Citation Nr: 0002220 Decision Date: 01/28/00 Archive Date: 02/02/00 DOCKET NO. 97-16 998 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for post traumatic stress disorder (PTSD). 2. Entitlement to a compensable rating for left ear hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael F. Bradican, Associate Counsel INTRODUCTION The veteran served on active duty from September 1967 to November 1969. This case is before the Board of Veterans' Appeals (Board) on appeal from a January 1997 rating decision of the Huntington, West Virginia, Regional Office (RO) of the Department of Veterans Affairs (VA). In September 1999, the veteran testified at a videoconference hearing held before the undersigned Member of the Board. FINDINGS OF FACT 1. A VA mental hygiene clinic report, dated in February 1998, shows a tentative diagnosis of PTSD. 2. The veteran has described an incident in service in which a fellow serviceman was killed by a land mine while driving behind the veteran's vehicle. An incident similar to this has been verified. 3. VA mental hygiene clinic reports indicate that a diagnosis of PTSD would be entered if the veteran's claimed stressor was verified. CONCLUSION OF LAW The claim of entitlement to service connection for PTSD is well grounded, and VA has a duty to assist the veteran in the development of the claim. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied, 524 U.S. 940 (1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, under 38 U.S.C. § 5107(a), the Department of Veterans Affairs (VA) has a duty to assist only those claimants who have established well grounded (i.e., plausible) claims. More recently, the United States Court of Appeals for Veterans Claims (Court) issued a decision holding that VA cannot assist a claimant in developing a claim which is not well grounded. Morton v. West, 12 Vet. App. 477 (July 14, 1999), req. for en banc consideration by a judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam). Once a claimant has submitted evidence sufficient to justify a belief by a fair and impartial individual that a claim is well-grounded, the claimant's initial burden has been met, and VA is obligated under 38 U.S.C. § 5107(a) to assist the claimant in developing the facts pertinent to the claim. Accordingly, the threshold question that must be resolved in this appeal is whether the appellant has presented evidence that the claim is well grounded; that is, that the claim is plausible. In order for a claim of service connection to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in- service injury or disease and the current disability. Epps, 126 F.3d at 1468; Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). Where the determinative issue involves medical causation or etiology, or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Epps, 126 F.3d at 1468. Further, in determining whether a claim is well- grounded, the supporting evidence is presumed to be true and is not subject to weighing. King v. Brown, 5 Vet. App. 19, 21 (1993). The second and third Epps and Caluza elements (incurrence and nexus evidence) can also be satisfied under 38 C.F.R. § 3.303(b) by (1) evidence that a condition was "noted" during service or during an applicable presumption period; (2) evidence showing postservice continuity of symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. Savage, 10 Vet. App. at 496. Moreover, a condition "noted during service" does not require any type of special or written documentation, such as being recorded in an examination report, either contemporaneous to service or otherwise, for purposes of showing that the condition was observed during service or during the presumption period. Id. at 496-97. However, medical evidence of noting is required to demonstrate a relationship between the present disability and the demonstrated continuity of symptomatology unless such a relationship is one as to which a lay person's observation is competent. Id. at 497. In the case of a disease only, service connection also may be established under section 3.303(b) by (1) evidence of the existence of a chronic disease in service or of a disease, eligible for presumptive service connection pursuant to statute or regulation, during the applicable presumption period; and (2) present disability from it. Savage, 10 Vet. App. at 495. Either evidence contemporaneous with service or the presumption period or evidence that is post service or post presumption period may suffice. Id. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with § 4.125(a), credible supporting evidence that the claimed in-service stressor actually occurred, as well as a link, established by the medical evidence, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). 