Citation Nr: 0005656 Decision Date: 03/02/00 Archive Date: 03/14/00 DOCKET NO. 95-39 786 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for right knee disability. 2. Entitlement to service connection for a skin disorder due to exposure to herbicide agents. 3. Whether new and material evidence has been presented to reopen a claim of service connection for a post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Ehrman, Counsel INTRODUCTION The veteran had active military service from January 1969 to January 1971, which service included a tour of duty in the Republic of Vietnam from July 1969 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 1995 RO rating decision. However, this action was not the first time a claim of service connection for PTSD had been denied. Such a claim was previously denied by a March 1993 rating decision and no appeal was initiated. Consequently, the Board's analysis of the PTSD claim must include consideration of whether the previously denied claim should be reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. §§ 20.302, 20.1103 (1992). FINDINGS OF FACT 1. No competent medical evidence has been presented which tends to link current right knee disability to the veteran's military service. 2. No competent medical evidence has been presented which tends to link current skin disorder to the veteran's military service, including any in-service herbicide exposure. 3. By a March 1993 rating decision, service connection for PTSD was denied; the veteran did not appeal. 4. Certain evidence received since the March 1993 rating decision bears directly on the claim of service connection for PTSD and is so significant that it must be considered in order to fairly decide the claim. 5. The veteran has been diagnosed with PTSD that has implicitly been linked to in-service experiences. CONCLUSIONS OF LAW 1. The claim of service connection for right knee disability or a skin disorder due to herbicide exposure is not well grounded. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1999). 2. New and material evidence has been received to reopen a previously denied claim of entitlement to service connection for PTSD. 38 U.S.C.A. §§ 1110, 5108, 7105 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.156, 3.303, 3.304, 20.1103 (1999); 38 C.F.R. § 20.302 (1992). 3. The claim of service connection for PTSD is well grounded. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated by service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(a) (1999). Service connection is also warranted where the evidence shows that a chronic disability or disorder has been caused or aggravated by an already service-connected disability. 38 C.F.R. § 3.310 (1999); Allen v. Brown, 7 Vet. App. 439 (1995). When disease is shown as chronic in service, or within a presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (1999). A person who submits a claim for VA benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. Only if the claimant meets this burden does VA have the duty to assist him in developing the facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). If the claimant does not meet this initial burden, the appeal must fail because, in the absence of evidence sufficient to make the claim well grounded, the Board does not have jurisdiction to adjudicate the claim. Boeck v. Brown, 6 Vet. App. 14, 17 (1993). A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive, but only possible, to satisfy the initial burden of 38 U.S.C.A. § 5107(a). To be well grounded, however, a claim must be accompanied by evidence that suggests more than a purely speculative basis for granting entitlement to the requested benefits. Dixon v. Derwinski, 3 Vet. App. 261, 262-63 (1992). Evidentiary assertions accompanying a claim for VA benefits must be accepted as true for purposes of determining whether the claim is well grounded, unless the evidentiary assertion is inherently incredible or the fact asserted is beyond the competence of the person making the assertion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is plausible or possible is required. Murphy, 1 Vet. App. at 81. A claimant cannot meet this burden merely by presenting lay testimony, because lay persons are not competent to offer medical opinions. Espiritu, 2 Vet. App. at 495. The United States Court of Appeals for Veterans Claims (Court) has held that competent evidence pertaining to each of three elements must be submitted in order make a claim of service connection well grounded. There must be competent (medical) evidence of a current disability; competent (lay or medical) evidence of incurrence or aggravation of disease or injury in service; and, competent (medical) evidence of a nexus between the in-service injury or disease and the current disability. This third element may be established by the use of statutory presumptions. 38 C.F.R. §§ 3.307, 3.309 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). I. Right Knee Disability Certain chronic diseases, including arthritis, which become manifest to a degree of 10 percent or more within one year of separation from service will be presumed to have been incurred in or aggravated by service, unless otherwise demonstrated by the evidence of record. