Citation Nr: 0004873
Decision Date: 01/18/00	Archive Date: 03/02/00

DOCKET NO. 95-37 154A              DATE 

On appeal from the Department of Veterans Affairs Regional Office
in Seattle, Washington

THE ISSUES

1. Entitlement to service connection for post-traumatic stress
disorder, to include as secondary to a service-connected duodenal
ulcer.

2. Entitlement to service connection for sleep apnea, claimed also
as narcolepsy.

3. Entitlement to service connection for headaches.

4. Entitlement to service connection for residuals of jet fuel
exposure and chemical exposure, to include a pulmonary disorder.

5. Whether new and material evidence has been presented to reopen
a claim of entitlement to service connection for residuals of a low
back injury, including degenerative disc disease of the lumbar
spine.

REPRESENTATION

Appellant represented by: Veterans of Foreign Wars of the United
States 

WITNESSES AT HEARINGS ON APPEAL

Appellant & M. Raskind, M.D.

ATTORNEY FOR THE BOARD

Brian J. Milmoe, Counsel

INTRODUCTION

The veteran served on active duty from December 1962 to November
1966.

This matter comes before the Board of Veterans' Appeals (BVA or
Board) on appeal from a rating decision entered in April 1995 by
the Department of Veterans Affairs (VA) Regional Office (RO) in
Seattle, Washington, granting a permanent and total disability
rating for pension purposes and denying entitlement of the veteran
to service connection for post-traumatic stress disorder (PTSD).
Also, the RO in April 1995 found the veteran's claims of
entitlement to service connection for residuals of inhalation of
jet fumes, inner ear infections, and sleep apnea to be not well-
grounded and concluded, as well, that new and material evidence had
not been submitted to reopen the veteran's claim of entitlement to
service connection for residuals of a back injury.

An appeal followed, and during such appeal period, the veteran by
means of a written statement received by the RO in June 1996
offered the following observations: That his sleep apnea had
resulted in, among other things, sleepwalking; that there was a
direct correlation between his service-connected duodenal ulcer and
his PTSD; that in conjunction with his inservice exposure to
petrochemicals he developed respiratory problems; that he suffered
from hearing loss as a result of inservice exposure to jet noise;
and that ringing in the ears and headaches were adjunct to his
chronic inner ear infections. Based on his

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submission, the RO in a supplemental statement of the case issued
in July 1996 expanded the claim for service connection for PTSD to
include the issue of secondary service connection due to the
veteran's service-connected duodenal ulcer, based on the RO's
finding that such issue was inextricably intertwined with the claim
based on direct incurrence. In addition, the RO clarified that the
claim for chronic ear infections included otitis media, headaches,,
and ringing in the ears.

By a rating decision in October 1997, entitlement to service
connection for otitis media with tinnitus (previously claimed as
inner ear infections with loss of equilibrium) and for hearing loss
of the right ear was granted. Service connection was denied for
hearing loss of the left ear, PTSD, sleep apnea/narcolepsy,
headaches, and a pulmonary disorder secondary to jet fuel exposure,
and no new and material evidence was found to have been submitted
to reopen a claim for service connection for degenerative disc
disease of the lumbar spine. As for the attempt made by the RO to
limit the issue involving the veteran's entitlement to service
connection for disability due to inservice chemical and jet fuel
exposure to that of a pulmonary disorder, and to restrict the issue
as to the newness and materiality of evidence presented for
entitlement to service connection for residuals of a low back
injury to that of degenerative disc disease of the lumbar spine,
the undersigned herein declines to narrow the issues as effected by
the RO, and construes the issues developed and certified for
appellate review to be those set forth on the title page of this
document.

The issues advanced by the veteran in his VA Form 21-526, Veteran's
Application for Compensation or Pension, filed in January 1994, as
to his entitlement to service connection for carpal tunnel
syndrome, nerve compression in the neck, and club toes, have not to
date been adjudicated by the RO. The veteran in correspondence
received by the RO in July and October 1998 likewise attempted to
reopen previously denied claims for foot and toe disorders. Such
matters have not been fully developed or certified for the Board's
review at this time, but are referred to the RO for appropriate
consideration.

