Citation Nr: 0007493 Decision Date: 03/20/00 Archive Date: 03/23/00 DOCKET NO. 95-01 370 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for claimed post- traumatic stress disorder (PTSD). 2. Entitlement to service connection for gastrointestinal disorder, claimed as secondary to PTSD. 3. Entitlement to service connection for a claimed skin disorder. 4. Entitlement to service connection for claimed residuals of asbestos exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Joseph W. Spires, Associate Counsel INTRODUCTION The veteran served on active duty from October 1987 to October 1991. This matter originally came to the Board of Veterans' Appeals (Board) on appeal from an October 1994 rating decision of the RO. The Board remanded the case in December 1997 for further development. (The Board will address the veteran's claim of service connection for a gastrointestinal disorder in the Remand section of this document.) FINDINGS OF FACT 1. The veteran has presented a claim of service connection for PTSD which is plausible and capable of substantiation. 2. No competent evidence has been submitted to show that the veteran has a current skin disability which was caused or aggravated by injury or disease incurred or aggravated by service. 3. No competent evidence has been submitted to show that the veteran has any current lung or other disability as a residual of claimed in-service asbestos exposure. CONCLUSIONS OF LAW 1. The veteran has submitted evidence of a well-grounded claim of service connection for PTSD. 38 U.S.C.A. §§ 1110, 1131, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.304(f) (1999). 2. The veteran has not submitted evidence of a well-grounded claim of service connection for skin disorder. 38 U.S.C.A. §§ 1110, 1131, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. § 3.303 (1999). 3. The veteran has not submitted evidence of a well-grounded claim of service connection for the residuals of asbestos exposure. 38 U.S.C.A. §§ 1110, 1131, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. § 3.303 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background The veteran filed a June 1993 claim of service connection of a skin disorder, a "stomach condition," the unspecified residuals of asbestos exposure and a "nervous condition," to include PTSD. A July 1987 report of enlistment medical examination indicated recorded the condition of the veteran's skin, lungs and chest as "normal." The report also recorded his psychiatric and neurologic condition as "normal." The veteran's service medical records contained a February 1988 asbestos survey from the medical department of the USS Saratoga (CV-60). The record noted that personnel in selected jobs had been surveyed to determine if they should be included in an asbestos medical surveillance program. The record showed that the veteran indicated in the survey that he had not been exposed to asbestos while in service, that he had not smoked cigarettes and that he had not worked directly with asbestos. A September 1989 entry in the veteran's chronological record of health care noted that the veteran had been referred for an assessment of alcohol abuse and that the veteran was dependent on alcohol. The veteran's service medical records also contained several records regarding various skin disorders, including August and September 1988 records that noted a diagnosis of tinea cruris, an October 1988 record that noted a diagnosis of tinea corporis, January and November 1989 records that reported a diagnosis of psoriasis (and opined that it existed prior to enlistment), a March 1990 record that noted diagnoses of mild psoriasis and mild folliculitis and a July 1990 record that noted an additional diagnosis of psoriasis. A September 1991 report of separation medical examination listed the condition of the veteran's skin, chest and lungs as "normal" and recorded his neurologic and psychiatric condition as "normal." A September 1991 report of medical history contained the annotation "skin disorder - unknown." An October 1991 certificate of discharge indicated that the veteran was a machinist's mate in service and that his last duty assignment was aboard the USS Saratoga. An August 1993 VA radiology report noted an impression of negative examination and that the veteran's heart and lungs were within normal limits. A September 1993 discharge summary from a VA Medical Center (MC) reported diagnoses of continuous alcohol abuse, delayed moderate PTSD, tinea versicolor, alcohol gastritis and reflux, megaloblastic anemia, elevated liver function studies and elevated triglycerides secondary to alcohol. The report noted that an ultrasound of the veteran's gallbladder was essentially normal, except for poor visualization of the pancreas due to intestinal content. Additionally, the summary noted that the veteran had reported some gastrointestinal symptoms that had been evaluated with an "upper GI and small bowel follow-through." The report indicated that the results were normal, that the veteran had responded to Simethicone, and that there appeared to have been a slight amount of reflux. The report further noted that the veteran had developed PTSD symptoms associated with the loss of fellow service members in a boating accident in the Persian Gulf. A November 1993 VA radiology report noted that the veteran's heart, mediastinum and pulmonary vasculature were within normal limits and that mild streaky and confluent densities in the right upper