Citation NR: 9614342 Decision Date: 05/22/96 Archive Date: 06/04/96 DOCKET NO. 93-07 532 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a chronic acquired variously diagnosed psychiatric disorder claimed as post- traumatic stress disorder with alcoholism as secondary thereto. 2. Entitlement to service connection for hearing loss. 3. Entitlement to service connection for residuals of Agent Orange exposure. 4. Entitlement to service connection for a chronic acquired variously diagnosed gastrointestinal disorder including peptic ulcer disease. 5. Entitlement to service connection for a chronic acquired variously diagnosed genitourinary disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARINGS ON APPEAL Appellant and [redacted] ATTORNEY FOR THE BOARD Ronald R. Bosch, Counsel INTRODUCTION The veteran served on active duty from August 1954 to August 1974. This appeal arose from a July 1991 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The RO, in relevant part, denied entitlement to service connection for a chronic acquired variously diagnosed psychiatric disorder including post- traumatic stress disorder. In a February 1992 rating decision the RO affirmed the determination previously entered and denied entitlement to service connection for hearing loss, a chronic acquired gastrointestinal disorder including peptic ulcer disease, a chronic acquired genitourinary disorder including a prostate disorder and urethritis, and residuals of Agent Orange exposure. The Board of Veterans' Appeals (Board) REMANDED the case to the RO for further development in March 1994. The RO affirmed the denial of entitlement to service connection for post-traumatic stress disorder and a chronic acquired genitourinary disorder when it issued a rating decision in March 1995. The case has been returned to the Board for further appellate review. The issues of entitlement to service connection for hearing loss and a chronic acquired variously diagnosed psychiatric disorder including post-traumatic stress disorder with alcoholism secondary thereto will be addressed in the REMAND portion of the decision. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he has chronic acquired gastrointestinal and genitourinary disorders related to service in view of his extensive treatment for same while he was on active duty, thereby warranting entitlement to service connection. The appellant further argues that he suffers from residuals of exposure to Agent Orange in view of his participation in Operation Ranchhand while on active duty, 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 files. 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 preponderance of the evidence is against grants of entitlement to service connection for chronic acquired variously diagnosed gastrointestinal and genitourinary disorders, and that the claim for service connection for residuals of Agent Orange exposure is not well grounded. FINDINGS OF FACT 1. During active service the veteran was treated for variously diagnosed genitourinary disorders which resolved without residual disability as no genitourinary disorder was shown when the veteran was examined for retirement in December 1973, nor when examined by VA in December 1994. 2. During active service the veteran was treated for variously diagnosed gastrointestinal symptomatology and was suspected to have peptic ulcer disease; however, this was never confirmed on diagnostic studies. 3. No gastrointestinal disorder was shown when the veteran was examined for retirement in December 1973, at which time he reported he had been asymptomatic as to gastrointestinal symptomatology. 4. A chronic acquired gastrointestinal disorder is not shown post service or presently. 5. The claim for service connection for residuals of Agent Orange exposure is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. CONCLUSIONS OF LAW 1. A chronic acquired variously diagnosed genitourinary disorder was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991 and Supp. 1995); 38 C.F.R. § 3.303(b) (1995). 2. A chronic acquired variously diagnosed gastrointestinal disorder was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303(b). 3. The claim for service connection for residuals of Agent Orange exposure is not well grounded. 38 U.S.C.A. § 5107. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board notes that, as to service connection for chronic acquired variously diagnosed genitourinary and gastrointestinal disorders, the veteran has presented evidence of well grounded claims within the meaning of 38 U.S.C.A. § 5107(a), in that it is plausible he has chronic genitourinary and gastrointestinal disorders related to service. The Board is satisfied that as a result of the March 1994 remand of the case to the RO for further development, no further assistance to the veteran is required in order to comply with 38 U.S.C.A. § 5107(a). I. Entitlement to service connection for a chronic acquired variously diagnosed genitourinary disorder. A review of the service medical records discloses that when examined for enlistment in August 1954, the veteran denied a history of all genitourinary symptomatology, and no genitourinary disorder was found on examination. Beginning in 1955 he complained of genitourinary discharges which were recurrent in nature with frequent urination and he received treatment therefore on a symptomatic basis. He was hospitalized in February 1958 for chronic, prostatic, posterior, nonvenereal urethritis. The appellant denied all genitourinary symptomatology when examined for retirement from service in December 1973, at which time the clinical evaluation of the genitourinary system was normal. Private treatment reports on file show the claimant was treated for problems achieving erections in 1990, prostatitis in 1991 and for urethritis in 1992. The veteran and his friend appeared before a travel member of the Board sitting at the RO in July 1993 to advance testimony and contentions in support of the claim for service connection for a chronic acquired variously diagnosed genitourinary disorder. A December 1994 VA special genitourinary examination concluded in a diagnosis of history of prostatitis with no current pathology evident. The examiner noted he suspected psychogenic impotence and recorded there was no evidence of disability related to the genitourinary tract. The veteran and his friend provided testimony before a travel member of the Board sitting at the RO in January 1996. The Board's evaluation of the evidence of record does not permit the conclusion that the veteran currently has a chronic acquired variously diagnosed genitourinary disorder related to his period of service. In this regard the Board observes that while the veteran required inservice treatment for variously diagnosed genitourinary symptomatology, such symptomatology resolved without residual disability as no genitourinary disorder was shown when the appellant was examined for retirement from service in 1973. The post service record shows the appellant has been treated infrequently for genitourinary symptoms nearly twenty years following service, and no chronic acquired genitourinary disorder was found when he was examined by VA in 1994. There is no competent medical evidence present of record showing that the veteran has a chronic acquired genitourinary disorder related to service. The veteran is not shown to have a chronic acquired variously diagnosed genitourinary disorder related to his period of service. No continuity of genitourinary symptomatology reported in service is shown to exist post service. 