Citation Nr: 0003686 Decision Date: 02/11/00 Archive Date: 02/15/00 DOCKET NO. 95-24 646 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a skin disorder, to include as a result of herbicide exposure in Vietnam. 2. Entitlement to service connection for a cancerous growth on the right side of the head, to include as a result of herbicide exposure in Vietnam. 3. Entitlement to service connection for post-traumatic stress disorder (PTSD). 4. Entitlement to service connection for an acquired psychiatric disorder, other than PTSD. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The veteran and his father ATTORNEY FOR THE BOARD A. C. Mackenzie, Associate Counsel INTRODUCTION The veteran served on active duty from February 1968 to February 1971, with service in the Republic of Vietnam from February 1970 to February 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 1995 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The veteran's appeal also initially encompassed the issue of entitlement to a nonservice- connected disability pension, but that benefit was granted in an October 1995 rating decision. The Board observes that the veteran completed an appeal of the RO's denial of entitlement to service connection for a psychiatric disorder, to include PTSD. However, in view of the facts of the present case and the specific laws and regulations regarding PTSD, the Board will treat the issues of entitlement to service connection for PTSD and entitlement to service connection for a psychiatric disorder, other than PTSD, separately in this decision. FINDINGS OF FACT 1. There is no competent medical evidence of a nexus between a current skin disorder and service. 2. There is no competent medical evidence showing a cancerous growth on the right side of the head. 3. The veteran does not have a diagnosis of PTSD that is based on either participation in combat with the enemy or a verified stressor. 4. There is no competent medical evidence of a nexus between a current acquired psychiatric disorder, other than PTSD, and service. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for a skin disorder, to include as secondary to herbicide exposure in Vietnam, is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The claim of entitlement to service connection for a cancerous growth on the right side of the head, to include as secondary to herbicide exposure in Vietnam, is not well grounded. 38 U.S.C.A. § 5107(a). 3. PTSD was not incurred as a result of service. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1999). 4. The claim of entitlement to service connection for a psychiatric disorder, other than PTSD, is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Entitlement to service connection for a skin disorder and a cancerous growth Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(a) (1999). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1999). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). Also, certain chronic diseases, including malignant tumors, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service. 38 U.S.C.A. §§ 1101, 1112, 1113, (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). VA regulations also provide that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam Era and has one of the diseases listed in 38 C.F.R. § 3.309(e) (1999) shall be presumed to have been exposed during such service to an herbicide agent, such as Agent Orange, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 3.307(a)(6)(iii) (1999). Service connection due to exposure to an herbicide agent may be granted on a presumptive basis for certain diseases listed in 38 C.F.R. § 3.309(e) (1999). For example, service connection may be granted for an acneform disease consistent with chloracne, or porphyria cutanea tarda, if such a disease is manifested 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 service. 38 C.F.R. § 3.307(a)(6)(ii) (1999). See The Agent Orange Act of 1991, Public Law No. 102-4, § 2, 105 Stat. 11 (1991). The Secretary of Veterans Affairs (Secretary) has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See 59 Fed. Reg. 341-46 (1994); see also 61 Fed. Reg. 41,422-41,449 (1996). Nonetheless, even if a veteran has not been diagnosed with a disease listed in 38 C.F.R. § 3.309(e) (1999), he or she is not precluded from establishing service connection by proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997); Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd sub nom. Ramey v. Gober, 120 F.3d 1239 (Fed. Cir. 1999), cert. denied, 118 S.Ct. 1171 (1998). The initial question which must be answered in this case, however, is whether the veteran has presented well-grounded claims for service connection. In order for a claim for service connection to be well grounded, the claim must be shown to be at least plausible and capable of substantiation. Specifically, 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 v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S.Ct. 2348 (1998); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). The nexus requirement may be satisfied by evidence showing that a chronic disease subject to presumptive service connection was manifested to a compensable degree within the prescribed period. See Traut v. Brown, 6 Vet. App. 495, 497 (1994); Goodsell v. Brown, 5 Vet. App. 36, 43 (1993). 