lung field and apex had not changed as compared to the August 1993 radiology report. The report noted that this was consistent with pleural parenchymal change and that no acute infiltrate or effusion had been detected. An April 1994 VA report of medical treatment noted that the veteran had reported flashbacks, "bad nerves," and drinking alcohol "because no one would give him anything for his nerves." The report noted a diagnostic impression of rule out PTSD and alcohol abuse. In a July 1994 RO hearing, the veteran testified that in December 1990, while assigned to the USS Saratoga, he had been aboard a ferry while returning from Haifa, Israel. The veteran testified that the ferry had sunk and that 24 sailors had been killed. He also stated that he had been in the water approximately one hour before he was rescued. The veteran further testified that, after he had been in the service approximately one year, he had developed "aggravated psoriasis" as a residual of asbestos exposure. The veteran also testified that his skin disorder breaks out along his side and down toward his hips when it is hot. The veteran's representative testified that "natural blondes" were more susceptible to problems associated with fibrous material, such as such as fiberglass and asbestos. The veteran's representative argued that the veteran's exposure to "excessive types of sunrays," when coupled with his "physical makeup," made the veteran a "prime target for aggravation by the various fibers and materials that were on [the] USS Saratoga." Additionally, the representative explained that the veteran's skin disorder could be due to asbestos exposure as well as due to "exposure to the elements." An August 1994 VA interim progress note indicated an assessment of alcohol dependence and noted that he was scheduled for September 1994 inpatient treatment at a VA facility in Chillicothe. In a January 1998 letter to the veteran, the RO requested that he identify any specific disabilities that he believed were the result of the claimed in-service exposure to asbestos. An additional January 1998 letter from the RO to the veteran requested that he provide additional detail related to his claim for compensation for a "nervous condition." The Board observes that the record contained no response from the veteran or his representative. A September 1999 response from the U.S. Armed Services Center for Research of Unit Records (USASCRUR) included documentation that in December 1990, during the veteran's tour aboard the USS Saratoga, an Israeli owned launch sank while ferrying sailors to the ship from the Haifa port. The report also included documentation that indicated that approximately 100 sailors had been aboard the ferry when it sank and that 21 had drowned. A November 1999 letter from the RO to the veteran noted that he had failed to report for VA medical examinations. The letter also informed the veteran that, if he was willing to report for an examination, he should notify the RO within 20 days from the date of the letter. Service Connection Initially, one who submits a claim for benefits under a law administered by VA has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a). Only when that initial burden has been met does the duty of the Secretary to assist such a claimant in developing the facts pertinent to the claim attach. Id. The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (Court) has further defined a well-grounded claim as a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). It has also held that where a determinative issue involves a medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible is required. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. The regulations also provide that service connection may 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). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). PTSD The regulations concerning the adjudication of claims involving entitlement to service connection for PTSD have changed. In June 1999, revised regulations concerning PTSD were published in the Federal Register which reflected the decision of the Court in Cohen v. Brown, 10 Vet. App. 128 (1997). The changes to 38 C.F.R. § 3.304(f) were made effective the date of the Cohen decision. Service connection for PTSD requires medical evidence establishing a diagnosis of the condition in accordance with the provisions of 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. 64 Fed. Reg. 32,807- 32808 (1999) (codified at 38 C.F.R. § 3.304 (f)); Cohen v. Brown, 10 Vet. App 128 (1997). To establish a well-grounded claim of service connection for PTSD, there must be medical evidence showing a diagnosis of PTSD, lay evidence of a stressor in service (presumed credible for purposes of well groundedness), and medical evidence of a nexus between the diagnosis and stressor. See Cohen v. Brown, 10 Vet. App. at 137. Here, the September 1993 VA hospital discharge summary establishes that the veteran has a diagnosis of delayed, moderated, PTSD due to a 1990 boat accident while in service. However, the examiner did not provide sufficient detail to support that diagnosis. As the veteran's testimony, for the purposes of well groundedness, is sufficient evidence to establish an in- service stressor, and because the VA medical evidence contains a diagnosis of PTSD attributable to the veteran's reported in-service stressors, the Board finds the claim of service connection for PTSD to be well grounded. 