Citation NR: 9612740 Decision Date: 05/10/96 Archive Date: 05/21/96 DOCKET NO. 94-24 929 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for a hearing loss of the right ear, a chronic acquired disorder manifested by musculoskeletal pain, bronchitis, hypertension, heart disease, a chronic acquired variously diagnosed genitourinary disorder claimed as a bladder disorder, a chronic acquired variously diagnosed skin disorder, and a chronic acquired disorder manifested by headaches. 2. Entitlement to service connection for a chronic acquired variously diagnosed psychiatric disorder including post- traumatic stress disorder with dysthymia with secondary alcoholism and residuals of LSD therapy for alcoholism. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Ronald R. Bosch, Counsel INTRODUCTION The veteran served on active duty from August 1954 to August 1957. This appeal arose from an October 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. The RO, in relevant part, denied entitlement to service connection for hypertension, musculoskeletal chest pain, headaches, bladder problems with urinary tract problems, impotency, skin rash, pneumonia and lung problems, hearing loss, and a psychiatric disorder. The RO affirmed the determinations previously entered and denied entitlement to service connection for post-traumatic stress disorder when it issued a rating decision in May 1993. The RO affirmed the determinations previously entered when it issued a rating decision in June 1993. The RO granted entitlement to service connection for a left hearing loss with assignment of a noncompensable evaluation when it issued a rating decision in September 1994. The RO affirmed the determinations previously entered when it issued a rating decision in October 1994. The RO affirmed the denial of entitlement to service connection for post-traumatic stress disorder when it issued rating decisions in July 1995 and January 1996. The case has been forwarded to the Board of Veterans’ Appeals (Board) for appellate review. The issues of entitlement to service connection for a right ear hearing loss and a chronic acquired variously diagnosed psychiatric disorder including post-traumatic stress disorder with dysthymia and secondary alcoholism and residuals of LSD therapy for alcoholism will be addressed in the REMAND portion of this decision. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he currently suffers from a chronic acquired disorder manifested by musculoskeletal pain, bronchitis, hypertension, heart disease, a chronic acquired variously diagnosed genitourinary disorder claimed as a bladder disorder, a chronic acquired variously diagnosed skin disorder, and a chronic acquired disorder manifested by headaches 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 service connection for a chronic acquired disorder manifested by musculoskeletal pain, bronchitis, hypertension, heart disease, a chronic acquired variously diagnosed genitourinary disorder claimed as a bladder disorder, a chronic acquired variously diagnosed skin disorder, and a chronic acquired disorder manifested by headaches are not well grounded. FINDING OF FACT The claims for service connection for a chronic acquired disorder manifested by musculoskeletal pain, bronchitis, hypertension, heart disease, a chronic acquired variously diagnosed genitourinary disorder claimed as a bladder disorder, a chronic acquired variously diagnosed skin disorder, and a chronic acquired disorder manifested by headaches 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 disorder manifested by musculoskeletal pain, bronchitis, hypertension, heart disease, a chronic acquired variously diagnosed genitourinary disorder claimed as a bladder disorder, a chronic acquired variously diagnosed skin disorder, and a chronic acquired disorder manifested by headaches are not well grounded. 38 U.S.C.A. § 5107 (West 1991 and Supp. 1995). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has determined that the veteran’s claims of entitlement to service connection for a chronic acquired disorder manifested by musculoskeletal pain, bronchitis, hypertension, heart disease, a chronic acquired variously diagnosed genitourinary disorder claimed as a bladder disorder, a chronic acquired variously diagnosed skin disorder, and a chronic acquired disorder manifested by headaches 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 appellant in developing his case, and his claims must be denied. Tirpak, Rabideau v Derwinski, 2 Vet.App. 141, 144 (1992). The Board notes that the only service medical documentation on file is the veteran’s report of medical examination for discharge dated in July 1957. The discharge examination report is negative for any of the multiple disorders at issue for which compensation benefits are requested. The RO’s efforts to obtain the appellant’s complete service medical records have been unsuccessful. The National Personnel Records Center has informed the RO on more than one occasion that the veteran has fire related service. In other words, any of the veteran’s medical records which may have been on file were destroyed in the 1973 fire at the center. None of the disorders at issue for which compensation benefits are sought on appeal was shown in service, and clinical evidence of such disorders was initially reported several years following service. The veteran provided testimony at two hearings held at the RO, and the claims file contains correspondence from a service comrade and a life long friend in support of the appeal. However, the veteran’s testimony is not persuasive to permit the Board to conclude that any of the multiple disorders at issue had their onset in service in view of the separation examination report on file. The same may be said for the lay statements which, absent supportive service medical documentation, in and of themselves provide no basis to permit the conclusion that any of the multiple disorders at issue began in service. While the veteran has submitted a substantial quantity of VA and non-VA medical documentation referable to the disorders for which compensation benefits are sought on appeal, he has not submitted any competent medical evidence linking the post service reported disorders to his period of active service. The veterans’ claims are essentially based on his allegations. 