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 v. Gober, 126 F.3d at 1468. Furthermore, 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). In regard to establishing a well-grounded claim, the second and third Epps and Caluza elements (incurrence and nexus evidence) can also be satisfied under 38 C.F.R. § 3.303(b) (1999) by: (1) evidence that a condition was "noted" during service or during an applicable presumption period; (2) evidence showing post-service continuity of symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Symptoms, not treatment, are the essence of evidence of continuity of symptomatology. Savage v. Gober, 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 noting the specific symptomatology is required to demonstrate a relationship between the present disability and the demonstrated continuity of symptomatology unless such a relationship is one for 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 38 C.F.R. § 3.303(b) (1999) 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 v. Gober, 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. The Board has reviewed the veteran's service medical records and observes that, in his February 1968 enlistment examination, chronic external otitis, based on seborrheic dermatitis, was noted. However, the veteran was not treated for any skin problems during service, aside from an abrasion of the scalp in December 1968, and his February 1971 separation examination report is entirely negative for any skin disorders. Subsequent to service, in December 1980, the veteran was treated for seborrheic dermatitis, and the veteran reported that he was first noted to have that disability in 1973. Also, in December 1991, the veteran was treated for hyperpigmentation. Most of the veteran's post-service skin treatment has concerned seborrheic dermatitis and/or eczema. In November 1993, the veteran was treated for a blue-black macule on his head, and a VA treatment record from that date contains a diagnosis of rule out melanoma. This macule was excised and was studied to rule out a malignancy. However, no cancer was found, and a blue nevus was instead diagnosed. While an April 1994 VA treatment record indicates that the veteran reported a history of a basal cell carcinoma of the scalp, there is no indication from this record, or from any other record in the claims file, that a basal cell carcinoma of the scalp was revealed upon examination. In short, there is no evidence of record demonstrating that the veteran has a current cancerous growth on the right side of the head. With regard to the veteran's claim for service connection for a skin disorder, the Board would point out that the disorders noted above, notably seborrheic dermatitis and eczema, are not among the diseases listed in 38 C.F.R. § 3.309(e) (1999), for which presumptive service connection based on herbicide exposure is warranted. The Board will therefore has considered the veteran's claim for service connection for a skin disorder on a direct basis. As the veteran's seborrheic dermatitis was noted in the report of his service enlistment examination, the Board finds that the presumption of soundness at entry into service is not for application with regard to this disability, and seborrheic dermatitis is therefore found to have preexisted service. See 38 U.S.C.A. § 1111 (West 1991). There is no evidence of treatment for that disability during service and no other evidence of record suggesting that the veteran's underlying seborrheic dermatitis worsened during service. See 38 U.S.C.A. §§ 1153 (West 1991); 38 C.F.R. § 3.306 (1999). Additionally, there is no evidence indicating an etiological relationship between any of the veteran's other noted skin disorders and service. In short, there is no medical evidence of a nexus between a current skin disorder and service. Indeed, the only evidence of record suggesting a nexus between a current skin disorder and service, or a claimed cancerous growth on the right side of the head, is the lay evidence of record, including the testimony from the veteran's August 1995 VA hearing. However, the veteran has not been shown to possess the medical expertise necessary to render a diagnosis or to establish a nexus or link between a currently diagnosed disorder and service. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). See also LeShore v. Brown, 8 Vet. App. 406, 409 (1995); Robinette v. Brown, 8 Vet. App. 69, 77 (1995). Therefore, the lay contentions of record, alone, do not provide a sufficient basis upon which to find these claims to be well grounded. See Grottveit v. Brown, 5 Vet. App. 91, (1993). A well-grounded claim must be supported by evidence, not merely allegations. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In the absence of competent medical evidence to support the veteran's claims for service connection for a skin disorder and for a cancerous growth on the right side of the head, either on a direct basis or as due to herbicide exposure in Vietnam, these claims must be denied as not well grounded. Since the veteran's claims for service connection are not well grounded, VA has no further duty to assist the veteran in developing the record to support his claims. See Epps v. Gober, 126 F.3d at 1467-68 (Fed. Cir. 1997) ("there is nothing in the text of § 5107 to suggest that [VA] has a duty to assist a claimant until the claimant meets his or her burden of establishing a 'well grounded' claim"). II. Entitlement to service connection for PTSD Initially, the Board finds that the veteran's claim for service connection for PTSD