Citation Nr: 0004410 Decision Date: 02/18/00 Archive Date: 02/23/00 DOCKET NO. 95-00 086A ) 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 a skin disorder, claimed as due to exposure to herbicides. 2. Entitlement to service connection for a disability manifested by insomnia, claimed as due to exposure to herbicides. 3. Entitlement to service connection for a joint disability, claimed as due to exposure to herbicides. 4. Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Scott Craven INTRODUCTION The veteran had active military service from January 1966 to January 1968. The Board of Veterans' Appeals (Board) received this case on appeal from February 1994 and March 1994 decisions of the RO, which denied the veteran's claims of entitlement to service connection for an acquired psychiatric disability, to include PTSD; entitlement to nonservice-connected disability pension; and entitlement to service connection for skin rashes, insomnia and sore joints as a result of exposure to herbicides in service. The veteran subsequently perfected his appeal as to these issues in a timely fashion. In March 1999, the RO granted entitlement to nonservice- connected disability pension. The Board notes that such grant is a full award of the benefits on appeal. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Thus, the only issues currently on appeal are those as listed on the preceding page. FINDINGS OF FACT 1. The veteran had active military service in Vietnam during the Vietnam era. 2. The veteran has not been diagnosed with any disorder recognized by VA as etiologically related to exposure to herbicide agents used in Vietnam. 3. No competent evidence has been presented to show that the veteran currently is suffering from a skin disorder due to exposure to herbicides. 4. No competent evidence has been presented to show that the veteran currently is suffering from a disability manifested by insomnia due to exposure to herbicides. 5. No competent evidence has been presented to show that the veteran currently is suffering from a joint disability due to exposure to herbicides. 6. No competent evidence has been presented to show that the veteran currently is suffering from PTSD. 7. No competent evidence has been presented to establish that the veteran has a psychiatric disability attributable to military service. CONCLUSIONS OF LAW 1. A well-grounded claim of service connection for a skin disorder, claimed as due to exposure to herbicides, has not been presented. 38 U.S.C.A. §§ 1110, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1999). 2. A well-grounded claim of service connection for a disability manifested by insomnia, claimed as due to exposure to herbicides, has not been presented. 38 U.S.C.A. §§ 1110, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1999). 3. A well-grounded claim of service connection for a joint disability, claimed as due to exposure to herbicides, has not been presented. 38 U.S.C.A. §§ 1110, 1154, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1999). 4. A well-grounded claim of service connection for an acquired psychiatric disorder, to include PTSD, has not been presented. 38 U.S.C.A. §§ 1110, 1154, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.304 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background On entrance examination in August 1965, the veteran's skin, extremities, spine and other musculoskeletal areas were reported to be clinically normal. He was also reported to be psychiatrically normal. The veteran indicated that he had previously had frequent or severe headaches, foot trouble and nervous trouble. He reported that he had never had painful or swollen joints or frequent trouble sleeping. On discharge examination in January 1968, the veteran's skin, extremities, spine and other musculoskeletal areas were reported to be clinically normal. He was reported to have a scar on the right buttock and to be psychiatrically normal. The veteran indicated that he had had swollen or painful joints, frequent trouble sleeping and nervous trouble. The veteran was reported to have injured his left leg prior to service but to have had no trouble since. He was also reported to have multiple nervous complaints. In March 1970, a private medical record from Stevens Clinic Hospital reported that, in February 1969, the veteran had been struck by an automobile while riding a pony. He was reported to have suffered severe lacerated wounds of the face, eyelid, neck and nose; a fracture of the shaft of the right femur; contusions of the left shoulder; and a brain concussion. The veteran was reported to have had an open reduction of the femur. He was reported to have scars on the face that were well-healed and to be alert and in good mental condition. He was reported to have good flexion and extension of the right knee and hip. A February 1970 x-ray study was reported to show callus production and bony union in the region of the femoral fracture site at the junction of the middle and distal third of the