Citation NR: 9610848 Decision Date: 04/18/96 Archive Date: 04/25/96 DOCKET NO. 92-08 874 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a chronic acquired variously diagnosed heart disorder including mitral valve prolapse. 2. Entitlement to service connection for a chronic acquired liver disorder manifested by abnormal liver function tests. 3. Entitlement to service connection for Sjogren’s syndrome. 4. Entitlement to service connection for residuals of Agent Orange exposure, claimed as fibrocytis of the locomotor apparatus. 5. Entitlement to service connection for post-traumatic stress disorder. 6. Entitlement to service connection for a chronic acquired variously diagnosed psychiatric disorder as secondary to service-connected chronic recurrent lumbosacral strain with sciatic syndrome with probable nerve root compression. 7. Entitlement to service connection for a chronic acquired disorder of the cervical spine as secondary to service- connected chronic recurrent lumbosacral strain with sciatic syndrome with probable nerve root compression. 8. Entitlement to service connection for a right lower extremity disorder including footdrop as secondary to service-connected chronic recurrent lumbosacral strain with sciatic syndrome with probable nerve root compression. 9. Entitlement to service connection for a left lower extremity disorder including footdrop as secondary to service-connected chronic recurrent lumbosacral strain with sciatic syndrome with probable nerve root compression. 10. Entitlement to an increased evaluation for chronic recurrent lumbosacral strain with sciatic syndrome with probable nerve root compression, currently evaluated as 40 percent disabling. 11. Entitlement to a total disability evaluation for compensation purposes on the basis of individual unemployability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARINGS ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Ronald R. Bosch, Counsel INTRODUCTION The veteran served on active duty from June 1968 to June 1970. This appeal arose from an October 1990 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The RO denied entitlement to an increased evaluation for chronic recurrent lumbosacral strain with sciatic syndrome with probable nerve root compression, and a total disability evaluation for compensation purposes on the basis of individual unemployability. The RO affirmed the determinations previously entered and denied entitlement to service connection for a chronic acquired disorder of the cervical spine when it issued a rating decision in February 1991. The RO affirmed the determinations previously entered when it issued a rating decision in March 1991. The RO denied entitlement to service connection for a chronic acquired psychiatric disorder as secondary to service- connected chronic recurrent lumbosacral strain with sciatic syndrome with probable nerve root compression when it issued a rating decision in July 1991. The Board of Veterans’ Appeals (Board) REMANDED the veteran’s case to the RO for further development in November 1993. In an August 1994 rating decision, the RO denied entitlement to service connection for post-traumatic stress disorder, a chronic acquired heart disorder including mitral valve prolapse, a chronic acquired liver disorder manifested by abnormal liver function testing, a left leg neurological disorder, a right leg neurological disorder, Sjogren’s syndrome, and fibrocytis of the locomotor apparatus as secondary to Agent Orange exposure; and affirmed all determinations previously entered. The RO affirmed and continued all determinations previously entered when it issued rating decisions in July and September 1995. The case has been returned to the Board for further appellate review. The Board has expanded the issues for appellate consideration to include entitlement to service connection for chronic acquired disorders of the entire lower extremity bilaterally to include footdrop in view of Myers v. Derwinski, 1 Vet.App. 127 (1991). The issues of entitlement to service connection for post- traumatic stress disorder, a chronic acquired psychiatric disorder as secondary to service-connected chronic recurrent lumbosacral strain with sciatic syndrome with probable nerve root compression, a chronic acquired disorder of the cervical spine as secondary to service-connected chronic recurrent lumbosacral strain with sciatic syndrome with probable nerve root syndrome, a chronic acquired disorder of the right lower extremity including footdrop as secondary to service- connected chronic recurrent lumbosacral strain with sciatic syndrome with probable nerve root compression, a chronic acquired left lower extremity disorder including footdrop as secondary to service-connected chronic recurrent lumbosacral strain with sciatic syndrome with probable nerve root compression, an increased evaluation for chronic recurrent lumbosacral strain with sciatic syndrome with probable nerve root compression, and a total disability evaluation for compensation purposes on the basis of individual unemployability will be addressed in the REMAND portion of the decision. