Citation NR: 9605580 Decision Date: 03/07/96 Archive Date: 03/16/96 DOCKET NO. 94-08 069 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for a chronic acquired disorder of the throat. 3. Entitlement to service connection for a chronic acquired disorder of the skin claimed as skin rash. 4. Entitlement to service connection for a left foot injury. 5. Entitlement to service connection for a left ankle injury. 6. Entitlement to service connection for post-traumatic stress disorder. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Ronald R. Bosch, Counsel INTRODUCTION The veteran served on active duty from May 1966 to May 1968. This appeal arose from a February 1993 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The RO denied entitlement to service connection for hearing loss, a chronic acquired disorder of the throat, skin rash, a left foot injury, a left ankle injury, and post-traumatic stress disorder, and denied entitlement to a permanent and total disability for pension purposes. In a March 1994 rating decision the RO, in pertinent part, affirmed the determinations previously entered, and granted entitlement to a permanent and total disability rating for pension purposes. The case has been forwarded to the Board of Veterans’ Appeals (Board) for appellate review. The issue of entitlement to service connection for post- traumatic stress disorder will be addressed in the REMAND portion of the decision. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he has a hearing loss, and throat, skin, left foot and ankle disorders as the result of his active service. He argues that his foot injury noted at entrance into service was definitely aggravated by marching and running during service, thereby warranting entitlement to service connection. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1995), 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 in this matter, and for the following reasons and bases, it is the decision of the Board that the claims for service connection for hearing loss, a chronic acquired disorder of the throat, and a chronic acquired disorder of the skin claimed as skin rash, are not well grounded; and that the preponderance of the evidence is against grants of entitlement to service connection for left foot and left ankle injuries. FINDINGS OF FACT 1. The claims for service connection for hearing loss, a throat disorder, and a skin disorder are not supported by cognizable evidence showing that the claims are plausible or capable of substantiation. 2. A left foot injury with skin grafting on the left ankle was noted on the examination for induction in January 1966. 3. During service the veteran was treated for occasional left foot symptomatology. 4. The March 1968 separation examination report shows a normal clinical evaluation of the feet. 5. The left foot injury with skin grafting on the left ankle did not chronically worsen during service. CONCLUSIONS OF LAW 1. The claims for service connection for hearing loss, a chronic acquired disorder of the throat, and a chronic acquired disorder of the skin claimed as skin rash are not well grounded. 38 U.S.C.A. § 5107 (West 1991). 2. A pre-existing left foot injury with skin grafting on the left ankle was not aggravated by active service. 38 U.S.C.A. §§ 1110, 1153, 5107 (West 1991); 38 C.F.R. § 3.306(b) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Entitlement to service connection for hearing loss, a chronic acquired disorder of the throat, and a chronic acquired disorder of the skin claimed as skin rash. The Board has determined that the veteran’s claims of entitlement to service connection for hearing loss, a throat disorder, and skin rash are not well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, the veteran has failed to meet his initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claims are plausible or capable of substantiation. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992); Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). As such, there is no duty to assist the veteran in developing his case as to these issues, and his claims must be dismissed. Tirpak, Rabideau v. Derwinski, 2 Vet.App. 141, 144 (1992). The Board observes that while the veteran has alleged onset of hearing loss, throat and skin disorders in service, his service medical records are totally silent as to any of these disorders. Of particular importance is the fact that none of these alleged disorders was shown when the claimant was examined for separation from service in March 1968, and he denied a history of such disorders when he completed the report of medical history portion of the separation examination. The Board acknowledges that VA and private medical treatment reports dated during the early 1990’s show the veteran has been found to have chronic laryngitis or hoarseness and bilateral defective hearing; however, none of these disorders was shown in service and there is no competent medical evidence of record to link them to service. There was no evidence of a skin disorder