Citation Nr: 0005787 Decision Date: 03/03/00 Archive Date: 03/14/00 DOCKET NO. 96-10 417 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for porphyria cutanea tarda (PCT) due to exposure to Agent Orange. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Andrew E. Betourney, Associate Counsel INTRODUCTION The veteran served on active duty from June 1970 to March 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 1995 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied the veteran's claims for service connection for PTSD and PCT. The veteran filed a timely appeal to these adverse determinations. The Board notes that although the veteran testified at a hearing before the undersigned Board Member sitting at the Cleveland, Ohio RO in April 1999, a transcript of this testimony could not be made due to equipment failure. The veteran was notified of this fact in a letter from the Board dated in June 1999, and informed of his right to attend another hearing. This letter also indicated that if the veteran did not respond within 30 days of the date of the letter, the Board would assume that he did not want an additional hearing, and would proceed with his appeal. As no response from the veteran has been received to date, the Board finds that appellate adjudication of the veteran's claims is proper at this time. FINDINGS OF FACT 1. The veteran has been diagnosed with PTSD. 2. The veteran did not engage in combat with the enemy. 3. There is no credible supporting evidence which confirms any of the veteran's claimed inservice stressors. 4. The veteran has not submitted competent evidence which indicates that his current porphyria cutanea tarda is related to exposure to Agent Orange while serving in Vietnam, nor may it be presumptively service connected under the provisions of 38 C.F.R. § 3.309(e). CONCLUSIONS OF LAW 1. The veteran's PTSD was neither incurred in nor aggravated by his active duty service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (1999). 2. The veteran's claim for service connection for PCT is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. PTSD claim In order to establish service connection for a claimed disability, the facts, as shown by the evidence, must demonstrate that a particular injury or disease resulting in a current disability was incurred in or aggravated coincident with service in the Armed Forces. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(a) (1999). Service connection for post-traumatic stress disorder 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) (1999); Cohen v. Brown, 10 Vet. App. 128 (1997). Under the new Cohen criteria, the veteran has met his burden of submitting a well-grounded PTSD claim because he has submitted medical evidence of a current disability; lay evidence (presumed to be credible to establish well- groundedness) of an in-service stressor, which in a PTSD case is the equivalent of in-service incurrence or aggravation; and medical evidence of a nexus between service and the current PTSD disability, in the form of diagnoses by VA and private medical personnel. Cohen v. Brown, 10 Vet. App. 128, 137 (1997), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir. 1996) (table); Heuer v. Brown, 7 Vet. App. 379, 384 (1995); and King v. Brown, 5 Vet. App. 19, 21 (1993). Because the claim is well grounded, the VA has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1996); EF v. Derwinski, 1 Vet. App. 324 (1991); Littke v. Derwinski, 1 Vet. App. 90 (1990). A review of the medical evidence of record reveals that the veteran has received numerous diagnoses of PTSD, which examiners have related to his reported military experiences in Vietnam. In some cases, this link has been explicit, such as in the October 1992 discharge summary from Portage Path Community Mental Health Center, a private health care facility, which specifically listed "threatening experiences in Vietnam" as the precipitating stressors for the veteran's PTSD. Others, including multiple VA treatment records, discussed only the veteran's Vietnam experiences, then rendered a bare diagnosis of PTSD, thus connecting the two by implication. Thus, the Board finds that the record contains clear diagnoses of a current PTSD disorder which have been medically related to the veteran's claimed inservice stressors, and the Board's analysis must turn to the issue of whether the record contains evidence that the claimed inservice stressors actually occurred. Evidence necessary to establish the occurrence of a recognizable stressor during service to support a diagnosis of PTSD will vary depending upon whether the veteran was engaged in combat with the enemy. Where it is determined, through recognized military citations or other supportive evidence, that the veteran engaged in combat with the enemy and the claimed stressor is combat-related, the veteran's lay testimony may be sufficient to establish the occurrence of such stressor, provided such testimony is credible and consistent with the circumstances, conditions, and hardships of service. However, where the veteran did not engage in combat or the claimed stressor is non combat-related, the record must contain service records which corroborate the veteran's testimony as to the occurrence of the claimed stressor. Id.; Zarycki v. Brown, 6 Vet. App 91, 98 (1993). A review of the official military documentation contained in the veteran's claims file reveals no evidence