BVA9504965 DOCKET NO. 93-19 911 ) DATE ) ) On appeal from the decision of 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 yellow jaundice. 3. Entitlement to service connection for a heart disorder and hypertension. 4. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a left elbow deformity. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jeffrey J. Schueler, Associate Counsel INTRODUCTION The veteran served on active duty from November 1940 to June 1945, and from May 1952 to October 1956. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that PTSD, yellow jaundice, a heart disorder, and hypertension were incurred in active duty. The veteran maintains that he engaged in combat in World War II and in the Korean Conflict, and that his experiences resulted in stressors contributing to the development of PTSD. The veteran asserts that he suffered from yellow jaundice during World War II. The veteran contends that he first experienced heart troubles during service and that his current hypertension and heart disease are related to that service. He further contends that he has submitted new and material evidence in order to reopen a claim for service connection for a left elbow deformity. He maintains that the left elbow deformity was incurred in or aggravated by active service. The veteran maintains that the deformity increased in severity during active service thereby warranting service connection. DECISION OF THE BOARD The Board of Veterans' Appeals (Board), in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence supports a grant of service connection for PTSD; that the veteran has not submitted evidence of a well-grounded claim for yellow jaundice; a heart disorder, or hypertension; and that new and material evidence has not been submitted to reopen a claim of entitlement to service connection for a left elbow deformity. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained insofar as possible. 2. The veteran engaged in combat with the enemy during service. 3. The veteran currently has PTSD which may be associated with his combat experiences. 4. Any jaundice present during active service resolved prior to service separation; no current residuals of jaundice are present. 5. Heart disease and hypertension were not shown to have been present during active service; post-service heart disease and hypertension were not etiologically related to active service. 6. The regional office (RO) denied the veteran's claim of entitlement to service connection for a left elbow deformity in a November 1945 rating decision. The veteran was notified of this decision by letter dated November 26, 1945, and did not appeal. 7. Additional evidence received since the November 1945 rating decision is either duplicative of evidence previously considered or does not go to the question of whether the underlying pathology of the veteran's left elbow deformity underwent an increase in severity during active service. CONCLUSIONS OF LAW 1. Post-traumatic stress disorder was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.304(f) (1994). 2. The veteran's claim for service connection for residuals of yellow jaundice is not well grounded. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991). 3. The veteran's claims for service connection for heart disease and hypertension are not well grounded. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1994). 4. Evidence received since the RO denied the veteran's claim of entitlement to service connection for a left elbow deformity is not new and material; the November 1945 rating action is final; the claim is not reopened. 38 U.S.C.A. §§ 1111, 5107, 5108 (West 1991); Veterans Regulation No. 2(a), pt. II, par. III; Department of Veterans Affairs Regulation 1008; effective January 25, 1936 to December 31, 1957; 38 C.F.R. §§ 3.303, 3.156(a), 3.306 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board finds that the veteran's claims for service connection for PTSD and a left elbow disability are well-grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); that is, they are not inherently implausible. The Department of Veterans Affairs (VA), therefore, has a statutory obligation to assist the veteran in the development of facts pertinent to the claims. For reasons set forth below, the Board finds that the veteran's claims for service connection for heart disease, hypertension, and residuals of yellow jaundice are not well grounded and must be dismissed. Service medical records pertaining to the veteran's service during World War II are associated with the claims folder; however, it appears that records pertaining to the veteran's remaining service, notably service during the Korean Conflict, were destroyed in a fire at the National Personnel Records Center (NPRC), at St. Louis, Missouri, in 1973. The VA must place an increased emphasis on the duty to assist in cases where service medical records are not available. See Dixon v. Derwinski, 3 Vet.App. 261 (1992) (where a denial of a veteran's claim rests, in part, on the government's inability to produce records that were in its custody, an explanation of the reasonableness of the search conducted and why further efforts are not justified is required). See also Moore v. Derwinski, 1 Vet.App. 401 (1991) (duty to assist is particularly great in light of the unavailability of service medical records). In a letter dated April 9, 1992, the VA informed the veteran that it was encountering difficulty obtaining his military records and requested that he complete and return an enclosed form in order to facilitate a search for those records. The VA also sent the veteran a letter dated April 16, 1992, requesting information regarding his claim for a psychiatric disorder. The veteran responded in May 1992 specifically to the April 16, 1992, letter, enclosed a copy of an earlier letter to the VA (the original of which was already of record), and stated that the letter answered all questions referable to the PTSD claim. The record does not contain a response to the VA's letter of April 9, 1992. "The duty to assist is not always a one way street." Wood v. Derwinski, 1 Vet.App. 190, 193 (1991). The veteran cannot passively wait for assistance, as here where he relied on his previous letter instead of providing information requested by the VA. As in Wood, the veteran was "adequately on notice that more was required of him if there was to be a successful search for the necessary evidence." On appellate review, we see no areas in which further development may be fruitful. