Citation Nr: 0007537 Decision Date: 03/21/00 Archive Date: 03/28/00 DOCKET NO. 96-42 456 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for a skin disorder claimed as secondary to exposure to herbicides. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. C. Graham, Counsel INTRODUCTION The appellant served on active duty from August 1969 to March 1971. The veteran served in Vietnam from January 31, 1970, to March 28, 1971. The instant appeal arose from a January 1994 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in which reopened and denied a claim for service connection for PTSD. This appeal also arises from a June 1995 rating decision which denied a claim for service connection for skin rashes claimed as secondary to herbicide exposure. The veteran, in a December 1996 written statement, seems to have raised a claim for service connection for ankylosis of the right ankle and paranoid schizophrenia or other neuropsychiatric disorder, excluding PTSD. The Board notes that claims for service connection for residuals of a right ankle sprain, a burn scar of the right lower extremity, and paranoid schizophrenia have previously been denied. Since these issues have not been developed by the RO, they are referred to the RO for appropriate action. These issues are not inextricably intertwined with the issues on appeal. Kellar v. Brown, 6 Vet. App. 157 (1994). FINDINGS OF FACT 1. By decision entered in September 1991 the RO denied a claim to reopen a claim for service connection for PTSD. The veteran was notified of that determination and initiated an appeal, but he did not perfect the appeal within one year. Evidence received since the time of the September 1991 decision is so significant by itself or in connection with evidence previously assembled that it must be considered in order to fairly decide the merits of the veteran's claim. 2. The record contains evidence of a current diagnosis of PTSD. 3. The veteran has reported various in-service stressors. 4. Private and VA medical evidence links the veteran's PTSD diagnosis to his descriptions of his active service in Vietnam, including confirmed stressors. 5. No competent medical evidence has been submitted to show that the veteran has a skin disorder listed in 38 U.S.C.A. § 1116(a)(2) or 38 C.F.R. § 3.309(e). 6. No competent medical evidence has been submitted to show that the veteran's skin problems, including difficulties with recurrent tinea versicolor or a nonspecific rash, can be attributed to in-service exposure to herbicides. CONCLUSIONS OF LAW 1. New and material evidence has been received sufficient to reopen the claim of entitlement to service connection for PTSD. 38 U.S.C.A. §§ 1110, 1131, 5108, 7105 (West 1991); 38 C.F.R. §§ 3.156, 20.1103 (1999). 2. PTSD was incurred in service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999). 3. The claim of entitlement to service connection for a skin disorder due to exposure to herbicides is not well grounded. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5107 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS PTSD Claim The appellant contends, in substance, that he has PTSD as a result of his experiences in Vietnam. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(a) (1999). The RO previously denied service connection for PTSD in a September 1991 rating decision. The veteran was notified of that determination and initiated an appeal within one year; however, he did not perfect that appeal. 38 U.S.C.A. § 7105(b)(1) (West 1991); 38 C.F.R. § 20.200 (1999). Consequently, the question of whether new and material evidence has been received to reopen the claim must now be addressed. 38 U.S.C.A. §§ 5108, 7104(b) (West 1991); 38 C.F.R. §§ 3.156, 20.1103 (1999). His current claim of service connection may be considered on the merits only if new and material evidence has been received since the time of the last final disallowance. 38 U.S.C.A. §§ 5108, 7104, 7105 (West 1991 & Supp. 1999); Manio v. Derwinski, 1 Vet. App. 140, 145 (1991); Evans v. Brown, 9 Vet. App. 273 (1996). The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in that regard is irrelevant. Id. Further analysis, beyond consideration of whether the evidence received is new and material, is neither required nor permitted. Id. at 1384. See also Butler v. Brown, 9 Vet. App. 167, 171 (1996). Evidence is considered "new" if it was not of record at the time of the last final disallowance of the claim and if it is not merely cumulative or redundant of other evidence that was then of record. 38 C.F.R. § 3.156(a) (1999); Struck v. Brown, 9 Vet. App. 145, 151 (1996); Blackburn v. Brown, 8 Vet. App. 97, 102 (1995); Cox v. Brown, 5 Vet. App. 95, 98 (1993). "Material" evidence is evidence which bears directly and substantially upon the specific matter under consideration, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (1999); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence available at the time of the RO's September 1991 disallowance included the veteran's DD Form 214; his service medical records; VA examination reports and treatment records dated from 1971 to August 1991, including 1988 and 1989 VA hospitalization records which diagnosed PTSD; private medical records dated from 1972 to 1981, including an opinion from J. A. Juarbe, M.D., that the veteran had post-traumatic stress syndrome due to his experiences in Vietnam; and various written statements and hearing testimony provided by the veteran. The RO denied the claim because the medical evidence did not clearly show that the veteran had PTSD as he was diagnosed with other disorders, including