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FINDINGS OF FACT

1. The veteran's claim of entitlement to service connection for
PTSD, to include as secondary to a service-connected duodenal
ulcer, is supported by cognizable evidence demonstrating that such
claim is plausible or capable of substantiation.

2. By rating decision of April 1978, service connection was most
recently denied for a low back disorder and following notice to the
veteran of the denial action, no timely appeal of the April 1978
was entered.

3. Evidence added to the record since entry of the RO's decision in
April 1978, denying entitlement of the veteran to service
connection for a low back disorder, is not duplicative or
cumulative of previously submitted materials, bears directly and
substantially on the matter under consideration, and, by itself or
in combination with evidence previously assembled is so significant
that it must be considered in order to decide fairly the merits of
the veteran's claim.

4. The veteran's reopened claim of entitlement to service
connection for residuals of a low back injury is supported by
cognizable evidence demonstrating that such claim is plausible or
capable of substantiation.

CONCLUSIONS OF LAW

1. The veteran's claim of entitlement to service connection for
PTSD, to include as secondary to a service-connected duodenal
ulcer, is well-grounded. 38 U.S.C.A. 5107(a) (West 1991).

2. The RO's decision in April 1978, denying entitlement of the
veteran to service connection for a low back disorder , is final;
new and material evidence has been presented since entry of the
April 1978 determination with which to reopen the previously denied
claim. 38 U.S.C.A. 5108, 7105 (West 1991); 38 C.F.R. 3.104,
3.156(a) (1999).

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3. The veteran's reopened claim of entitlement to service
connection for residuals of a low back injury, to include
degenerative disc disease of the lumbar spine, is well-grounded. 38
U.S.C.A. 5107(a) (West 1991).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Claim for Service Connection for PTSD

Service connection may be granted for 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). 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 medical evidence, between current symptomatology and
the claimed inservice stressor. 38 C.F.R. 3.304(f), as in effect
prior to March 7, 1997. During the pendency of this appeal,
3.304(f) was amended, effective March 7, 1997. As amended, 3.304(f)
provides that service connection for PTSD requires medical evidence
diagnosing the condition in accordance with 4.125(a) of this
chapter (rather than a clear diagnosis); a link, established by
medical evidence, between current symptoms and an inservice
stressor; and credible supporting evidence that the claimed in-
service stressor occurred. 64 Fed. Reg. 32807-32808 (1999). 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 inservice stressor. Id.

The threshold question to be answered as to this portion of the
appeal is, however, whether the veteran has presented evidence of
a well-grounded claim; that is, a claim that is plausible and
meritorious on its own or capable of substantiation. If he

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has not, his appeal must fail. 38 U.S.C.A. 5107(a); Murphy v.
Derwinski, 1 Vet. App. 78, 81 (1990).

For a claim to be well grounded, there must be (1) a medical
diagnosis of a current disability; (2) medical, or in certain
circumstances, lay evidence of inservice occurrence or aggravation
of a disease or injury; and (3) medical evidence of a nexus between
an inservice disease or injury and the current disability. Where
the determinative issue involves medical causation, competent
medical evidence to the effect that the claim is plausible is
required. Epps v. Gober, 126 F.3d 1464, 1468- 69 (Fed. Cir. 1997).
Claims for secondary service connection must likewise be well-
grounded. See generally Reiber v. Brown, 7 Vet. App. 513 (1995).