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. Id. The veteran's service personnel records indicate that he served in Vietnam from 11 March 1968 to 10 March 1969. His military occupational specialty (MOS) was 13A10, Cannoneer. During his tour in Vietnam, he was assigned to Battery A 2/4 Artillery, 9th Infantry Division. He was not awarded any combat medals or decorations. Vet Center records, dated in August 1996, show the veteran relating that a friend named James Scott was killed in September or October 1968 when the truck he was riding in went over a mine. The veteran stated that this soldier was a cook for 2/4 Artillery, and "He was bring(ing) us food". At that time the veteran stated that his friend's name was either James Bernard Scott or James Guinard Scott. In October 1997 the veteran submitted a statement to the effect that the name of his close friend, who was killed by a mine, was Dennis Koseba. He again reported that the incident occurred when a truck bringing food to a field location ran over a mine. He reported that he was in the gun jeep in front of this truck, that another soldier, named Madlem, was wounded, and that a medevac helicopter was called. He reported that this occurred in September 1968. At a personal hearing in November 1997, the veteran related essentially the same story, and identified the soldier, again, as Dennis Koseba. At his videoconference hearing, the veteran again related essentially the same story. He stated that while bringing food out to a field firing position a truck hit a mine and killed one soldier and wounded another. He reported that he was in the vehicle in front of the one which hit the mine. He stated that the name of the soldier killed was Dennis Kowalski. A report from the U.S. Armed Services Center for Research of Unit Records (USASCRUR) indicates that SP5 Dennis Koseba, MOS 94B Cook, of B Battery 2/4 Artillery, was killed in action on September 23 1968, the result of a landmine incident. The incident occurred when a vehicle of B Battery hit a mine. Another soldier was wounded. There is a tentative diagnosis of PTSD, and a stressor event similar to that reported by the veteran has been verified. The examiner who entered the tentative diagnosis noted that the veteran's claimed stressor was the death of a fellow soldier. Accordingly, the Board concludes that the veteran's claim is well grounded and warrants further development. ORDER The claim of entitlement to service connection for PTSD is well grounded. To this extent only, the appeal is granted. REMAND Because the claim of entitlement to service connection for PTSD is well grounded, VA has a duty to assist the appellant in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.159; Murphy v. Derwinski, 1 Vet. App. 78 (1990). Although a tentative diagnosis of PTSD was entered on VA mental hygiene clinic records in February 1999, a VA examination in May 1999 shows no diagnosis of PTSD. The Board concludes that these differences must be reconciled through a new examination with a review of the entire record by the examiner. Furthermore, the USASCRUR report in the claims folder references a copy of a daily journal regarding the casualties in B Battery on September 23, 1968. This copy is not associated with the claims folder. An effort should be made to secure this item, and an effort should also be made to determine if the veteran was referring to a different soldier during his videoconference hearing. At that time he identified his friend as Dennis Kowalski. This must be clarified. The Board further notes, with regard to the veteran's claim for a compensable rating for left ear hearing loss, that he reported during his videoconference hearing in September 1999 that he had undergone VA audiometric testing in May 1999. Records of this testing are not associated with the claims folder. Therefore, this claim is REMANDED to the RO for the following: 1. The RO should request that USASCRUR provide another copy of the daily journal referred to in their report to the RO. This daily journal specifically refers to casualties incurred during a landmine incident on September 23, 1968 which resulted in one B Battery 2/4 Artillery, 9th Infantry Division soldier killed and another wounded in action. 2. The veteran should then be scheduled for a VA psychiatric examination. The examiner should review the claims folder prior to the examination and, upon examination, render an opinion regarding whether or not the veteran has PTSD and, if so, whether it is related to any verified stressor. 3. The RO should obtain any further available VA medical records regarding treatment or testing of the veteran's let ear hearing loss from November 1998 to the present time. 4. When the development requested above is completed, the RO should readjudicate the claims. If either remains denied, the veteran and his representative should be furnished an appropriate supplemental statement of the case and given the opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration. The veteran need take no action until he is notified. The Board intimates no opinion, either factual or legal, as to the ultimate conclusion warranted. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. GEORGE R. SENYK Member, Board of Veterans' Appeals