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 disorder manifested by musculoskeletal pain, bronchitis, hypertension, heart disease, a chronic acquired variously diagnosed genitourinary disorder claimed as a bladder disorder, a chronic acquired variously diagnosed skin disorder, and a chronic acquired disorder manifested by headaches 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 veteran’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 deny his claims of service connection for a chronic acquired disorder manifested by musculoskeletal pain, bronchitis, hypertension, heart disease, a chronic acquired variously diagnosed genitourinary disorder claimed as a bladder disorder, a chronic acquired variously diagnosed skin disorder, and a chronic acquired disorder manifested by headaches. 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 disorder manifested by musculoskeletal pain, bronchitis, hypertension, heart disease, a chronic acquired variously diagnosed genitourinary disorder claimed as a bladder disorder, a chronic acquired variously diagnosed skin disorder, and a chronic acquired disorder manifested by headaches. 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 evidence of well grounded claims of entitlement to service connection for a chronic acquired disorder manifested by musculoskeletal pain, bronchitis, hypertension, heart disease, a chronic acquired variously diagnosed genitourinary disorder claimed as a bladder disorder, a chronic acquired variously diagnosed skin disorder, and a chronic acquired disorder manifested by headaches, the claims are 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) (195). In this regard, the record available to the Board shows that the veteran trained and served as a light weapons infantryman with the United States Army in Korea. His tour of duty in Korea began after the cease fire; nonetheless, the veteran states that he was exposed to personal life threatening experiences which caused onset of post-traumatic stress disorder. His record of service contains no decorations. The appellant is not shown to have been awarded the Combat Infantryman Badge, Purple Heart, or any other decoration reflective of combat activity. The appellant did not respond to a detailed letter from the RO requesting stressor information. The appellant has provided statements of experiences in service and testified as to same at the RO hearings Still, the Board observes that the stressor information which the appellant has supplied 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 his 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 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 VA and non-VA medical health professionals have already determined that the veteran has post-traumatic stress disorder, and diagnoses of post- traumatic stress disorder are contained in correspondence 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 notes that veteran claims he was exposed to heavy artillery fire while on active duty, and that consequently such exposure occasioned his development of a hearing loss in his right ear. The audiology examinations on file confirm the presence of right defective hearing; however, no opinion has been expressed by an audiologist as to the etiology of the veteran’s right hearing loss. 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); 38 C.F.R. § 3.103(a) (1995), the Board will not decide the issues of entitlement to service connection for a right ear hearing loss and for a chronic acquired variously diagnosed psychiatric disorder including post-traumatic stress disorder with dysthymia and secondary alcoholism and residuals of LSD therapy for alcoholism pending a REMAND of the case to the RO for further development as follows: 1. The RO should schedule the veteran for a VA audio-ear disease examination for the purpose of ascertaining the nature, extent of severity, and etiology of any right ear hearing loss which may be present. 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 Numbers 1305 and 1306) (located in VBA/ARMS electronic database on CD-ROM update issued 29 February 1996), and all appropriate studies should be performed. The claims file must be made available to and reviewed by the examiner prior to conduction and completion of the examination. In the examination report the audiologist must be requested to provide an opinion as to whether it is at least as likely as not that any right ear disorder(s) found on examination is/are related to the veteran’s reported exposure to a noisy environment in service. The opinion provided must be accompanied by a complete rationale. 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 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 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 the 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 procedures outlined in the VA Physician’s Guide for Disability Evaluation Examinations (AMIE Worksheet Numbers 0905 and 0910) (located in VBA/ARMS electronic database on CD-ROM update issued 29 February 1996), 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 conduction and completion of 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. If post-traumatic disorder is determined to be present, the examiners must provide an opinion as to whether it is at least as likely as not that any other psychiatric disorder(s) found on examination such as alcoholism and residuals of LSD therapy for alcoholism are causally related thereto or aggravated by post-traumatic stress disorder. 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. 6. 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 audio-ear disease examination report and requested opinion, and 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. 7. After undertaking any development deemed appropriate in addition to that specified above, the RO should readjudicate the issues of entitlement to service connection for a right ear hearing loss, and service connection for a chronic acquired variously diagnosed psychiatric disorder including post- traumatic stress disorder with dysthymia and secondary alcoholism and residuals of LSD therapy for alcoholism. 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. BRUCE KANNEE 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 -