Citation Nr: 0002322 Decision Date: 01/28/00 Archive Date: 02/02/00 DOCKET NO. 96-45 724 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a chronic acquired psychiatric disability, variously diagnosed as schizophrenia, major depression, and post traumatic stress disorder (PTSD). 2. Entitlement to service connection for a chronic skin disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARINGS ON APPEAL Appellant and his former spouse ATTORNEY FOR THE BOARD Artur F. Korniluk, Associate Counsel INTRODUCTION The veteran had active military service from May 1967 to May 1970. This matter comes to the Board of Veterans' Appeals (Board) from the Department of Veterans Affairs (VA) New Orleans Regional Office (RO) December 1995 rating decision which denied service connection for a chronic acquired psychiatric disability (listed as PTSD and schizophrenia) and a chronic skin disorder. In July 1998, the case was remanded to the RO for a Travel Board hearing, requested by the veteran in October 1996; it was held in July 1999. FINDINGS OF FACT 1. The veteran served in the 9th Infantry Division which is shown to have engaged in combat with the enemy in Vietnam; he participated in the Vietnam TET Offensive and Vietnam Counteroffensive Phases III-V. 2. There is a current diagnosis of chronic psychiatric disability, including schizophrenia and PTSD, which is supported by credible evidence of nexus to active service. 3. A chronic skin disorder was not evident in service or for many years thereafter; competent medical evidence does not reveal a current diagnosis of chloracne or porphyria cutanea tarda and does not show that the current skin disorder (skin tags) is linked to active service, any Agent Orange exposure, or any other incident occurring in service. CONCLUSIONS OF LAW 1. Resolving the benefit of the doubt in the veteran's favor, his current psychiatric disability, variously diagnosed as schizophrenia, major depression and PTSD, was incurred in active wartime service. 38 U.S.C.A. §§ 1110, 1154(b), 5107(b) (West 1991). 2. The veteran has not presented a well-grounded claim of service connection for a chronic skin disorder. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for chronic disability, resulting from injury or disease, which is incurred in or aggravated by the veteran's period of active wartime service. 38 U.S.C.A. § 1110. Service connection may also be granted on a presumptive basis for psychosis, if the disability is manifest to a compensable degree within one year after the veteran's separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1998). In the case of a combat veteran, satisfactory lay or other evidence of service incurrence of injury, if consistent with the circumstances, conditions, or hardships of such service shall be accepted as sufficient proof of service connection notwithstanding that there is no official record of such incurrence in service. 38 U.S.C.A. § 1154(b) (West 1991). In the case of PTSD, clear medical diagnosis of the disorder, credible supporting evidence that the claimed in-service stressor actually occurred, and a link between current symptomatology and the in-service stressor, is required. 38 C.F.R. § 3.304(f) (1998). 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. (Id., as amended June 18, 1999). If the veteran had wartime service in Vietnam (as is the case here), service connection may also be allowed on a presumptive basis for certain diseases associated with exposure to Agent Orange, if the disease becomes manifest to a compensable degree within a specified period of time after the veteran's separation from service. 38 U.S.C.A. § 1116 (West 1991); 38 C.F.R. §§ 3.307(a), 3.309(e) (1998); see also McCartt v. Brown, 12 Vet. App. 164 (1999). The following diseases shall be service connected if the veteran was exposed to Agent Orange if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, and provided further that the requirements of 38 C.F.R. § 3.307(d) are satisfied: chloracne or other acneform disease consistent with chloracne (if the disease becomes manifest to a compensable degree within one year after the last date on which the veteran was exposed to an herbicide agent), Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers, and soft-tissue sarcoma. 38 C.F.R. § 3.309(e). For a 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required when the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1998). The U.S. Court of Appeals for Veterans Claims (the Court) has held that lay observations of symptomatology are pertinent to the development of a claim of service connection, if corroborated by medical evidence. See Rhodes v. Brown, 4 Vet. App. 124, 126-127 (1993). The Court established the following rules with regard to claims addressing the issue of chronicity. Chronicity under the provisions of 38 C.F.R. § 3.303(b) is applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the Court's case law, lay observation is competent. If the chronicity provision is not applicable, a claim may still be well grounded if (1) the condition is observed during service, (2) continuity of symptomatology is demonstrated thereafter and (3) competent evidence relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488, 495 (1997). A lay person is competent to testify only as to observable symptoms. A lay person is not, however, competent to provide evidence that the observable symptoms are manifestations of chronic pathology or diagnosed disability. Falzone v. Brown, 8 Vet. App. 398, 403 (1995). A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between the disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1994). However, service connection may be granted for a post-service initial diagnosis of a disease that is established as having been incurred in or aggravated by service. 38 C.F.R. § 3.303(d) (1998). The threshold question is whether the veteran has presented evidence that his claim is well grounded. See 38 U.S.C.A. § 5107(a). A well-grounded claim is a plausible claim. