BVA9407818 DOCKET NO. 92-04 700 ) DATE ) ) ) THE ISSUES 1. Entitlement to service connection for a disorder manifested by headaches, flashbacks, and memory loss. 2. Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD G. P. Hanson, Counsel INTRODUCTION The veteran served on active duty from November 1965 to November 1967. This matter came before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Houston, Texas, Regional Office (hereinafter RO) denying the veteran entitlement to service connection for the disabilities at issue. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he developed a disorder manifested by headaches, flashbacks, and memory loss as a consequence of service or service-connected malaria. He also avers that he developed anxiety while on active duty or that this disorder is causally related to service-connected malaria. Lastly, he avers that he developed post- traumatic stress disorder as a consequence of life-threatening experiences while on active duty. In this respect, he contends that his life-threatening experiences in Vietnam include the trauma of being wounded and the trauma of viewing dead soldiers. DECISION OF THE BOARD The 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, and for the following reasons and bases, the Board finds that the clear weight of the evidence is against the veteran's claim of entitlement to service connection for the disorders listed on the title page of this decision. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. A disorder manifested by headaches, flashbacks, and memory loss was not present during the veteran's period of service and it is not causally related to service-connected malaria. 3. An acquired psychiatric disorder was not shown during the veteran's period of military service and it was not clinically demonstrated post service until at least 1988, approximately 20 years after his separation from active duty. 4. The veteran currently does not have post-traumatic stress disorder. CONCLUSIONS OF LAW 1. A disorder manifested by headaches, flashbacks, and memory loss was not incurred in or aggravated by military service, and it is not proximately due to or the result of service-connected disability. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.310(a) (1993). 2. An acquired psychiatric disorder, to include post-traumatic stress disorder, was not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The threshold question is whether the veteran's claims are well- grounded; that is, whether they are plausible. If they are not, his appeal must fail and there is no duty to assist him in the development of his claim, since such development would be futile. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet.App. 78, 82 (1990). The Board finds that the veteran's recitation of visible symptoms in connection with the medical evidence on file are sufficient to conclude that his claims are plausible and well- grounded. In addition, we are satisfied that all relevant facts are on file and that the Department of Veterans Affairs (VA) has met its duty to assist the veteran in the development of facts pertinent to his claim, as mandated by 38 U.S.C.A. § 5107(a) (West 1991). The veteran has recognized service connection for the residuals of a shell fragment wound of the right thigh, Muscle Group XV, rated as 30 percent disabling from October 1971, and for malaria, rated noncompensably disabling from October 1971. The service medical records are entirely silent in reference to any complaints, findings, or diagnosis of a disorder manifested by headaches, flashbacks, and memory loss; or an acquired psychiatric disorder, to include post-traumatic stress disorder. These records primarily provide a description of pertinent treatment for the residuals of a shell fragment wound of the right thigh. On separation physical examination, he was clinically evaluated as normal in reference to all anatomical areas and systems of the body with the exception of a scar of the right medial thigh referable to the shell fragment wound. A summary of VA hospitalization in August 1974 indicates that the veteran presented with complaints of headaches which had begun about three weeks before. An electroencephalogram (EEG) was taken and it was associated with no well qualified cause. The discharge diagnoses included the foregoing and a finding that he had headaches of unknown origin. A repeat EEG taken during subsequent VA outpatient clinic treatment in October 1974 was considered slightly abnormal and his headaches had persisted. Reports of VA outpatient clinic treatment in May and November 1988 include complaints by the veteran of forgetfulness, insomnia, depression, and diminished appetite. The diagnoses were tension headaches and diabetes mellitus. A report of psychiatric examination conducted by VA in August 1990 include complaints of loss of memory, headaches, flashbacks, and depression. The examining psychiatrist indicated that his hospital records showed that the veteran had been seen by a VA mental health VA clinic in 1988 and that a diagnosis of adjustment disorder with anxious mood had then been made. He also noted that the veteran was referred to a VA neurological clinic in June 1988 for evaluation of headaches and forgetfulness which were associated with diagnoses of depression and tension headaches. The veteran stated that when he served in Vietnam he was not frightened, that he could remember very little about Vietnam, and that he remembered his main base, but remembered little else. He had what he described "flashbacks" when he was asleep and when he dreamt. He did not remember his dreams, but sometimes dreamt about being lost in the woods with an inability to find his way back to safety. He dreamt of things he used to do, in Vietnam and such things as booby traps and snakes, which he knows were in Vietnam, but as far as he could recall, he did not have any experience with either. The diagnostic impressions were anxiety disorder not otherwise specified, diabetes mellitus, and a history of malaria. It was commented that the anxiety disorder from which he suffered, included symptoms of post-traumatic stress disorder, and it was in part due to uncertainty regarding a pending claim for compensation from the U.S. Postal Service for carpal tunnel syndrome. The examining psychiatrist noted that on present evidence, the veteran's impairment of recent memory appeared to be secondary to reduced concentration. Because the cause of his defects in remote memory were uncertain, it was indicated that further testing could be undergone, if additional information was required. In