The provisions of 38 C.F.R. 3.303(b) (1999) provide a substitute
way of showing inservice incurrence and medical nexus for purposes
of well-grounding a claim. See Savage v. Gober, 10 Vet. App. 488,
495-97 (1997). The chronicity provision of 3.303(b) is applicable
where evidence, regardless of its date, shows that an appellant had
a chronic condition in service or during an applicable presumption
period and still has the condition. Such evidence must be medical
unless it relates to a condition as to which lay observation is
competent. If the chronicity provision is not applicable, a claim
may still be well-grounded if the condition is observed during
service or any applicable presumption period, continuity of
symptomatology is demonstrated thereafter, and competent evidence
relates the present condition to that symptomatology. Id.

In the case at hand, the record contains diagnoses of PTSD by
examining or treating mental health professionals meeting the
appropriate diagnostic criteria set forth in the American
Psychiatric Association's Diagnostic and Statistical Manual of
Mental Disorders (4th ed. 1994). As well, the veteran has offered
several accounts of inservice stressors to which he claims he was
exposed during his period of service, which he concedes did not
entail his engagement in combat with the enemy. Moreover, the
record includes statements from attending VA physicians to the
effect that the veteran's PTSD is the result of an inservice racial
incident in which the veteran's life was threatened by others, and
as well, that the veteran's PTSD is secondary to his service-
connected duodenal ulcer. Presuming the

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credibility of the evidence presented for the limited purpose of
determining well- groundedness, see Robinette v. Brown, 8 Vet. App.
69, 78 (1995), the Board finds the claim for service connection for
PTSD, both on the basis of direct incurrence and as secondary to a
service-connected duodenal ulcer, to be well-grounded under 38
U.S.C.A. 5107(a). See Epps, supra.

Claim to Reopen for Residuals of a Low Back Injury

In July 1974, the veteran filed a VA Form 21-527, Income-Net Worth
and Employment Statement, in support of a claim for total
disability benefits. A VA medical examination followed, and in
response, the RO in rating action effected in June 1975 denied
entitlement of the veteran to an increased rating for a duodenal
ulcer and to a permanent and total rating for pension purposes. No
rating was effectuated for the denial of entitlement to service
connection for a low back disorder, although the veteran was
advised of such by the RO in its correspondence of June 1975.
Notwithstanding the RO's conclusion to the contrary, finality is
not found to have attached to the RO's asserted denial of the
veteran's entitlement to service connection for a low back disorder
in June 1915. See 38 U.S.C.A. 7105.

The record reflects that the RO initially denied service connection
for a low back disorder by a rating decision entered in April 1978,
written notice of which was provided to the veteran in the same
month. Inasmuch as a timely appeal of the RO's adverse action was
not thereafter filed, the RO's denial became final. 38 U.S.C.A.
7105. Consequently, the issue at this juncture is whether new and
material evidence has been presented since entry of the April 1978
denial to reopen the previously denied claim. See 38 U.S.C.A. 5108
(West 1991); 38 C.F.R. 3.156 (1999); Barnett v. Brown, 83 F.3d
1380, 1384 (Fed. Cir. 1996).

Reviewing a final decision based on new and material evidence is
potentially a three-step process. See Elkins v. West, 12 Vet. App.
209 (1999) (en banc). In the recent case of Winters v. West, 12
Vet. App. 203, 206 (1999) (en banc), the Court, citing Elkins, held
that the two-step process set forth in Manio v. Derwinski, 1 Vet.
App. 140, 145 (1991), for the reopening of claims had become a
three-step process under the Federal Circuit's holding in Hodge v.
West, 155 F.3d 1356 (Fed. Cir.

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1998). [In Hodge, the Federal Circuit rejected the test for
determining the materiality of evidence originally set forth in
Colvin v. Derwinski, 1 Vet. App. 171 (1991) (evidence was deemed
"material" when there was a reasonable possibility that the
additional evidence presented, when viewed in the context of all
the evidence, both new and old, would change the outcome of the
claim) in favor of the test outlined in 3.156(a), that is, whether
the newly presented evidence is so significant that it must be
considered to fairly decide the claim.]

