Citation Nr: 0002174 Decision Date: 01/28/00 Archive Date: 02/02/00 DOCKET NO. 97-32 027A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for a psychiatric disorder, other than post-traumatic stress disorder (PTSD), to include an anxiety disorder and depression. 2. Entitlement to service connection for PTSD. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Kelli A. Kordich, Associate Counsel INTRODUCTION The veteran served on active duty from March 1964 to February 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 1996 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, which in part, denied service connection for a psychiatric disorder, to include an anxiety disorder, depression, and PTSD. The case was referred to the Board and remanded by the Board in April 1998 for further development and adjudication of additional issues. In July and August 1999, subsequent to the additional development, the RO denied the veteran's claims. The case has been returned to the Board for appellate review. FINDINGS OF FACT 1. There is no competent medical evidence of a nexus between a current psychiatric disorder other than PTSD, to include an anxiety disorder and depression, and his period of active duty service. 2. The veteran served aboard the USS Mansfield off the coast of Vietnam; the crew received a combat citation; there is no competent evidence currently of record to show that he engaged in combat with the enemy but, even assuming such combat duty, the preponderance of the medical evidence is against his PTSD and any incident of service. CONCLUSIONS OF LAW 1. The veteran's claim of entitlement to service connection for an acquired psychiatric disorder, other than PTSD, is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. PTSD was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303, 3.304 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Introduction The issues before the Board involve claims for entitlement to service connection. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Certain chronic disabilities, such as psychoses, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 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). It should also be noted that personality disorders are not diseases or injuries within the meaning of applicable legislation concerning service connection. 38 C.F.R. § 3.303(c). However, it should be noted at the outset that statutory law as enacted by the Congress 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). A well-grounded claim has been defined by the United States Court of Appeals for Veterans Claims (Court) as "a plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet. App. 78, 91 (1990). Where the determinative issue involves a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). A claimant therefore cannot meet this burden merely by presenting lay testimony and/or lay statements 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 38 U.S.C.A. § 5107(a); if no cognizable evidence is submitted to support a claim, the claim cannot be well- grounded. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In order for a service connection claim to be well-grounded, there must be competent evidence: i) of current disability (a medical diagnosis); ii) of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and; iii) of a nexus between the inservice injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498, 506 (1995). The Board emphasizes, however, that the doctrine of reasonable doubt does not ease the veteran's initial burden of submitting a well-grounded claim. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Alternatively, the Court has indicated that a claim may be well grounded based on application of the rule for chronicity and continuity of symptomatology, set forth in 38 C.F.R. § 3.303(b). See Savage v. Gober, 10 Vet. App. 488 (1997). The Court held that the chronicity provision applies where there is evidence, regardless of its date, which shows that a veteran had a chronic condition either in service or during an applicable presumption period and that the veteran still has such condition. That evidence must be medical, unless it relates to a condition that the Court has indicated may be attested to by lay observation. If the chronicity provision does not apply, 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." Savage, 10 Vet. App. at 498. II. Acquired psychiatric disorder (other than PTSD) Service medical records show that the veteran gave a history of nervousness on his enlistment examination dated March 1964. In August 1967 the veteran requested an evaluation for nerves and described himself at that time as a nervous person who had difficulty releasing built up tension; he indicated that he usually released the stress by drinking alcohol. The impression was anxiety, chronic, with impulsive action. The veteran was prescribed Librium and was to return in three days. Four days later, the veteran was seen at the Yokosuka, Japan Naval Hospital with the diagnosis of drug ingestion. The veteran had reportedly taken an excessive amount of medication that was prescribed. The diagnosis was revised on September 14, 1967 to drug ingestion, depressive reaction, and anxiety reaction. The veteran was transferred to the U.S. Naval Hospital in Philadelphia on September 17, 1967. The veteran indicated that his difficulty began six months prior to admission. He