a report of separate examination by a VA psychologist in August 1990, it was indicated that the veteran's test results showed cognitive inefficiency due to a functional basis. As a result, he had poor attention and concentration and became easily frustrated. In addition, it was reported that the veteran's memory difficulties for both visual and verbal information appeared to have an organic basis. Lastly, it was noted that these difficulties appeared chronic and stable and were of unknown etiology. A report from a board of three VA psychiatric examiners dated in July 1991 indicates that, though the veteran claimed to have had problems with post-traumatic stress disorder symptoms since 1967, it was not until 1989 that these complaints appeared in his claims folder. In addition, a review of the claims folder did not collectively show adequate symptomatology to qualify the veteran for a diagnosis of post-traumatic stress disorder. Additionally, it was commented that by following the progression of the service-connected claim since 1971, what had become obvious is that his complaints changed over time as he attributed nonservice-related problems to be related to military activities (such as referring to shrapnel wounds of his right foot, when in fact only his right thigh was involved, and attempting to receive service connection for what he thought were problems referable to his having had malaria while in service). In sum, the Board concluded a diagnosis of post-traumatic stress disorder was not warranted by the additional evidence and that the diagnosis of anxiety disorder was correct. The Board also found no evidence for any other diagnosis, either organic or psychiatric. A private physician submitted two reports dated in July and August 1990. The first indicated that the veteran was currently under medical care for panic attacks and depression. The second indicated that the veteran reported that when he went to Vietnam he became sick for 10 days and then recovered. He stated that he hated the Vietnamese people and Orientals. He indicated he only became afraid at the current time when he saw movies. He complained of headaches and flashbacks. It was reported that he had been followed since April 1990 for panic attacks, explosive behavior, and episodes where he lost his temper quite easily. Mental status examination showed that he was quite paranoid and had delusions of paranoia, but denied any hallucinations or delusions. He did have acute panic attacks. The diagnoses were organic brain syndrome with depression and delusion; panic attacks without agoraphobia; and post-traumatic stress disorder, by history. In the prognosis portion of the same report, the examining physician stated that the veteran was currently suffering from a significant mental illness which might have been caused by the Vietnam war in that he was involved in war activities or that it could be a secondary factor referable to organic brain syndrome of unknown etiology. A report from an additional board of three VA psychiatrists, dated in February 1993, included a review of the claims folder, the Houston VAMC records, a report of psychological tests performed in January 1993, and a report of psychiatric examination performed by the Board in February 1993. It was also indicated that he was to be separately examined by a neurologist. The Board found that while the veteran experienced some symptoms suggestive of post-traumatic stress disorder, the clinical findings do not meet the criteria for making this diagnosis. In arriving at this conclusion, it was explained that the results of adjunct psychological testing were taken into account; however, the Board had considerable reservations about the usefulness of such tests for making a diagnosis of post-traumatic stress disorder since post-traumatic stress disorder remains a clinically based diagnosis. The report of psychological testing in question indicates that the symptoms reported by the veteran and related recollections of Vietnam experiences were sufficient upon which to predicate a diagnosis of post-traumatic stress disorder. The board indicated that, for several years, the veteran had complained of memory impairment. First, on several occasions dating back to 1974, an EEG had been reported to show mild diffuse abnormality. Secondly, detailed neuropsychological testing in August 1990 revealed memory difficulties for both visual and verbal information which appeared to be organic as well as functional. From this, it was concluded that a diagnosis of dementia, mild degree, could be made. It was also concluded that, from the diffuse nature of the electroencephalographic abnormalities, and their presence as early as 1974, there was a possibility that an organic mental disorder (dementia) was secondary to the residual effects of malaria. The board went on to note that the veteran also complained of headaches and that his responses to questions put to him indicated that many of his headaches were of tension type. However, it was also noted his headaches were not typically a tension type, either in distribution or in the mode of perception. While a definite statement about the etiology of his headaches could not be made, it was indicated that there was a possibility that 'non-tension' headaches might be a residual effect of malarial encephalopathy. In summary, the board concluded that the veteran's diagnoses were dementia, mild, possibly secondary to malarial encephalopathy; anxiety disorder, not otherwise specified, with features of post- traumatic stress disorder; a history of malaria; and a history of headaches. A report of neurological examination conducted by VA in February 1993, and in an addendum to such a report dated in April 1993, it was indicated by the VA neurologist that he agreed with the February 1993 psychiatric board in reference to their diagnoses of mild dementia together with an anxiety disorder possibly with features of post- traumatic stress disorder and a history of previous malaria and muscle contraction-type headaches. However, it was opined that no credible basis existed for linking dementia or headaches with malaria as no significant detail of his malarial illness was available and it was thought unlikely that there was support for such a cause-and- effect relationship. In light of the foregoing neurological evaluation, in a report dated in February 1993, one of the VA staff physicians who had been part of the February 1993 board, acknowledged that the VA neurologist had ruled out a causal relationship between dementia and headaches and service-connected malaria. The law