The three-step process for review of finally adjudicated claims
enumerated in Winters is as follows: The Secretary must first
determine whether new and material evidence has been presented
under 38 C.F.R. 3.156(a); second, if new and material evidence has
been presented, immediately upon reopening the Secretary must
determine whether, based upon all the evidence and presuming its
credibility, the claim as reopened is well-grounded pursuant to 38
U.S.C. 5107(a); and third, if the claim is well-grounded, the
Secretary may evaluate the merits after ensuring the duty to assist
under 38 U.S.C. 5107(b) has been fulfilled. Winters at 206.

New and material evidence means evidence not previously submitted
to agency decision makers which bears directly and substantially
upon the specific matter under consideration, which is neither
cumulative nor redundant, and which by itself or in connection with
evidence previously assembled is so significant that it must be
considered. in order to decide fairly the merits of the claim. 38
C.F.R. 3.156(a).

Evidence on file at the time of entry of the RO's most recent
decision in April 1978 included the veteran's service medical
records, examination and treatment reports compiled during
postservice years, and a VA Form 21-4176, Report of Accidental
Injury, regarding a motor vehicle accident in June 1965 in which
the veteran reported he sustained an injury to the low back. The
medical data then of record indicated that the veteran was treated
on two occasions in service for low back complaint, that he was
treated from 1971 to 1973 for back-related problems, and that VA
examinations in March 1975 and May 1977 yielded diagnoses of
degenerative disc disease at L3, L4, and L5 and a longstanding low
back pain syndrome, respectively. Also, the medical history
furnished at the time of the

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March 1975 evaluation was to the effect that the veteran had
sustained an industrial injury to the back while doing heavy
lifting in 1968.

Evidence added to the record since entry of the August 1991
decision includes many items, among which are duplicate copies of
a portion of service medical records, multiple examination and
treatment reports, a statement from a fellow serviceman attesting
to the occurrence of an inservice injury involving the veteran's
back and symptoms therefrom, and a statement from a treating
chiropractor specifically linking the veteran's current low back
disorder to an inservice motor vehicle accident and the resulting
injury to his low back.

Clearly, that evidence which is duplicative of prior evidence is
not "new," and of the remaining evidence, the undersigned addresses
only the statements from a fellow serviceman and the veteran's
treating chiropractor. Those statements do not duplicate prior
items of evidence, nor are they found to be cumulative of
previously submitted materials. They bear directly and/or
substantially on the question of the service incurrence of the
veteran's claimed back disorder and the chiropractor's statement is
noted to contain opinion from a medical professional indicating
that the veteran currently suffers from a low back disorder that is
linked to an inservice injury. To that extent, such evidence is
held to be so significant that it must be considered in order to
decide fairly the merits of the claim. See 38 C.F.R. 3.156; Hodge,
supra.

On the basis of the foregoing, new and material evidence has been
presented with which to reopen the veteran's previously denied
claim of entitlement to service connection for residuals of a low
back injury per 38 U.S.C.A. 5108 and 38 C.F.R. 3.156(a). That being
the case, the question next presented under Winters, Elkins, and
Hodge, supra, is whether the reopened claim is well-grounded under
38 U.S.C.A. 5107(a). Inasmuch as there is shown to be current
disablement of the low back, to include a demonstration of
degenerative disc disease of the lumbar spine, in addition to
evidence as to the occurrence of an inservice injury of the low
back and medical data linking the inservice injury to the existence
of current disability of the low back, it is conceded that the
reopened claim herein at issue is well-grounded. The Board may now
evaluate the merits of the well-grounded claim

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presented, after ensuring that the duty to assist under 38 U.S.C.
5107(b) has been fulfilled, and in this instance, further
development as outlined below is deemed to be in order.

ORDER

The veteran's claim of entitlement to service connection for PTSD
is well- grounded. To that extent, the appeal is granted.

The veteran's previously denied claim of entitlement to service-
connection for residuals of a low back injury is reopened and such
claim is well-grounded. To that extent, the appeal is granted.