38 C.F.R. § 3.303(b). It is the finding of the Board that the record does not support a grant of entitlement to service connection for a chronic acquired variously diagnosed genitourinary disorder. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303(b). II. Entitlement to service connection for a chronic acquired variously diagnosed gastrointestinal disorder. A review of the service medical records shows the veteran reported a history of appendicitis when examined for enlistment in August 1954, at which time his abdomen and viscera were noted to be normal. In June 1962 he was hospitalized for suspicion of peptic ulcer disease; however, this was never confirmed on the basis of extensive diagnostic studies. In September 1965 he was treated for gastritis. During late 1965 he was again suspected to have peptic ulcer disease and was under a treatment regimen therefor. When examined in September 1967 the veteran reported a history of treatment for duodenal ulcer noted to have resolved and been asymptomatic. No gastrointestinal disorder was found. A history of duodenal ulcer in 1963 was reported by history when the appellant was examined for retirement in November 1971. This disorder was noted to have resolved and the veteran was noted to have been asymptomatic. The clinical evaluation of the abdomen and viscera was normal. The veteran reported a history of ulcer disease when examined by VA in March 1991. The appellant and his friend testified in support of his claim for service connection for a chronic acquired variously diagnosed gastrointestinal disorder before a travel member of the Board sitting at the RO in July 1993, and in January 1996. The Board's evaluation of the evidence of record does not permit the conclusion that the veteran currently has a chronic acquired variously diagnosed gastrointestinal disorder related to his period of service. While the appellant was treated early in service for gastrointestinal symptomatology believed to have been reflective of peptic ulcer disease, such disorder was never confirmed to be present. Furthermore, the veteran reported on later examinations including the retirement examination that he had been asymptomatic as to gastrointestinal symptomatology. The post service medical evidence of record is devoid of any documentation of a gastrointestinal disorder no matter how classified including peptic ulcer disease. There exists no competent medical evidence on file showing that the appellant currently has a chronic acquired gastrointestinal disorder related to his period of service. The Board has no alternative but to find that the record does not support a grant of entitlement to service connection for a chronic acquired variously diagnosed gastrointestinal disorder including peptic ulcer disease. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303(b). III. Entitlement to service connection for residuals of Agent Orange Exposure. Under applicable law, a veteran is entitled to service connection for a disease or injury incurred or aggravated while in service. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 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 acneform 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(e) (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). Three discrete types of evidence must be present in order for a veteran's claim for benefits to be well grounded: (1) There must be evidence of a current disability, usually shown by a medical diagnosis. See Brammer v. Derwinski, 3 Vet.App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet.App. 141, 144 (1992); (2) There must be competent evidence of incurrence or aggravation of a disease or injury in service. This element may be shown by lay or medical evidence. See Layno v. Brown, 6 Vet.App. 465, 469 (1994); Cartwright v. Derwinski, 2 Vet.App. 24, 25 (1991); and (3) There must be competent evidence of a nexus between the inservice injury or disease and the current disability. Such a nexus must be shown by medical evidence. See Lathan v. Brown, 7 Vet.App. 359, 365 (1995); Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). In determining whether a claim is well grounded, the Board is required to presume the truthfulness of the evidence. Robinette v. Brown, 8 Vet.App. 69, 77-8 (1995); King v. Brown, 5 Vet.App. 19, 21 (1993). In the veteran's case, the above discussed elements have not been satisfied. The veteran is not shown either in service or post service to have a disorder which has been recognized by VA to be associated with exposure to Agent Orange. There is no dispute with the veteran's contention that he was exposed to Agent Orange as he has described participation in Operation Ranchhand and has discussed such participation during hearings held before a travel member of the Board sitting at the RO on two different occasions. However, the veteran has not claimed or shown by competent medical evidence that he has any of the disorders recognized by VA as associated with Agent Orange exposure. The veteran has couched his contentions in vague descriptions of skin eruption; however, no disorder for VA compensation purposes in connection with Agent Orange exposure is shown to exist. In summary, the Board finds that the veteran does not have a disorder under the law linked to his exposure to Agent Orange in service. If there is no evidence of any current disability associated with events in service, there can be no well grounded claim. Rabideau, 2 Vet.App. at 144; see also Brammer, 3 Vet.App. at 225 (in absence of evidence of a current disability, there can be no valid claim for service connection). Therefore, it is the judgment of the Board that the veteran has failed to meet his initial burden of submitting evidence of a well grounded claim for entitlement to service connection for residuals of exposure to Agent Orange. If a claim is not well grounded, the Board does not have jurisdiction to adjudicate the claim. Boeck v. Brown, 6 Vet.App. 14, 17 (1993). When no question of law or fact is present over which the Board has jurisdiction, a veteran's claim must be denied. 