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). A mere allegation that a disability is service connected is not sufficient; the veteran must submit evidence in support of his claim which would justify a belief by a fair and impartial individual that the claim is plausible. In order for a claim to be well grounded, there must be competent evidence of current disability (a medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the in- service injury or disease and a current disability (medical evidence). See Caluza v. Brown, 7 Vet. App. 498 (1995). Where the determinative issue involves a question of medical diagnosis or causation, competent medical evidence to the effect that the claim is plausible or possible is required to establish a well-grounded claim. Libertine v. Brown, 9 Vet. App. 521 (1996); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). A lay person is not competent to make a medical diagnosis or to relate a medical disorder to a specific cause. See Grivois v. Brown, 6 Vet. App. 136, 140 (1994), citing Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Therefore, lay statements regarding a medical diagnosis or causation do not constitute evidence sufficient to establish a well-grounded claim under 38 U.S.C.A. § 5107(a). See Grottveit, 5 Vet. App. at 93. The veteran's service records reveal that he served with the 9th Infantry Division in the capacity of generator operator and mechanic in Vietnam from December 1967 to December 1968; the 9th Infantry Division is shown to have had extensive combat exposure during that time period sustaining numerous casualties (see September 1997 records from the U.S. Armed Services Center for Research of Unit Records, that confirm a named serviceman, whom the veteran allegedly witnessed sustain multiple wounds in action, was in fact wounded during the reported period of time); although he is not shown to have sustained any combat wound or injury and was not awarded a combat award or decoration, he participated in the Vietnam TET Offensive and Vietnam Counteroffensive Phases III-V. His service medical records do not reveal any report or clinical finding associated with any psychiatric/psychological and/or skin symptomatology or disability; no pertinent clinical finding was indicated on service separation medical examination in March 1970. In May 1972, the veteran was hospitalized at a VA facility due to blackout spells and chest pain, but no pertinent report or finding with regard to history or contemporaneous manifestations of psychiatric and/or skin disorders were noted during treatment. Medical records from Long Memorial Hospital and G. Otwell, M.D., in May 1972 reveal treatment associated with cardiovascular symptoms. No report or clinical finding was made regarding any psychiatric symptom or skin disorder during such treatment. On VA medical examination in June 1972, the veteran did not report experiencing any symptoms referable to any psychiatric disabilities or skin disorders, and no pertinent findings were made on examination. VA treatment records in September 1994 reveal reports of symptoms of nightmares, difficulty sleeping, and a "hostile dispute" with his spouse. On VA psychiatric examination in July 1995, the veteran indicated he did not experience any psychiatric or psychological problem prior to Vietnam service, noting that he enjoyed the military. With regard to history of his Vietnam service, it was extremely difficult for the examiner to obtain clear information as the veteran was extremely psychotic, disorganized, and did not make any logical sense. Nevertheless, he was able to describe, with graphic detail, a number of combat-related incidents where he witnessed other soldiers, including close friends, being shot and killed (he indicated that although his military specialty in Vietnam was generator operator, he often performed guard duty, participated in scouting missions, and had significant exposure to combat), which reports were "quite believable." Reportedly, he began to experience psychotic symptoms in Vietnam (hearing voices and seeing visions not perceivable by others) which probably made the combat exposure much more stressful for him than it was for other servicemen. Since service separation, he reportedly experienced psychiatric problems and PTSD symptoms such as nightmares. The examiner indicated that the veteran showed extremely severe levels of psychotic symptomatology during the examination and it was clear from his verbal report that the symptoms were present since his active service; he was unable to concentrate for more than 30 or 40 seconds and was incapable of goal-directed cognition or behavior, but he was able to relate some vague PTSD symptoms such as recurrent nightmares, flashbacks, hyper-arousal, distressing thoughts and recollections from Vietnam, irritability, and total social isolation, all of which were gradually increasing in severity over the past 20 years (all information obtained from the veteran was validated by the examiner in an interview with the veteran's spouse who was noted to have been extremely cooperative). On examination, chronic, paranoid type schizophrenia, and probable PTSD were diagnosed. Complete examination and testing for PTSD was impossible to perform due to the veteran's psychosis, but it was felt that he probably met the diagnostic criteria for PTSD. The examiner opined that there was no reason to doubt the long-standing nature of the veteran's psychotic symptomatology and it appeared that such symptoms had their onset during service. On VA dermatological examination in July 1995, it was indicated that the veteran had about a 10-year history of pedunculated lesions in the axilla and on the neck, which reportedly occasionally irritated him. On examination, multiple pedunculated flesh-colored papules, 2 millimeters