Citation Nr: 0006329 Decision Date: 03/09/00 Archive Date: 03/17/00 DOCKET NO. 97-08 196 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in St. Paul, Minnesota THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W. Mulligan, Associate Counsel INTRODUCTION The veteran served on active duty from July 1967 through July 1969. This matter comes before the Board of Veterans' Appeals (hereinafter "the Board") on appeal from a September 1996 rating decision of the Department of Veterans' Affairs (hereinafter "VA") Regional Office and Insurance Center in St. Paul, Minnesota (hereinafter "RO"), denying service connection for PTSD, history of skin eruption, and history of facial burns. On the VA Form 9, Appeal to Board of Veterans' Appeals, filed in March 1997, the veteran mentions having been sprayed with chemicals while in Vietnam. The Board construes this written statement as a notice of disagreement with the RO's September 1996 denial of service connection for a skin disorder secondary to herbicide exposure. This issue will be the subject of the remand portion of this decision. FINDINGS OF FACT 1. The veteran did not engage in combat with the enemy during his period of active service. 2. There is no competent medical evidence that the veteran currently has PTSD. CONCLUSION OF LAW The claim of entitlement to service connection for PTSD is not well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran contends that the RO erred in failing to grant him service connection for PTSD. Service connection may be granted for disability due to an injury or disease incurred or aggravated in service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). The veteran has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that a claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Grivois v. Brown, 6 Vet.App. 136, 140 (1994); Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). While the claim need not be conclusive it must be accompanied by supporting evidence. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). In the absence of evidence of a well-grounded claim, there is no duty to assist the veteran in developing the facts pertinent to his claim, and the claim must fail. Epps v. Gober, 126 F.3d 1464, 1467-1469 (Fed. Cir. 1997). A grant of service connection for PTSD requires the veteran to present evidence of: a current diagnosis of PTSD; credible supporting evidence that the claimed in-service stressor actually occurred; and, medical evidence of a causal nexus between current symptomatology and the specific claimed in- service stressor. Cohen v. Brown, 10 Vet.App. 128, 138 (1997). Alternatively, a veteran may establish a well-grounded claim for service connection under the chronicity provision of 38 C.F.R. § 3.303(b), which is applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service or during an applicable presumption period, and that that same condition currently exists. This evidence must be medical unless the condition at issue is of a type for which case law considers lay observation sufficient. If the chronicity provision is not applicable, a claim still may be well grounded pursuant to the same provision if the evidence shows that the condition was observed during service or any applicable presumption period and continuity of symptomatology was demonstrated thereafter, and includes competent evidence relating the current condition to that symptomatology. Savage v. Gober, 10 Vet.App. 488, 495-98 (1997). Where the determinative issue involves medical causation or medical diagnosis, medical evidence to the effect that the claim is plausible or possible is required in order for a claim to be considered well grounded. Epps at 1468; Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). Evidentiary assertions by a claimant are accepted as true for purposes of determining whether a claim is well grounded, but the exception to that rule is where the evidentiary assertion is inherently incredible or when it is beyond the competence of the person making it. King v. Brown, 5 Vet.App. 19, 21 (1993). Lay persons (i.e., persons without medical training or expertise) are not competent to offer medical opinions; therefore, lay assertions of medical diagnosis or causation do not constitute competent evidence sufficient to render a claim well grounded. Espiritu v. Derwinski, 2 Vet.App. 492, 494-5 (1992). As an initial matter, the Board notes that 38 C.F.R. § 3.304(f) (1999), which governs claims for service connection for PTSD, was changed on March 7, 1997, during the pendency of the veteran's claim. The United States Court of Appeals for Veterans Claims (formerly the United States Court of Veterans Appeals prior to March 1, 1999) has stated that where laws or regulations change after a claim has been filed or reopened but before the administrative or judicial appeal process is completed, the version of the law most favorable to the appellant applies unless Congress provides otherwise. Karnas v. Derwinski, 1 Vet.App. 308 (1990). Because the rating decision denying the veteran service connection for PTSD was issued prior to the effective date of the current version of 38 C.F.R. § 3.304(f), the veteran was not given notice and opportunity to submit evidence and argument pursuant to the current version of the regulation. When addressing a question not addressed by the RO, the Board must consider whether or not the claimant has been given adequate notice of the need to submit evidence or argument on that question and an opportunity to submit such evidence and argument. If not, the Board must consider whether the veteran has been prejudiced thereby. Bernard v. Brown, 4 Vet.App. 384, 393 (1993). The Board finds that the old and new criteria for evaluating PTSD claims are substantially the same. Both versions of the applicable regulation require medical evidence establishing a diagnosis of the condition, credible supporting evidence that the claimed inservice stressor occurred, and a link, established by medical evidence, between current symptomatology and the claimed inservice stressor. See 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. at 138. The new revisions serve primarily to codify the