38 U.S.C.A. § 5107. Skin Disorder As mentioned hereinabove, in order for a claim of service connection to be well grounded, there must be competent evidence of a current disability, an in-service injury or disease and a nexus between the current disability and the in-service injury or disease. Caluza, 7 Vet. App. at 506. Also, evidentiary assertions by a claimant are accepted as true for purposes of determining whether a claim is well grounded, except where the evidentiary assertions are inherently incredible or beyond the competence of the person making them. King v. Brown, 5 Vet. App. 19 (1993). Although little evidence is of record supporting any current skin disorder, for the purposes of determining whether the veteran's claim is well grounded, a September 1993 VA discharge summary did include a diagnosis of tinea versicolor. Additionally, for the purposes of determining well groundedness, the record supports that the veteran had an in-service injury or disease, as his service medical records included diagnoses of tinea cruris, tinea corporis, psoriasis and folliculitis. However, the record contains no medical evidence establishing a nexus between any current skin disability and an injury or disease which was incurred in or aggravated by service, including claimed exposure to asbestos or "the elements." The Board is cognizant of the veteran's assertion that his current skin disorder is due to in-service injury or disease, including exposure to asbestos and the elements. The Board also notes his representative's assertions that various factors, including claimed exposure to asbestos, the veteran's "natural makeup," and exposure to "excessive types of sunrays," might have contributed to or caused the veteran's claimed skin disorder. Here, the record contains no medical evidence to support the lay assertions that current skin disability is due to in- service injury or disease, including exposure to the elements or to asbestos. As noted, where a determinative issue involves a question of medical diagnosis or causation, competent evidence is required to render the claim plausible. See Grottveit v. Brown, 5 Vet. App. at 93. As a lay person, the veteran and his representative are not competent to make such a determination. See Espiritu v. Brown, 2 Vet. App. 492 (1992). Absent competent evidence of such a nexus, the Board finds that the claim of service connection for a skin disorder is not well grounded. See Caluza v. Brown, 7. Vet. App. at 506. In claims that are not well grounded, VA does not have a statutory duty to assist the veteran in developing facts pertinent to his claim. However, VA may be obligated under 38 U.S.C.A. § 5103(a) to advise a veteran of evidence needed to complete his application. This obligation depends upon the particular facts of the case and the extent to which the Secretary of the Department of Veterans Affairs has advised the veteran of the evidence necessary to be submitted with a VA benefits claim. Robinette v. Brown, 8 Vet. App. 69 (1995). The Board finds that a remand is not required for this claim. The veteran has not put VA on notice that competent medical evidence exists that supports his claim of service connection for skin disorder. By this decision, the Board is informing the veteran of the evidence necessary to make his claim well grounded (i.e., competent medical evidence establishing a nexus between any current skin disorder and any injury or disease incurred in or aggravated by service, including exposure to asbestos or to the elements). Asbestos In order for a claim of service connection to be well grounded, there must be competent evidence of a current disability, an in-service injury or disease and a nexus between the current disability and the in-service injury or disease. Caluza, 7 Vet. App. at 506. Also, evidentiary assertions by a claimant are accepted as true for purposes of determining whether a claim is well grounded, except where the assertions are inherently incredible or beyond the competence of the person making them. King v. Brown, 5 Vet. App. 19 (1993). Although no competent evidence is of record showing any current disability due to the residuals of asbestos exposure, for the purposes of determining whether the veteran's claim of service connection is well grounded, the veteran did indicate a belief that his claimed skin disorder was due to asbestos exposure and, as noted earlier, the September 1993 VA discharge summary did include a diagnosis of tinea versicolor. Additionally, for the purposes of determining well groundedness, the record can be read to show some indication of an in-service injury or disease, as his service medical records included diagnoses of tinea cruris, tinea corporis, psoriasis and folliculitis. However, for the purpose of a well groundedness determination, the record contains no medical evidence establishing a nexus between any currently demonstrated disability and any injury or disease related to asbestos exposure or other disease or injury in service. Indeed, the record contains no current disability shown to be due to or aggravated by asbestos exposure. Although the Board is cognizant of the veteran's assertion that he was exposed to asbestos in service and has a current disability he characterizes as "residuals of asbestos exposure," the August 1993 VA radiology report indicated an impression of a negative examination. Also, the November 1993 VA radiology report noted that his heart, mediastinum and pulmonary