Citation Nr: 0324535 Decision Date: 09/22/03 Archive Date: 09/30/03 DOCKET NO. 98-18 159 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for psychiatric disorder, including an anxiety disorder and post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for residuals of exposure to mustard gas. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Carolyn Wiggins, Counsel INTRODUCTION The veteran served on active duty from January 1943 to January 1946. This appeal arises from August 1995 and August 1998 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan which denied the veteran's applications to reopen his claims for service connection for a nervous disorder and residuals of exposure to mustard gas. The Board of Veterans' Appeals (Board) in a March 2000 decision and remand reopened the claim for service connection for a nervous disorder and found that finality had not attached to the August 1995 rating decision denying service connection for residuals of exposure to mustard gas. In the remand the RO was ordered to provide the veteran with a supplemental statement of the case as to the issue of service connection for residuals of exposure to mustard gas. The issue of residuals of exposure to mustard gas is the subject of the remand portion of this decision. FINDING OF FACT The veteran's current psychiatric disorder, variously diagnosed as a psychoneurotic anxiety disorder, generalized anxiety disorder and post-traumatic stress disorder, is causally linked to service. CONCLUSION OF LAW The criteria for service connection for a psychiatric disorder, characterized by anxiety, have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f) (2002). REASONS AND BASES FOR FINDING AND CONCLUSION Preliminary Matters. There has been a significant change in the law during the pendency of this appeal with the enactment of the Veterans Claims Assistance Act of 2000 (the VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), codified at 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (West 2002). VA has issued final regulations to implement these statutory changes. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2002). These new provisions redefine the obligations of VA with respect to the duty to assist and include an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. First, VA has a duty to notify the veteran of any information and evidence needed to substantiate and complete a claim. 38 U.S.C. §§ 5102 and 5103. Second, VA has a duty to assist the veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A. In the present case, the Board has determined the evidence supports the grant of service connection for a psychiatric disorder and for that reason there is no prejudice to the veteran in adjudicating the claim without further discussion of the VCAA. Bernard v. Brown, 4 Vet. App. 384 (1993). Factual Background. At the time of his examination for induction into the service in December 1942 the veteran's nervous system was noted to be normal. On service separation in January 1946 the psychiatric diagnosis was normal. In the list of significant diseases "Nervous 1944" was noted. The veteran's service separation papers note he served during World War II in the campaigns in the Asiatic Pacific Theater and the Philippines. The veteran's military occupational specialty was heavy truck driver. A VA examination in August 1948 noted the veteran's nervous system was normal. In October 1954 the veteran submitted a statement from his private physician that he had been under his care periodically for the past five years with a diagnosis of psychoneurosis, anxiety state. The veteran submitted a statement from his sister in May 1995. She stated the veteran had never been the same since the service. His nerves were "gone." Since the service he had gone from doctor to doctor for various ailments. The veteran submitted a statement from his physician, Dr. MGF, in August 1998. Dr. MGF wrote as follows: Based on my examination, diagnosis and prognosis, it is my opinion (the veteran) may have suffered some degree of mental trauma from burns and anguish resulting in the "gasoline dump explosion," which occurred while (the veteran) was on active duty in the armed services in 1944. On a more current note, (the veteran's) primary care physician has indicated a finding of severe anxiety. The veteran also submitted a letter from Dr. R. Dr. R wrote as follows: (The veteran) 74, was evaluated in my office on July 27, 1998, when he brought himself in complaining of chronic anxiety. Notably he sustained burn injury of up to 50 percent of his body surface from a gasoline dump explosion during his Army Service in 1944. He states that since that time he was treated psychiatrically, having taken various psychotropic agents over the years including tricyclic antidepressants and benzodiazepines. Most recently he had been on Zoloft for the past two years but without much therapeutic benefits. Presently he complained of insomnia, nightmares, irritable mood, pervasive anticipatory anxiety, and tremulousness of extremities. He claims that he has been suffering from above symptoms ever since 1944. Family history was negative of any major effective disorder or substance abuse. He himself denied ever abusing illicit drugs or alcohol. Also he denies cigarette smoking. He was then diagnosed R/O generalized anxiety