Court's decision in Cohen, and bring 38 C.F.R. § 3.304(f) in line with the governing statute, 38 U.S.C.A. § 1154(b), which relaxes certain evidentiary requirements for PTSD claimants who have combat-related stressors. Under 38 U.S.C.A. § 1154(b), Cohen, and the new version of 38 C.F.R. § 3.304(f), if the evidence establishes that the veteran engaged in combat with the enemy, or was a 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 inservice 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); Gaines v. West, 11 Vet. App. 353, 357-58 (1998). The Board finds that the new regulation has not changed the applicable criteria in a way which could alter the outcome of the veteran's claim. Therefore, the veteran would not be prejudiced by the Board proceeding to the merits of the claim. Indeed, a remand of this issue would only result in needless delay and impose further burdens on the RO, with no benefit flowing to the veteran. The Court has held that such remands are to be avoided. See Winters v. West, 12 Vet. App. 203 (1999) (en banc); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). As discussed below, the essence of the changed element, a current diagnosis of PTSD, is the same under the revised version of the regulation as under the former version. Because the veteran must make the same showing under both the former and the revised regulation, he was not prejudiced by the RO's application of the former version. In the absence of such prejudice, no corrective action is necessary. Prior to March 7, 1997, the regulation read, in relevant part, as follows: Service connection for post-traumatic stress disorder 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. 38 C.F.R. § 3.304 (1998). In March 1997, the regulation was amended to read, in relevant part, as follows: Service connection for post-traumatic stress disorder requires medical evidence diagnosing the condition in accordance with Sec. 4.125(a) of this chapter; 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). The earlier version of the statute requires medical evidence establishing a clear diagnosis of PTSD. The later version of the statute requires medical evidence diagnosing PTSD in accordance with DSM-IV. Both versions further require credible evidence of inservice stressors and a link established by medical evidence between the PTSD and the inservice stressors. As discussed below, the veteran's claim for service connection for PTSD is not well grounded under either version of 38 C.F.R. § 3.304(f). The veteran's service personnel records indicate that his military occupational specialty was cargo handler. The veteran was assigned to USARPAC Vietnam between January 1968 and January 1969, and was involved in the Vietnam Counteroffensive Phase III and Tet Counteroffensive campaigns. The veteran was awarded the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal with 60 device, the Sharpshooter (Rifle) Medal, and two Overseas Bars. The veteran was not shown to have been engaged in actual combat and has not contended otherwise. Service medical records indicate that at the veteran's January 1967 induction physical examination, the examiner noted no psychiatric problems. At his July 1969 separation examination, no psychiatric problems were reported by the veteran or noted by the examiner. In March 1996, the veteran filed a claim for compensation for several conditions, including PTSD. In a statement dated April 1996, the veteran discussed his experiences while in Vietnam. Allegedly, while stationed in Qui Nhon in February 1968, the veteran came under attack for three or four days, with the enemy coming within one mile of his position. Later, the veteran came under mortar fire attacks, which killed seven of his friends. In addition, the veteran was burned by a flare. His eyes and face were bandaged and he was treated in the field. VA treatment records indicate that in May 1996 the veteran underwent psychological testing. The examining psychologist administered the Minnesota Multiphasic Psychological Inventory (MMPI), the Mississippi Scale for Combat Related PTSD, and the Structured Interview Guide for DSM-III-R (SCID), PTSD Module. The psychologist noted the veteran's personal, military, and medical histories. In the opinion of the examining psychologist, the veteran "approached the MMPI in a manner that exaggerated his symptoms and problems and is likely to produce a distorted profile." The psychologist noted that the veteran acknowledged some difficulty in understanding the test and that because "the test is part of an examination which may lead to palpable financial benefits, a conscious or unconscious attitude of 'include everything' is not uncommon." Noting those cautions, the psychologist opined that the veteran's MMPI clinical profile suggests considerable depression and anxiety, as well as an inability to concentrate, periods of confusion, and loss of efficiency. The veteran's responses to the SCID indicated distressing, stressful combat episodes that fall outside the range of normal human experience. The examining psychologist concluded that, "In general, psychological testing supports the diagnosis of PTSD for [the veteran], with the reservations already noted. However, statements derived from psychological testing should be regarded as hypotheses requiring further evaluation." In May 1996, the veteran underwent a VA PTSD examination. The examining physician noted the veteran's personal, military and medical histories. The veteran reported that in Vietnam he was primarily involved with construction and was not in active fighting. Regarding the criteria for PTSD, the examining physician opined that "the veteran perhaps barely makes the criteria" for Category A, and did not meet the criteria for Category B, C, D or E. The examining physician believed that the veteran did have some evidence of PTSD symptoms, but that they were not of sufficient intensity or duration to warrant the diagnosis of PTSD. He diagnosed: Axis I, chronic dysthymia and long-term alcohol dependence currently in remission and Axis II, no diagnosis. He reported a GAF of 50 related to depression. In September 1996, the RO issued a rating decision