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). The veteran asserts that service connection is warranted for right knee arthritis. However, service medical records are silent for any right knee injury or arthritis, and arthritis is not shown until many years after the veteran's separation from service. On VA examination in December 1971, the veteran gave a history of injuries, including of the right knee, sustained in a motor vehicle accident "while on leave." The veteran reported that his right knee hurt in cold rainy weather. No definite findings were made on physical examination. X-ray studies of the right knee were negative except for a separate ossification center above the tibial tuberosity, which was thought to be the result of childhood Osgood-Schlatter's disease. The diagnosis was a healed contusion of the right knee. No further treatment for a right knee disorder is shown until September 1989, when the veteran gave a history of bilateral knee pain following a 1969 injury. The assessment was right knee arthrosis. A diagnosis of bilateral knee pain was made on VA hospitalization in January 1990. A history of bilateral knee arthritis "since 1969" was reported by the veteran on VA examination in August 1992. Right knee x-rays were negative, however. A VA examiner's diagnosis was "possible degenerative joint disease and/or chondromalacia" of both knees. An October 1994 VA examination report shows a diagnosis of degenerative arthritis of the knee joints-left greater than the right-with probable loose bone fragment in the left knee. The x-ray study revealed very minimal degenerative arthritis of the right knee. More recent records show continued treatment for bilateral knee arthritis, left worse than the right. In the veteran's case, he asserts that his current right knee disability is due to service, particularly an injury in service. However, no evidence has been presented to show that he was diagnosed with arthritis within one year after his January 1971 separation from service. Accordingly, the presumption of service-connection under 38 C.F.R. § 3.307 is not for application. Additionally, no evidence has been presented to show that there is any clinical relationship between any currently demonstrated right knee disability and his military service, including an automobile accident in 1969 or 1970. Consequently, the Board finds that his claim of service connection is not well grounded. While the evidence of record shows recent treatment for what has been diagnosed as right knee arthritis, with notation of the veteran's own recitation of a history of right knee pain since service, no medical opinion is of record which associates the current right knee arthritis to the veteran's prior service, or any incident of military service. The salient point to be made about the evidence described above is that no medical opinion has been offered which links the veteran's right knee arthritis to his military service or to continued symptoms since service. The veteran has on occasion given a history of such a nexus when he was examined, saying that he had had right knee pain since an in- service knee injury; however, no examiner has adopted the veteran's history as part of a medical opinion regarding etiology. Absent the presentation of evidence showing a medical nexus between disability and the veteran's military service, the claim of service connection is not well-grounded under Caluza, supra. II. Skin Disorder With regard to herbicides, VA law and regulations provide that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, and has a disease listed at 38 C.F.R. § 3.309(e), shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C.A. § 1116(a)(3) (West Supp. 1999); 38 C.F.R. § 3.307(a)(6)(iii) (1999). The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.307(a)(6)(iii) (1999). "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. Id. If a veteran was exposed to an herbicide agent during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, the following diseases shall be service-connected if the requirements of 38 U.S.C.A. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied: chloracne or other acneform disease consistent with chloracne; Hodgkin's disease; multiple myeloma; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e) (1999). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year, and respiratory cancers within 30 years, after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii) (1999). The Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Diseases Not Associated With Exposure to Certain Herbicide Agents, 61 Fed. Reg. 41442, 41448 (1996). Nevertheless, the United States Court of Appeals for the Federal Circuit has held that the Veteran's Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984), does not preclude a claimant from establishing service connection with proof of direct causation, a task "which includes the difficult burden of tracing causation to a condition or event during service." Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In the veteran's case, he claims that a current skin disorder is due to exposure to herbicides when he was in the Republic of Vietnam. Service medical records show that, in July 1969, the veteran received treatment for a second degree sunburn on his back. He was also seen for a complaint of a rash in October 1969. No skin abnormality was shown on examination at separation from service, or for many years thereafter. The veteran's skin was normal on VA examination in December 1971. While records received in August 1997 show that the veteran may have come within about 2 kilometers of certain herbicide agents, no evidence has been presented to show that he has a disease listed in § 3.303(e), or that there is a clinical relationship between any of the diagnosed skin problems and military service, including any in-service herbicide exposure. The first notation of any skin disorder is on VA examination in August 1992. The diagnosis was hyperkeratosis of the dorsal hands and right temporal area. On VA examination in August 1994, the veteran reported a scaly crusty lesion on the right temple, and some mild erythema on the back of the neck. The impression was solar keratosis of the right temple and neurodermatitis of the neck. An October 1994 VA treatment record shows that he had a keratotic lesion on the right lower back, with no other skin pathology noted. A June 1997 treatment record shows skin lesions over the upper extremities and forehead and scalp, with pruritus. The examination report makes reference to the veteran's own history of exposure to Agent Orange, but no opinion of a relationship to such exposure was provided by the examining physician. The veteran was also seen in July 1997 for keratosis about the right ear and a sebaceous