Citation NR: 9620552 Decision Date: 07/23/96 Archive Date: 08/02/96 DOCKET NO. 94-22 089 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder. 2. Entitlement to service connection for residuals of shell fragment wounds. 3. Entitlement to service connection for a chronic acquired skin disorder, claimed on the basis of Agent Orange exposure. 4. Entitlement to service connection for pneumonia. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Ronald R. Bosch, Counsel INTRODUCTION The veteran served on active duty from September 1966 to September 1968. This appeal arose from a March 1993 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The RO denied entitlement to service connection for shrapnel wounds and pneumonia. The RO denied entitlement to service connection for a chronic acquired skin disorder on the basis of Agent Orange exposure when it issued a rating decision in April 1994. The RO denied entitlement to service connection for post- traumatic stress disorder when it issued a rating decision in March 1995. The RO affirmed the denial of entitlement to service connection for post-traumatic stress disorder when it issued a rating decision in August 1995. The case has been forwarded to the Board of Veterans’ Appeals (Board) for appellate review. The issues of entitlement to service connection for post- traumatic stress disorder, shell fragment wounds, and a chronic acquired skin disorder on the basis of Agent Orange exposure will be addressed in the remand portion of the decision. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he has residuals of pneumonia for which he was treated in active service, thereby warranting entitlement to a grant 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 claim for service connection for pneumonia is not well grounded. FINDING OF FACT The claim for service connection for pneumonia is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. CONCLUSION OF LAW The claim for service connection for pneumonia is not well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION Under the 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 (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 supportive 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 competent 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 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, none of the required elements discussed above have been met. The Board notes that on one occasion in service the veteran was treated for an upper respiratory infection reported in January 1967. He was never diagnosed with pneumonia. No residuals of the upper respiratory infection were shown when the appellant was examined for separation from service in September 1968. At that time he denied a history of all pertinent respiratory symptomatology and the clinical evaluation of the lungs and chest was normal. The October 1991 VA medical examination disclosed no evidence of a chronic acquired respiratory disorder linked to an upper respiratory infection reported in service approximately 23 years previously. The post service medical documentation on file from VA and non-VA medical health professionals is negative for the presence of a chronic acquired respiratory disorder linked to an upper respiratory infection in service. The veteran and his wife provided testimony at an RO hearing held in October 1993. The appellant testified that he required treatment for double pneumonia in service. The Board’s evaluation of the evidentiary record discloses the veteran is not shown to have a chronic acquired respiratory disorder he claims is linked to treatment for pneumonia in service. Both service and post service medical documentation on file is negative for pneumonia. If there is no evidence of any current disability associated with events in service, there can be no well grounded claim. Robinette, 2 Vet.App. at 144; see also Brammer, 3 Vet.App. at 225 (in absence 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 pneumonia. 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). In reaching this determination, the Board recognizes that this issue is being disposed of in a manner that differs 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. In such a situation, the Board is not denying service connection on the merits, but rather is finding that the veteran failed to meet his obligation of presenting a claim that is plausible, or capable of substantiation, at this time. 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 pneumonia. 38 U.S.C.A. § 5103(a) (West 1991); see Robinette, 8 Vet.App. at 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 The veteran not having submitted a well grounded claim of entitlement to service connection for pneumonia, the claim is denied. REMAND As to service connection for a chronic acquired skin disorder on the basis of Agent Orange exposure, the Board notes that the veteran served a tour of duty with the United States Army in Vietnam. He is therefore presumed to have been exposed to Agent Orange. While no skin disorder was shown in service, the veteran was treated by VA on an outpatient basis during the 1980’s for variously diagnosed skin disorders. His October 1991 VA general medical examination report concluded in a finding of Agent Orange exposure with multiple lesions present in the scabbed phase over the trunk, legs and arms. The evidentiary record is unclear as to whether the veteran has a chronic acquired skin disorder related to Agent Orange exposure in service. A contemporaneous VA dermatology examination of the appellant would materially assist in the adjudication of this issue on 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(s) 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 veteran trained as a military policeman and served a tour of duty with the United States Army in Vietnam. His decorations include a Vietnam Campaign Medal, and a Vietnam Service Medal. Although the veteran testified otherwise at the RO hearing, he is not shown to have been awarded a Purple Heart Medal, or other decoration reflective of combat activity such as a Combat Infantryman Badge. The veteran has contended that he was in fact wounded while serving in Vietnam. His service medical records are negative in this regard. However, Morning Reports (MR’s), DA Form 1, which could be used to verify daily personnel actions such as wounded in action, could be ordered from the Director, National Archives and Records Administration (NARA). The veteran has provided several statements on file pertaining to stressors to which he alleges he was exposed in connection with his Vietnam service. His stressor statements are not as sufficiently detailed as they could be, and the RO has not referred any of the information provided by the veteran 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 stressor information is not sufficiently complete to permit the ESG to verify such stressor information. 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 the veteran has been diagnosed with post-traumatic stress disorder by VA and non-VA mental health professionals. An examination based on a questionable history, however, is inadequate for rating purposes, West v., Brown, 7 Vet.App. 70, 77-8 (1994). Thus, it is necessary that the veteran be provided an examination where the examiner has an accurate and verified history of the appellant’s military service. Therefore, pursuant to VA’s duty to assist the veteran in the development of facts pertinent to his claims under 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1995), the Board is deferring adjudication of the issues of entitlement to service connection for a chronic acquired skin disorder on the basis of Agent Orange exposure, shell fragment wounds, and post-traumatic stress disorder pending a remand of the case to the RO for further development as follows: 1. The RO should arrange for a special dermatology examination of the veteran by VA to determine whether he has a chronic acquired skin disorder related to Agent Orange exposure in service. The examination is to be conducted in accordance with the diagnostic procedures outlined in the VA Physician’s Guide for Disability Evaluation Examinations. All indicated studies are to be conducted. The claims file must be made available to and reviewed by the examiner prior to conduction and completion of the examination. The examiner must be requested to provide an opinion as to whether any skin disorder(s) found on examination is/are related to Agent Orange exposure in service. 2. The RO should request and associate with the claims file Morning Reports (MR’s), DA Form 1, from the Director, National Archives and Records Administration (NARA), ATTN: NCPMA-O, 9700 Page Boulevard, St. Louis, Missouri 63132. 3. If information obtained from NARA confirms the veteran was in fact wounded in Vietnam, the RO should schedule the appellant for a VA surgical examination to determine the nature and extent of severity of shell fragment wounds reported to have been sustained in service. The examination is to be conducted in accordance with the diagnostic procedures outlined in the VA Physician’s Guide for Disability Evaluation Examinations. All indicated studies must be conducted. The claims file must be made available to and reviewed by the examiner prior to conduction and completion of the examination. 4. If NARA did not confirm the veteran’s allegations of having been wounded in service and there is no documentation of a Purple Heart, the RO should request from the appellant 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 names, 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). 5. After obtaining the foregoing requested information from the claimant, the RO should forward it together with copies of the veteran’s service personnel records (on file) and service medical 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. 6. 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 folder. 7. Then, and only then, should the RO schedule the veteran for a psychiatric examination by a board of two VA psychiatrists who have not previously seen, 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, 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(s) detailed in the ESG’s and/or the RO’s report is/are responsible for that 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. 8. 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. 9. 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 chronic acquired skin disorder secondary to Agent Orange exposure, shell fragment wounds, and post-traumatic stress disorder. 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 -