when the appellant was examined by VA in November 1992. The veteran essentially reiterated his contentions and arguments pertaining to service connection for hearing loss, a throat disorder, and skin rash when he presented testimony at an RO hearing held in June 1993. The veteran has alleged that he has a hearing loss, a throat disorder, and a skin rash argued to have originated coincident with active service. He has presented no medical evidence linking his post service reported bilateral hearing loss and laryngitis to service, and the record does not substantiate the existence of a skin disorder much less one linked to service. As it is the province of trained health care professionals to enter conclusions which require medical opinions as to diagnosis and causation, Grivois v. Brown, 6 Vet.App. 136 (1994), the veteran’s lay opinion is an insufficient basis to find that his claims are well grounded. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Accordingly, as well grounded claims must be supported by evidence, not merely allegations, Tirpak, the veteran’s claims for service connection for hearing loss, a throat disorder, and skin rash must be dismissed as not well grounded. The Board recognizes that the appellant’s claims have been disposed of in a manner different from that utilized by the RO. The Board therefore considered whether the claimant has been given adequate notice to respond, and if not, whether he has been prejudiced thereby. Bernard v. Brown, 4 Vet.App. 384 (1993). In light of the implausibility of the appellant’s claims and the failure to meet his initial burden in the adjudication process, the Board concludes that he has not been prejudiced by the decision to dismiss his claims for service connection for hearing loss, a chronic acquired throat disorder, and a chronic acquired skin disorder claimed as skin rash. The Board views the discussion set forth above as sufficient to inform the veteran of the elements necessary to complete his application for service connection for hearing loss, a chronic acquired throat disorder, and a chronic acquired skin disorder claimed as skin rash. 38 U.S.C.A. § 5103(a) (West 1991); see Robinette v. Brown, 8 Vet.App. at 77-8 (1995); see also Isenhart v. Derwinski, 3 Vet.App. 177, 179-80 (1992) (VA has a duty to advise the claimant of evidence required to complete application). II. Entitlement to service connection for left foot and left ankle injuries. Initially, the Board notes that the veteran has presented evidence of well grounded claims within the meaning of 38 U.S.C.A. § 5107(a), in that it is at least plausible that he has residuals of left foot and left ankle injuries related to his service. The Board is satisfied that as to these issues, all relevant facts have been properly developed, and that no further assistance to the veteran is required in order to comply with 38 U.S.C.A. § 5107(a). The July 1963 report of general medical examination for enlistment shows there were no abnormalities of the feet. The veteran denied a history of foot trouble when he completed the report of medical history portion of the examination. The January 1966 induction examination report shows the veteran had a scar on the left ankle due to grafting, for a left foot injury. The veteran reported he had sustained a leg and foot injury in 1965. It was noted he had done construction work without difficulty. In early June 1966 it was noted the veteran had previously sustained an injury to his left foot. He currently had pain around the os calcis and across the metatarsal heads. In mid June it was noted he had been in an accident in 1965 at which time he dislocated his os calcis. He had had mild difficulty walking since the injury. His difficulties increased with activities. Range of motion of the foot was normal as was muscle power on examination. An x-ray was negative. Associated with the service medical records was a letter dated in June 1966 from Gilbert L. Hyroop, M.D. He reported the veteran was treated in November 1964 for a severe injury to his left leg. He had some avulsed wounds and the one on the calf of the leg had practically healed when the veteran was first seen. Ulcers on the medial side of the left ankle were very large and granulating. The granulations had to be resected and a skin graft carried out in this area. In early July the veteran’s left foot still felt symptomatic and was reported as sore. He was prescribed foot arch supports, an ace wrap, and was returned to duty. No significant pathology of the left foot was noted during an examination toward the latter part of July 1966. During a subsequent examination in the latter part of July a well healed scar was noted on the medial malleolus and middle third of the calf. There was slight tenderness over the medial malleolus and over the fibers of the deltoid ligament. There was tenderness above several metatarsal heads. Motor power, sensation, and circulation were normal. The March 1968 separation examination report shows a normal evaluation of the feet. The