cyst of the left temporal area. The salient point to be made about the evidence described above is that no medical opinion has been offered which links any current skin problem to the veteran's military service, or to any exposure to herbicides while in military service. The veteran has on occasion given a history of such a nexus when he was examined for his skin problems (the veteran makes reference to a history of having skin problems since service); however, no examiner has adopted the veteran's history as part of a medical opinion regarding etiology. Absent the presentation of evidence showing disease listed in § 3.309(e), or the presentation of evidence linking currently shown problems to military service, including herbicide exposure in service, the veteran's claim may not be found to be well grounded. Additionally, although the veteran has provided a history of skin problems since military service, no competent medical evidence has been presented linking any currently demonstrated problem to this history of continued symptoms. Consequently, the Board finds that the veteran's claim of service connection is not well grounded because of a lack of medical nexus evidence. Caluza, supra. III. PTSD By a decision entered in March 1993, the RO disallowed service connection for PTSD. The veteran was notified of the decision, and of his appellate rights, but did not initiate an appeal within one year. See 38 C.F.R. § 20.302 (1992). As a result, his current claim of service connection may be considered on the merits only if new and material evidence has been submitted since the time of the March 1993 disallowance. 38 U.S.C.A. §§ 5108, 7105 (West 1991 & Supp. 1999); Manio v. Derwinski, 1 Vet. App. 140, 145 (1991); Evans v. Brown, 9 Vet.App. 273 (1996). The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in that regard is irrelevant. Id. Further analysis, beyond consideration of whether the evidence received is new and material, is neither required nor permitted. Id. at 1384. See also Butler v. Brown, 9 Vet. App. 167, 171 (1996). Evidence is considered "new" if it was not of record at the time of the last final disallowance of the claim and if it is not merely cumulative or redundant of other evidence that was then of record. 38 C.F.R. § 3.156(a) (1999); Struck v. Brown, 9 Vet. App. 145, 151 (1996); Blackburn v. Brown, 8 Vet. App. 97, 102 (1995); Cox v. Brown, 5 Vet. App. 95, 98 (1993). "Material" evidence is evidence which bears directly and substantially upon the specific matter under consideration, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (1999); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). In the present case, the Board finds that new and material evidence has been presented since the March 1993 disallowance. Significantly, the record available in March 1993 did not include a diagnosis of PTSD. It was not until about October 1994 that a diagnosis of PTSD was made. Records dated thereafter also include such a diagnosis. Additionally, the Board finds it significant that an October 1994 examiner concluded that the veteran had PTSD based on what appears to be a history of in-service stressors. In short, it appears that the diagnosis was based on the recitation of in-service stressors rather than other events in the veteran's life. Since evidence such as described above-showing a diagnosis of PTSD based on in-service events-was not available when the claim of PTSD was denied in March 1993, the Board finds that this newly received evidence bears directly on the matter on appeal and is so significant that it must be considered in order to fairly decide the veteran's claim. Consequently, the claim of service connection for PTSD is reopened. When a previously denied claim is reopened, the next question that must be addressed is whether the claim is well grounded. Winters v. West, 12 Vet. App. 203 (1999); Elkins v. West, 12 Vet. App. 209 (1999). A grant of service connection for PTSD "requires medical evidence diagnosing the condition in accordance with [38 C.F.R.] § 4.125(a) . . . ; 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." 38 C.F.R. § 3.304(f) (1999). Where it is determined that the veteran was engaged in combat with the enemy and the claimed stressor is related to such combat, the veteran's lay testimony alone may establish the occurrence of the claimed stressor, absent clear and convincing evidence to the contrary. Id. Where, however, VA determines that the veteran did not engage in combat with the enemy (or that the veteran did engage in combat with the enemy but the claimed stressor is not related to such combat), the veteran's lay testimony, by itself, will not be enough to establish the occurrence of the alleged stressor. Instead, the record must contain evidence that corroborates the veteran's testimony as to the occurrence of the claimed stressor(s). See 38 U.S.C.A. § 1154(b) (West 1991); 38 C.F.R. § 3.304(f); West v. Brown, 7 Vet.App. 70, 76 (1994); Cohen v. Brown, 10 Vet.App. 128 (1997). For the purpose of determining whether a claim is well grounded, the veteran's allegations, including those regarding the circumstances of his Vietnam service and PTSD stressor, are taken as true, unless such statements are inherently incredible. See King v. Brown, 5 Vet. App. 19, 21 (1993). In the instant case, the veteran is shown to have served in the Republic of Vietnam from July 1969 to July 1970. Additionally, his principle duty assignment for part of that time was as a heavy vehicle driver. His several statements with regard to the alleged PTSD stressors are entirely consistent with such a duty assignment, as documented in his service personnel file. The Board therefore finds that the veteran's statements are not inherently incredible. Accordingly, his statements must be taken as true for the purpose of deciding whether the claim is well grounded. Given the assessment made in October 1994 that the veteran has PTSD, and the reasonable inference from a reading of that examination report that such