shaft. The bones of the fragments were reported to be in excellent alignment and apposition. The veteran was diagnosed with a condition following fracture of the right femur with open reduction. On VA examination in May 1970, the veteran was reported to complain of headaches, right leg and thigh pain, right hip pain, left leg pain and left hand pain. The veteran's skin was reported to be normal. There was reported to be no limitation of motion of any joint. The veteran was diagnosed with surgical scars of the right hip and thigh; disfiguring facial scars on the left side of the face; mild hypertension; post concussion syndrome manifested by headaches; healed fracture of the right femur with intramedullary rod; and shoulder contusion, not seen. A neurological examination revealed that he had previously been in an accident and had suffered a head injury and a broken right leg when the horse he was riding was hit by an automobile. The veteran denied being wounded or injured while in service in Vietnam. There was no limitation of movement of the spine. He used a cane and walked with a limp. There was an operative scar over the right hip and lateral aspect of the right thigh. The diagnosis was post concussion syndrome manifested by headaches. On VA examination in July 1986, the veteran reported that he had been struck by a car while riding a horse and, since that time, had had trouble with his right leg and hip due to a pin being inserted. His head also gave him trouble. The veteran's skin was normal. He was oriented and in no acute distress. The diagnoses included old, healed fracture of the right femur with internal fixation; mild degenerative arthritis of both hips; and residual concussion with headaches. Received in November 1993 were private medical records from Afzal Ahmed, M.D., reflecting treatment from April 1993 to August 1993. In May 1993, the veteran was diagnosed with lumbar radiculopathy. Received in November 1993 were private medical records from Tug River Clinic, reflecting treatment in March 1990. The veteran's skin was reported to be dry and his extremities were reported to have full range of motion. The veteran was assessed, in part, with increased alcohol consumption and high blood pressure. Received in January 1994 were private medical records from Bluefield Regional Medical Center, reflecting treatment from March 1992 to January 1993. In March 1992, the veteran complained of pain in the left calf area that went into the left hip. He was diagnosed, in part, with osteoarthritis. In January 1993, the veteran gave a history of a back injury and lower back pain for the previous two to three days. The diagnosis was lumbosacral back sprain/strain. In April 1994, Stephen P. Raskin, M.D., reported that x-ray studies revealed, in part, an impression of degenerative disc disease at L3-4, L4-5 and L5-S1 with degenerative changes of the adjacent end plates. Received in January 1995 were private medical records from Syev M. Ahmad, M.D. reflecting treatment from March 1994 to December 1994. In March 1994, the veteran reported severe joint pains of the upper and lower extremities with associated backache for the previous seven to eight years. He did not give a history of skin rashes, sun sensitivity or skin tightness. He was noted to have alcoholic liver disease. A musculoskeletal examination did not reveal significant joint swellings, progressive joint deformities or restriction of range of motion. The impression was that the veteran had pain in multiple joints with etiology that was somewhat unclear. He was reported to have some bulging discs in the lumbar spine, although Dr. Ahmad indicated that he was unsure what caused the veteran's backache. The veteran was reported probably to have chronic sprain of the lumbar spine. A subsequent examination reported that he had mild carpal tunnel syndrome of the hands. In December 1994, the veteran was reported to have osteoarthritis, chronic pain syndrome, carpal tunnel syndrome and degenerative lumbar disease. In February 1995, Khalid Rana, M.D., reported that the veteran had first been seen in May 1993 for back and leg pain. The veteran was reported to have been diagnosed with lumbar radiculopathy. In October 1995, Khalid Rana, M.D., reported that the veteran had back and leg pain, muscle spasms, cramps and degenerative arthritis. Dr. Rana reported that, in his opinion, the veteran's problems were of a long term duration. Received in March 1998 were private medical records from Springhaven, Inc., reflecting treatment from July 1994 to November 1997. In July 1994, the veteran indicated that he was very nervous and irritable. He had numerous money problems with additional stressors, which included medical problems involving his spouse. He denied that his service in Vietnam had had a significant influence on him. His psychiatric history was reported to be positive for being involved only with a driving under the influence school. The diagnosis was continuous alcohol dependence and generalized