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1994). Service connection may also 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) (1994). I. Post-Traumatic Stress Disorder Service connection for PTSD requires medical evidence establishing a clear diagnosis of the condition, credible supporting evidence that the claimed inservice stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed inservice stressor. If the claimed stressor is related to combat, service department evidence that the veteran engaged in combat or that the veteran was awarded the Purple Heart, Combat Infantryman Badge, or similar combat citation will be accepted, in the absence of evidence tot he contrary, as conclusive evidence of the claimed inservice stressor. 38 C.F.R. § 3.304(f) (1994). The Court set out the analysis required in claims of service connection for PTSD: Where it is determined, through recognized military citations or other supportive evidence, that the veteran was engaged in combat with the enemy and the claimed stressors are related to such combat, the veteran's lay testimony regarding claimed stressors must be accepted as conclusive as to their actual occurrence and no further development for corroborative evidence will be required, provided that the veteran's testimony is found to be "satisfactory," e.g., credible, and "consistent with circumstances, conditions, or hardships of such service." Where, however, the 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 testimony, by itself, will not be enough to establish the occurrence of the alleged stressor. Instead the record must contain service records which corroborate the veteran's testimony as to the occurrence of the claimed stressor. Zarycki v. Brown, 6 Vet.App. 91, 98 (1993) (citations omitted). A diagnosis of PTSD was made on a December 1991 VA psychiatric examination. The record also contains VA clinical records dated in 1992 and 1993 indicating that the veteran was treated for PTSD. This evidence demonstrates a "clear diagnosis of the condition," the initial requirement in 38 C.F.R. § 3.304(f) for service connection. The veteran provided statements to the record, as well as personal hearing testimony, discussing various claimed stressors during service in World War II. These claimed stressors included the sinking of his transport ship in the Pacific and the death of a German officer during World War II. The veteran also testified that during service in the Korea Conflict he served as a combat engineer. These claimed stressors are related to combat. Service record entries show that the veteran was awarded the Combat Infantryman's Badge (CIB) during World War II. Since the claimed stressor is related to combat, the receipt of the CIB, in the absence of evidence to the contrary, will be accepted as conclusive evidence of the claimed inservice stressor. See 38 C.F.R. § 3.304(f) (1994). Finally, the examiner at the December 1991 VA psychiatric examination based the diagnosis of PTSD on the veteran's claimed stressors, thereby demonstrating the link between the diagnosis of PTSD and the incidents claimed by the veteran as stressors. It is the determination of the Board that the preponderance of the evidence is in favor of service connection for PTSD. II. Yellow Jaundice At the outset, it should be noted that service connection is in effect for residuals of malaria, assigned a noncompensable evaluation, from April 1946. The veteran's service medical records in December 1942, and in March, May, and June 1943, show treatment for recurrent malaria fever and jaundice. A May 1943 record reported that the veteran "had" malaria in October 1942, February 1943, and May 1943. A July 1943 clinical record revealed that the veteran began having chills and fever in October 1942 while in the New Hebrides and that he had been hospitalized five times because of malaria and jaundice. The examiner reported that "jaundice [was] now completely cleared up [and that] he [had] not had an attack of malaria in three months." In July 1943, a malaria test was negative. In August 1943, an examiner noted that the last clinical attack was in May 1942. In October 1943, the veteran was noted to be having no symptoms and therefore was discharged to duty. Laboratory test for malaria in July and September 1943 were negative. In a November 1943 clinical record, the examiner noted that the veteran had muscular aches followed by a chilly feeling, headache, and fever, and that the veteran gave a history of malaria. The examiner reported that "all findings [were] negative" except for rhinitis and slight pharyngitis, that the veteran ran a nearly continuous fever overnight "which is not typical of malaria," and that a malaria smear test was negative. At a June 1945 separation examination, it was reported that the veteran had no complaints. A review of the record does not show complaints, treatment, or findings regarding malaria or