veteran was noted to have a foot injury with a skin graft to the left medial malleolus. A November 1992 VA examination of the feet concluded in a diagnosis of old injury of the left foot by history, intermittently symptomatic, with pes cavus deformity and hammer toes. The veteran provided testimony in support of his claim for service connection for left foot and left ankle injuries at an RO hearing held in June 1993. He reiterated his argument that strenuous foot activity such as marching and running aggravated his pre-service left foot and ankle injuries. The Board’s evaluation of the evidence of record does not permit the conclusion that the veteran currently has left foot and ankle injuries due to his period of active service. In this regard the Board notes that the veteran’s left foot injury and skin grafting involving the left ankle were noted when he was examined for induction. During service he received occasional treatment for symptomatology noted to be related to his pre-service left lower extremity injuries; however, the treatment was on a symptomatic basis with no evidence of superimposed injury on the left foot or left ankle, and no need for inpatient care. No clinical abnormalities of the left foot and ankle were noted on the separation clinical evaluation of the feet. The November 1992 VA examination of the feet disclosed that the veteran experienced intermittent symptomatology of his left lower extremity from an old injury. Disorders of the foot reported on this examination were not shown in the service medical records. There is no evidence in the service medical or post service medical documentation of record to demonstrate any aggravation of the appellant’s pre-service left lower extremity injuries. The veteran has presented no competent medical evidence to substantiate a chronic worsening or aggravation in service of his foot injuries sustained prior thereto. The Board finds no basis upon which to predicate a grant of entitlement to service connection for left foot and left ankle injuries. 38 U.S.C.A. §§ 1110, 1153, 5107; 38 C.F.R. § 3.306(b). ORDER The veteran not having submitted well grounded claims of entitlement to service connection for hearing loss, a chronic acquired disorder of the throat, and a chronic acquired disorder of the skin claimed as skin rash, the claims are dismissed. Entitlement to service connection for a left foot injury is denied. Entitlement to service connection for a left ankle injury is denied. REMAND Service connection for post-traumatic stress disorder requires medical evidence establishing a clear diagnosis of the disorder, 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(f) (1994). In this regard the records available to the Board show that the veteran trained and served as a gunner with the United States Army in Vietnam. His decorations include a Vietnam Service Medal, and a Vietnam Campaign Medal with two overseas bars. The appellant is not shown to have been awarded the Combat Infantryman Badge, Purple Heart Medal, or any other decoration reflective of combat activity. The claimant did not respond to an October 1992 request from the RO that he provide a detailed stressor statement. During the course of a February 1993 VA special psychiatric examination the veteran related he had difficulty remembering specifics pertaining to his Vietnam service. Based on the interview, the VA examiner diagnosed post-traumatic stress disorder. The Board observes that what little information the veteran has provided as to Vietnam related stressors cannot be referred to the United States Army and Joint Services Environmental Support Group (ESG) for verification. Nevertheless, the provisions of the VA Adjudication Procedure Manual M21-1 (Manual M21-1) pertaining to the adjudication of post-traumatic stress disorder claims provide that, “where records available to the rating board do not provide objective or supportive evidence of the alleged inservice traumatic stressor, it is necessary to develop this evidence.” Manual M21-1, Part VI, 7.46(f)(2) (emphasis added). Accordingly, as the development outlined in Manual M21-1 includes providing the information submitted by the veteran to the ESG, such development is mandatory. The Board also observes that, as noted above, a VA psychiatrist has diagnosed post-traumatic stress disorder. An examination based on a questionable history, however, is inadequate for rating purposes, West v. Brown, 7 Vet.App. 70, 77-8 (1994). Thus, it is necessary that the veteran be provided an examination where the examiner has an accurate and verified history of the appellant’s military service. Therefore, pursuant to VA’s duty to assist the veteran in the development of facts pertinent to his claim under 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.103(a) (1994), the Board will not adjudicate the issue of entitlement to service connection for post-traumatic stress disorder pending a REMAND of the case to the RO for further development as follows: 1. The RO should request from the veteran a