Citation NR: 9628002 Decision Date: 10/04/96 Archive Date: 10/15/96 DOCKET NO. 95-08 001 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for post traumatic stress disorder. 2. Entitlement to service connection for a chronic acquired back disorder. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Ronald R. Bosch, Counsel INTRODUCTION The veteran served on active duty from November 1966 to March 1969. This appeal arose from a May 1994 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The RO, in pertinent part, denied entitlement to service connection for post traumatic stress disorder and a chronic acquired back disorder. The RO affirmed the determination previously entered when it issued a rating decision in December 1994. The case has been forwarded to the Board of Veterans’ Appeals (Board) for appellate review. The issue of entitlement to service connection for post traumatic stress disorder will be addressed in the remand portion of the decision. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he has a chronic acquired back disorder which originated coincident with his period of active service as the result of trauma, 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 a chronic acquire back disorder is not well grounded. FINDING OF FACT The claim for service connection for a chronic acquired back disorder 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 a chronic acquired back disorder is not well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION Factual Background The March 1966 report of general medical examination for induction shows the clinical evaluation of the spine was normal. The veteran denied a clinical history of recurrent back pain. In January 1968 he was treated for low back strain. There was no spasm. The appellant denied a clinical history of back trouble of any kind when he completed the report of medical history portion of the separation examination conducted in March 1969. The clinical evaluation of the spine was normal. VA and non-VA outpatient treatment reports dated in 1993 show the veteran received medical care for complaints of back pain. When seen privately in September 1993 the appellant reported a history of back pain since 1969. Degenerative joint disease with spinal stenosis at L5-S1 was diagnosed in December 1993. An April 1994 VA special orthopedic examination concluded in a diagnosis of low back pain, rule out degenerative joint disease. X-ray revealed disc space narrowing and degenerative change at L5-S1. There were only minor degenerative changes without disc space narrowing above that level. Analysis Section 5107 of Title 38, United States Code unequivocally places an initial burden upon the claimant to produce evidence that his claim is well grounded; that is, that the claim is plausible. See Grivois v. Brown, 6 Vet.App. 136, 139 (1994); see also Grottveit v. Brown, 5 Vet.App. 91, 92 (1993). Because the veteran has failed to meet this burden, the Board finds that his claim for service connection for a chronic acquired back disorder is not well grounded and should be denied. Where the determinative issue involves causation or a medical diagnosis, competent medical evidence to the effect that the claim is plausible or possible is required. See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). The claimant does not meet this burden by merely presenting his lay opinion because he is not a medical health professional and does not constitute competent medical authority. See Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Consequently, his lay assertions cannot constitute cognizable evidence, and as cognizable evidence is necessary for a well grounded claim, see Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992), the absence of cognizable evidence renders a veteran’s claim not well grounded. The Board notes that the veteran was treated on one occasion in service for low back strain. When he was examined for separation from service he denied a history of back trouble of any kind and no abnormality of the back was found on examination. The post service medical documentation of back symptomatology does not begin until 1993, approximately 24 years following the appellant’s separation from service. While the appellant has been found to have a chronic acquired back disorder, there is no competent medical evidence of record linking the post service reported back disorder to a solitary episode of low back strain reported in service. The veteran’s claim is based upon his allegation that his currently diagnosed back disorder originated coincident with his period of active service. He is not a medically trained health professional and as a lay person does not constitute competent medical authority to render an opinion as to diagnosis or causation. See Grivois v. Brown, 6 Vet.App. 136 (1994). As it is the province of trained health care professionals to enter conclusions which require medical opinions as to causation, see Grivois, the veteran’s lay opinion is an insufficient basis to find this claim well grounded. See Espiritu. Accordingly, as a well grounded claim must be supported by evidence, not merely allegations, see Tirpak, the veteran’s claim for service connection for a chronic acquired back disorder must be denied as not well grounded. The Board recognizes that the veteran’s claim has 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. See 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 claim for service connection for a chronic acquired back disorder. 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 a chronic acquired back disorder. 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 a well grounded claim of entitlement to service connection for a chronic acquired back disorder, the claim is 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 in service stressor(s) actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed in service stressor. 38 C.F.R. § 3.304(f) (1994). In this regard the Board notes the veteran trained as a cook and served a tour of duty with the United States Army in Vietnam. His decorations include a Vietnam Service Medal and a Republic of Vietnam Campaign Medal. The appellant is not shown to have been awarded a Purple Heart Medal, Combat Infantryman Badge, or other decoration reflective of combat activity. The stressor information provided by the veteran 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 stressor information provided by the veteran is not sufficiently complete or detailed 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 in service 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 as well as non-VA psychiatrists. An examination based on a questionable history, however, is inadequate for rating purposes. See West v. Brown, 7 Vet.App. 70, 77-8 (1994). Thus, it is necessary that the veteran be provided an examination where the examiner has an accurate and verified history of the appellant’s military service. Therefore, pursuant to VA’s duty to assist the veteran in the development of facts pertinent to his claim under 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1995), the Board will not decide the issue of entitlement to service connection for post traumatic stress disorder pending a remand of the case to the RO for further development as follows: 1. The RO should request from the veteran a statement containing as much detail as possible regarding any and all stressful events to which he was exposed in service. He should be asked to provide specific details of the claimed stressful events to the best of his ability. The veteran’s statement should include dates, places, detailed descriptions, units of service, duty assignments, as well as the 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. See Wood v. Derwinski, 1 Vet.App. 190. 193 (1991). 2. After obtaining the foregoing requested information from the appellant, the RO should forward it together with copies of the claimant’s service personnel records and medical records, and a copy of his record of service (DD- 214) to the United States Army and Joint Services Environmental Support Group (ESG), Suite 101, 7798 Cissna Road, Springfield, Virginia 22150, in an attempt to verify any claimed stressor. Any information obtained is to be associated with the claims file. 3. Following receipt of the ESG’s report, and the completion of any additional development warranted or suggested by the agency, the RO should prepare a report detailing the nature of any combat action, or in service 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. 4. Then, and only then, should the RO schedule the veteran for a psychiatric examination by a board of two VA psychiatrists. The examination is to be conducted in accordance with the diagnostic procedures outlined in the VA Physician’s Guide for Disability Evaluation Examinations. 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 completing their examination. In determining whether or not the veteran has post traumatic stress disorder, 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. 5. 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. See West. 6. After undertaking any development deemed appropriate in addition to that specified above, the RO should readjudicate the issue of entitlement to service connection for post traumatic stress disorder. If the benefit requested on appeal is 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 -