provides that service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. § 1110 (West 1991). For the showing of a 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) (1993). Under the provisions of 38 C.F.R. § 3.304(f) (1993), service connection for post-traumatic stress disorder requires medical evidence establishing a clear diagnosis of the condition, credible supporting evidence that the claimed inservice stressors actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed inservice stressor. With reference to the issue of entitlement to service connection for a disorder characterized by headaches, flashbacks, and memory loss, the documentary evidence on file lends no support to the veteran's contentions that these disabilities are referable to a disability for which compensation benefits are payable. In this respect, his subjective symptoms, as opposed to an objectively demonstrated clinical disorder, have been variously associated with tension, muscle contraction or anxiety. In addition, in recent reports of VA psychiatric examination and neurological study conducted in 1993, a relationship between such complaints and service-connected malaria has been ruled out. Part of the fundamental principle governing awards of service-connected disability compensation is that benefits will be granted when a disability results from a personal injury or disease contracted in the line of duty. Brannon v. Derwinski, 1 Vet.App. 314 (1991). A corollary to this principle is that, when disability does not result from a disease or injury, there is no basis to grant service connection. Here, the clear weight of the evidence is against his claim and, thus, the doctrine of reasonable doubt is not applicable. 38 U.S.C.A. § 5107(a) (West 1991). In any event, such a disorder, if present, is not shown to have been present in service or otherwise related to service in any way. With regard to the issue of entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder, certain observations are necessary. The veteran's service medical records are negative in reference to any complaints or findings reflective of anxiety and a diagnosis of anxiety was not a matter of record until 1990, several decades after his separation from active duty. While his contentions in this matter have been given due consideration, in light of the overwhelming weight of the clinical evidence of record, we do not find his current recollections of having had anxiety in service with continuity of symptomatology of symptoms to be credible. Moreover, the United States Court of Veterans Appeals (Court) has held that where there are issues involving questions of medical diagnosis or causation, lay persons are not competent to provide probative evidence on those issues; only those with the necessary knowledge, skill, experience, training or education are competent to provide probative evidence on these issues. While a private examiner in 1990 provided an equivocal opinion that the veteran might have a mental illness related to his wartime service, the overwhelming weight of the other competent medical evidence of record clearly points to the conclusion that the appellant does not have a mental illness causally linked to service or any events therein. Espiritu v. Derwinski, 2 Vet.App. 492 (1992); Grottveit v. Brown, 5 Vet.App. 91 (1993). As the negative evidence far out weights the positive evidence, the doctrine of reasonable doubt is not applicable. 38 U.S.C.A. § 5107(a) (West 1991). With respect to the issue of entitlement to service connection for post-traumatic stress disorder, two separate board of psychiatric examiners concluded in 1991 and 1993 that, while the veteran might have some symptoms suggestive of post-traumatic stress disorder, the clinical findings did not meet the criteria for making this diagnosis. As explained by the Court in Zarycki v. Brown, U.S. Vet. App. No. 92-976 (December 20, 1993), there must be a diagnosis of post-traumatic stress disorder sufficient to meet the criteria set out in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (Third Edition-Revised (1987) (DSM-III-R) and VA's Manual M21-1. The VA psychiatric examiners, in essence, indicated that there was a paucity of evidence upon which to support a diagnosis of post- traumatic stress disorder and, in its absence, there was no basis for the diagnosis of post-traumatic stress disorder. Accordingly, the Board need not address the question of the validity of any stressors that might have been experienced since this is mooted by what has been determined by the boards of VA psychiatric examiners. While the diagnosis of post-traumatic stress disorder may have been questionably made in the past, the most recent board of three VA psychiatrists based its conclusions on the review of the claims folder, the VA treatment records, a report of psychological testing performed in January 1993, and current psychiatric examination performed in February 1993. As a consequence, this opinion by the board is entitled to the greatest probative weight, and we concur in its assessment. To the extent that the veteran's attending private physician and the current VA psychologist may find there is a viable basis upon which to predicate a diagnosis of post-traumatic stress disorder, such opinions are not based on as though a review of the records nor on as complete and thorough evaluation or was performed by the board of VA psychiatrists. Again, the clear weight of the evidence is against entitlement to service connection for such a disability and the doctrine of reasonable doubt is not applicable. 38 U.S.C.A. § 5107(a) (West 1991). ORDER Service connection for a disorder manifested by headaches, flashbacks, and memory loss is denied. Entitlement to service connection for an acquired psychiatric disorder, to include post- traumatic stress disorder, is denied. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 * MEMBER TEMPORARILY ABSENT WILLIAM J. REDDY RICHARD B. FRANK *38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of Veterans' Appeals Section, upon direction of the Chairman of the Board, to proceed with the transaction of business without awaiting assignment of an additional member to the Section when the Section is composed of fewer than three Members due to absence of a Member, vacancy on the Board or inability of the Member assigned to the Section to serve on the panel. The Chairman has directed that the Section proceed with the transaction of business, including the issuance of decisions, without awaiting the assignment of a third Member. 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.