statement containing as much detail as possible regarding any and all stressful events to which he was exposed in service. He should be asked to provide specific details of the claimed stressful events to the best of his ability. The veteran’s statement should include dates, places, detailed descriptions, units of service, duty assignments, as well as the full names, ranks, units of assignment and any other identifying information concerning other individuals involved in the events. In this respect, the Board takes the opportunity to inform the veteran that the United States Court of Veterans Appeals has held that asking the veteran to provide the underlying facts, i.e., the names of individuals involved, the dates, and the places where the claimed events occurred, does not constitute an impossible or an onerous task. Wood v. Derwinski, 1 Vet.App. 190, 193 (1991). The RO should caution the veteran that failure to provide all of the requested information may have an adverse affect on the outcome of his appeal. 2. After obtaining the foregoing requested information from the veteran, the RO should forward it with copies of obtained service personnel records (on file), and a copy of his record of service (DD-214) to the United States Army and Joint Services Environmental Support Group (ESG), Building 5089, Stop # 387, Fort Belvoir, Virginia 22060, in an attempt to verify any claimed stressor(s). Any information obtained should be associated with the claims file. 3. Following receipt of the ESG’s report, and the completion of any additional development warranted or suggested by that agency, the RO should prepare a report detailing the nature of any combat action, or inservice stressful event(s), verified by the ESG. If no combat stressor has been verified, the RO should so state in its report. This report is then to be added to the claims file. 4. Then, and only then, should the RO schedule the veteran for a special psychiatric examination by a board of VA psychiatrists who have not previously seen or treated the veteran. The examination is to be conducted in accordance with the diagnostic procedures outlined in the VA Physician’s Guide for Disability Evaluation Examinations (AMIE Worksheet Number 0910) (located in VBA/ARMS electronic database on CD-ROM update issued 21 September 1995), and all appropriate studies, including post- traumatic stress disorder scales, are to be performed. The claims file must be made available to and reviewed by the examiners prior to the examinations. In determining whether or not the veteran has post-traumatic stress disorder due to an inservice stressor(s) the examiners are hereby notified that only the verified history detailed in the reports provided by the ESG and/or the RO may be relied upon. If the examiners believe that post-traumatic stress disorder is the appropriate diagnosis, they must specifically identify which stressor(s) detailed in the ESG’s and/or the RO’s report is responsible for the conclusion. Any and all opinions expressed must be accompanied by a complete rationale. The examiners must assign a Global Assessment of Functioning Score which is consistent with the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, and explain what the assigned score means. The examination report must be typed. 5. Following completion of the foregoing the RO should review the claims file to ensure that all of the foregoing development has been completed in full. In particular, the RO should review the VA psychiatric examination report to verify that any diagnosis of post- traumatic stress disorder was based on the verified history provided by the ESG and/or the RO. If the examiners relied upon a history which was not verified, the examination report must be returned as inadequate for rating purposes. The Board emphasizes that the Court has held that a diagnosis of post-traumatic stress disorder, related to service, based on an examination which relied upon an unverified history is inadequate. West, 7 Vet.App at 77. 6. After undertaking any development deemed appropriate in addition to that specified above, the RO should readjudicate the issue of entitlement to service connection for post-traumatic stress disorder. If the benefit requested on appeal is not granted to the veteran’s satisfaction, the RO should issue a supplemental statement of the case. A reasonable period of time for a response should be afforded. Thereafter, the case should be returned to the Board for final appellate review, if otherwise in order. By this REMAND, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the RO. ALBERT D. TUTERA Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741 (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West Supp. 1995), 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 that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans’ Appeals. Appellate rights do not attach to those issues addressed in the remand portion of the Board’s decision, because a remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1994). - 2 -