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he has a chronic acquired variously diagnosed heart disorder including mitral valve prolapse, Sjogren’s syndrome, a chronic acquired liver disorder manifested by abnormal liver function tests, and fibrocytis of the locomotor apparatus due to Agent Orange exposure as the result of his 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 entitlement to service connection for a chronic acquired variously diagnosed heart disorder including mitral valve prolapse, Sjogren’s syndrome, a chronic acquired liver disorder manifested by abnormal liver function tests, and fibrocytis of the locomotor apparatus due to Agent Orange exposure are not well grounded. FINDING OF FACT The claims for service connection for a chronic acquired variously diagnosed heart disorder including mitral valve prolapse, a chronic acquired liver disorder manifested by abnormal liver function tests, Sjogren’s syndrome, and fibrocytis of the locomotor apparatus due to Agent Orange exposure 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 a chronic acquired variously diagnosed heart disorder, a chronic acquired liver disorder manifested by abnormal liver function tests, Sjogren’s syndrome, and fibrocytis of the locomotor apparatus due to Agent Orange exposure are not well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION Under applicable law, a veteran is entitled to service connection for a disease or injury incurred in or aggravated while in service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1995). A threshold question to be answered is whether the veteran has presented a well grounded claim; that is one that is plausible or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Although the claim need not be conclusive, it must be accompanied by supporting evidence. An allegation alone is not sufficient. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). The Board has determined that the veteran’s claims of entitlement to service connection for a chronic acquired variously diagnosed heart disorder including mitral valve prolapse, a chronic acquired liver disorder manifested by abnormal liver function tests, Sjogren’s syndrome, and fibrocytis secondary to Agent Orange exposure 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, Murphy. As such, there is no duty to assist the veteran in developing his case, and his claims must be denied. Tirpak, Rabideau v. Derwinski, 2 Vet.App. 141, 144 (1992). The Board observes that while the veteran has alleged incurrence of heart and liver disorders, Sjogren’s syndrome, and fibrocytis of the locomotor apparatus to his active service, the service medical records are negative for any evidence or finding of any of these disorders. Clinical evidence of the above disorders was initially reported in medical records, correspondence, and examination reports from VA and non-VA medical health professionals dated during the late 1980’s and early 1990’s. The veteran presented arguments in support of his contention that he currently has multiple disorders due to his period of service when he testified at RO hearings held in May 1991 and December 1994. His hearing testimony has been reviewed in its entirety and is essentially consistent with and a reiteration of his contentions presented on appeal. At no time has the appellant presented competent medical evidence linking the disorders at issue to his period of active service. As to the claim for service connection for residuals of Agent Orange exposure, the Board notes that if a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service- connected...even though there is no record of such diseases during service...chloracne or other acneiform disease consistent with chloracne, Hodgkin’s disease, multiple myeloma, non-Hodgkin’s lymphoma, porphyria cutanea tarda, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), or soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). 38 C.F.R. § 3.309(a) (1995). The veteran has claimed fibrocytis of the locomotor apparatus. Such disorder was not only not shown in service, it is not recognized by VA as a disorder associated with exposure to Agent Orange. 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 a chronic acquired variously diagnosed heart disorder including mitral valve prolapse, a chronic acquired liver disorder manifested by abnormal liver function tests, Sjogren’s syndrome, and fibrocytis of the locomotor apparatus secondary to Agent Orange exposure must be denied as not well grounded. The Board recognizes that the veteran’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 claim 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 deny his claims of service connection for a chronic acquired variously diagnosed heart disorder including mitral valve prolapse, a chronic acquired liver disorder manifested by abnormal liver function tests, Sjogren’s syndrome, and fibrocytis of the locomotor apparatus secondary to Agent Orange exposure. The Board views the discussion set forth above as sufficient to inform the veteran of the elements necessary to complete his application for claims for service connection for a chronic acquired variously diagnosed heart disorder including mitral valve prolapse, a chronic acquired liver disorder manifested by abnormal liver function tests, Sjogren’s syndrome, and fibrocytis of the locomotor apparatus secondary to Agent Orange exposure. 