to 1 centimeter in size, were noted in the axilla of the neck and on the chest. Acrochordons (skin tags) were diagnosed. Private medical records from September 1995 to July 1996 reveal intermittent inpatient and outpatient treatment for paranoid schizophrenia and various symptoms and problems associated therewith (including marital difficulty leading to the veteran's divorce), nightmares, difficulty sleeping, social isolation, outbursts of anger and violence, hallucinations, and suicidal and homicidal ideation. During treatment, chronic schizophrenia, paranoid type, and recurrent major depression were diagnosed. On examination of the skin during hospitalization in July 1996, there was no evidence of lesions, rash, active dermatosis, or itching. In September 1996, L. Gonzales, M.D., indicated that the veteran was incapacitated by disability arising from his obsessive-compulsive disorder, major depression with psychosis, schizoaffective disorder, and PTSD. Dr. Gonzales also noted that the veteran was "a victim" of Agent Orange. In November 1996, the veteran furnished the RO a completed questionnaire describing, in some detail, the nature and extent of his combat exposure in Vietnam, the nature of the claimed (combat-related) stressors giving rise to his PTSD, and providing the name of a serviceman who reportedly sustained multiple combat wounds in his presence. At a November 1996 RO hearing, the veteran testified that he had extensive combat exposure in Vietnam, witnessed many soldiers being killed and wounded, and that he had PTSD symptoms such as nightmares and flashbacks as a result of such combat stress. He sated that he received ongoing treatment for psychiatric disability including PTSD. As to the claimed skin disorder, he testified that he had skin rash on parts of his body, which became manifest at some point after service separation, believing that they developed as a result of Agent Orange exposure in Vietnam (but he acknowledged that he was never informed by a physician that there was a relationship between his skin disorder and Agent Orange). At that hearing, his former spouse testified that they married shortly after his service separation (reportedly, she would have married him before service, but he did not want her to become a widow so they married after he was released from active duty). She indicated that he did not exhibit any psychiatric symptoms prior to service, but thereafter he had symptoms such as increased startle response, hypervigilance, paranoia, and nightmares. She testified that she received letters from him while he was in Vietnam, which described his experiences during combat. With regard to his skin disorder, she testified that he had various skin rashes since his return from Vietnam, believing that his chronic skin disorder was related to Agent Orange exposure in Vietnam. In December 1998, Dr. Gonzales indicated that the veteran had PTSD and schizoaffective disorder and was treated at the Donaldsonville Mental Health Clinic since 1988; she elaborated on the nature and frequency of his symptoms, treatment, and medication. At a July 1999 Travel Board hearing, the veteran testified that he experienced symptoms of nightmares, difficulty sleeping, auditory hallucinations, and increased startle response (noting that he lived near railroad tracks and was startled every time a train passed by his home), despite receiving ongoing treatment and therapy (from Dr. Gonzales at the Donaldsonville Mental Health Clinic) and regularly taking prescribed medication. With regard to his skin disorder, he indicated that he had skin tags on his body for about 6 years, noting that he did not experience any dermatological symptoms prior to service. Service connection for psychiatric disability A review of the record indicates that the veteran's claim of service connection for a chronic acquired psychiatric disability is well grounded. VA, thus, has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a); Murphy, 1 Vet. App. at 81-82. In this regard, the Board notes that all available pertinent records have been obtained and associated with his claims folder. On review of such material, the Board is satisfied that the veteran has been adequately assisted in the development of his claim. Based on the entire record, the Board believes that the evidence supports service connection for a chronic acquired psychiatric disability, variously diagnosed as schizophrenia, major depression, and PTSD. Although the veteran's service records do not unequivocally document his individual combat participation and do not show that he sustained any combat- related wound or injury during Vietnam service, the records do indicate that the 9th Infantry Division of which he was a part was involved in combat while the veteran was in Vietnam, that he participated in various campaigns in Vietnam (including the TET Offensive and 3 Counteroffensive Phases), and that he personally witnessed at least one serviceman sustain wounds in combat; absent clear evidence to the contrary, the Board finds this evidence sufficient to show combat exposure. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f). The entirety of the record, including both lay and medical evidence, shows that the veteran did not have any psychiatric symptoms or disability prior to active service; it indicates that some psychoneurotic symptomatology may have been evident as early as during active service (see VA psychiatric examination report in July 1995), and that the subsequent chronic psychiatric disability as a result of stressful events in Vietnam. Moreover, September 1996 and December 1998 statements from his treating physician reveal that he received psychiatric treatment since 1988, and that a diagnosis of PTSD was clearly warranted in his case. While it was indicated in July 1995 that the full diagnostic criteria for PTSD could not be documented at that time as the entirety of the required testing could not be performed due to the severity of the veteran's psychosis, the examiner believed that the veteran met the diagnostic criteria for PTSD; he opined that the veteran's psychiatric symptoms and disability were evident for a long time and that there was no reason not to believe they had their onset based on his combat-related stress in Vietnam. Resolving the benefit of the doubt in the veteran's favor, the evidence of record supports service connection for a chronic acquired psychiatric disability, variously diagnosed as schizophrenia, major depression, and PTSD. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990); a clear diagnosis of a chronic psychiatric disability, including PTSD, has been made, the veteran is likely to have been exposed to combat in Vietnam, his reported stressors are combat-related and are not inconsistent with the circumstances, conditions, or hardships of service, and a link between PTSD and service has been shown by competent clinical evidence. Service connection for a chronic skin disorder Based on the entire evidence of record, the Board finds that the claim of service connection for a chronic skin disorder is not well grounded. The veteran and his former spouse suggested a link between his chronic skin disorder and exposure to Agent Orange in Vietnam. 38 U.S.C.A. § 1116(a)(1) provides 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 referred to in paragraph (2) of this section, shall be presumed to have been exposed during such service to an herbicide agent unless there is affirmative evidence to establish that he was not exposed to any such agent during service (the veteran satisfies the first prong of the requirement in that he did have requisite service in Vietnam). The specific diseases presumed to have been incurred as a result of Agent Orange exposure are listed in 38 U.S.C.A. § 1116(a)(2) and 38 C.F.R. § 3.309(e) (1998), as discussed above, and include chloracne and porphyria cutanea tarda. However, such disability is not shown to have been diagnosed in service or at any time thereafter. In McCartt v. Brown, 12 Vet. App. 164 (1999), the Court held that neither the statutory (38 U.S.C.A. § 1116) nor the regulatory (38 C.F.R. § 3.307(a)(6)(iii)) presumption will satisfy the in-service incurrence element of Caluza, 7 Vet. App. 498 where the veteran has not developed a condition listed in either 38 U.S.C.A. § 1116(a) or 38 C.F.R. § 3.309(e). Thus, service connection for his chronic skin disorder, diagnosed as skin tags, may not be established on a presumptive basis. Dermatological symptoms or disease were not clinically evident in service or for many years thereafter. Although skin tags on the veteran's body were noted on VA dermatological examination in July 1995, the examiner did not suggest that such disability was related to service, any Agent Orange exposure therein, or any other incident occurring in service. Although the veteran is competent to state that he has experienced dermatological symptoms for years, he is not competent, as a lay person, to make a medical diagnosis of a chronic disability or to relate a medical disorder to a specific cause. See Grivois, 6 Vet. App. at 140, citing Espiritu, 2 Vet. App. at 494. Thus, he is not competent to provide a medical diagnosis of any chronic skin disorder or to conclude, in clinical terms, that any such claimed disability is related to active service or any incident occurring therein. To establish service connection for a chronic disability, competent medical evidence providing a nexus between the current disability and service is required. See Caluza, 7 Vet. App. 498. Although the veteran and his former spouse can competently testify with regard to continuity of personally observable dermatological symptoms, and the credibility of their testimony in that regard is presumed, see Savage, 10 Vet. App. 488 (1997), an etiological nexus, shown by competent medical evidence, between a current chronic skin disorder and symptoms experienced in service is required. The Board notes that application of 38 U.S.C.A. § 1154(b) to the veteran's claim of service connection for a chronic skin disorder does not make his claim well grounded as competent medical evidence of nexus between current disability and service is required. In Libertine, 9 Vet. App. 521, it was held that certain disabilities are susceptible to observation by lay persons, thus warranting the grant of service connection under 38 U.S.C.A. § 1154(b) based on lay statements alone, but in other instances, medical evidence of nexus to service is still required. Id. at 524. In this case, the veteran is not competent to provide a medical diagnosis of chronic skin disorder or to establish the required nexus between wartime service and/or any Agent Orange exposure therein and the onset of any current skin disorder. If a claim is not well grounded, the Board has no jurisdiction to adjudicate the claim. Boeck v. Brown, 6 Vet. App. 14 (1993). A not well-grounded claim must be denied. Edenfield v. Brown, 8 Vet. App. 384 (1995). If the initial burden of presenting evidence of a well-grounded claim is not met, VA has no duty to assist the veteran in the development of the claim. Morton v. West, 12 Vet. App. 477 (1999); Murphy, 1 Vet. App. at 81-82. The Board finds that the RO has advised the veteran of the evidence necessary to establish a well-grounded claim, and the veteran has not indicated the existence or availability of any medical evidence that has not already been obtained that would well ground his claim. Epps v. Brown, 9 Vet. App. 341, 344 (1996), aff'd sub nom. Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). ORDER Service connection for a chronic acquired psychiatric disability, variously diagnosed as schizophrenia, major depression, and PTSD is granted. Service connection for a chronic skin disorder is denied. J. F. Gough Member, Board of Veterans' Appeals