was having difficulty getting along with a particular superior non-commissioned officer aboard his ship, and he began feeling very irritable, tense, and tremulous. Upon admission to the Philadelphia Naval Hospital, physical, neurological and all indicated laboratory examinations were found to be within normal limits. Mental status examination revealed an immature appearing young man who related in a passive and dependent manner. His speech was coherent and goal directed and his sensorium was intact. There was no evidence of delusions, hallucinations, anxiety, depression, or thinking disorder. The veteran denied any suicidal ideation and insight into his situation was undeveloped. His motivation for further service remained good and there was no evidence of psychosis, neurosis, or depression. The diagnosis was emotionally unstable personality and he was found fit for full duty. The February 1968 discharge examination noted no psychiatric impairment. Post-service medical statement dated March 1996 shows that the veteran was being treated by Charles Brady, Ph.D., who began seeing the veteran in December 1992 after experiencing a third significant chemical burn at his place of employment. The veteran was diagnosed with PTSD, major depression in partial remission, and generalized anxiety disorder. Subsequent VA examinations relate the veteran's psychiatric symptomatology to PTSD, which in turn was linked to post- service chemical burns (see below). The Board notes that, while a history of nervousness was noted upon the veteran's entry into service, he was diagnosed with anxiety and depressive reactions while on active duty. However, a more thorough subsequent psychiatric evaluation resulted in a diagnosis of a personality disorder, which is not a disability for VA compensation purposes. 38 C.F.R. § 3.303 (c). Moreover, the veteran's separation examination revealed no psychiatric disorder. Post service medical evidence shows that the veteran currently has an acquired psychiatric disorder. However, there is no medical evidence of a nexus between the veteran's acquired psychiatric disorder and his period of active duty service. Further, as noted above, while the veteran was evaluated while on active duty for psychiatric symptoms, the final psychiatric diagnosis was a personality disorder, there is no post-service medical evidence of an acquired psychiatric disorder until the early 1990's, many years after discharge from service, and there is no medical evidence of a nexus between a current psychiatric disorder and any incident of service. Without medical evidence of such a nexus, the Board must find that the claim is not well-grounded. The Board emphasizes here that it cannot rely solely on the statements of the veteran because evidence of a medical nexus cannot be established by lay testimony. Brewer v. West, 11 Vet. App. 228 (1998); Espiritu, 2 Vet. App. at 494-495. Because the veteran has failed to meet his initial burden of submitting evidence of a well-grounded claim for service connection, the VA is under no duty to assist him in developing the facts pertinent to his claim. See Epps, 126 F.3d at 1468. As the Board is not aware of the existence of additional evidence that might well ground the veteran's claim, a duty to notify does not arise pursuant to 38 U.S.C.A. § 5103(a). See McKnight v. Gober, 131 F.3d 1483, 1484-1485 (Fed. Cir. 1997). The Board views this discussion as sufficient to inform the veteran of the elements necessary to well ground his claim, and as an explanation as to why his current attempt fails. III. Entitlement to service connection for PTSD In general, establishing service connection for a disability requires the existence of a current disability and a relationship or connection between that disability and a disease contracted or an injury sustained during active service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1997); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Establishing service connection for PTSD requires (1) a current medical diagnosis of PTSD (presumed to include the adequacy of the PTSD symptomatology and the sufficiency of a claimed inservice stressor); (2) credible supporting evidence that the claimed inservice stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed inservice stressor. Cohen, 10 Vet App at 138; Moreau v. Brown, 9 Vet. App. 389, 394-95 (1996); 38 C.F.R. § 3.304(f) (1999). With regard to the second criterion, the evidence necessary to establish that the claimed stressor actually occurred varies depending on whether the veteran "engaged in combat with the enemy." 