam era will be considered to have been incurred in service. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). The Board finds that this presumption does not provide additional support for the veteran's claims. Chloracne is a disease associated with herbicide exposure. 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e). However, there is no evidence that the veteran is, in fact, diagnosed as having chloracne. Moreover, fungal infections are not diseases associated with herbicide exposure. Id. Accordingly, the presumption of in-service incurrence afforded by law and regulation is not applicable in this case. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). Under these circumstances, the Board finds that the veteran has not submitted a well grounded claim for service connection for chloracne or a fungal infection of the feet and toenails. 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.102; Epps, 126 F.3d at 1468. Therefore, the duty to assist is not triggered and VA has no obligation to further develop the veteran's claim. Epps, 126 F.3d at 1469; Morton, 12 Vet. App. at 486; Grivois v. Brown, 5 Vet. App. 136, 140 (1994). The Board observes that the RO scheduled the veteran for a VA examination of the skin. The veteran cancelled that examination, indicating that he wished to be examined in the summer, when the skin disorders were active. The RO never scheduled another examination. The veteran's representative suggests that a remand is in order for such an examination. However, as discussed above, the veteran bears the initial burden of showing that his claim is well grounded. Absent a showing of well groundedness, VA cannot undertake to assist in the development of the claim. Morton, 12 Vet. App. at 486. Therefore, because the veteran has not established a well grounded claim for either chloracne or a fungal infection, the RO's failure to reschedule the veteran for a VA skin examination does not require a remand. If the veteran wishes to complete his application for service connection for chloracne or a fungal infection of the feet and toenails, he should submit competent medical evidence that shows a current diagnosis of each disorder and that establishes a link between each disorder and service. 38 U.S.C.A. § 5103(a); Robinette, 8 Vet. App. at 77-80. With respect to the claim for PTSD, the Board finds that the claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.102 (1999). See Murphy, 1 Vet. App. at 91; Gilbert, 1 Vet. App. at 55. That is, the evidence is sufficient to establish a plausible claim. However, as discussed in detail below, the Board finds that additional development is required to properly adjudicate the veteran's claim. ORDER Evidence of a well grounded claim for service connection for chloracne not having been submitted, the appeal with respect to this issue is denied. Evidence of a well grounded claim for service connection for a fungal infection of the feet and toenails not having been submitted, the appeal with respect to this issue is denied. The veteran's claim of entitlement to service connection for PTSD is well grounded. To this extent only, the appeal is granted. REMAND As indicated above, the veteran's claim for service connection for PTSD is well grounded. Service connection for post-traumatic stress disorder requires medical evidence diagnosing the condition in accordance with VA regulations; 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. 38 C.F.R. § 3.304(f) (as amended by 64 Fed. Reg. 32,807-32808 (1999)) (effective March 7, 1997) (implementing the decision in Cohen v. Brown, 10 Vet. App. 128 (1997)). See 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) (pertaining to combat veterans). Because the veteran has submitted a well grounded PTSD claim, VA has a duty to assist the veteran in developing that claim. 38 U.S.C.A. § 5107(a); Epps, 126 F.3d at 1469. In PTSD claims, the duty to assist includes verification of the alleged in-service stressors. Service personnel records show that the veteran was in Vietnam from May 1968 to April 1969. He was initially assigned to "Company D, 2nd Battalion, 35th Infantry, 4th Infantry Division," in civil affairs. In June 1968, he was assigned to Company A, 4th (illegible) Battalion, 4th Infantry Division, as a duty soldier. Service records do not reflect the receipt of any award denoting combat. Service medical records show that the veteran was treated for a back injury in service in September 1968, though the injury was not attributed to combat activities. There is also an undated record indicated that the veteran incurred a gunshot wound to the left foot. A January 1975 service report of medical history reflects that the veteran reported that dirt had been blasted into his eyes from a mortar. In his October 1997 statement, the veteran indicated that he was injured by an exploding mortar in Vietnam. He related that he received back and eye injuries from the explosion. He added that two other soldiers were injured in the blast, a Ricky Zarrio and a PFC Shelton. The Board finds that, taken together, this evidence presents sufficiently narrow parameters to allow the U.S. Armed Services Center for Research of Unit Records (USASCRUR) to perform a search of records to verify the alleged incident. In addition, during the February 1998 VA psychiatric examination, the veteran related that he was troubled by memories of a fellow soldier named Rosario who committed suicide. It may be possible to determine whether there is a connection between the veteran and this soldier, such as a common base location at the time of his death. The RO should request USASCRUR to investigate this possibility. Accordingly, the case is REMANDED to the RO for the following action: 1. The RO should prepare a statement that provides the pertinent information concerning the veteran's alleged in- service stressors. The RO should then send the statement and copies of the veteran's DD 214 and DA 20 to the U.S. Armed Services Center for Research of Unit Records (USASCRUR), 7798 Cissna Road, Suite 101, Springfield, Virginia 22150-3197. The USASCRUR should be requested to provide any additional information that might corroborate the veteran's alleged stressors, as well as the unit history for the veteran's unit during his tour in Vietnam. 2. Following the receipt of a response from the USASCRUR, the RO must prepare a report detailing the nature of any stressor it determines is established by the record. If no stressor has been verified, the RO should so state in its report. This report is then to be added to the claims folder. 3. After completing the above actions, and if and only if either a stressor has been verified or it is determined that the veteran engaged in combat, the veteran should be afforded a VA psychiatric examination to determine the diagnosis of any and all psychiatric disorders which may be present. All indicated studies, tests and evaluations deemed necessary should be performed. The claims folder must be made available to the examiner for review prior to the examination. Specifically, the RO must provide the examiner the summary of any stressors described above, and instruct the examiner that only these events may be considered for the purpose of determining whether exposure to an in- service stressor has resulted in the current psychiatric symptoms. The examiner is asked to determine whether the diagnostic criteria for PTSD are satisfied, and, if so, to offer an opinion as to whether the current symptomatology is linked to one or more of the verified in-service stressors. Any opinion expressed should be supported by a complete rationale. If the examiner is unable to offer the requested opinion, the report should so state. 4. The veteran is hereby advised that failure to report for a scheduled VA examination without good cause shown may have adverse consequences for his claim. 5. After completing any necessary development in addition to that specified above, the RO should readjudicate the veteran's claim of entitlement to service connection for PTSD. If the disposition remains unfavorable to the veteran, the RO should furnish the veteran and his representative a supplemental statement of the case and afford the applicable opportunity to respond. Thereafter, the case should be returned to the Board for final appellate review, if in order. The Board intimates no opinion as to the ultimate outcome of the veteran's claim. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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. MILO H. HAWLEY Acting Member, Board of Veterans' Appeals