a recent diagnosis of major depression. Additional evidence has been received since the time of the RO's September 1991 denial. This evidence includes copies of VA examination reports and treatment records dated from 1993 to November 1997; private medical statements dated in 1992 and 1993; a report from the U.S. Armed Services Center for Research of Unit Records (USASCRUR); a January 2000 VA medical opinion provided by J. M. Otero, M.D.; and various written statements and February 1997 hearing testimony provided by the veteran. The Board finds that this additional evidence, considered together with the evidence previously assembled, is sufficient to warrant reopening of the veteran's claim. Most of the additional evidence is "new" in that it was not previously before the RO when the RO adjudicated the veteran's claim in September 1991. Much of the "new" evidence is also "material," inasmuch as it provides further support for the diagnosis of PTSD; confirms some of the veteran's reported stressors; and indicates that there is a nexus between the currently diagnosed PTSD and the veteran's stressors. New and material evidence having been submitted, the veteran is entitled to have his claim considered de novo. In this regard, the Board notes first that the veteran's claim is well grounded. A well-grounded service connection claim for PTSD has been submitted when there is "[1] medical evidence of a current [PTSD] disability; [2] lay evidence (presumed to be credible for these purposes) of an in-service stressor, which in a PTSD case is the equivalent of in- service incurrence or aggravation; and [3] medical evidence of a nexus between service and the current PTSD disability." Cohen v. Brown, 10 Vet. App. 128, 137 (1997) (citations omitted). A diagnosis of PTSD has been rendered by VA and private physicians, most recently in the January 2000 VA medical opinion report. The medical opinion report and private medical opinions, including Dr. Juarbe's 1981 written statement, diagnose PTSD which was a result of the veteran's experiences in Vietnam. The veteran's claimed in-service stressors were enumerated at the February 1997 hearing and were also described by the veteran in written statements. Accordingly, the Board finds that the requirements for a well-grounded PTSD claim have been met. He has been given an opportunity to testify at a hearing, and the evidence relevant to the disposition of his claim has been properly developed. Turning to the merits of the veteran's claim, the Board notes that a grant of service connection for PTSD "requires medical evidence diagnosing the condition . . . ; 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." 38 C.F.R. § 3.304(f) (1999). See Cohen v. Brown, 10 Vet. App. 128, 138 (1997). Where it is determined that the veteran was engaged in combat with the enemy and that the claimed stressor is related to such combat, the veteran's lay testimony regarding the stressor is accepted as conclusive as to its actual existence, absent clear and convincing evidence to the contrary. Where, however, VA determines that the veteran did not engage in combat with the enemy, or that the veteran did engage in combat with the enemy but the claimed stressor is not related to such combat, 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). A review of the service medical records shows no diagnosis of PTSD. However, those records show that in December 1969, February 1970, and February 1971, the veteran complained of anxiety and waking with a pounding heart. He was assessed with probable anxiety and was treated with tranquilizers and Mellaril. A disorder characterized as post-traumatic stress syndrome was first diagnosed of record in Dr. Juarbe's 1981 written statement. VA hospitalization records dated in 1988 and 1989 also diagnosed PTSD. Subsequent treatment records variously diagnosed major depression, intermittent explosive disorder, dysthymia, adjustment disorder, depression with psychotic features, rule out PTSD, and PTSD. During his February 1997 hearing testimony and in written statements, the veteran reported various stressors associated with his experiences in Vietnam. He indicated that a significant stressor was the observation or participation in the killing of a young, pregnant Vietnamese woman. He also reported that while riding as a guard in the passenger seat of trucks carrying fuel between two locations in Vietnam, he observed that some of the drivers were wounded and involved in firefights. He specifically mentioned that one of his friends was injured, mentally if not physically, when there was an explosion involving one of the trucks. He also reported observing the death of a Sgt. Perez, who was a close friend. In its March 1998 report, the USASCRUR provided copies of Operational Reports-Lessons Learned (OR-LLs) submitted by the U. S. Army Support Command-Cam Rahn Bay, which was the higher headquarters for the veteran's assigned units in Vietnam, the 525th Quartermaster Detachment and the 525th Quartermaster Company. The OR-LLs documented numerous rocket, mortar, and sapper attacks on the base camp location of the veteran's units. They also documented that a vehicle assigned to the veteran's unit was fired on by the enemy, and a hand grenade was thrown into the vehicle, resulting in one soldier being wounded. Finally, United States Army casualty files listed a Specialist Four, J. M. Perez, as being killed in action in July 1970 as a result of small arms fire. In December 1999 the Board requested an expert psychiatric opinion as to whether a current diagnosis of PTSD was reasonably supported