REMAND

As to all of the issues presented for appeal, it is noted that the
veteran was advised by the RO in written correspondence, dated
October 6, 1999, that his appeal was being certified to the Board
for review and it is evident that prior to October 6, 1999, the
veteran and others on his behalf submitted evidence to the RO that
had not previously been reviewed by the RO. Such evidence does not
appear to have been considered by the RO and it is apparent that no
waiver of initial consideration by the RO was entered by the
veteran as to that evidence. The record reflects that the most
recent supplemental statement of the case was furnished to the
veteran in October 1997, and that he or representative submitted a
copy of a VA Form 9 along with a typewritten statement not
previously offered in January 1998, as well as a VA Form 21-4138
(Statement in Support of Claim) prepared by the veteran in January
1998, correspondence from a fellow serviceman prepared in July
1998, a photocopy of an article from an unnamed periodical or
textbook in October 1998, and the veteran's written statements of
February and March 1999, as accompanied by copies of certain
medical records. None of the foregoing was offered with a waiver of
initial RO consideration, notwithstanding the fact that a variety
of other evidence was submitted by the veteran at or about the time
of his hearing before the

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Board, sitting in Seattle, Washington, in February 1999, for which
a waiver of RO consideration was presented. While the evidence
submitted without a waiver is not found to preclude the favorable
dispositions set forth in the Order above, further review is
precluded pending corrective action by the RO.

The veteran likewise avers that he has received extensive medical
treatment from VA, most recently at the VA Puget Sound Health Care
System in Seattle, Washington. While certain automated records of
treatment from the Seattle facility are on file, such do not appear
to be complete or entirely current. Given that VA treatment records
are deemed to be within the VA's constructive possession although
not actually within the claims folder, per Bell v. Derwinski, 2
Vet. App. 611 (1992), further action is found to be in order in
order to obtain all pertinent records.

As for the issues addressed in the Order above, the Board finds
that further action is warranted by the RO in terms of the
veteran's well-grounded claims for service connection for PTSD and
residuals of a low back injury, to include degenerative disc
disease of the lumbar spine, for compliance with the duty-to-assist
obligation outlined in 38 U.S.C.A. 5107(b).

Specifically, the Board notes that because evidence is lacking that
the veteran engaged in combat with the enemy, the veteran's oral
and written testimony, alone, is inadequate to prove the occurrence
of an inservice stressor. 38 C.F.R. 3.304(f). Any such stressor
must therefore be established by official service records or other
credible supporting evidence. Gaines v. West, 11 Vet. App. 353
(1998); Cohen v. Brown, 10 Vet. App. 128 (1997). There is no
indication that the RO has to date undertaken any efforts to
corroborate the veteran's statements of stressors with the United
States Armed Services Center for Research of Unit Records (USACRUR)
or through other pertinent sources. Further action in this regard
is thus in order, and it is also determined that further medical
input is needed in order to ascertain more fully the role, if any,
of the veteran's service-connected duodenal ulcer in the
development of his PTSD.

Regarding the claim for service connection for a low back disorder,
it is noted that the record denotes the occurrence of one or more
postservice injuries to the veteran's spine, the significance of
which are not clearly indicated by existing medical data. Further
medical input as to this matter would be of assistance.

Based on the foregoing, this case is hereby REMANDED to the RO for
the completion of the following actions:

1. The RO should request from the veteran a comprehensive written
statement containing as much detail as possible regarding the
stressor(s) to which he alleges he was exposed in service, which
led to his PTSD. The veteran should be asked to provide specific
details of the claimed stressful events during service, such as
dates of any and all incidents to within seven days, types and
locations of the incidents, full names and service numbers of any
other persons present, detailed descriptions of events, and any
other identifying information. The veteran must be advised that
this information is necessary to obtain supportive evidence of his
claimed stressors, and that he must be as specific as possible
because without such details adequate research for verifying
information cannot be conducted. He must also be advised to obtain
and submit any verifying data, such as statements from any person,
inclusive of any fellow serviceman or his spouse, that might have
knowledge of the inservice stressors which the veteran claims led
to the onset of his PTSD.