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 of entitlement to service connection for a chronic acquired variously diagnosed heart disorder including mitral valve prolapse, a chronic acquired liver disorder manifested by abnormal liver function tests, Sjogren’s syndrome, and fibrocytis of the locomotor apparatus, the claims are denied. REMAND A review of the record discloses that in correspondence and medical examination and treatment reports on file, private physicians have reached the conclusion that the veteran has a chronic acquired disorder of the cervical spine, and bilateral lower extremity disorders including footdrop as secondary to his service-connected chronic recurrent lumbosacral strain with sciatic syndrome with probable nerve root compression. The VA examiner who addressed these issues on a REMAND of the case to the RO for further development did not definitively respond to the RO’s inquiry as to the existence of such causal relationship. One private examiner has suggested that the veteran’s spinal and lower extremity disabilities may be part of one overall disease process. While the RO has noted in its adjudicative actions that it has service-connected lower extremity disability as a manifestation of the service-connected lumbosacral strain, it has not been clear as to which such disorders of the lower extremities have been service-connected. For example, it is not clear from the record whether footdrop of either lower extremity has been service-connected. The veteran’s psychiatric symptomatology has been variously diagnosed and includes post-traumatic stress disorder to account for his psychiatric symptomatology. No definite opinion is of record as to whether any of the veteran’s variously diagnosed psychiatric symptomatology, other than post-traumatic stress disorder, is related to his service- connected chronic recurrent lumbosacral strain with sciatic syndrome with probable nerve root compression, although there has been observed a general relationship between the veteran’s physical and psychiatric symptomatology. In Allen v. Brown, 7 Vet.App. 439 (1995), the United States Court of Veterans Appeals (Court) made clear that service connection may not only be granted for a disorder found to be proximately due to or the result of a service-connected disability, but also when it is shown that the claimed disorder has been aggravated by the service-connected disability. In such cases, according to the Court, a basis exists upon which to predicate a grant of entitlement to service connection on a secondary basis. Thus, pursuant to 38 U.S.C.A. § 1110 (West 1991); and 38 C.F.R. § 3.310(a) (1995), when aggravation of a veteran’s nonservice-connected disorder is proximately due to or the result of a service- connected disability, such veteran shall be compensated for the degree of disability, but only that degree over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.322 (1995). 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) (1995). In this regard, the record available to the Board shows that the veteran trained and served as a Supply Storage Specialist with the United States Army in Vietnam. His decorations include a Vietnam Service Medal with 2 Bronze Service Stars and a Vietnam Campaign Medal with a 60 device. He is not shown to have been awarded the Combat Infantryman Badge, Purple Heart, or any other decoration reflective of combat activity. He has, however, provided descriptions in several statements on file, as well as in a clinical setting, of his exposure to life threatening stressors in connection with his service in Vietnam. Still, the Board observes that the stressor information which the appellant has provided to the RO has not been referred to the United States Army and Joint Services Environmental Support Group (ESG) in an attempt to verify the claimed stressors. In this respect, the Board acknowledges that the information provided by the veteran probably is not as complete as the ESG will need to verify the existence of the veteran’s claimed stressors. 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 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 observes that VA psychiatrists have already determined that the veteran has post-traumatic stress disorder, and diagnoses of post-traumatic stress disorder are also contained in other evidence of record. 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. The Board is also of the opinion that contemporary comprehensive orthopedic, neurological, and psychiatric examinations to definitively ascertain whether the veteran has chronic acquired disorders of the cervical spine and both lower extremities, and a psychiatric disorder secondary to his service-connected chronic recurrent lumbosacral strain with sciatic syndrome with probable nerve root syndrome would materially assist in the adjudication of his appeal. Therefore, pursuant to VA’s duty to assist the veteran in the development of facts pertinent to his claims under 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1995), the Board will not decide the remaining issues for appellate review as reported on the title pages pending a REMAND of the case to the RO for further development as follows: 1. The RO should schedule the veteran for VA orthopedic and neurological examinations