by the evidence of record. An opinion was provided in January 2000 by Dr. Otero, Diplomate, American Board of Psychiatry and Neurology, and Medical Director, Behavioral Medicine Service, Jerry L. Pettis Memorial VA Medical Center (MC). Dr. Otero reviewed the claims folder. Dr. Otero noted the veteran's service, his history of psychiatric problems since the early 1970s, and his many symptoms and diagnoses. He addressed numerous psychiatric principles and analyzed the veteran's history. He noted that there was not verifiable documentation as regards the veteran's main stressor, witnessing the death of a pregnant Vietnamese woman. However, he concluded: It is likely that this patient suffers from Posttraumatic Stress Disorder as a result of his having witnessed or participated in the killing of a pregnant Vietnamese woman during the Vietnam War. At least two other incidents (the death of a soldier and an explosion) were described in the [claims] file that also may have been sufficiently traumatizing to have caused or contributed to the development of PTSD. Bizarre psychotic content, systematized delusional systems, and severe disorganization would support the notion that the patient was primarily suffering from schizophrenia, rather than PTSD, but any such documentation in the medical record is quite weak. I believe that PTSD aggravated (and developed in association with or in the context of) a baseline psychiatric vulnerability. There is insufficient support from the [claims] file that the patient would have developed serious psychiatric symptomatology had he never entered the military or experienced the Vietnam War. Therefore, the patient's current psychiatric status should not be solely attributed to some mental condition pre- existing and independent of the patient's military service. In the present case, the Board finds that the evidence supports the conclusion that the veteran has PTSD. Although PTSD was not diagnosed in some of the recent medical evidence, including April 1993 and March 1995 VA examination reports, the record contains Dr. Otero's detailed medical opinion report, dated in January 2000, which concludes that the veteran does in fact have PTSD. In addition, other VA and private medical evidence reveals a diagnosis of PTSD. The evidence, at a minimum, gives rise to a reasonable doubt on the question of current diagnosis. 38 C.F.R. § 3.102 (1999). The Board finds, moreover, that the evidence supports an allowance of the claim of service connection. The veteran has presented sworn testimony in February 1997 to the effect that he observed the death of a close friend and observed an explosion of a fuel truck which injured another solder. A March 1998 USASCRUR report confirmed that a vehicle in the veteran's company received enemy fire and that the soldier named by the veteran was killed in action. Inasmuch as the veteran's allegations are credible, and are supported by corroborating evidence, and the record reflects a clear diagnosis of PTSD and a link between current symptomatology and the stressor in question (in his January 2000 report, Dr. Otero opined that "[a]t least two other incidents (the death of a soldier and an explosion) . . . may have been sufficiently traumatizing to have caused or contributed to the development of PTSD"), the Board finds that the legal criteria for an award of service connection for PTSD have been met. The appeal is therefore granted. Skin disorder claimed as secondary to herbicide exposure The veteran contends that he has a skin rash which can be attributed to in-service exposure to Agent Orange. The VA previously denied service connection for a skin disorder by a decision entered in December 1971. The veteran was notified of that decision, but did not initiate an appeal within one year. As a result, that decision became final. See 38 C.F.R. §§ 19.112, 19.153 (1971). Subsequently, however, in February 1991, the Agent Orange Act of 1991, Pub. L. No. 102-4, 105 Stat. 11, was enacted. Section 2 of that act, codified at 38 U.S.C.A. § 1116, established a process for the possible establishment of presumptions of service connection to assist veterans who served in the Republic of Vietnam during the Vietnam era and subsequently developed diseases determined to be associated with exposure to herbicide agents. VA subsequently issued notices and regulations pursuant to the Agent Orange Act in May 1993, January 1994, February 1994, June 1994, August 1996, and November 1996. See Diseases Associated With Service in the Republic of Vietnam, 58 Fed. Reg. 29107 (1993); Disease Not Associated with Exposure to Certain Herbicide Agents, 59 Fed. Reg. 341 (1994); Disease Associated With Exposure to Certain Herbicide Agents, 59 Fed. Reg. 5106 (1994); and Disease Associated With Exposure to Certain Herbicide Agents (Multiple Myeloma and Respiratory Cancers), 59 Fed. Reg. 29723 (1994); Diseases Not Associated With Exposure to Certain Herbicide Agents, 61 Fed. Reg. 41442 (1996); Diseases Associated With Exposure to Certain Herbicide Agents (Prostate Cancer and Acute and Subacute Peripheral Neuropathy), 61 Fed. Reg. 57586 (1996). In the Board's view, the enactment of the Agent Orange Act of 1991, together with the promulgation of notices and regulations pursuant to that Act, constitutes a substantive change in the law creating a new cause of action. See, e.g., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998); Spencer v. Brown, 17 F.3d 368 (Fed. Cir. 1994). The Act and associated regulatory actions liberalized the requirements for establishing service connection for certain residuals of exposure to Agent Orange, including certain disorders of the skin. Consequently, the veteran's most recent claim of service connection for a skin disorder is most properly viewed as new claim, separate and distinct from the claim which was previously denied. See McCartt v. West, 12 Vet. App. 164, 167 (1999). The Board will therefore review the claim on appeal as an original claim, rather than as an application to reopen a prior final decision. Id. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(a) (1999). When disease is shown as chronic in service, or within a presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (1999). A person who submits a claim for VA benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. Only if the claimant meets this burden does VA have the duty to assist him in developing the facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). If the claimant does not meet this initial burden, the appeal must fail because, in the absence of evidence sufficient to make the claim well grounded, the Board does not have jurisdiction to adjudicate the claim. Boeck v. Brown, 6 Vet. App. 14, 17 (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). To be well grounded, however, a claim must be accompanied by evidence that suggests more than a purely speculative basis for granting entitlement to the requested benefits. Dixon v. Derwinski, 3 Vet. App. 261, 262-63 (1992). Evidentiary assertions accompanying a claim for VA benefits must be accepted as true for purposes of determining whether the claim is well grounded, unless the evidentiary assertion is inherently incredible or the fact asserted is beyond the competence of the person making the assertion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is plausible or possible is required. Murphy, 1 Vet. App. at 81. A claimant cannot meet this burden merely by presenting lay testimony, because lay persons are not competent to offer medical opinions. Espiritu, 2 Vet. App. at 495. The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court") has held that competent evidence pertaining to each of three elements must be submitted in order make a claim of service connection well grounded. There must be competent (medical) evidence of a current disability; competent (lay or medical) evidence of incurrence or aggravation of disease or injury in service; and competent (medical) evidence of a nexus, or link, between the in-service injury or disease and the current disability. This third element may be established by the use of statutory presumptions. 38 U.S.C.A. § 1112 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.307, 3.309 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). With regard to herbicide exposure (including Agent Orange), VA laws and regulations provide that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, and has a disease listed at 38 C.F.R. § 3.309(e), shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. 38 C.F.R. § 1116(a)(3) (West Supp. 1999); 38 C.F.R. § 3.307(a)(6)(iii) (1999). 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 period beginning on January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.307(a)(6)(iii) (1999). If a veteran was exposed to an herbicide agent during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, the following diseases shall be service-connected if the requirements of 38 U.S.C.A. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied: chloracne or other acneform disease consistent with chloracne; Hodgkin's disease; multiple myeloma; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e) (1999). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year, and respiratory cancers within 30 years, after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii) (1999). The Secretary of VA 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 Diseases Not Associated With Exposure to Certain Herbicide Agents, 61 Fed. Reg. 41442, 41448 (1996). Nevertheless, the United States Court of Appeals for the Federal Circuit has held 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 claimant from establishing service connection with proof of direct causation, a task "which includes the difficult burden of tracing causation to a condition or event during service." Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In the present case, the Board finds that the claim of entitlement to service connection for a skin disorder due to exposure to herbicides is not well grounded. The presumptive provisions of 38 U.S.C.A. § 1116 and 38 C.F.R. § 3.309(e) cannot be relied upon by the veteran to establish service connection because no competent medical evidence has been submitted to show that the veteran has a skin disorder listed in 38 U.S.C.A. § 1116(a)(2) or 38 C.F.R. § 3.309(e). Moreover, no competent medical evidence has been submitted to otherwise show that his skin problems, including difficulties with recurrent tinea versicolor or a nonspecific rash, can be attributed to in-service exposure to Agent Orange. In the absence of competent evidence which demonstrates that the veteran has a skin disorder listed at 38 C.F.R. § 3.309(e), or which otherwise links a current skin disorder to service, his claim cannot properly be considered well grounded. See, e.g., Brock v. Brown, 10 Vet. App. 155 (1997). The claim must therefore be denied. ORDER A claim for service connection for PTSD is granted, subject to the laws and regulations governing the payment of monetary benefits. A claim for service connection for a skin disorder, claimed as secondary to herbicide exposure, is denied. C. P. RUSSELL Member, Board of Veterans' Appeals