that the veteran was engaged in combat with the enemy, as contemplated by VA regulations. The veteran's DD Form 214, Armed Forces of the United States Report of Transfer or Discharge, does not reflect that veteran received any decorations or medals which indicate involvement in combat. Furthermore, his military occupational specialty (MOS) while stationed in Vietnam was listed as "helicopter repairman," which is not a specialty which is, on its face, indicative of a combat role. Moreover, the veteran's service records, including the service personnel records contained in the veteran's 201 File, do not otherwise contain any entries which show that he received any decorations or performed any specific details that would have placed him in combat situations. See Gaines v. West, 11 Vet. App. 353, 358-60 (1998). Accordingly, in view of the absence of any official evidence that the veteran participated in action against an enemy, the Board finds that he did not "engage in combat," and the evidentiary presumption of 38 U.S.C.A. § 1154(b) does not apply. Therefore, as the veteran has not been shown to have been engaged in combat with the enemy, any alleged inservice stressors must be verified, i.e., corroborated by credible supporting evidence. The veteran has reported several non-combat related stressors at the time of examinations and in a stressor statement dated in June 1997. These alleged stressors include the following: 1. The veteran's bunker partner left the bunker to get some flares, but did not return. The veteran later went to look for him, and found him dead, leaning against a wall. The veteran did not provide the name of this person or the date or location of this incident. 2. The veteran was sent by his commanding officer to haul spent shell casings to the dump by himself, apparently in a hostile area. 3. The veteran was driving alone and his truck was surrounded by Vietnamese on mopeds. He floored the truck, mowing them down. 4. As the veteran was driving alone in a truck to a dump, several Vietnamese children who lived at the entrance to the dump ran alongside his truck. One of the children ran under the truck, and the veteran, fearing the child had placed a charge, shot and killed them all. He stated that he never reported this incident because he feared he would be charged with murder. 5. Prior to being shipped out of Vietnam the veteran was taken to Long Binh jail, where he was locked in an overseas container. He stated that the military police banged on the outside of this container at all times of the day and night. 6. The veteran stated that a good friend was killed by a helicopter blade on their helicopter. He stated that both he and his friend were intoxicated on drugs at the time. The veteran did not provide the name of this friend or a date or location of this incident. A review of the record reveals that none of these stressors have been verified or corroborated by others who were present. The Board notes that several of these incidents are anecdotal in nature, and would not be recorded in official military records. Others, such as the alleged shooting of Vietnamese children, were not reported to anyone, including the authorities who might have prepared an incident report. Several of the other incidents, such as the killing of the veteran's bunker mate and the death of the veteran's friend in a helicopter blade accident, are potentially verifiable, since they involved the death of United States soldiers. However, the veteran has not provided the names of the soldiers killed, or the dates and locations of their deaths, and thus these incidents cannot be verified based on the information provided. In this regard the Board notes that the RO has sent numerous letters to the veteran requesting specific stressor information, including a letter dated in January 1997 in which the RO informed the veteran that if he felt that the death or injury of a friend was a stressor, he needed to provide "the name of the person killed or injured, the military unit that he was assigned to, and the approximate date that it happened." However, to date no such specific information has been provided by the veteran. Finally, the Board notes that while the veteran's imprisonment in the overseas container is also potentially verifiable, no examiner has discussed this incident in rendering a diagnosis of PTSD. The Board acknowledges that the veteran has also alleged general combat-related stressors on at least one occasion. For example, at the time of a January 1995 private psychological examination conducted in conjunction with the veteran's claim for Social Security Administration disability benefits, the examiner recorded that the veteran "states that he saw a lot of people getting killed in Vietnam and he was under a lot of attacks often." However, the Board again notes that without more specific information, including names, dates, and locations, a request to an organization such as the United States Armed Services Center for Research of Unit Records (USASCRUR) would not be of any benefit in attempting to confirm these vague allegations. As a final matter, the Board notes the veteran's contention, as set forth in correspondence received by VA in June 1997, that he was hospitalized at the Brecksville VA Medical Center (VAMC) in 1972 for treatment of "PTSD directly related to Vietnam," and requested that the RO procure these records. The RO