38 U.S.C.A. § 7105(d)(5) (West 1991 and Supp. 1995). In reaching this determination, the Board recognizes that this issue is being disposed of in a manner different from that utilized by the RO. The Board has, therefore, considered whether the veteran has been given adequate notice to respond, and if not, whether he has been prejudiced thereby. Bernard v. Brown, 4 Vet.App. 384, 394 (1993). In light of the veteran's 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 appeal. The Board views the above discussion as sufficient to inform the veteran of the elements necessary to complete his application for a claim for service connection for residuals of Agent Orange exposure. 38 U.S.C.A. § 5103(a) (West 1991 and Supp. 1995); see Robinette, 8 Vet.App. t 77-8; 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 Entitlement to service connection for a chronic acquired variously diagnosed genitourinary disorder is denied. Entitlement to service connection for a chronic acquired variously diagnosed gastrointestinal disorder is denied. The veteran not having submitted evidence of a well grounded claim of entitlement to service connection for residuals of Agent Orange exposure, the claim is denied. REMAND The Board notes that the veteran served for twenty years in the United States Air Force and such service included his proximity to jet engine noise. He has not been examined by VA to determined the nature, extent of severity, and etiology of any hearing disorder, including tinnitus discussed at the January 1996 hearing before a travel member of the Board, which may be present. The Board is of the opinion that a contemporaneous comprehensive VA audio-ear disease examination of the veteran with an opinion from the audiologist as to the etiology of any hearing disorders which may be found would materially assist in the adjudication of the appeal. 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 discloses that the veteran trained and served as an avionics instrument repairman with the United States Air Force. He reportedly flew at least 200 combat missions and is a recipient of the Air Medal, and Vietnam Service Medal, among other decorations. The appellant is not shown to have been awarded a Purple Heart or any other decoration reflective of combat activity. The appellant has provided rather brief statements pertaining to stressors experienced in service; however, he did not respond to an RO stressor development letter sent to him in November 1994. He has merely referred to the injury of a friend as "Walters." 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 necessary. The Board also observes that private psychiatrists have diagnosed the veteran with post-traumatic stress disorder since 1983; however VA psychiatrists have determined that the appellant does not meet the full criteria for such diagnosis. The veteran submitted a medical statement from a VA psychologist in November 1995 noting a diagnosis of post- traumatic stress disorder. An examination based on a questionable history, however, is inadequate for rating purposes, West v. Brown, 7 Vet.App. 70, 77-78 (994). Thus it is necessary that the veteran be provided an examination where the examiner has an accurate and verified history of the appellant's service. The Board also notes that during service the veteran was treated for variously diagnosed psychiatric symptomatology such as anxiety neurosis, anxiety reaction, situational adjustment reaction, and alcoholism. The appellant argues that his alcoholism is secondary to his psychiatric disorder which he claims is related to service and has been found to be post-traumatic stress disorder. The Board is of the opinion that a contemporaneous comprehensive VA psychiatric examination of the veteran by a board of two psychiatrists would materially assist in the adjudication of the 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 issues of entitlement to service connection for hearing loss and a chronic acquired variously diagnosed psychiatric disorder including post- traumatic stress disorder with alcoholism claimed as secondary thereto 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 purposes of ascertaining the nature, extent of severity, and etiology of any ear disorder(s) which may be present. 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 Numbers 1305 and 1306) (located in VBA/ARMS electronic database on CD-ROM update issued 29 February 1996), and all appropriate studies are to be conducted. The claims file must be made available to and reviewed by the examiner prior to the examination. In the examination report the VA examiner must be requested to provide an opinion as to whether it is at least as likely as not that any ear disorder(s) including tinnitus found on examination is/are related to the veteran's occupational history as an aircraft maintenance man in service. The opinion provided must be accompanied by a compete rationale. The examination report 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 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 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 the appeal. 3. After obtaining the foregoing requested information from the veteran, the RO should forward it with copies of obtained service personnel records (on file), and copies of his records of service (DD-214's) 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 VA special psychiatric examination by a board of two psychiatrists who have not previously examined 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 psychiatrists prior to conduction and completion of the examination. The examiners must be requested to provide opinions as to whether it is at least as likely as not that any disorder(s) found on examination are related to service documented variously diagnosed psychiatric disorders. 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. The examiners must be requested to provide an opinion as to whether alcoholism is causally related to 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 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 hearing loss and a chronic acquired variously diagnosed psychiatric disorder including post- traumatic stress disorder with alcoholism secondary thereto. 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 RO 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 -