disorder and R/O post-traumatic stress disorder, chronic and was put on Buspar. His prognosis is yet to be determined. A VA psychiatric evaluation of the veteran was conducted in May 2000. The veteran reported that while stationed in New Guinea during World War II a gasoline dump was ignited by a grass fire. The gasoline barrels blew up and blew him into a pond. He was significantly burned from the waist up. He was hospitalized for thirty days. He still recalled the incident quite vividly and had multiple nightmares when he was in service. He also recalled another incident when he was involved in moving coffins from a cemetery. After he returned from the service the veteran felt very nervous about these incidents and continued to remember them on a regular basis. He sought psychiatric treatment in the 1950's and talked about his nervous condition. The veteran had started working for GM shortly after he returned from the service and had worked for them for approximately 35 years. He retired 15 years ago. He had never married and lived alone. He reported a history of ongoing psychiatric treatment since the 1950s. The veteran reported regular reexperiencing symptoms of the traumatic event, including daytime remembrances, flashbacks and nightmares. At times he woke up in a startled state with sweats after remembering what happened to him in the service. He avoided associations with the trauma including war related events. He had significant difficulty when he saw fires or matches, which caused him to jump. He avoided people and associations with the trauma. He reported he had never married because of his anxiety state and had difficulty getting close to people. He currently tried to help people with church-related activities which helped him forget his traumatic memories. He had sleep problems, hypervigilance and an aggravated startle response. Those symptoms had been fairly chronic over the years. He denied any significant mood symptoms. The diagnosis was PTSD. In his discussion the VA examiner stated the veteran's symptoms were consistent with a diagnosis of PTSD. The symptoms appeared related to traumatic events while on active duty. The symptoms appeared fairly chronic, but over the years had been fairly mild in their effect on his functioning. In January 2003 the RO sent a request to U.S. Armed Services Center for Research of Unit Records (USASCRUR) asking them to provide information to verify the veteran's claimed stressors in service. They received a reply in March 2003. They explained that the information received from the RO was insufficient to conduct meaningful research. Relevant Laws and Regulations. To establish service connection for a claimed disability, the facts as shown by evidence must demonstrate that a particular disease or injury resulting in current disability was incurred during active service or, if preexisting active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131 (West 2002). 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." Continuity of symptomatology is required where 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, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b)(2002). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); 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. 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. 38 C.F.R. § 3.304(f) (2002). Analysis. Although the service medical records do no show a diagnosis of a chronic psychiatric disorder, there is indication that the veteran was evaluated for anxiety during that time. The Board further notes that a 1954 physician's statement indicates that the veteran was treated for an anxiety disorder beginning in 1949, only three years after his discharge from service. Moreover, medical records dated in recent years, to include treating physicians and a report of a recent VA psychiatric examination, clearly demonstrate a current psychiatric disorder, variously diagnosed as an anxiety disorder and PTSD. There appears to be a satisfactory diagnosis of PTSD, and satisfactory medical linkage between the diagnosis and a purported service stressor. When assessing veterans' claims for service-connected disability compensation, the VA must give due consideration to the places, types, and circumstances of the veteran's service as shown by his service records, and other designated sources. In this regard, when a veteran is claiming compensation for a disability which resulted from the veteran's engagement in personal combat with the enemy, satisfactory lay or other evidence may suffice to substantiate the claim. 38 U.S.C.A. § 1154 (West 2002). Where the evidence of record establishes the veteran engaged in combat, and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and the claimed stressor is consistent with the conditions or circumstances of the veteran's service, the veteran's lay testimony alone is sufficient to establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128 (1997). The veteran's service personal records show that he was a heavy truck driver while in the Asiatic Pacific Theater during World War II; it is not evident that he had combat duty. As it is not shown the veteran engaged in combat, his assertions of service stressors are not sufficient to establish the occurrence of such events. Rather, his alleged service stressors must be established by official service records or other credible supporting evidence. 