38 U.S.C.A. § 1154(b) (West 1991). "Where it is determined, through recognized military citations or other supportive evidence, that the veteran was engaged in combat with the enemy and the claimed stressors are related to such combat, the veteran's lay testimony regarding claimed stressors must be accepted as conclusive as to their actual occurrence and no further development for corroborative evidence will be required, provided that the veteran's testimony is found to be 'satisfactory,' e.g., credible, and 'consistent with the circumstances, conditions, or hardships of [combat] service.'" Zarycki v. Brown, 6 Vet. App. 91, 98 (1993); 38 U.S.C.A. § 1154(b) (West 1991); 38 C.F.R. § 3.304(d), (f) (1999). Section 1154(b) provides a factual basis upon which a determination can be made that a particular disease or injury was incurred or aggravated in service but not a basis to link etiologically the condition in service to the current condition. See Libertine v. Brown, 9 Vet. App. 521, 524 (1996); Caluza [v. Brown], 7 Vet. App. [498,] 507 (1995). Although the provision does not establish service connection for a particular disability of a combat veteran, it aids the combat veteran by relaxing the adjudicative evidentiary requirements for determining what happened in service. See id. at 508; see also Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996) (noting that § 1154(b) "does not create a statutory presumption that a combat veteran's alleged disease or injury is service-connected" but "considerably lightens[s] the burden of a veteran who seeks benefits for an allegedly service-connected disease or injury and who alleges that the disease or injury was incurred in, or aggravated by, combat service"); cf. Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994) (38 C.F.R. § 3.306, derived from § 1154(b), creates a presumption of aggravation but "not service- connection, or even that the determination of aggravation is irrebuttable".). Cohen, 10 Vet. App. at 138. The claim for service connection for PTSD is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). A VA examination in March 1996 rendered a diagnosis of PTSD based on the veteran's reported history of a post-service, work-related burn injury, and stressful combat events to include being wounded. While, as will be explained below, the diagnosis was based, in part, on an inaccurate factual background concerning the alleged combat wound, as there is some medical evidence of a link or nexus between the claimed stressful events during service and the current PTSD diagnosis, the claim is well grounded. Cohen, 10 Vet. App. at 137. Pursuant to 38 U.S.C.A. § 5107(a) (West 1991), the Board is obligated to assist the veteran in the development of is claim. Upon review of the records, the Board finds that all evidence necessary for adjudication of the veteran's claim has been obtained, and that duty to assist him, as mandated by 38 U.S.C.A. § 5107(a) has been satisfied. As noted above, service medical records show that the veteran was seen in August 1967 for nerves and was prescribed Librium and overdosed on the medication four days later. The veteran was hospitalized in Japan and then at the naval hospital in Philadelphia where he was diagnosed with emotionally unstable personality and subsequently found fit full duty. The February 1968 discharge examination noted no psychiatric impairment. Post-service medical statement dated March 1996 shows that the veteran was being treated by Charles Brady, Ph.D., who began seeing the veteran in December 1992 after experiencing a third significant chemical burn at his place of employment. The veteran indicated to the examiner that he was "never the same" as before the first burn incident. The examiner noted that the veteran had not made the issues around his Vietnam experience a priority issue in his current treatment. The veteran was diagnosed with PTSD, major depression in partial remission, and generalized anxiety disorder. A March 1996 VA examination diagnosed the veteran with PTSD based on combat events, including being wounded in combat. The veteran reported that he patrolled his quarters before going to bed even though he had been stationed aboard a ship. The veteran also indicated that he experienced nightmares that woke him up, but could not remember the content of those nightmares. In addition, the veteran reported that he kept most of his symptoms and concerns hidden, even from himself until he was burned at work, which reminded him of the war for the first time. The veteran served on the USS Frank Knox from February 1965 to August 1966 and the USS Mansfield from August 1966 to February 1968. The USS Frank Knox ran aground approximately 180 miles southeast of Hong Kong in July 1965 and the USS Mansfield was cruising off the coast of Vietnam firing at supply junks that headed south and took enemy fire from North Vietnamese shore batteries. The USS Mansfield's crew was awarded a citation for combat and the veteran was awarded the National Defense Service Medal and Armed Forces Expeditionary Medal. The Board has considered the special consideration afforded combat veterans under 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d). However, the law does not create a presumption of service connection, and service connection remains a question which must be decided based on all evidence in the individual case. See Smith v. Derwinski, 2 Vet. App. 137 (1992). The veteran indicated that his stressors included blowing up fishing boats containing old men, women, and children and seeing pieces of their bodies floating in the water, and when the USS Frank Knox ran aground he saw a crewmate catch on fire which caused nightmares. Official records indicate that no one was injured as a result of the USS Frank Knox running aground or during its salvage. The Navy Times published an article concerning the incident in October 1965 emphasizing that there were no serious injuries. The service personnel records do not show that the veteran received a Purple Heart, evincing a combat wound, and the service medical records do not confirm this history. Thus, the March 1996 diagnosis of PTSD is based, in part, on an inaccurate