Citation NR: 9722536 Decision Date: 06/26/97 Archive Date: 07/02/97 DOCKET NO. 93-26 374 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for wound residuals of the left-side of the face and jaw. 3. Entitlement to service connection for wound residuals of the left wrist. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD George E. Guido Jr., Counsel INTRODUCTION The appellant-veteran served on active duty from May 1966 to October 1969. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a March 1993 rating decision of the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO). In a June 1986 rating decision, the RO denied the veteran’s claim of service connection for anxiety reaction -- an acquired psychiatric disorder. After the RO notified the veteran of the adverse determination and of his procedural and appellate rights, he did not appeal the decision. In January 1993, the veteran filed his current claim of service connection for PTSD -- also an acquired psychiatric disorder. The question is whether the veteran raised a separate and distinct disability claim that had not been previously considered. The RO in its March 1993 rating decision adjudicated the claim of service connection for PTSD as a new claim without regard to finality of the June 1986 rating decision. The Board agrees. See Ashford v. Brown, 10 Vet.App. 120, 123 (1997) (referring in pertinent part to Ephraim v. Brown, 82 F.3d. 399, 402 (Fed. Cir. 1996) (holding that, for the purpose of jurisdiction, a newly diagnosed disorder, whether or not medically related to a previously diagnosed disorder, can not be the same claim when it had not been previously considered). In her February 1997 written brief, the veteran’s representative raised the issue of clear and unmistakable error in the June 1986 rating decision by the RO, denying service connection for hearing loss and tinnitus. As this issue has not been addressed by the RO, it is referred there for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he has PTSD as the result of his combat experiences in Vietnam. He further contends that in June 1967, in Vietnam in combat, he suffered wounds to the left side of his face and jaw, and left wrist. The veteran’s representative argues that 38 U.S.C.A. § 1154(b) (West 1991) applies to the claim of service connection for the wound residuals and that it would be prejudicial to the veteran for the Board to deny the case on grounds not considered by the RO or for the Board to obtain additional evidence without first providing the veteran reasonable notice of the evidence and of the reliance proposed to be placed on it and a reasonable opportunity to respond to it. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1996), 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 veteran has not met his initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claims of service connection for PTSD, and wound residuals of the left side of the face and jaw, and left wrist are well grounded. FINDING OF FACTS The claims for service connection for PTSD, and wound residuals of the left side of the face and jaw, and left wrist are not supported by cognizable evidence showing that the claims are plausible or capable of substantiation. CONCLUSION OF LAW The claims of service connection for PTSD, wound residuals of the left side of the face and law, and left wrist are not well grounded. 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1996). REASONS AND BASES FOR FINDING AND CONCLUSION Procedural Matters In the precedent opinion, Meyer v. Brown, 9 Vet.App. 425, 431-432 (1996), the United States Court of Veterans Appeal (Court) held that when the RO does not specifically address the question of whether the veteran’s claims for service-connected benefits are well grounded but rather, as here, proceeds to adjudicate on the merits, there is no prejudice to the veteran solely from the omission of the well-grounded claim analysis. On the authority of the precedent opinion in Meyer, binding on VA, the Board, while finding the claims not well grounded, holds that the veteran was not prejudiced by any lack of notification in the SOC or SSOC as to the law regarding well-grounded claims. Also, the Board has not supplemented the record with additional evidence. Regarding the adequacy of notice to the veteran of the REMANDS and of the scheduled VA examinations, under 38 C.F.R. § 1.710, it is the veteran’s responsibility to provide VA with a current mailing address. The last address in the file that the veteran directed VA to was in South Carolina, which is where the remand notices were sent. VA can do no more without the veteran’s cooperation. Factual Background The service medical records disclose that on entrance examination in April 1966 there was a scar on the left side of the neck (1½" x ¼"), a scar on the chin (1" x ¼"), and two scars on the left wrist (1" x one-sixteenth" and 1" x ¼"). History included a fractured jaw at age 16. In June 1966, an X-ray of the left hand and wrist revealed no radiological evidence of bone disease or pathology. In March 1969, it was noted that the veteran had been wounded in the face in Vietnam in 1967; there were no other details or finding. In August 1969, history included a shrapnel wound to the left side of the jaw while in Vietnam; there were no other details or finding. Service personnel records disclose that on June 1, 1967, in Vietnam, the veteran sustained fragmentation wounds from a mortar round to the right side of the chest. He was treated in the field and returned to duty. His condition and prognosis were excellent. The veteran was awarded a Purple Heart Medal for the wounds received in combat on June 1, 1967. Records of the Naval Discharge Review Board disclose that on June 6, 1967, the veteran was on the USS SANCTUARY and on June 9, 1967, he departed Vietnam. The veteran’s Discharge from Active Duty, DD Form 214, and Correction to DD Form 214, DD Form 215, disclose that the veteran was a rifleman and he served in Vietnam. In addition to the Purple Heart Medal, his decorations include the Combat Action Ribbon. In a January 1986 application for VA