Citation NR: 9723723 Decision Date: 07/09/97 Archive Date: 07/21/97 DOCKET NO. 94-48 043 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a left knee condition. 2. Entitlement to service connection for post-traumatic stress disorder. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. A. Saadat, Associate Counsel INTRODUCTION The veteran had active military service from August 1967 to May 1969 and from January 1971 to January 1974. By a July 1994 rating action, the aforementioned regional office (RO) denied, in relevant part, service connection for a chronic left knee disability and post-traumatic stress disorder (PTSD). In August 1994, the veteran filed a notice of disagreement and the RO issued a statement of the case in October 1994. The veteran perfected his appeal in November 1994. By an October 1995 rating action, the RO determined that new and material evidence had not been submitted to reopen the claims concerning service connection for a left knee condition and PTSD. Supplemental statements of the case were issued by the RO in October 1995 and January 1997. In February 1997 the veteran testified before a local hearing officer and the RO issued another supplemental statement of the case. The issue concerning service connection for PTSD will be the subject of the Remand portion of this decision below. CONTENTIONS OF APPELLANT ON APPEAL The veteran essentially contends that the left knee condition for which he seeks service connection had its onset in service. DECISION OF THE BOARD The Board of Veterans' Appeals (Board), in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1997), 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 the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim concerning service connection for a left knee condition is well-grounded. FINDING OF FACT The veteran's claim that he has a left knee condition which arose in service or was aggravated by service was not accompanied by any medical evidence that would render the claim plausible. CONCLUSION OF LAW The veteran has failed to state a well-grounded claim for service connection for a left knee condition. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION I. Factual Background The report of a June 1967 induction examination indicates that the veteran was found to have normal lower extremities. During examinations in February 1968, May 1969 and January 1971, the veteran indicated that he had no history of bone, joint or other deformity, lameness, or “trick” or locked knee. Upon each of these examinations, the veteran's lower extremities were found to be normal. Upon a November 1973 examination, the veteran's lower extremities were again found to be normal. A physical profile record dated in October 1971 indicates that the veteran injured his knee and was given crutches for one week. This document does not specify which knee was injured. The veteran was examined for VA purposes in March 1994. He complained of knee pain and he reportedly had a long-standing problem with his left knee. He indicated that he fell down some stairs in service, and that his knee had been bothering him ever since. X-rays showed no evidence of degenerative arthritic changes. The veteran was diagnosed as having anterior left knee syndrome/patellofemoral syndrome without degenerative arthritic changes. In May 1994, VA outpatient treatment records from the VA Medical Center (VAMC) in Salisbury, North Carolina were entered into the record. These records reflect that in March 1993, the veteran complained of chronic medical problems, including weakness in his “right” knee, which was reportedly injured in service in 1971. No acute distress was noted and the veteran was ambulatory. In February 1994, the veteran reported off and on bilateral knee aches. Diagnostic impressions included degenerative joint disease of the knees. By a July 1994 rating action, the RO denied service connection, in pertinent part, for anterior patellofemoral syndrome, left knee. The veteran filed a notice of disagreement with this rating action in August 1994. A statement of the case was issued in October 1994. In October 1994, the RO received additional records from the Salisbury VAMC. These records reflect that in July 1994, the veteran was noted to have a “knee injury.” A substantive appeal was filed in November 1994. The veteran underwent a general medical examination for VA purposes in August 1995. He complained of pain in both knees and stated that he had injured his left knee falling down barrack steps. The veteran was diagnosed as having, in pertinent part, history of injury to knees with slight decreased range of motion of the right knee. In August 1995, the RO received additional records from the VAMC Salisbury. These records reflect that in April 1994, the veteran reported that he had injured his left knee in 1971. Upon examination of the veteran's extremities, range of motion was full and there was no muscle or joint swelling or tenderness. In August 1995, the veteran underwent another examination for VA purposes. X-rays of his knees revealed no significant pathological findings. By an October 1995 rating action, the RO determined that new and material evidence had not been submitted to reopen a claim for left knee condition. A supplemental statement of the case was issued later that month. In June 1996, the RO received records from the VAMC in Asheville, North Carolina. These records reflect that the veteran complained of leg