vasculature were within normal limits and that mild streaky and confluent densities were unchanged from the August 1993 studies. The November 1993 report also stated that no acute infiltrate or effusion was detected. Here, the record contains no medical evidence connecting any claimed disability, including "residuals of asbestos exposure" or any claimed skin disorder, to any in-service injury or disease. Significantly, the record does not show that the veteran has any current disability related to asbestos exposure. As noted hereinabove, where a determinative issue involves a question of medical diagnosis or causation, competent evidence is required to render the claim plausible. See Grottveit v. Brown, 5 Vet. App. at 93. As a lay person, the veteran is not competent to make such a determination. See Espiritu v. Brown, 2 Vet. App. 492 (1992). Because the veteran has not submitted competent evidence of a current disability with a nexus to service, the Board finds that the claim of service connection for residuals of asbestos exposure is not well grounded. See Caluza v. Brown, 7. Vet. App. at 506. In claims that are not well grounded, VA does not have a statutory duty to assist the veteran in developing facts pertinent to his claim. VA may be obligated under 38 U.S.C.A. § 5103(a) to advise a veteran of evidence needed to complete his application. This obligation depends upon the particular facts of the case and the extent to which the Secretary of the Department of Veterans Affairs has advised the veteran of the evidence necessary to be submitted with a VA benefits claim. Robinette v. Brown, 8 Vet. App. 69 (1995). The Board finds that a remand is not required for this claim. The veteran has not put VA on notice that competent medical evidence exists that supports his claim of service connection for residuals of asbestos exposure. By this decision, the Board is informing the veteran of the evidence necessary to make his claim as set forth hereinabove well grounded (i.e., competent medical evidence establishing a current disability due to asbestos exposure and a nexus between any such disability and any injury or disease incurred in or aggravated by service, including exposure to asbestos). ORDER As the claim of service connection for PTSD is well grounded, the appeal to this extent is allowed, subject to further action as discussed hereinbelow. Service connection for the skin disorder is denied, as a well-grounded claim has not been presented. Service connection for the residuals of asbestos exposure is denied, as a well-grounded claim has not been presented. REMAND At a July 1994 RO hearing, the veteran testified that his gastrointestinal disorder is related to his psychiatric disorder. The Board observes that service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). When aggravation of a veteran's nonservice- connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). Because the issue of PTSD is being remanded for further development, any determination of secondary service connection must be deferred pending completion of final action on the underlying question of service connection for PTSD. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The Board emphasizes for the benefit of the veteran that in order for his claim of service connection for gastrointestinal disorder to be well grounded, there must be competent evidence of a current disability, an in-service injury or disease and a nexus between the current disability and the in-service injury or disease. Caluza, 7 Vet. App. at 506. Alternatively, there must be competent evidence that the disability is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). Here, the only medical evidence of record indicating that the veteran currently has gastrointestinal disorder is the September 1993 report of VAMC discharge which noted diagnoses of alcohol gastritis and reflux. That report also noted a slight amount of reflux but that "an upper GI and small bowel follow-through" had revealed normal results and that the veteran had responded to Simethicone. Furthermore, the evidence contains no evidence of a nexus between the claimed gastrointestinal disorder and any in-service injury or disease or service-connected disability. As repeatedly noted, where a determinative issue involves a question of medical diagnosis or causation, competent evidence is required to render the claim plausible. See Grottveit v. Brown, 5 Vet. App. at 93. As a lay person, the veteran is not competent to make such a determination. See Espiritu v. Brown, 2 Vet. App. 492 (1992). In claims that are not well grounded, VA does not have a statutory duty to assist the veteran in developing facts pertinent to his claim. However, VA may be obligated under 38 U.S.C.A. § 5103(a) to advise a veteran of evidence needed to complete his application. This obligation depends upon the particular facts of the case and the extent to which the Secretary of the Department of Veterans Affairs has advised the veteran of the evidence necessary to be submitted with a VA benefits claim. Robinette v. Brown, 8 Vet. App. 69 (1995). In this deferral, the Board notes, for the benefit of the veteran, the evidence necessary to make his claim of service connection for gastrointestinal disorder well grounded (i.e., competent medical evidence establishing current gastrointestinal disorder, and competent medical evidence establishing a nexus between any current gastrointestinal disorder and any service