by physicians who have not previously seen or treated him to determine the nature, extent of severity, and etiology of any neck and lower extremity disorders which may be present. The examinations are to be conducted in accordance with the diagnostic procedures outlined in the VA Physician’s Guide for Disability Evaluation Examinations (AMIE Worksheet Numbers 1230, 1440, and 1450) (located in VBA/ARMS electronic database on CD-ROM update issued 21 September 1995), and all appropriate diagnostic studies must be accomplished. The veteran’s claims file must be made available to and reviewed by the examiners prior to their examinations. The examiners must be requested to provide opinions as to whether it is at least as likely as not that any disorders of the cervical spine and lower extremities found on examination are secondary to or aggravated by service- connected chronic recurrent lumbosacral strain with sciatic syndrome with probable nerve root syndrome. Per (Manual M21-1), Part VI, paragraph 7.62, the physicians should address each of the following medical issues: (1) the baseline manifestations which are due to the effects of nonservice-connected disorders of the cervical spine and lower extremities; (2) the increased manifestations which, in the examiners’ opinions, are proximately due to service- connected chronic recurrent lumbosacral strain with sciatic syndrome with probable nerve route compression based on medical considerations; and (3) the medical considerations supporting an opinion that the increased manifestations of nonservice-connected disorders of the cervical spine and both lower extremities are proximately due to service-connected chronic recurrent lumbosacral strain with sciatic syndrome and probable nerve root syndrome. If aggravation of nonservice- connected disorders of the cervical spine and both lower extremities is found to exist, the examiners should note the degree of aggravation. Any other source of aggravation should be identified. All aggravation shown to exist should be expressed in degrees. The examiners must provide opinions as to the impact of the veteran’s orthopedic and neurological disorders on his ability to obtain and retain substantially gainful employment. All opinions expressed must be accompanied by a complete rationale. If any requested opinion cannot be provided, the examiners must explain why. The examination reports must be typed. 2. 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 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 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. 3. 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. 4. 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 then to be added to the claims file. 5. 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 criteria 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 sub scales, are to be performed. The veteran’s claims file must be made available to and reviewed by the examiners prior to completion of the examinations. The examiners must be requested to provide an opinion as to whether it is at least as likely as not that the veteran currently has a psychiatric disorder secondary to or aggravated by his service-connected chronic recurrent lumbosacral strain with sciatic syndrome and probable nerve root compression. The psychiatrists are to address each of the following: (1) the baseline manifestations which are due to the effects of nonservice-connected psychiatric disorder(s); (2) the increased manifestations which, in the examiner’s opinion, are proximately due to service-connected chronic recurrent lumbosacral strain based on medical considerations; and (3) the medical considerations supporting an opinion that increased manifestations of nonservice- connected psychiatric disability are proximately due to service-connected chronic recurrent lumbosacral strain. If nonservice-connected psychiatric disability is shown to be aggravated by the service-connected chronic recurrent lumbosacral strain, the examiners must express the degree of aggravation. Any other source(s) of aggravation should be identified and also expressed in degrees. In determining whether or not the veteran has post-traumatic stress disorder due to 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(s) is/are 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 (GAF) which is consistent with the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, and explain what the score means. The examiners must express an opinion as to the impact of the veteran’s psychiatric disorders on his ability to obtain and retain substantially gainful employment. The examination reports must be typed. 6. Following completion of the above the RO should review the claims file to ensure that all requested development, particularly the examinations and required opinions are in complete compliance with the directives of this REMAND and if not, the RO should implement corrective procedures. 7. After undertaking any development deemed appropriate in addition to that outlined above, the RO should readjudicate the issues as reported on the title pages. If the benefits requested on appeal are 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. WARREN W. RICE, JR. 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 -