factual background. As noted above, while the crew of the USS Mansfield received a combat citation, there is no service evidence to show that the veteran received a medal or other decoration to show that he, individually, engaged in combat with the enemy. The RO did refer this case the Army Center for Research of Unit Records, and a response from that agency confirmed incidents of exchange of weaponry fire between the Mansfield and the enemy while the veteran was onboard, one of which resulted in a crewmember being killed. The veteran served as a Boatswain's Mate and there is no indication that he was personally involved with any incident of combat. While there is adequate evidence of record that does not confirm the veteran's history of a combat wound, and the Army Center for Research of Unit Records specifically found that the incident involving the USS Knox did not result in casualties as alleged by the veteran, the Board cannot assume that the veteran did or did not engage in combat with the enemy based on the evidence currently of record (see Falk v. West, 12 Vet. App. 402, 405 (1999). However, since the clear preponderance of the evidence shows that his PTSD has been linked to post-service burn injuries, and that the only medical evidence indicating a link to service was largely based on an inaccruate factual background (combat wound), the Board finds that the question of whether the veteran's duties while aboard ship amounted to combat duty, within the meaning of the applicable law and regulations, is moot. It is again important to emphasize that clear weight of the evidence links the veteran's PTSD to post-service injuries. In fact, the most recent psychiatric evaluation specifically addressed this point and two psychiatrists opined that the veteran's PTSD was due to the chemical burns that occurred years after service. It is also pertinent to again note that Charles Brady, Ph.D., who began seeing the veteran in December 1992 after he had experienced a third significant chemical burn at his place of employment, diagnosed PTSD and indicated that the significant events leading to the diagnosis were three post-service, work- related chemical burns. Thus, there is no need to attempt to determine the exact nature of the veteran's duties while aboard ship, nor is there any duty to verify his other claimed inservice stressors. VA examinations in April and July 1999 find no link to establish the veteran's current symptomatology and the claimed inservice stressors. The VA examiner in April 1999 opined that "[o]verall, it is felt that if there is any aspect of his experiences in Vietnam that actually are contributing to the diagnosis of post traumatic stress disorder, it is felt that contribution is extremely mild if present at all". The examiner also indicated that the veteran was being treated at the University of Cincinnati Hospital for PTSD, but stressed that it was for the PTSD attributable to the chemical burns and not issues surrounding Vietnam. The veteran reported during the examination that he did not mention his Vietnam experiences during this treatment "because I thought if I brought it up, it would hurt my state case", that is, his case for social security disability benefits for his burns. The April 1999 examination report was returned as inadequate and a second review of the claims folder was conducted in July 1999. The examiner in the July 1999 report indicated that symptomatology as seen on the April 1999 evaluation was felt to be attributable to the experiences he suffered by way of the chemical burns rather than his military experiences. A statement from the veteran's counselor at the Dayton Vet Center dated August 1999 by Jean M. Scarlett, MSW indicated that the veteran suffered from PTSD and that his Vietnam experiences were triggered by the chemical burns. The counselor's impression was PTSD and major depression. However, the social worker did not have the veteran's claims file available for review and is not a medical doctor. Thus, even assuming that the veteran engaged in combat or accepting his other claimed stressors does not alter the outcome here. The overwhelming preponderance of the medical evidence is against a causal nexus between current symptomatology and the specific claimed inservice stressors. Although the veteran was diagnosed with PTSD due to service connected stressors in March 1996, this diagnosis appears to be based on the history of stressors provided by the appellant at that time to include a misunderstanding as to the veteran being wounded in combat. The Dayton Vet Center counselor's supportive impression is far outweighed by VA psychiatrists who linked the veteran's PTSD to post-service events. The VA psychiatric examiner reviewed the medical evidence and obtained a detailed history from the veteran regarding his experiences. The examination, performed by a medical doctor with specialized training in spychiatry, resulted in a conclusion that the PTSD symptomatology is attributable to the chemical burns he sustained after service rather than his military experiences. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable, and the claim for service connection for PTSD must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include an anxiety disorder and depression is denied. Entitlement to service connection for PTSD is denied. R. F. WILLIAMS Member, Board of Veterans' Appeals