38 C.F.R. § 3.304(f); Pentecost v. Principi, 16 Vet. App. 124 (2002); Fossie v. West, 12 Vet. App. 1 (1998); Cohen v. Brown, 10 Vet. App. 128 (1997); Doran v. Brown, 6 Vet. App. 283 (1994). Private and VA medical evidence links the veteran's current anxiety disorder, to include PTSD, to an alleged incident during service. Specifically, the veteran alleges that he sustained burns over 50 percent of his body as the result of an explosion. The service medical records do not confirm such an incident. Attempts to confirm the alleged stressor have been unsuccessful. It is also pertinent to note that the veteran made no such allegation when he filed his original claim for service connection for a psychiatric disorder in 1954. Attempts to verify this alleged incident have been unsuccessful. See January 2003 statement from USASCRUR. A medical opinion based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Nevertheless, the Board finds that the evidence is evenly balanced as to whether the veteran's psychoneurotic disorder began during service. While residuals of burn injuries are not apparent, the Board finds that, in addition to the medical evidence of treatment for an anxiety disorder during service, during the years 1949 to 1954, and in more recent years, there is lay evidence of the veteran's psychiatric symptoms over the years since his separation from service. While the VA and private physicians have attributed his current psychiatric disorder to an unverified stressor, the VA psychiatric examination was obtained pursuant to the Board remand for the specific purpose of determining whether the veteran's psychiatric disorder began during or was causally linked to some incident of service. The examiner focused on the latter part of the question in linking the veteran's PTSD to an unverified stressor; he did not answer the former part of the question: did the veteran's anxiety disorder begin during service given the treatment during and proximate to service noted above. Under these circumstances, the Board would normally return the claims file to the examiner to answer the latter question. However, given the facts in this case, to include competent evidence of an anxiety disorder during service and within three years of service; lay evidence of continuing anxiety and a history of additional post-service psychiatric treatment; and competent evidence of a psychiatric disorder in recent years, the Board finds that the evidence is in relative equipoise as to whether the veteran's anxiety disorder began during active service. According, service connection for a psychiatric disorder, variously diagnosed as a psychoneurotic disorder with anxiety, a generalized anxiety disorder and PTSD, is warranted. 38 U.S.C.A. §§ 1110, 5107(b); 38 C.F.R. § 3.303. \ ORDER Service connection for a psychiatric disorder, variously diagnosed as psychoneurotic anxiety, a generalized anxiety disorder and PTSD, is granted. REMAND The veteran's claim for service connection for residuals of exposure to mustard gas in service was remanded to the RO by the Board in March 2000. The purpose of the remand was to issue the veteran a supplemental statement of the case as to the issue of service connection rather than whether new and material evidence had been submitted. The United States Court of Appeals for Veterans Claims (hereinafter, "the Court") in Stegall v. West, 11 Vet. App. 268 (1998) held that a remand by the Board confers on the veteran as a matter of law, the right to compliance with the remand orders. It imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. In this instance the supplemental statement of the case was inadequate since it did not include the regulations relating to service connection for disabilities related to mustard gas exposure in service set out in 38 C.F.R. § 3.316. In addition, 38 C.F.R. § 3.159(b) provides that VA must notify claimants of the necessary information or evidence to substantiate their claim. The veteran was not informed that presumptive service connection is provided for certain disabilities based on full body exposure to mustard gas in service. In this remand the Board notifies the veteran that the regulations provide as follows: Except as provided in paragraph (b) of this section, exposure to the specified vesicant agents during active military service under the circumstances described below together with the subsequent development of any of the indicated conditions is sufficient to establish service connection for that condition: (1) Full body exposure to nitrogen or sulfur mustard during active military service together with subsequent development of chronic conjunctivitis, keratitis, corneal opacities, scar formation, or the following cancers: Nasopharyngeal; laryngeal; lung (except mesothelioma); or squamous cell carcinoma of the skin. (2) Full-body exposure to nitrogen or sulfur mustard or Lewisite during active military service together with the subsequent development of a chronic form of laryngitis, bronchitis, emphysema, asthma or chronic obstructive pulmonary disease. (3) Full-body exposure to nitrogen mustard during active military service together with the subsequent development of acute nonlymphocytic leukemia. 