subsequently requested these records, which were received in July 1997. However, a review of these Brecksville VAMC medical records, dated in February 1972, indicate that the veteran was treated only for heroin detoxification at that time. Final diagnoses at discharge included passive aggressive personality disorder and a history of heroin dependency, now detoxified. No further diagnoses were noted. Therefore, since the Board has found that none of the veteran's PTSD diagnoses were linked to specific inservice stressors which have been verified by credible supporting evidence, the veteran's claim for service connection for PTSD does not meet the requirements of 38 C.F.R. § 3.304(f) and must be denied. II. PCT claim As noted above, in order to establish service connection for a claimed disability, the facts, as shown by the evidence, must demonstrate that a particular injury or disease resulting in a current disability was incurred in or aggravated coincident with service in the Armed Forces. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(a) (1999). However, the first step in this analysis is to determine whether the veteran has presented a well-grounded claim for service connection. In this regard, the veteran bears the burden of submitting sufficient evidence to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a); Robinette v. Brown, 8 Vet. App. 69, 73 (1995). Simply stated, a well-grounded claim must be plausible or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Where the determinative issue involves medical etiology or a medical diagnosis, competent medical evidence that a claim is "plausible" or "possible" is required for the claim to be well grounded. See Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997); Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Grottveit, 5 Vet. App. 91 (1993). This burden may not be met merely by presenting lay testimony, because lay persons are not competent to offer medical opinions. See Epps, supra; Grottveit, supra; Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Service connection generally requires: (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed inservice disease or injury and the present disease or injury. See Epps, supra; Caluza v. Brown, 7 Vet. App. 498 (1995); see also Heuer, supra and Grottveit, both supra; Savage v. Gober, 10 Vet. App. 488, 497 (1997). In addition, a well-grounded claim may be established under the provisions of 38 C.F.R. § 3.303(b) when the evidence, regardless of its date, shows that a veteran had a chronic condition in service or during an applicable presumption period and still has such a condition. Such evidence must be medical unless it relates to a condition as to which, under the case law of the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (Court), lay observation is competent. If the chronicity provision is not applicable, a claim may still be well grounded on the basis of § 3.303(b) if the condition observed during service or any applicable presumption period still exists, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology. Savage, 10 Vet. App. at 498. In the absence of evidence of a well-grounded claim, there is no duty to assist the claimant in developing the facts pertinent to the claim, and the claim must fail. Gregory v. Brown, 8 Vet. App. 563, 568 (1996) (en banc); Slater v. Brown, 9 Vet. App. 240, 243 (1996); Grivois v. Brown, 6 Vet. App. 136, 140 (1994); Grottveit, supra. Furthermore, under the provisions of 38 C.F.R. § 3.309(e) (1999), if a veteran was exposed to an herbicide agent during active military, naval, or air service, the diseases set forth in 38 C.F.R. § 3.309(e) shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met even though there is no record of such disease during service, provided that the rebuttable presumption provisions of § 3.307(d) are also satisfied. These diseases include chloracne, Hodgkin's disease, multiple myeloma, Non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers, and soft-tissue sarcoma. Further, according to 38 C.F.R. § 3.307(a)(6)(iii), a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era and has a disease listed at § 3.309(e) shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 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 Vietnam era. Id. Evidence relevant to the veteran's claim for service connection for PCT due to exposure to Agent Orange includes his service medical records, which are negative for any recorded evidence of complaints or diagnoses of, or treatment for, PCT. The first post-service evidence of a diagnosis of PCT is found in a VA outpatient treatment note dated in August 1994. Subsequent VA treatment records, dated from that date to February 1998, confirm this diagnosis, and indicate that the veteran underwent multiple phlebotomies for alleviation of this problem. In analyzing the veteran's claim, the Board notes that the veteran served in Vietnam during the Vietnam era, and, further, has recently been diagnosed with porphyria cutanea tarda, which is a disease listed at § 3.309(e). However, in order to qualify for service connection for PCT on a presumptive basis, 38 C.F.R. § 3.307(a)(6)(ii) requires that PCT must have "become manifest to a degree of 10 percent or more within a year...after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service." In this case, there is no evidence that the veteran was diagnosed with or treated for