is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). See Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). That is, the Board finds that the veteran has presented a claim which is not inherently implausible when his contentions and the evidence of record are viewed in the light most favorable to his claim. The Board is also satisfied that all relevant facts have been properly developed and that no further assistance to the veteran is required to comply with the VA's duty to assist him with the development of facts pertinent to his claim, as mandated by 38 U.S.C.A. § 5107(a). Generally, in order to establish service connection for a particular disorder, the evidence of record must demonstrate that a disease or injury resulting in a current disability was incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). However, VA regulations provide that service connection for post-traumatic stress disorder 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. See 38 C.F.R. § 3.304(f) (1999); Cohen v. Brown, 10 Vet. App. 128, 138 (1997) (citing Moreau v. Brown, 9 Vet. App. 389, 394-95 (1996)). The evidence necessary to establish the occurrence of a stressor during service to support a claim for PTSD will vary depending on whether the veteran was "engaged in combat with the enemy." See Hayes v. Brown, 5 Vet. App. 60, 66 (1993). If the evidence establishes that the veteran was engaged in combat with the enemy or was a prisoner of war (POW), and the claimed stressor is related to combat or POW experiences (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. Where, however, VA determines that the veteran did not engage in combat with the enemy and was not a POW, or the claimed stressor is not related to combat or POW experiences, the veteran's lay statements, by themselves, will not be enough to establish the occurrence of the alleged stressor. Instead, the record must contain service records or other credible evidence which corroborates the stressor. 38 U.S.C.A. § 1154(b) (West 1991); 38 C.F.R. § 3.304(d), (f) (1999); Gaines v. West, 11 Vet. App. 353, 357-58 (1998). Such corroborating evidence cannot consist solely of after- the-fact medical nexus evidence. See Moreau v. Brown, 9 Vet. App. 389, 396 (1996). The Board has first considered the question of whether the veteran has a medical diagnosis of PTSD. In this regard, the Board observes that the veteran's service medical records, including his February 1971 separation examination report, are entirely negative for any evidence of psychiatric symptomatology. Subsequent to service, however, the veteran has been treated on a frequent basis for various psychiatric disorders. The earliest evidence of record of a post-service psychiatric disorder is the report of a VA hospitalization from September and October of 1974, which contains diagnoses of alcohol addiction and a depressive neurosis. The report of an examination conducted by June M. Rees, M.D., in March 1987 contains a diagnosis of a schizophrenic reaction, chronic undifferentiated type, with paranoid features precipitated by alcohol and drug use. In March and April of 1994, the veteran was hospitalized at a VA facility for treatment for dysthymia and an adjustment disorder with a depressed mood. He was subsequently admitted to a VA PTSD program, and the earliest VA treatment record containing a diagnosis of this disorder is dated in October 1994. The diagnosis of PTSD was confirmed in the report of a VA hospitalization from October to December of 1994. However, the reports of two VA examinations conducted in February 1995 suggest alternative diagnoses. The first examination report contains diagnoses of a dysthymic disorder and generalized anxiety disorder, and the examiner noted that the criteria for the diagnosis of PTSD had not been met because of the veteran's lack of psychological distress in reporting traumatic events and the absence of intrusive distressing recollections of the events. The second examination report contains diagnoses of agoraphobia, rule out generalized anxiety disorder, dysthymia, and alcohol dependence. In the present case, there is evidence showing that the veteran has been diagnosed with PTSD, although several other examiners have not found this disorder to be present. Nonetheless, even if there is a current medical diagnosis of PTSD, the diagnosis must be based upon either participation in combat with the enemy or a verified in-service stressor for service connection to be warranted, as noted above. Medical nexus evidence is insufficient, in and of itself, to fulfill the requirements for a grant of service connection for PTSD. See Moreau v. Brown, 9 Vet. App. at 396. Thus, the question becomes whether the veteran either engaged in combat with the enemy during service or experienced a verified in-service stressor upon which the diagnosis of PTSD is predicated. With regard to the question of whether the veteran served in combat with the enemy, the Board has considered his military commendations. In this regard, the Board observes that the veteran's military records indicate that he was awarded the National Defense Service Medal, the Vietnam Service Medal, the Vietnam Campaign Medal, and two Overseas Bars. The Board also notes that the veteran's DD Form 214 indicates that his military occupational specialty was as a clerk typist. However, these records do not reflect that the veteran received such combat-related citations as the Purple Heart or the Combat Infantryman