38 C.F.R. § 3.316 (2002). In Hensley v. West, 212 F.3d 1255 (2000) the United States Court of Appeals for the Federal Circuit noted the cited regulation established a presumption that the listed diseases were caused by mustard gas, but it did not foreclose the alternative route of directly demonstrating service connection for other unlisted diseases asserted to be caused by mustard gas. In this remand the Board notifies the veteran that he may also present competent medical evidence of a nexus between his claimed disorders and exposure to mustard gas to establish service connection. The veteran has asserted his residuals of exposure to mustard gas in service include a respiratory disorder, a skin disorder and a digestive disorder. The veteran has not been afforded a VA examination to determine if he currently has any of the aforementioned. For that reason the veteran's claim should be remanded to arrange for the veteran to be examined. 38 C.F.R. § 3.159. The Veterans Benefits Administration Manual M21-1, Part III, Chap. 5, Part 5.18 (M21-1) outlines the procedures for developing claims based on exposure to mustard gas in service. It specifies the methods for developing claims for veterans who underwent any full body exposure to mustard gas during military service. As the veteran has not presented evidence of diagnosis of one of the presumptive diseases listed in 38 C.F.R. § 3.316 the RO did not attempt to verify the veteran's exposure to mustard gas in service. M21-1 states that prior to the early 1950's information as to any kind of testing by the Army was placed in the individual's service medical records. The veteran's service medical records in the claims folder do not contain any indications the veteran participated in any kind of mustard gas testing. The Board notes the veteran has asserted his service medical records were destroyed in the fire at the National Personnel Records Center (NPRC) in 1973. A review of the veteran's claims folder indicates that he filed a claim for VA benefits shortly after his separation from the service in 1946. An envelope in the claims folder containing his service medical records is date stamped May 1946. Included in the documents submitted by the veteran is an NA Form 13060 from the NPRC sent in response to the veteran's request for his service medical records. The box next to the statement, "We believe that the Department of Veterans Affairs (VA) may possess evidence of your possible eligibility for VA benefits" is checked. There is no indication from the NPRC that the veteran's records were destroyed in the fire in 1973. The Board has concluded the veteran did not have "fire related service" and that his service medical records were located at VA at the time of the fire in 1973. Since the veteran's service medical records do not indicate any exposure to mustard gas in service the RO must follow the procedures for verifying his claimed exposure as set out in M21-1. The veteran's claim is remanded to the RO for the following actions: 1. The RO should again ask the veteran to clarify the nature of any disability he claims is related to his claimed exposure to mustard gas in service. The RO should also ask the veteran to list the names and addresses of all medical care providers who treated the veteran for any disorder he claims to be related to exposure to mustard gas. After securing the necessary release, the RO should obtain these records. 2. The RO should attempt to verify the veteran's claimed exposure to mustard gas in service as outlined in The Veterans Benefits Administration Manual M21-1, Part III, Chap. 5, Part 5.18. 3. If and only if the veteran's claimed in-service exposure to mustard gas is verified, the veteran should undergo a VA examination for the purpose of identifying any residuals of such exposure. 4. The RO should review the claims file and ensure that all notification and development action required by the Veterans Claims Assistance Act of 2000 (VCAA) is completed with regard to the issue on appeal. In particular, ensure that the notification requirements and development procedures in sections 3 and 4 of the Act, codified as amended at 38 U.S.C. §§ 5102, 5103, 5103A, and 5107, are fully complied with and satisfied, to include which portion of the information and evidence necessary to substantiate his claim is to be provided by which party and the one year time limit to submit such information and evidence. See 38 U.S.C.A. § 5103(a)(b) (West 2002); Charles v. Principi, 16 Vet. App. 370, 373-374 (2002); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). 5. Thereafter, the RO should readjudicate the veteran's claim, to include consideration of all evidence obtained since its Supplemental Statement of the Case (SSOC) was issued in April 2003. If the benefit sought on appeal remains denied, the appellant should be provided with an appropriate supplemental statement of the case (SSOC), which contains a summary of the evidence received since the April 2003 SSOC, and given an opportunity to respond. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant and his representative need take no action unless otherwise notified. 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 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 2002) (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. ______________________________________________ R. F. Williams Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.