anxiety disorder. In September 1994, he was diagnosed as having alcohol dependence and depressive disorder, not otherwise specified. On VA examination in March 1998, the veteran was reported to have generalized osteoarthritis for the previous ten years; depression for the previous four years; and status post fractured right hip in 1969 with facial injury and long laceration from a motor vehicle accident. The veteran was reported to have no injury or disease that had occurred in or before the military. Injuries or diseases that were reported to have occurred after the military were hypertension for the previous six years, dizziness and headaches, generalized osteoarthritis since 1988, painful joints, and depression in 1994. He complained of problems with the right thigh that he had sustained in a motor vehicle accident in 1969 and degenerative joint disease of the dorsal spine with herniated disc since 1993. No active lesions of the skin were present, but there was a 20 cm. scar at the left side of the cheek which was nontender. There were also nontender scars at the lateral side of the right thigh and the right side of the right buttock. He complained of multiple joint pains, low back pains and limited flexion and extension of the lower spine with tenderness on deep pressure. He noted painful ankles on walking and treatment for depression. The veteran was diagnosed with hypertension, generalized osteoarthritis, depression, status post fractured right hip and facial injury with long laceration of the left side of the face. On a VA PTSD examination in March 1998, the veteran indicated that he had not been involved in any active combat while in service. He reported that he could not describe any out of the ordinary stressors. He indicated that a friend of his had been hit by a sniper attack, but that he had not been a witness to the event. He had problems with his nerves since 1969 after a car had hit him. He felt scared and nervous as if something bad might happen. He worried about his wife's health. He could not sleep well at night and was restless. The veteran was diagnosed, in part, with dysthymic disorder, chronic low back pain, herniated disc disease, high blood pressure and right leg pain, status post fracture of the right femur. The examiner reported that the veteran had problems with chronic recurrent depression which appeared to be related mostly to his physical problems. He did not show any symptoms of PTSD and did not have any significant, out of the ordinary stressors in service that could account for his psychiatric difficulties. The examiner was of the opinion that the veteran's psychiatric problems were not service connected, but were mostly related to his physical impairments and chronic pain. II. Analysis Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1131 (West 1991 & Supp. 1999); 38 C.F.R. § 3.303 (1999). That an injury or disease occurred in service alone is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (1999). 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) (1999). The threshold question to be answered is whether the veteran has presented a well-grounded (i.e., plausible) claim. If he has not, the claim must fail and there is no further duty to assist in the development of the claim. 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1999); Murphy v. Derwinski, 1 Vet. App. 78 (1990). In order to show that a claim of service connection is well grounded, there must be competent evidence of (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the in-service injury or disease and the current disability. See Caluza v. Brown, 7 Vet. App. 498 (1995). Although the claim need not be conclusive, it must be accompanied by evidence, not just allegations, in order to be considered well grounded. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). In a claim of service connection, this generally means that evidence must be presented which in some fashion links a current disability to a period of military service or to an already service-connected disability. 38 U.S.C.A. §§ 1110 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.310 (1999); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Montgomery v. Brown, 4 Vet. App. 343 (1993). The evidence submitted in support of the claim is presumed to be true for purposes of determining whether the claim is well grounded. King v. Brown, 5 Vet. App. 19, 21 (1993). A. Service Connection for a Skin Disorder, Insomnia and Joint Disability, Claimed as Due to Exposure to Herbicides If a veteran was exposed to a herbicidal agent during active military, naval or air service, the following diseases shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) (1999) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provision of 38 C.F.R. § 3.307(d) (1999) is also satisfied: Chloracne or other acneform disease consistent with chloracne; Hodgkin's disease, multiple myeloma; non-Hodgkin's lymphoma; porphyria cutanea tarda; acute and subacute peripheral neuropathy; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and soft-tissue sarcoma. 