Badge, and there is no further service department evidence suggesting participation in combat with the enemy, such as treatment for combat-related injuries during service. The Board has considered whether the diagnosis of PTSD is based upon a verified stressor or stressors. In November 1994, the RO sent the veteran a letter indicating that, for stressor verification, he should provide details regarding names, places, and times pertinent to any claimed stressors. In a January 1995 response, the veteran reported that he recalled hitting a moving object, perhaps a human or an animal, while driving his car in the vicinity of Da Nang in June or July of 1970. He also reported being treated for a head injury and lying on a table next to a dead man while in Vietnam. The veteran did not provide further specific details regarding these stressors during his February 1995 VA examinations. The report of the first examination does contain a notation of an incident in which he was hit in the head with a club in a bar while serving in Germany, but the veteran reported no serious injury as a result of this incident. In its June 1995 Supplemental Statement of the Case, the RO informed the veteran that he had not provided evidence of an "acceptable" stressor, but the veteran subsequently provided no further specific details regarding his claimed stressors. The information which the veteran provided during his August 1995 VA hearing is essentially cumulative of that which had been reported previously. In this regard, the Board would point out that VA's duty to assist a claimant with his well-grounded claim is not a one- way street. If a veteran wishes help in developing a claim, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining putative evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Accordingly, as the veteran has not provided a fully detailed summary of his reported stressful in-service experiences, the Board finds that the reported stressors do not reach the level of specificity that would warrant further action, such as stressor verification by the United States Armed Services Center for Research of Unit Records (USASCRUR). Overall, based upon a review of the entire claims file, the Board finds that the evidence of record shows that the veteran has been diagnosed with PTSD. However, the evidence of record, including the veteran's testimony, does not reflect participation in combat with the enemy, and there is no evidence showing that the veteran's current medical diagnosis of PTSD is based upon a verified stressor in service. As such, the Board finds that the preponderance of the evidence is against his claim for service connection for PTSD. In reaching this determination, the Board has considered the doctrine of reasonable doubt, as set forth in 38 U.S.C.A. § 5107(b) (West 1991). However, as the preponderance of the evidence is against the veteran's claim, this doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). III. Entitlement to service connection for a psychiatric disorder, other than PTSD The Board finds that the veteran's claim of entitlement to service connection for a psychiatric disorder, other than PTSD, is not well grounded. No physician or other mental health professional has made a clinical finding or offered an opinion that an acquired psychiatric disorder other than PTSD had its onset during the veteran's period of active service or is otherwise related to an incident or manifestation during his active service. An element required for a well grounded claim is thus missing. The claim of entitlement to service connection for a psychiatric disorder other than PTSD must therefore be denied as not well grounded. 38 U.S.C.A. § 5107(a). IV. Conclusion The Board recognizes that the RO denied the veteran's claims of entitlement to service connection for a skin disorder, a cancerous growth on the right side of the head, and an acquired psychiatric disorder other than PTSD on their merits, while the Board has denied those claims as not well grounded. Regardless of the basis of the RO's denials, however, the Board observes that the Court has held that no prejudice to the veteran results in cases where the RO denies a claim for service connection on the merits and does not include an analysis of whether the veteran's claim is well grounded, and the Board denies the same claim as not well grounded. See Meyer v. Brown, 9 Vet. App. 425, 432 (1996). Furthermore, the Board is not aware of the existence of additional relevant evidence that could serve to make the veteran's claims well grounded. As such, there is no further duty on the part of VA under 38 U.S.C.A. § 5103(a) (West 1991) to notify the veteran of the evidence required to complete his application for service connection for the claimed disabilities. See McKnight v. Gober, 131 F.3d 1483, 1484-85 (Fed. Cir. 1997). ORDER A well-grounded claim not having been submitted, entitlement to service connection for a skin disorder, to include as a result of herbicide exposure in Vietnam, is denied. A well-grounded claim not having been submitted, entitlement to service connection for a cancerous growth on the right side of the head, to include as a result of herbicide exposure in Vietnam, is denied. Entitlement to service connection for PTSD is denied. A well grounded claim not having been submitted, service connection for an acquired psychiatric disorder other than PTSD is denied. JAMES A. FROST Acting Member, Board of Veterans' Appeals