Citation Nr: 0002266 Decision Date: 01/28/00 Archive Date: 02/02/00 DOCKET NO. 98-10 449 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for post traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Ferrandino, Associate Counsel INTRODUCTION The veteran had active service from September 1979 to October 1983. The veteran filed a claim in April 1997 for service connection for PTSD. This appeal arises from the August 1997 rating decision from the Philadelphia, Pennsylvania Regional Office (RO) that denied the veteran's claim for service connection for PTSD. A Notice of Disagreement was filed in June 1998 and a Statement of the Case was issued in June 1998. A substantive appeal was filed in July 1998 with no hearing requested. By rating action of February 1986, service connection for a left ankle disability was denied. The veteran was notified of this action and of his appellate rights. No response was received from the veteran within one year of notification. In May 1998, the veteran again requested service connection for this disability. By letter dated the following month, he was notified of the requirements to reopen his claim. By letter received in July 1998, the veteran requested that VA medical records be obtained in connection with his request to reopen his claim for service connection for a left ankle disability. VA records were obtained, but it does not appear that the RO considered these records in connection with the left ankle claim. This matter is referred to the RO for appropriate action. FINDING OF FACT The veteran has present no competent evidence to show that he currently suffers from PTSD, and the claim is not plausible. CONCLUSION OF LAW The claim of entitlement to service connection for PTSD is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION I. Factual Background On a service enlistment examination in January 1979, no history of nervous trouble was reported. On examination, the veteran's psyche was clinically evaluated as normal. In a January 1986 notation from the National Personnel Records Center, it was indicated that there were no additional service medical records. On an Employability Assessment Form from February 1997, a VA physician noted that the veteran was diagnosed with major depressive disorder and alcohol and cocaine addiction. In April 1997, the veteran filed a claim for service connection for PTSD. A VA hospital report from February 1997 shows that the veteran was diagnosed with cocaine dependence. By rating action of August 1997, service connection for PTSD was denied. The current appeal to the Board arises from this action. VA outpatient records from February 1996 to July 1997 show that the veteran was treated for depression, alcohol abuse, and schizophrenia. In a statement in October 1997, the veteran reported stressors from his experience in the Marine Corps, including being treated with disrespect when he objected to doing physical training while he was sick. This caused him to lose respect for those in command and he began to act rebelliously. He was required to continue with daily activity when he hurt his ankle. He was subjected to "pink belly" where he was smacked 40 to 50 times with his shirt up while being held down. This stressed him out. In a further statement from October 1997, the veteran reported that his unit was subjected to random drug testing, which caused the men to feel violated for false charges. He was accused of having a positive drug test and was mistreated due to the false accusation. On a VA mental disorders examination in November 1997, the veteran reported stressors including that he was in a combat situation in 1980, in Iran. Additionally, he had to be decontaminated after a gas canister broke aboard a ship he was stationed on. He was subject to discrimination and was hurt by another soldier who hit the veteran in the neck and back. Additionally, he was trampled on during a ferryboat riot between the Navy and the Marines. It was noted that the C file was not available. The diagnoses included atypical psychosis and history of polysubstance abuse. It was noted that PTSD was not demonstrated. In the July 1998 substantive appeal, the veteran reported that he was traumatized by the over conditioning required by the Marines that turned him into a killing machine. He currently suffered from having witnessed a dying sailor at sea on his ship. Additionally, he had suffered discrimination due to race. A VA hospital record from December 1997 to January 1998 shows that the veteran was diagnosed with disabilities to include substance induced mood disorder and borderline personality disorder. VA medical records from January 1996 to October 1998 show treatment for alcohol dependence, major depressive disorder with psychotic features, anxiety disorder, cocaine dependency, substance induced mood disorder, borderline personality disorder, organic mood disorder, paranoid attitude, polysubstance depression, major depression disorder, psychosis not otherwise specified, schizophrenia, and situational/adjustment disorder. II. Analysis Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if preexisting such service, was aggravated by service. 38 U.S.C.A. § 1131(West 1991); 38 C.F.R. § 3.303(a) (1999). Where a veteran served 90 days or more during a war period or after December 31, 1946 and a psychosis becomes manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991 and Supp. 1999); 38 C.F.R. §§ 3.307, 3.309 (1999). A claimant seeking benefits under a law administered by the Secretary of the Department of Veteran Affairs shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. The Secretary has the duty to assist a claimant in developing facts pertinent to the claim if the claim is determined to be well grounded. 