PCT within one year of his departure from the Republic of Vietnam in January 1972. On the contrary, the first evidence of a diagnosis of the disorder is in August 1994, some 22 years later. Furthermore, the veteran himself, in his VA Form 21- 526, Veteran's Application for Compensation or Pension, received by VA in August 1994, listed August 1994 as the date that his porphyria cutanea tarda began. Therefore, the Board finds no medical evidence which would indicate that the veteran suffers from the specific disability defined in the regulations, i.e., porphyria cutanea tarda which became manifest to a degree of 10 percent or more within a year of the last date on which the veteran was exposed to an herbicide (in this veteran's case, within a year of January 1972). Therefore, the veteran is unable to take advantage of the presumptive provisions of this regulation, and must provide actual evidence that he was exposed to Agent Orange in service, and, further, that his porphyria cutanea tarda is related to such exposure. However, the Board has found no medical evidence which has linked the veteran's PCT to any incident of his military service, including his alleged Agent Orange exposure. Although a few records indicate that the veteran presented with complaints of PCT related to Agent Orange, there is no evidence in the record that a physician has ever rendered such an opinion. The Board acknowledges that the report of the January 1995 private psychological examination, conducted in conjunction with the veteran's claim for SSA disability benefits, noted that the veteran "states that he was diagnosed as having PCT as a result of exposure to Agent Orange, when he was in Vietnam." However, he did not state who had made this diagnosis, and a review of the extensive medical evidence of record reveals no medical opinion to that effect. In addition, while a November 1995 VA discharge summary indicated an Axis III diagnosis of "[p]orphyria, cutaneous tarda, exposure to agent orange," this summary contains no findings which would support such a diagnosis, or, indeed, any findings at all related to the veteran's PCT. In addition, several VA and private treatment records indicate a correlation between alcohol use and PCT, including a VA outpatient treatment note dated in August 1994 and a September 1994 treatment record from University Dermatologists, Inc., a private health care facility. However, when questioned about his alcohol consumption by treating physicians, the veteran often vehemently denied the excessive use of alcohol, and "adamantly denied" the use of alcohol at the time of VA treatment in December 1997, even when the examiner questioned the veteran about it after smelling alcohol on his breath. However, the Board observes that other medical records show that the veteran has suffered from a long documented history of alcohol abuse and dependence, and indicate that he has repeatedly been hospitalized for this problem. Accordingly, because the veteran has failed to produce any competent medical evidence of any connection between his porphyria cutanea tarda and his alleged Agent Orange exposure, or any other incident of service, his claim for service connection for porphyria cutanea tarda due to exposure to Agent Orange must be denied as not well grounded. As the duty to assist is not triggered here by the submission of a well-grounded claim, the Board finds that VA has no obligation to further develop the veteran's claim. See Epps, supra; Grivois v. Brown, 5 Vet. App. 136, 140 (1994). In reaching this determination, the Board recognizes that this issue is being disposed of in a manner that differs from that employed by the RO. The RO denied the veteran's claim on the merits, while the Board has concluded that the claim is not well grounded. The Board has therefore considered whether the veteran has been given adequate notice to respond, and if not, whether he has been prejudiced thereby. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Since the Court has held that "when an RO does not specifically address the question whether a claim is well grounded but rather, as here, proceeds to adjudication on the merits, there is no prejudice to the veteran solely from the omission of the well-grounded-claim analysis," the Board finds no prejudice to the veteran in this case. Meyer v. Brown, 9 Vet. App. 425, 432 (1996). In addition, in reaching this determination the Board notes that it has not been made aware of any outstanding evidence which could serve to well ground his claim. Accordingly, there is no further duty on the part of VA to inform the veteran of the evidence necessary to complete his application for this benefit. 38 U.S.C.A. § 5103 (West 1991); McKnight v. Gober, 131 F.3d 1483, 1484-85 (Fed. Cir. 1997). The Board views the above discussion as sufficient to inform the veteran of the elements necessary to present a well- grounded claim for service connection for porphyria cutanea tarda due to exposure to Agent Orange, and the reasons why the current claim must fail. See Graves v. Brown, 9 Vet. App. 172, 173 (1996); Robinette v. Brown, 8 Vet. App. 69, 77- 78 (1995). ORDER Service connection for post-traumatic stress disorder is denied. Evidence of a well-grounded claim having not been submitted, service connection for porphyria cutanea tarda due to exposure to Agent Orange is denied. WARREN W. RICE, JR. Member, Board of Veterans' Appeals