Citation NR: 9607458 Decision Date: 03/22/96 Archive Date: 04/02/96 DOCKET NO. 94-31 550 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for shrapnel wounds of both legs and feet, gunshot wound of the right side of the body, hearing loss, and head injury. 2. Entitlement to service connection for a chronic acquired psychiatric disorder including post-traumatic stress disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Appellant, his spouse, and daughter ATTORNEY FOR THE BOARD Ronald R. Bosch, Counsel INTRODUCTION The veteran served on active duty from March 1942 to September 1945. This appeal arose from an August 1992 rating decision which denied entitlement to service connection for shrapnel wounds of both legs and feet, a gunshot wound of the right side of the body, hearing loss, a head injury, and a chronic acquired psychiatric disorder. Entitlement to a permanent and total disability rating for pension purposes with entitlement to special monthly pension by reason of being in need of regular aid and attendance was granted. The RO affirmed the denial of entitlement to service connection for a chronic acquired psychiatric disorder to include post-traumatic stress disorder when it issued a rating decision in May 1993. The issue of entitlement to service connection for a chronic acquired psychiatric disorder to include post-traumatic stress disorder will be addressed in the REMAND portion of this decision. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he suffers from residuals of shrapnel wounds to both legs and feet, a gunshot wound of the right side of his body, a head injury, and hearing loss as the result of combat activity during active service, thereby warranting entitlement to grants of 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 shrapnel wounds of both legs and feet, a gunshot wound of the right side of the body, a head injury, and hearing loss are not well grounded. FINDING OF FACT The claims for service connection for shrapnel wounds of both legs and feet, a gunshot wound of the right side of the body, a head injury, and hearing loss are not supported by cognizable evidence showing that the claims are plausible or capable of substantiation. CONCLUSION OF LAW The claims for service connection for shrapnel wounds of both legs and feet, a gunshot wound to the right side of the body, a head injury, and hearing loss are not well grounded. 38 U.S.C.A. § 5107(West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has determined that the veteran’s claims of entitlement to service connection for gunshot wounds of both legs and feet, a gunshot wound of the right side of the body, a head injury, and hearing loss 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, and his claims must be dismissed. Tirpak, Rabideau v. Derwinski, 2 Vet.App. 141, 144 (1992). The Board observes that there are no service medical records on file. The National Personnel Records Center has advised the RO that the veteran had fire related service. In other words, any records which may have been on file were destroyed in the 1973 fire at the Center. Efforts by the RO to obtain service medical documentation from other sources have all been unsuccessful. The veteran has submitted no competent medical evidence in support of his claims. His argument is based on testimony provided before a travel member of the Board sitting at the RO in November 1993. The veteran’s statements, and those of his family members assisting him at the hearing are insufficient upon which to predicate a favorable determination in the absence of competent medical evidence. As it is the province of trained health care professionals to enter conclusions which require medical opinions as to causation, Grivois v. Brown, 6 Vet.App. 136 (1994), the veteran’s lay opinion is an insufficient basis to find his claims 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 shrapnel wounds of both legs and feet, a gunshot wound of the right side of the body, a head injury, and hearing loss 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 shrapnel wounds of both legs and feet, a gunshot wound of the right side of the body, a head injury, and hearing loss. The Board views the discussion set forth above as sufficient to inform the veteran of the elements necessary to complete his application for a claim for service connection for shrapnel wounds of both legs and feet, a gunshot wound of the right side of the body, a head injury, and hearing loss. 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 claimant of evidence required to complete application). ORDER The veteran not having submitted well grounded claims for service connection for shrapnel wounds of both legs and feet, a gunshot wound of the right side of the body, a head injury, and hearing loss, the claims are dismissed. 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 Board notes that the veteran trained and served as an antitank gun crewman with the United States Army during World War II and participated in the European Theater of operations. The veteran has described involvement in the Battle of the Bulge, and it has been suggested that he was a prisoner of war for a short time; however, there is no service documentation of his ever having been awarded a Combat Infantry Badge, Purple Heart, or any combat related decoration. Nonetheless, a VA examiner determined that the veteran was suffering from an anxiety disorder with features of post-traumatic stress disorder. The examiner noted that the veteran suffered from a phobia prior to service, a phobia that was aggravated as the result of combat. The veteran did not respond to the stressor development letter sent to him by the RO in connection with his claim for compensation benefits; instead, he requested a psychiatric examination. The veteran has not provided detailed and specific information as to combat related stressors which could be referred to the United States Army and Joint Services Environmental Support Group (ESG). Nevertheless, the provisions of the VA Adjudication Procedure Manual M21-1 (Manual M21-1) pertaining to the adjudication of post-traumatic stress disorder 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 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 further notes that an examination based on a questionable history 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) (West 1991); 38 C.F.R. § 3.103(a) (1994), the Board will not decide the issue of entitlement to service connection for a chronic acquired psychiatric disorder to include 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 this opportunity to inform the veteran that the United States Court of Veterans Appeals (Court) 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 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, 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. Any information obtained is to 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, verified by the ESG. If no combat stressor has been verified, the RO should so state in its report. This report is 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 two VA psychiatrists who have not previously seen or treated him. 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 update on CD-ROM update issued 21 September 1995), and all appropriate studies , including post-traumatic stress disorder sub 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 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 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 should be typed. 5. Following completion of the foregoing the RO should review the claims file to ensure that all of the requested 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, that 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 a chronic acquired psychiatric disorder to include post- traumatic stress disorder. If the benefit requested on appeal is not granted to the veterans’ 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 -