disability was diagnosed on the basis of the in-service stressors recounted by the veteran, the Board finds the veteran's claim of service connection well grounded. ORDER Service connection for right knee disability or a skin disorder due to herbicide exposure is denied. The claim of service connection for PTSD is reopened and is a well-grounded claim; to this extent, the appeal of this issue is granted. REMAND The Board initially notes that the Court has set forth certain steps that must be undertaken when reviewing a claim of service connection for PTSD, where PTSD has been diagnosed. See West v. Brown, 7 Vet.App. 70 (1994). The Court in West indicated that (1) once the veteran's purported stressors have been factually verified, then (2) a medical examiner must make a determination if any factually verified stressor is sufficient to support a diagnosis of PTSD. In the immediate case on appeal, neither step has been fully completed. In a January 1992 statement, the veteran described an in- service stressor where several passengers in a truck he was driving were killed, including his "shotgun rider." This allegedly occurred when he was in Vietnam, assigned to the 585 Transport Ammo Truck Unit, stationed at Camp Eagle, 1st Corp. On VA examination in August 1992, the veteran detailed other PTSD stressors, including hauling body bags, being shot at several times, and witnessing the violent deaths of several men from this unit when they were "blown up." On VA examination in October 1994, the veteran recounted another PTSD stressor where a sergeant sitting next to him in his truck was struck and killed by small arms fire, spraying the veteran with blood and body parts. He also reported being exposed to mortar and rocket attacks during an overnight stay at "Firebase Sally," at which time he had to return gun fire and "kill the enemy" for the first time. While the RO made an attempt to verify some of the PTSD stressors reported by the veteran, its December 1996 letter requesting investigation into the events described by the veteran included only a few of the alleged PTSD stressor events. The response received from the U. S. Armed Services Center for Research of Unit Records (USASCRUR) in August 1997 suggested that additional information was required in order to facilitate further research of the claimed stressors. Not all of the action suggested by USASCRUR was undertaken. The Board also notes that the medical evidence is somewhat equivocal as to the exact problem(s) experienced by the veteran. Current psychiatric diagnoses include a bipolar disorder and a dysthymic disorder, as well as PTSD. Additionally, PTSD has not always been diagnosed when the veteran was examined for psychiatric disability. Although the claims file includes diagnoses of PTSD which appear to be based on the recitation of in-service events, it is clear that the examiners have heretofore relied on the veteran's own unverified history, without a thorough examination of the clinical history as contained in the psychiatric treatment records in the claims file. In an effort to assist the veteran in the development of his claim, the Board is of the opinion that the veteran should be given another opportunity to provide more specific information regarding the in-service events so that further investigation can be made to verify the claimed events, as noted above. Thereafter, a VA psychiatric examination of the veteran is in order to ascertain whether the veteran indeed experiences PTSD due to a verified stressor. This matter is REMANDED to the RO for the following actions: 1. The RO should contact the veteran and ask for more specifics regarding the claimed in-service stressors, including names and addresses, if known, of any killed or injured personnel, units involved to the company level, specific dates and locations, and the names and locations of any witnesses to any of the incidents. 2. The RO should obtain copies of any additional VA psychiatric, PTSD clinic, or mental health treatment records from the VA Medical Center in Clarksburg, West Virginia, dated from June 1997 to the present, and the Pittsburgh, Pennsylvania (University and Highland Drive) VA Medical Centers, dated from August 1994 to the present. 3. If a reply to paragraph #1 is obtained from the veteran, the RO should then seek additional assistance from the USASCRUR. The RO should send copies of the veteran's January 1992 stressor statement, his personnel records, and any reply to paragraph #1 above, to the USASCRUR. Additionally, morning reports from the National Personnel Records Center for units identified by the veteran should be sought. 4. Thereafter, the veteran should be afforded a VA psychiatric examination for the purpose of determining whether he meets the diagnostic criteria for PTSD. Psychological testing should be conducted. If the examiner believes that PTSD is present, he/she should explicitly identify any factually verified stressors that caused PTSD. In addition, the examiner should discuss each of the diagnostic criteria for PTSD and state the specific manifestations of the veteran's psychiatric illness that matches the criterion. The claims file must be made available to the examiner prior to the examination. 5. The RO should re-adjudicate the veteran's claim of entitlement to service connection for PTSD in accordance with VA guidelines and the criteria set forth in West, supra, Suozzi v. Brown, 10 Vet. App. 307 (1997) (the veteran's own personal involvement in a stressful event need not be confirmed), and 38 C.F.R. § 3.304(f) (1999). If the decision remains adverse to the veteran, he and his representative should be provided a supplemental statement of the case. Thereafter, if indicated, the case should be returned to the Board for further appellate consideration. No action is required on the veteran's part until further notice. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. 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. MARK F. HALSEY Member, Board of Veterans' Appeals