2. Based on any additional information obtained regarding the
claimed stressor(s), as well as the information relating thereto
previously supplied by the veteran and any pertinent evidence
currently of record,
                                
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the RO should prepare a summary of all the claimed stressors, with
as much detail as possible. This summary, along with a copy of the
veteran's Department of Defense Form 214 and the Department of the
Air Force 7, or its equivalent, and all associated documents,
should be sent to the USASCRUR and/or the United States Air Force
(USAF) with a request to provide any information that may
corroborate the veteran's alleged stressor(s), including but not
limited to any available data regarding the death of a Sgt. [redacted] in
a motor vehicle accident near Castle Air Force Base in Merced,
California, in or about 1964 or 1965, and the whereabouts of [redacted]
[redacted] (a fellow serviceman who reportedly was present shortly
after the veteran's racial confrontation with civilians in the
vicinity of Shaw Air Force Base in Sumner, South Carolina, in 1964
or 1965).

3. The RO through contact with the California Highway Patrol should
attempt to obtain a copy of the report of the motor vehicle
accident in which Sergeant [redacted] was killed near Castle Air Force
Base in Merced, California, in or about 1964 or 1965, for inclusion
in the veteran's claimsfolder.

4. Following receipt of the USASCRUR/USAF report, as well as the
completion of any additional development requested above or
suggested by those agencies, the RO should prepare a report
detailing the nature of any inservice stressful event(s), verified
by the USASCRUR/USAF or through other documents. If no stressor is
verified, the RO should so state in its report. The report is then
to be added to the claimsfile.

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5. All records of VA inpatient and outpatient treatment and/or
examinations not already on file which pertain to any of the
disorders herein at issue must be obtained and associated with the
evidence already on file, particularly those compiled at the VA
Puget Sound Health Care System in Seattle, Washington, from 1994 to
the present.

6. Thereafter, the veteran is to be afforded VA medical
examinations by physicians in the specialties of orthopedics and
psychiatry for the purpose of determining the nature and etiology
of the veteran's claimed PTSD and low back disorder. The veteran's
claimsfolder in its entirety is to be furnished to the examiners
prior to any evaluation of the veteran for use in the study of this
case. Such examinations are to include a review of the veteran's
history and current complaints, as well as comprehensive clinical
evaluations of each affected body part or system. Any indicated
diagnostic studies must also be accomplished and all established
diagnoses are to be fully set forth.

It is asked that the orthopedic examiner offer a professional
opinion, with full supporting rationale, as to whether it is at
least as likely as not (a 50 percent or more likelihood) that any
current disorder of the veteran's low back is directly attributable
to the veteran's period of military service or any injury occurring
therein.

As well, it is requested that the psychiatric examiner offer a
professional opinion, with full rationale, as to the etiology of
the veteran's PTSD. Specifically, a response to the question of
whether it is at least as likely as not

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that the veteran's PTSD, if present, is the result of any inservice
event, is sought. A detailed response is also requested as to
whether it is at least as likely as not that the veteran's service-
connected duodenal ulcer caused or aggravated any existing PTSD.

7. Lastly, the RO must readjudicate each of the issues in dispute,
based on all of the evidence of record and all pertinent legal
authority. If any of the benefits sought continued to be denied,
the RO should issue to the veteran and his representative a
supplemental statement of the case and afford them a reasonable
period for a response, before the record is returned to the Board
for further review.

The Board does not intimate any opinion as to the merits of any of
the issues presented by this case, either favorable or unfavorable,
at this time. The veteran and his representative have the right to
submit additional evidence and argument on the matter or matters
the Board has remanded to the RO. Kutscherousky v. West, 12 Vet.
App. 369 (1999).

R. F. WILLIAMS 
Member, Board of Veterans' Appeals

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