denying service connection for, among other claims, PTSD. The veteran submitted a notice of disagreement in December 1996, claiming that he had PTSD. In April 1997, a request to schedule a VA psychiatric examination was issued. The veteran's address of record was used and it was subsequently noted that he did not report for the examination. In November 1999, the RO issued a supplemental statement of the case, using the same address, noting that the veteran had failed to report for a May 1997 VA examination and denying the claim for service connection for PTSD. No correspondence was returned as not delivered. Under both versions of 38 C.F.R. § 3.304(f), service connection for PTSD requires a current diagnosis of the condition. The record in this case, however, lacks competent medical evidence diagnosing PTSD. The VA psychologist who examined the veteran in May 1996 gave a qualified diagnosis of PTSD, but indicated that his opinion should be regarded as a hypothesis and that further validation was necessary. The VA psychiatrist, who also examined the veteran in May 1996 after reviewing the VA psychologist's report, diagnosed the veteran as having symptoms of insufficient duration and intensity to warrant a diagnosis of PTSD. Thus, neither examiner diagnosed PTSD clearly or in accordance with 38 C.F.R. § 4.125. Under either version of 38 C.F.R. § 3.304(f), in the absence of a diagnosis of PTSD, the veteran's claim for service connection for PTSD is not well grounded. In the absence of a well-grounded claim, the VA has no duty to assist the veteran in developing the record to support his claim for service connection. Epps, 126 F.3d at 1469. As the Board is not aware of the existence of additional evidence that might well ground the veteran's claim, a duty to notify does not arise pursuant to 38 U.S.C.A. § 5103(a) (West 1991). See McKnight v. Gober, 131 F.3d 1483, 1484-1485 (Fed.Cir. 1997). However, the Board views the statement of the case and supplemental statement of the case provided by the RO and its discussion as sufficient to inform the veteran of the elements necessary to well ground his claim, and to explain why his current attempt fails. See Robinette v. Brown, 8 Vet.App. 69, 77-79 (1995). The veteran's representative also argues in a January 2000 brief that the veteran did not receive notice of the May 1997 VA examination and has requested a remand for a VA examination. The representative's argument is unconvincing for the following reasons. The representative cites to 38 C.F.R. § 3.655(b) as requiring the veteran's claim to be denied because he failed to report for the examination. This is incorrect, as a careful reading of the regulation reveals that "When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record." 38 C.F.R. § 3.655(b). The record reflects that VA sent correspondence to the veteran at his last known address and that nothing was returned as not delivered. This includes the scheduling of his May 1996 VA examination, to which he reported, as well as various documents and the statement of the case and supplemental statement of the case. The VA used this same address in requesting the May 1997 examination. In the absence of clear evidence to the contrary, it must be assumed that the VA discharged whatever duty it had to notify the veteran of the scheduling of the May 1997 VA examination. Gold v. Brown, 7 Vet.App. 315, 319-320. There is no evidence sufficient to rebut the presumption of regularity supporting official acts of public officers in this case. In the absence of contrary evidence supporting the veteran's representative's assertion, it must be concluded that he was sent notice of the scheduling of the May 1997 VA examination. As noted above, if a claim is not well-grounded the VA has no duty to assist the veteran. Epps, 126 F.3d at 1469. Thus, the veteran is not entitled to a VA examination and the VA's alleged failure to notify him of the examination requires no corrective action. ORDER Entitlement to service connection for PTSD is denied, as not well grounded. REMAND In September 1996, the RO denied the veteran's claims for PTSD, a skin disorder secondary to herbicide exposure, and facial burns. On the VA Form 9, Appeal to Board of Veterans' Appeals, filed in March 1997, the veteran mentions having been sprayed with chemicals while in Vietnam. The Board construes this written statement as a notice of disagreement with the RO's September 1996 denial of service connection for a skin disorder secondary to herbicide exposure. The failure to issue a statement of the case in such circumstances is a procedural defect requiring a remand. Godfrey v. Brown, 7 Vet.App. 398, 408-10 (1995). See also Archbold v. Brown, 9 Vet.App. 124, 130 (1996). However, an appeal shall be returned to the Board only if perfected by filing a timely substantive appeal. Smallwood v. Brown, 10 Vet.App. 93, 97 (1997). See also In re Fee Agreement of Cox, 10 Vet.App. 361, 374 (1997) ("absent an NOD, an SOC and a Form 1-9 [substantive appeal], the BVA was not required-- indeed, it had no authority--to proceed to a decision") (citation omitted). Accordingly, further appellate consideration on the issue of service connection for history of skin eruptions secondary to Agent Orange exposure will be deferred and the case is REMANDED to the RO for the following actions: 1. The RO should again review the record and issue the veteran and his representative a statement of the case addressing the issue of entitlement to service connection for history of skin eruptions secondary to Agent Orange exposure. The veteran and his representative should be given the required time to respond thereto in order to perfect an appeal. 2. The RO should specifically notify the veteran that the appeal on the skin disorder secondary to herbicides exposure issue, if denied, will be returned to the Board following the issuance of the statement of the case, only if it is perfected by the veteran by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet.App. 93 (1997). 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 Category 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. STEVEN L. COHN Member, Board of Veterans' Appeals