jaundice subsequent to service until the December 1991 VA examination. The examiner noted that the veteran had a history of malaria and hepatitis during active service, but that there was no recurrence of either the malaria or the hepatitis after service separation in 1945. The examiner rendered a diagnosis of a history of malaria and hepatitis in World War II with no recurrence. The available service medical records do not show that the veteran was treated for hepatitis during active service. The veteran testified at his personal hearing in April 1993 that he was treated for jaundice during active service, but that after service separation he was not treated for jaundice, although he testified that at the time of separation he was "still kind of yellowish." From the evidence of record, it appears that the veteran had several episodes of malaria and jaundice during active service in 1942 and 1943 but that there was no treatment for jaundice between October 1943 and service separation in June 1945. Moreover, the December 1991 VA examination reported no recurrences of malaria after service separation and the record contains no indications of complaints, treatment, or findings suggestive of malaria or jaundice between service separation and the December 1991 VA examination. Given the lack of findings showing current residuals of jaundice, and the last clinical finding of jaundice in 1943, it is the determination of the Board that the preponderance of the evidence is against the claim of entitlement to service connection for yellow jaundice. In order to establish entitlement to service connection, there must be evidence of disease or injury in service and a present disability which is attributable to such disease or injury. Where there is no evidence of, or allegation of, current disability associated with events in service, the claim is not well grounded. Rabideau v. Derwinski, 2 Vet.App. 141 (1992). III. Heart Disorder and Hypertension Where a veteran served continuously for 90 days or more during a period of war or during peacetime service after December 31, 1946, and hypertension or cardiovascular disease becomes manifest to a degree of 10 percent within one year from the 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, 1137 (West 1991); 38 C.F.R. § 3.307, 3.309 (1994). The service medical records show no complaints, findings, or treatment for heart disease or hypertension. The examination in November 1940, at entrance onto active service, shows that the veteran's blood pressure was 110/72 and that the cardiovascular system was normal. A September 1943 x-ray report indicates that the veteran's heart was within normal limits. On the separation examination in June 1945, the veteran's blood pressure was 110/70 and that the cardiovascular system was normal. These clinical records and the separation examination do not reveal a diagnosis of hypertension or heart disease, nor are the blood pressure readings available indicative of hypertension. As noted above, the veteran's service medical records covering his subsequent service are not available. Postservice private treatment records from 1982 through 1991, beginning over 37 years after service separation, show elevated blood pressure readings, findings of hypertension, chest pains, angina, and a possible heart attack. The examiners preparing these records, however, significantly did not discuss the etiology of the veteran's hypertension or heart disease or relate the symptomatology noted to active service or to a period one year following active service. The examiner at the December 1991 VA examination reported that it was discovered that the veteran had hypertension in approximately 1970, and that classic symptoms of angina resulted in coronary catheterization in 1970 with favorable results. The veteran's blood pressure was measured at 160/80, and the examiner noted a diagnosis of arteriosclerotic heart disease with stable angina and hypertension controlled on medication. But as with the private treatment records dated from 1982 through 1991, the VA examiner did not discuss the etiology of the veteran's hypertension or heart disease or relate the reported symptomatology to the veteran's period of active service or to the period one year following active service. Finally, the veteran testified at his personal hearing in April 1993 that he first had trouble with his heart when he was boarding a transport ship when he had severe pain and was treated by medical personnel. He stated that he remained on the ship for the voyage to Europe and that the only time he had pains after that was when he was shocked or scared, and that to his knowledge there was no diagnosis of heart disease or high blood pressure during his military service. He testified that the first diagnosis of a heart problem was by Dr. Irwin approximately 10 years previous to the hearing and that he started taking blood pressure medication in approximately 1970. He also testified that he felt that his PTSD contributed to his heart disorder. The available service medical records, however, do not show that the veteran was treated for a heart disorder during active service. Moreover, the veteran's testimony that he was diagnosed with a heart disorder approximately 10 years prior to the hearing and was treated for hypertension about 1970, even if accept as true, would not establish an etiologic link to the veteran's periods of active service from 1940 to 1945 or from 1952 to 1956. In order to show entitlement to service, there must be a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992). The veteran has also indicated that his heart disorder may be caused by his PTSD; however, he has submitted no evidence to demonstrate such a connection. Evidence that requires medical knowledge must be provided by someone qualified as an expert by knowledge, skill, experience, training, or education. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). In the absence of such evidence, the claim must be dismissed. IV. Left Elbow Disorder Every veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 1991). A pre-existing injury or disease will be considered to have been aggravated by active service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 1991); 38 C.F.R. § 3.306 (1994). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, and subsequent to service. 38 C.F.R. § 3.306(b) (1994). The law grants a period of one year from the date of notice of the result of the initial determination for the filing of an application for review on appeal; otherwise, that determination becomes final and is not subject to revision on the same factual basis. Veterans Regulation No. 2(a), pt. II, par. III; Department of Veterans Affairs Regulation 1008; effective January 25, 1936 to December 31, 1957. If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108 (West 1991). New and material evidence means evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, 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) (1993) (emphasis in the original). The claim will be reopened if there is "a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both old and new, would change the outcome." Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). The RO, in a November 1945 rating determination, denied the veteran's claim for service connection for a left shoulder deformity. After notification, the veteran did not file an appeal and the decision became final. Evidence available to the RO at the time of its determination included the veteran's service medical records. These records show that the veteran had previously injured his left elbow as a child, that he injured his left elbow in October 1942, and that at the time of July 1943 consultation request the veteran had normal and complete function of the left elbow. Additional evidence received since the November 1945 rating action includes service medical records. The entrance examination revealed that the veteran had an old fracture of the left elbow that was not disabling. Treatment records dated in May and June 1943 indicate a diagnosis of a moderate deformity of the left elbow from an old fracture. On the separation examination in June 1945, it was noted that the veteran had a slight deformity of the left elbow with range of motion 190 degrees to 40 degrees and some crepitance. While these service medical records were not of record prior to the November 1945 decision, they do not provide probative evidence regarding the left elbow deformity not previously of record. As with the prior evidence, the additional service medical records simply indicate that the veteran had a left elbow deformity at entrance onto active service, that he had a slight deformity at separation, and that there was a diagnosis of a moderate deformity of the left elbow from an old fracture during active service. These additional service medical records, therefore, are duplicative and cumulative of evidence previously of record, and is not new and material. The examiner at a December 1991 VA examination indicated that the veteran had a history of several fractures of the left arm, although he did not specify when those fractures occurred. Examination revealed a a varus deformity of the left forearm in extension, and the examiner diagnosed status post multiple fractures of the left arm with varus deformity, left radius and ulna. The examiner did not, however, specify when the prior multiple fractures were incurred or relate the left elbow deformity to a period of active service. Although the examination report concerns the current status of the veteran's left elbow deformity, without an attempt to relate the disorder to a period of active service or show an increase in symptomatology during active service the report is not probative to the issue of service connection. Finally, the veteran testified at a personal hearing in April 1993 that he broke his left elbow when he was about five or six years old and that he injured his left elbow during service. He testified that prior to his second period of active service in the Korean Conflict, the examiners did not indicate that there was a change in his left arm compared to his first period of service. The veteran's statements regarding the injury to the left elbow in childhood and during active service are duplicative of evidence already of record at the time of the November 1945 rating decision. The veteran argues that his left elbow was broken during his first period of service and did not heal correctly. However, the veteran, as a lay person without medical training or knowledge, is not qualified to provide testimony as to the etiology of his left elbow deformity. Espiritu v. Derwinski, 2 Vet.App. 492, 494-95 (1992). The additional evidence is, therefore, not material and, since it does not present a reasonable possibility of changing the outcome of the prior determination, is not new and material as required to reopen the claim. See 38 C.F.R. § 3.156(a) (1994). ORDER Entitlement to service connection for post-traumatic stress disorder is granted. Entitlement to service connection for yellow jaundice is dismissed. Entitlement to service connection for a heart disorder and hypertension is dismissed. New and material evidence having not been submitted to reopen a claim of entitlement to service connection for a left elbow deformity, the benefit sought on appeal is denied. V. L. JORDAN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.