38 U.S.C.A. § 5107(a). Thus, the threshold question to be answered is whether the veteran has presented a well grounded claim; that is a claim which is plausible. If he has not presented a well grounded claim, his appeal must fail, and there is no duty to assist him further in the development of his claim as any such additional development would be futile. Murphy v. Derwinski, 1 Vet. App. 78 (1990). To sustain a well grounded claim, the claimant must provide evidence demonstrating that the claim is plausible; mere allegation is insufficient. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). The determination of whether a claim is well grounded is legal in nature. King v. Brown, 5 Vet. App. 19 (1993). A well grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of 38 U.S.C.A. § 5107(a). Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). To be well grounded, a claim must be accompanied by supportive evidence, and such evidence must justify a belief by a fair and impartial individual that the claim is plausible. Where the determinative issue involves a question of either medical causation or diagnosis, medical evidence is required to fulfill the well grounded claim requirement of 38 U.S.C.A. § 5107(a). Lathan v. Brown, 7 Vet. App. 359 (1995). Establishing service connection generally requires medical evidence of a current disability, see Rabideau v. Derwinski, 2 Vet. App. 141 (1992); medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997) (expressly adopting definition of well- grounded claim set forth in Caluza, supra), petition for cert. filed, No. 97-7373 (Jan. 5, 1998); Heuer v. Brown, 7 Vet. App. 379 (1995); Grottveit v. Brown, 5 Vet. App. 91 (1993). Alternatively, under 38 C.F.R. § 3.303(b) (1999), service connection may be awarded for a "chronic" condition when: (1) a chronic disease manifests itself and is identified as such in service (or within the presumption period under 38 C.F.R. § 3.307 (1999)) and the veteran presently has the same condition; or (2) a disease manifests itself during service (or during the presumptive period) but is not identified until later, there is a showing of continuity of symptomatology after discharge, and medical evidence relates the symptomatology to the veteran's present condition. See Savage v. Gober, 10 Vet. App. 488, 495-98 (1998). In this case, the veteran is claiming he currently has PTSD which was incurred in service. The evidence does not support his contention. VA regulation, as contained in 38 C.F.R. § 3.304, provides that service connection for PTSD requires medical evidence diagnosing the condition. The veteran has not submitted a medical diagnosis of PTSD. As there is no current medical evidence to establish the presence of the disability claimed on appeal, there can be no valid claim. Rabideau v. Derwinski, 2 Vet. App. 141 (1992); and Brammer v. Derwinski, 3 Vet. App. 223 (1992). The only evidence that would support the veteran's claim for PTSD is found in his statements; however, lay evidence is inadequate to establish a medical diagnosis. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Consequently, the veteran has not met the initial burden under 38 U.S.C.A. § 5107(a) of presenting a well-grounded claim of service connection for PTSD. While the Board does have a heightened duty to assist a claimant in developing a claim when records have been lost or destroyed, see Russo v. Brown, 9 Vet. App. 46, 50-51 (1996); Layno v. Brown, 6 Vet. App. 465, 469 (1994), an appellant still has the burden of submitting a well-grounded claim. See 38 U.S.C.A. § 5107. Here, the appellant has not submitted evidence of a current disability. Because he has failed to satisfy one of the Caluza requirements, the Board finds that the appellant has failed to establish a well- grounded claim. While it is argued that the VA has a duty to assist claimants whose claims are not well grounded, this proposition has been rejected by the United States Court of Appeals for Veterans Claims. On July 14, 1999, the Court affirmed a September 6, 1996 Board decision which denied claims for service connection for several disabilities as not well grounded. Morton v. West, 12 Vet. App. 477 (1999). In that case, the Court addressed and rejected the appellant's argument on appeal that, by virtue of various regulations, VA ADJUDICATION PROCEDURE MANUAL M21-1 provisions, and Compensation & Pension Service (C&P) policy concerning the development of claims, VA had taken upon itself a duty to assist in fully developing the facts pertinent to a claim even in the absence of a well- grounded claim. Because there is no duty to assist under 38 U.S.C. § 5107(a) absent the submission of a well-grounded claim, see Epps v. Gober, 126 F.3d 1464, 1467 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 2348 (1998), the Court held that the Secretary cannot undertake to assist a veteran in developing facts pertinent to his or her claim until such a claim has first been established. In the order, the Court addressed and rejected the request of a judge for en banc consideration. Morton v. West, 12 Vet. App. 477 (1999) (per curiam). ORDER As a well grounded claim has not been presented, entitlement to service connection for PTSD is denied. Iris S. Sherman Member, Board of Veterans' Appeals