connected disability or any injury or disease incurred in or aggravated by service). Here, the examination which diagnosed PTSD was conducted in 1993. VA amended the regulations addressing mental disabilities, effective on November 7, 1996. The new regulations, specifically 38 C.F.R. §§ 3.304(f), 4.125 and 4.130, now refer to DSM-IV (they previously referred to DSM- III, and Manual M21-1 referred to DSM-III-R). Cohen v. Brown, 10 Vet. App. 128, 142 (1997). Prior to the amendment, 38 C.F.R. § 3.304(f) required service-connection for PTSD to be supported by "medical evidence establishing a clear diagnosis of the condition." The current version of 38 C.F.R. § 3.304(f) requires "medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a)" (i.e., in conformance to DSM-IV and supported by the findings on the examination report). The Court, in Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991), stated that, where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal has been concluded, the version most favorable to the veteran will apply. The record contains the September 1993 diagnosis of PTSD secondary to in-service stressors. However, the diagnosis is not sufficient, under either version, to support a grant of service connection. "If the diagnosis of a mental disorder does not conform to DSM-IV or is not supported by the findings on the examination report, the rating agency shall return the report to the examiner to substantiate the diagnosis." 38 C.F.R. § 4.125(a) (1999). However, because the claim of entitlement to service connection for PTSD is well grounded, VA has a duty to assist the veteran in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.159 (1999); Murphy v. Derwinski, 1 Vet. App. 78 (1990). Although the Board is cognizant of the veteran's previous failure to report for a scheduled PTSD examination, as the claim is well grounded and because the claimed in-service stressor has been supported by USASCRUR findings, the RO should again schedule the veteran for a PTSD examination. In regards to the VA PTSD examination, the Board emphasizes, for the veteran's benefit, that the duty to assist is not a one-way street. If the veteran wishes help, he cannot passively wait for it in those circumstances where his own actions are essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). Additionally, the August 1994 interim progress note indicated that the veteran had been scheduled for September 1994 inpatient treatment at a VA facility in Chillicothe. Although the record is unclear as to whether the veteran attended this treatment, the records are not associated with the claims folder and the record does not indicate that they were requested from that VA facility. VA medical records concerning treatment prior to a Board decision are constructively deemed to be before the Board. See Dunn v. West, 11 Vet. App. 462 (1998); Bell v. Derwinski, 2 Vet. App. 611 (1992). In light of the foregoing, the Board is REMANDING this case to the RO for the following actions: 1. The RO should take appropriate action once again to contact the veteran in order to request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for PTSD and gastrointestinal disorder since service. The veteran also should instructed that he should submit all medical evidence which tends to show that he has current gastrointestinal disability due to disease or injury in service or as the result of any service- connected disorder. After obtaining any necessary authorization from the veteran, the RO should attempt to obtain copies of pertinent treatment records identified by the veteran in response to this request, which have not been previously secured, to specifically include any inpatient treatment records at the VA facility in Chillicothe. 2. Then, the RO should undertake to schedule the veteran for a VA examination in order to determine the nature and likely etiology of the claimed psychiatric disorder. All indicated testing should be done in this regard. The claims folder should be made available to the examiner for review. The examiner should elicit from the veteran and record a full medical history in this regard. Based on his/her review of the case, the examiner should offer an opinion as to whether the veteran is suffering from PTSD. If the examiner enters a diagnosis of PTSD, then the specific stressors to support that diagnosis should be identified for the record and the diagnosis should conform to DSM-IV diagnostic criteria. 3. After undertaking any additional development deemed appropriate, the RO should review the veteran's claim. Due consideration should be given to all pertinent laws, regulations, and Court decisions. If the benefit sought on appeal is not granted, the veteran and his representative should be issued a supplemental statement of the case, which should include all pertinent laws and regulations, and be afforded a reasonable opportunity to reply thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The veteran need take no further action until he is otherwise notified, but he may furnish additional evidence and argument while the case is in remand status. Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992); Booth v. Brown, 8 Vet. App. 109 (1995); Kutscherousky v. West, 12 Vet. App. 369 (1999). In taking this action, the Board implies no conclusion as to any ultimate outcome warranted. 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. STEPHEN L. WILKINS Member, Board of Veterans' Appeals