compensation, the veteran reported that in June 1967 in Vietnam he was wounded in the side, arm and jaw. On VA psychiatric examination in February 1986, the veteran stated that in Vietnam he sustained a shrapnel wound in the left arm and left side and he received the Purple Heart Medal. The pertinent diagnosis was anxiety reaction. On VA psychological assessment in April 1986, the veteran reported that he had a psychiatric hospitalization in 1967 for three days on returning from Vietnam. The pertinent diagnostic impression was mixed personality disorder. Copies of VA records disclose that in May 1991 the veteran complained of stress and anxiety, and, on hospitalization in January 1993, the diagnoses were polysubstance abuse and antisocial personality disorder. Later in January 1993, the veteran filed his current claim for VA disability compensation. In his application he reported that he received treatment for his wounds, beginning in June 1967, and that he sustained through-and-through gunshot wounds of the face and left wrist. In a March 1993 rating decision, the RO denied the veteran’s claims of service connection for PTSD and the wound residuals. The veteran then filed a timely Notice of Disagreement (NOD). In the NOD, the veteran indicated that he was homeless and wanted his mail sent to an address in South Carolina. In a March 1993 statement in support of claim, the veteran stated that in June 1967 he was medevacked from Vietnam with wounds and combat fatigue. In the May 1993 Statement of the Case, the RO notified the veteran that service connection had been denied on the merits that the claimed disabilities were not shown by the evidence of record. In a June 1993 statement, Rev. G.H., C.A.P., of a nonprofit religious organization in the field of addictions, reported testing and treating the veteran for PTSD. History included a shrapnel wound to the left side of face. The Reverend also reported that it was the opinion of a consulting psychiatrist that the veteran’s PTSD was directly connected to Vietnam. In his June 1993 Substantive Appeal, the veteran requested a hearing at the RO. On the form, he gave a Florida address. The RO notified the veteran that the hearing was to be held in September 1993. The veteran then failed to report for the hearing. In an October 1993 statement, the veteran’s representative explained that on the day of the hearing the veteran’s spouse called, relating that she hoped the veteran would appear for the hearing, but she had not seen him for about two weeks. When the appeal was initially before the Board in July 1995, the Board remanded the case to afford the veteran the opportunity to submit evidence from medical-care providers, pertaining to the claims on appeal and to have the veteran examined. The veteran did not respond to the request for additional evidence and he did not report for the scheduled examinations. When the case was returned to the Board in February 1997, the Board remanded the case again for the same development because there was a question about the adequacy of the notice to the veteran about the examinations. In March 1997, the RO notified the veteran of the Board’s February 1997 remand and the notice was mailed to the South Carolina address as was the July 1995 notice. Before scheduling the veteran for the examinations requested by the Board, the RO asked the veteran’s representative and Florida Division of Veterans Affairs to provide a current address for the veteran, but they were unable to do so. The RO subsequently reported that all attempts to verify the veteran’s current address had failed. Analysis A. PTSD 1. Changes in the Law During the Pendency of the Appeal During the pendency of this appeal 38 C.F.R. § 3.304 was amended, effective in May 1993, to include subsection (f), pertaining specifically to PTSD service-connection claims. Prior to the May 1993 amendment, PTSD claims were governed by provisions of the VA Adjudication Procedure Manual M21-1 [hereinafter M21-1], Subchapter XII, para. 50.45 (Jan. 25, 1989), that required essentially the same elements that were incorporated in 38 C.F.R. § 3.304(f). Subsequently, the M21- 1 provisions were amended to reflect the PTSD requirements set forth in 38 C.F.R. § 3.304(f). See M21-1, Part VI, para. 7.46 (first sentence) (Oct. 11, 1995) and currently and unchanged at M21-1, Part VI, para. 11.38 (first sentence) (Feb. 13, 1997). As a general rule, the veteran is entitled to have his claim adjudicated under whichever regulatory or M21-1 provision would be more favorable to him in light of the regulatory change while his case was on appeal to the Board. See Karnas v. Derwinski, 1 Vet.App. 308, 312-13 (1991). Also the Court has previously held that the M21-1 provisions of para. 7.46, pertaining to PTSD, were substantive rules and the equivalent to VA regulations. The adoption of 38 C.F.R. § 3.304(f) in May 1993 moots the M21-1 provisions regarding PTSD adjudications except where the M21-1 is more favorable to the veteran. Under subsection (f) of 38 C.F.R. § 3.304, pertaining to the adjudication of PTSD claims, service connection for PTSD requires the presence of three elements: (1) a current, clear medical diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and, (3) medical evidence of a causal nexus between current symptomatology and the specified claimed in-service stressor. 2. Well-Grounded Claim Before reaching the merits of a claim, the threshold question is whether the veteran has submitted a well-grounded claim. Under 38 U.S.C.A. § 5107(a), a person claiming entitlement to VA benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. The Court has defined a well- grounded claim as a "plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of [section 5107(a)]." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). A well-grounded service-connection claim generally requires medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and a current disability. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam 78 F.3d. 604 (Fed. Cir. 1996) (table). For the purpose of determining whether a claim is well grounded, the evidence is presumed to be credible, except when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet.App. 19, 21 (1993). Where the determinative issue involves either medical etiology (such as with respect to a nexus between a current condition and an in-service disease or injury) or a medical diagnosis (such as with respect to a current disability), competent medical evidence is generally required to fulfill the well-grounded-claim requirement of § 5107(a) that the claim be “possible” or “plausible”. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). As for the first element of a well-grounded claim, medical evidence of a current disability, the evidence in support of the veteran’s claim consists of the June 1993 statement of Rev. G.H., C.A.P., of a nonprofit religious organization in the field of addictions, who reported testing and treating the veteran for PTSD. Although evidence is to be presumed credible for the purpose of determining whether a claim is well grounded, the Board finds that the Reverend’s statement is the exception because it has not been shown that the Reverend is a health-care professional and therefore the Reverend is not competent to offer an opinion that requires a medical diagnosis. King, 5 Vet.App. at 21, and Grottveit, 5 Vet.App. at 93. As for the Reverend’s statement that it was the opinion of a consulting psychiatrist that the veteran’s PTSD was directly connected to Vietnam, the Board finds this hearsay medical evidence and insufficient to render the claim well grounded. See Robinette v. Brown, 8 Vet.App. 69 (1995) (holding that hearsay medical evidence, as transmitted by a lay person, cannot be sufficient to render a claim well grounded because the connection between what a physician said and the lay person’s account of what the physician purportedly said is simply too attenuated and inherently unreliable to constitute medical evidence). As for VA’s duty under 38 U.S.C.A. § 5103(a) (West 1991 & Supp. 1996) to notify the veteran that his application for service connection for PTSD was incomplete, the Board on two occasions, the July 1995 and February 1997 remands, afforded the veteran the opportunity to supplement the record, pertaining to treatment of PTSD by medical-care providers, and the veteran has not responded. As the Board rejects the only evidence of record in support of whether the veteran currently has PTSD, the veteran has not met his burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. Accordingly, in the absence of competent medical evidence that the veteran currently suffers from PTSD, the Board concludes that the claim of service connection for PTSD is not well grounded. B. Wound Residuals The claims of service connection for wound residuals also have to pass the threshold of whether the claims are well grounded. Service records show that on entrance to service the veteran had scars on the left side of his neck and chin and two scars on the left wrist and a history of a fractured jaw. In June 1967 he was wounded in combat, sustaining fragmentation wounds from a mortar round to the right side of the chest. He was treated in the field and returned to duty. His condition and prognosis were excellent. For this he was awarded the Purple Heart Medal. The service records also contain a history of a facial wound in Vietnam in 1967 (March 1969) and a shrapnel wound to the left side of the jaw while in Vietnam (August 1969), however, there were no other details or finding. After service, although the veteran reported he was wounded in the side, arm and jaw in June 1967 in Vietnam (January 1986 application for VA compensation), he sustained a shrapnel wound in the left arm and left side in Vietnam (VA psychiatric examination in February 1986), he was treated for his wounds, beginning in June 1967, and he sustained through- and-through gunshot wounds of the face and left wrist (January 1993 application for VA disability compensation), he was medevacked in June 1967 from Vietnam with wounds and combat fatigue (March 1993 statement in support of claim), and a shrapnel wound to the left side of face (June 1993 statement, Rev. G.H., C.A.P.), there is no medical evidence of record or a suggestion of other medical evidence that documents current disabling residuals of the claimed wounds. Moreover, the Board finds the veteran’s evidentiary assertion about through-and-through wounds of the face and left wrist inherently incredible as he has associated his wounds to the incident for which he was awarded the Purple Heart Medal. And the record of that wound is limited to the right chest that was treated in the field and he was returned to duty. The record simply does not support or suggest that the June 1967 wound was of such severity as described by the veteran, that is, through-and-through wounds of the face and jaw and left wrist. As for VA’s duty under 38 U.S.C.A. § 5103(a) to notify the veteran that his application for service connection for the wound residuals was incomplete, the Board on two occasions, the July 1995 and February 1997 remands, afforded the veteran the opportunity to supplement the record, pertaining to treatment of his claimed disabilities after service, and the veteran has not responded. In the absence of competent medical evidence that the veteran currently suffers from disabling wound residuals of the left- side of the face and jaw and left wrist due to wounds sustained in service, the Board concludes that the claims of service connection for the wounds are not well grounded. As the claims are not well grounded claims, the Board does not reach the merits of the application of 38 U.S.C.A. § 1154. ORDER The veteran not having submitted well grounded claims of entitlement to service connection for PTSD, wound residuals of the left side of the face and jaw, and left wrist, the appeal is denied RONALD R. BOSCH Member, Board of Veterans' Appeals 38 U.S.C.A. § 7102 (West Supp. 1996) 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 1991 & Supp. 1996), 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, 102 Stat. 4105, 4122 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. - 2 -