Citation Nr: 0006021 Decision Date: 03/07/00 Archive Date: 03/14/00 DOCKET NO. 95-13 995 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for dyssomnia. 2. Entitlement to service connection for residuals of a right hand injury. 3. Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michelle L. Nelsen, Associate Counsel INTRODUCTION The veteran had active duty from August 1972 to January 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 1993 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The case returns to the Board following a remand to the RO in March 1997. The Board notes that the RO favorably disposed of the issues of service connection for a left shoulder disorder, left hand, and right knee, which were previously on appeal. Therefore, these issues are not currently before the Board. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for the equitable disposition of the veteran's appeal. 2. The veteran was diagnosed as having dyssomnia both during and immediately after service. He continued to have sleep- related difficulties. 3. The veteran's claim of entitlement to service connection for residuals of a right hand injury is plausible. 4. There is no competent medical evidence of a nexus between the veteran's alleged acquired psychiatric disorder, to include PTSD, and his period of active duty service. CONCLUSIONS OF LAW 1. The veteran incurred dyssomnia during active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303 (1999). 2. The veteran's claim of entitlement to service connection for residuals of a right hand injury is well grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.102 (1999). 3. The veteran's claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.102 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(a) (1999). Direct service connection requires a finding that there is a current disability that has a definite relationship with an injury or disease or some other manifestation of the disability during service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). A disorder may be service connected if the evidence of record reveals that the veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Evidence that relates the current disorder to service must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. Savage, 10 Vet. App. at 495-97. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establish that the disorder was incurred in-service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). However, a person claiming VA benefits must meet the initial burden of submitting evidence "sufficient to justify a belief in a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78, 91 (1990); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). A claim that is well grounded is plausible, meritorious on its own, or capable of substantiation. Murphy, 1 Vet. App. at 81; Moreau v. Brown, 9 Vet. App. 389, 393 (1996). For purposes of determining whether a claim is well grounded, the Board presumes the truthfulness of the supporting evidence. Arms v. West, 12 Vet. App. 188, 193 (1999); Robinette v. Brown, 8 Vet. App. 69, 75 (1995); King v. Brown, 5 Vet. App. 19, 21 (1993). In order for a claim to be well grounded, there must be competent evidence of a 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 the current disability (medical evidence). Epps v. Gober, 126 F.3d 1464, 1468 (1997); Caluza v. Brown, 7 Vet. App. 498, 504 (1995). Where the determinative issue involves a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). VA cannot undertake to assist a veteran in developing facts pertinent to his claim until and unless the veteran submits a well grounded claim. Morton v. West, 12 Vet. App. 477, 486 (1999). Initially, the Board finds that the evidence supports entitlement to service connection for dyssomnia. Service medical records reflect complaints of sleep-related problems for five years in April 1990. An April 1990 consultation report shows a diagnosis of dyssomnia not otherwise specified. Although notes dated in May 1990 showed improvement in sleep, in January 1991, the veteran again began to have sleep problems. In February 1991, he was referred for a sleep study. On the January 1993 report of medical history completed at separation from service, the veteran reported a history of frequent trouble sleeping. During the May 1993 VA examination, the veteran reported having continued sleep-related difficulties. The diagnosis was dyssomnia not otherwise specified. In January 1994, the veteran was evaluated at the VA Sleep Disorders Clinic. The report shows a diagnosis of irregular sleep-wake pattern, without other sleep disorder. The Board concedes that this and more recent medical evidence appears to show that the veteran's sleep-related problems have lessened. However, this information is less pertinent to basic entitlement to disability compensation than to the ultimate amount of compensation warranted. The Board finds sufficient evidence of chronicity of dyssomnia in service with recurrence after service to warrant service connection. 38 C.F.R. § 3.303(b). Accordingly, the Board finds that the evidence supports entitlement to service connection for dyssomnia. 38 U.S.C.A. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. Second, the Board finds that the claim for residuals of a right hand injury is well grounded. 