38 C.F.R. § 3.309(e) (1999). The diseases listed at 38 C.F.R. § 3.309(e) (1999) shall have become manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(6)(ii) (1999). A veteran who served in the Republic of Vietnam during the Vietnam era and has a disease listed at 38 C.F.R. § 3.309(e) shall be presumed to have been exposed during such service to a herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii) (1999). The veteran contends, in essence, that he currently has a skin disorder, disability manifested by insomnia and joint disability due to exposure to herbicides while in service in the Republic of Vietnam. However, there is no medical evidence to show that the veteran currently has any of the specified diseases associated with exposure to herbicides, as delineated under 38 C.F.R. § 3.309(e) (1999). The Secretary of VA has formally announced that a presumption of service connection based on exposure to herbicides used in Vietnam is not warranted for "any other condition for which the Secretary has not specifically determined a presumption of service connection is warranted." 61 Fed. Reg. 41442-41449 (August 8, 1996). Although the veteran served in the Republic of Vietnam during the Vietnam era, he does not have a disease listed under 38 C.F.R. § 3.309(e) and, thus, cannot be presumed to have been exposed to a herbicide agent during such service. 38 C.F.R. § 3.307(a)(6)(iii) (1999). See McCartt v. West, 12 Vet. App. 164 (1999) (both service in the Republic of Vietnam and the establishment of one of the listed diseases pursuant to 38 C.F.R. § 3.309(e) is required in order to establish entitlement to the in-service presumption of exposure to herbicide agent). Notwithstanding the foregoing, The United States Court of Appeals for the Federal Circuit has determined 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 veteran from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Similarly, it follows that the criteria pertaining to presumptive service connection for disabilities resulting from the exposure to herbicides do not preclude a veteran from otherwise establishing service connection with proof of direct causation. However, there is no competent medical evidence to establish a nexus between the veteran's claimed disorders and his reported exposure to herbicides in service. Lay assertions concerning questions of medical diagnosis or causation cannot constitute competent evidence sufficient to render a claim well grounded. Grottveit, 5 Vet. App. 91 (1992); Espiritu, 2 Vet. App. 492 (1992). Absent competent medical evidence of linkage to service, the veteran's claims of service connection for a skin disorder, disability manifested by insomnia and joint disability due to herbicide exposure must be denied as not well grounded. B. Service Connection for an Acquired Psychiatric Disorder, to Include PTSD 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. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f) (1999). The threshold question to be answered is whether the veteran has presented a well-grounded (i.e., plausible) claim of service connection for an acquired psychiatric disorder, to include PTSD. If he has not, the claim must fail, and there is no further duty to assist in the development of the claim. 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1999); Murphy v. Derwinski, 1 Vet. App. 78 (1990). The Board is cognizant of the veteran's assertions regarding his claimed psychiatric disorder, to include PTSD. However, he has presented no objective evidence of a diagnosis of PTSD. Absent a current diagnosis, there can be no well- grounded claim. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). Moreover, the veteran has provided no medical evidence of a nexus between any existing psychiatric disability and military service. Lay assertions concerning questions of medical diagnosis or causation cannot constitute competent evidence sufficient to render a claim well grounded. Grottveit v. Brown, 5 Vet. App. 91 (1992); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Absent competent evidence of PTSD or a link between any currently existing psychiatric disability and military service, the claims of service connection for PTSD and for a psychiatric disability other than PTSD must be denied. Caluza, supra. ORDER Service connection for a skin disorder, claimed as due to exposure to herbicides, is denied, as a well-grounded claim has not been submitted. Service connection for a disability manifested by insomnia, claimed as due to exposure to herbicides, is denied, as a well-grounded claim has not been submitted. Service connection for a joint disability, claimed as due to exposure to herbicides, is denied, as a well-grounded claim has not been submitted. Service connection for an acquired psychiatric disorder, to include PTSD, is denied, as a well-grounded claim has not been submitted. Iris S. Sherman Member, Board of Veterans' Appeals