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.102. Specifically, service medical records show a right hand injury in service in December 1976. The January 1993 separation examination and report of medical history are significant for hand pain. The June 1993 VA examination report reveals findings of joint tenderness in both hands. Taken together, the Board finds this evidence sufficient to establish that the claim is plausible. Hampton v. Gober, 10 Vet. App. 481, 482 (1997). However, as discussed below, additional development is required to properly adjudicate this claim. Finally, upon consideration of all the evidence of record, the Board finds that the veteran's claim for an acquired psychiatric disorder, to include PTSD, is not well grounded. The first element of a well grounded claim is a medical diagnosis of a current disability. With respect to the claim for an acquired psychiatric disorder, other than PTSD, the Board finds that there is no medical diagnosis of a current disability. That is, the evidence fails to reveal any diagnosis of a psychiatric disorder. In particular, VA psychologist's March 1999 report and the VA psychiatrists' April 1999 report specify that the veteran did not satisfy the diagnostic criteria for PTSD. A claim is not well grounded if there is no present disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). With respect to the claim for PTSD, the Board acknowledges that VA outpatient records reflect a diagnosis of PTSD. However, careful review of those records shows that the diagnosis was based solely on the veteran's own report. Specifically, a psychological assessment dated in August 1993 indicates that the veteran report related having what he stated were PTSD-like symptoms. Thereafter, he was apparently referred for additional evaluation by psychiatric personnel. However, a diagnosis of PTSD was carried forward in the records, without any evidence that an actual evaluation and formal diagnosis were accomplished. There is no evidence of record showing that the veteran is a trained medical or mental health professional. Therefore, he is not competent to offer an opinion on a matter that requires medical knowledge, such as a diagnosis. Grottveit, 5 Vet. App. at 93; Espiritu, 2 Vet. App. at 494. Therefore, his own opinion that he has PTSD, or PTSD-like symptoms, is not competent medical evidence of a diagnosis of PTSD for purposes of establishing a well grounded claim. Moreover, the diagnosis carried forward based solely on the veteran's report is insufficient to establish a well grounded claim. See Swann v. Brown, 5 Vet. App. 229, 233 (1993) (a medical opinion that relies on history as related by the veteran is no more probative than the facts alleged by the veteran). The Board acknowledges that, in the March 1997 remand, it instructed the RO to further develop the veteran's PTSD claim. However, some of the requested development, specifically attempts to verify his alleged in-service stressors, was not accomplished. Generally, a remand by the Court or the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). However, because the Board has ultimately determined that the claim for PTSD is not well grounded, the duty to assist in development of a claim does not apply. Morton, 12 Vet. App. at 486. Therefore, the Board's failure to insure compliance with its previous instructions to develop the case results in no prejudicial error. Stegall, 11 Vet. App. at 271 (citing 38 U.S.C.A. § 7261(b)) ("Court shall take due account of the rule of prejudicial error"). ORDER Subject to the laws and regulations governing the payment of monetary benefits, service connection for dyssomnia is granted. The veteran's claim of entitlement to service connection for residuals of a right hand injury is well grounded. Service connection for an acquired psychiatric disorder, to include PTSD, is denied. REMAND As discussed above, the claim for service connection for residuals of a right hand injury is well grounded. Therefore, VA has a duty to assist the veteran in developing facts pertinent to his claim. 38 U.S.C.A. § 5107(a); Epps, 126 F.3d at 1469. This duty includes the conduct of a thorough and comprehensive medical examination. Robinette, 8 Vet. App. at 76. In the March 1997 remand, the Board instructed the RO to afford the veteran a VA orthopedic examination to include examination of, among other things, both hands, as well as an opinion as to whether any current disability was related to service. A review of the march 1999 VA orthopedic examination report finds references only to the left hand, for which the veteran is now service-connected. The Board is required by law to insure compliance with remand instructions. Stegall, 11 Vet. App. at 271. Accordingly, the case is REMANDED to the RO for the following action: 1. The RO should afford the veteran a VA orthopedic examination to determine the nature and extent of any right hand disability present. The examination should include X-rays and range of motion studies, as well as any other tests deemed necessary by the examiner. The claims folder must be made available to the examiner for review prior to the examination. The examiner is asked to offer a diagnosis for any right hand disability present. If there is a current right hand disability, the examiner is asked to offer an opinion, based on a review of service medical records and post-service medical evidence, as to whether the disability is more likely than not related to the veteran's period of active duty service. If the examiner is unable to offer the requested opinion, the examination report should so state. 2. The veteran is hereby advised that failure to report for a scheduled VA examination without good cause shown may have adverse consequences for his claim. 3. After completing any additional development in addition to that specified above, the RO should readjudicate the veteran's claim of entitlement to service connection for residuals of a right hand injury. If the disposition remains unfavorable to the veteran, the RO should furnish the veteran and his representative a supplemental statement of the case and afford the applicable opportunity to respond. Thereafter, the case should be returned to the Board for final appellate review, if in order. The Board intimates no opinion as to the ultimate outcome of the veteran's claim. The veteran 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 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. RENÉE M. PELLETIER Member, Board of Veterans' Appeals