pain in November 1994. In June 1995, the veteran complained of knee pain and was found to have degenerative joint disease of the knees. A supplemental statement of the case was issued in January 1997. The veteran testified before a local hearing officer in February 1997. Regarding his left knee, the veteran testified that he fell down a flight of stairs during his second tour of duty, while he was at Fort Bragg. The veteran was told that his left knee had been bruised. The veteran also indicated that he had experienced several bad parachute landings, though no specific knee injury was mentioned in relation to these incidents. The veteran testified that several times during civilian life, he had experienced having no feelings at all in his legs. After discharge, he began to have problems with his knee in 1990. He went to a civilian doctor and was told, in pertinent part, that he had tenderness in his knees. II. Analysis Under applicable criteria, service connection will be granted for disability resulting from personal injury suffered or disease incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991). A claimant for benefits under a law administered by the Secretary of the United States Department of Veteran Affairs (VA) shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well-grounded. The Secretary has the duty to assist a claimant in developing facts pertinent to the claim if the claim is determined to be well-grounded. 38 U.S.C.A. § 5107(a). Thus, the threshold question to be answered is whether the veteran has presented a well-grounded claim; that is, a claim which is plausible. If he has not presented a well-grounded claim, his appeal must fail, and there is no duty to assist him further in the development of his claim as any such additional development would be futile. Murphy v. Derwinski, 1 Vet.App. 78 (1990). To sustain a well-grounded claim, the claimant must provide evidence demonstrating that the claim is plausible; mere allegation is insufficient. Tirpak v. Derwinski, 2 Vet.App. 609 (1992). Where the determinative issue involves either medical etiology or a medical diagnosis, competent medical evidence is required to fulfill the well-grounded claim requirement of 38 U.S.C.A. § 5107(a). Lathan v. Brown, 7 Vet.App. 359 (1995). In order for a claim for service connection to be well- grounded, there must be competent evidence of a current disability (a medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence) and of a nexus between the in-service injury or disease and the current disability (medical evidence.) The nexus requirement may be satisfied by a presumption that certain diseases manifesting themselves within certain prescribed periods are related to service. Caluza v. Brown, 7 Vet.App. 498 (1995). The veteran’s claim concerning service connection for a left knee condition is not well-grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). In several written statements and in his testimony before a local hearing officer, the veteran has repeatedly claimed that his left knee condition is the direct result of his in- service fall down barrack steps. This evidence is insufficient to establish service connection, however. The Court of Veterans Appeals has held that lay persons cannot provide testimony where an expert opinion is required. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Moreover, the claims file lacks a medical opinion that the veteran's alleged left knee condition had its onset in service. Although, in August 1995, the veteran was diagnosed as having a history of injury to knees with slight decreased range of motion of the right knee, the VA examiner appeared to base this diagnosis solely on the history related to him by the veteran. Moreover, the diagnosis does not reference any chronic disability of the left knee. Where the determinative issue involves either medical etiology or a medical diagnosis, competent medical evidence is required to fulfill the well-grounded claim requirement of 38 U.S.C.A. § 5107(a). Lathan v. Brown, 7 Vet.App. 359 (1995). Of course, the veteran may request that his claim be reopened, this time submitting an opinion from a medical doctor that he has a left knee condition which is related to service. In making this statement, however, the Board intimates no opinion as to the ultimate disposition warranted for any future claims the veteran may make. As it currently stands, the veteran's claim for service connection for a left knee condition is not well-grounded. If a claim is not well-grounded, the Board does not have jurisdiction to adjudicate it. Boeck v. Brown, 6 Vet.App. 14 (1993). As a claim that is not well-grounded does not present a question of fact or law over which the Board has jurisdiction, the claim concerning service connection for a left knee condition is denied. ORDER The veteran’s claim of entitlement to service connection for a left knee condition is denied. REMAND The veteran essentially contends that he is entitled to service connection for PTSD, arising from various experiences during his service in Vietnam. Records received from the Asheville VAMC reflect that in August 1995, the veteran underwent a psychiatric examination. The examiner’s impression, in pertinent part, was that the veteran had PTSD. In April 1996, the veteran was again examined and the diagnostic impression included PTSD. However, in March 1994, a VA examiner determined that the veteran could not be definitively diagnosed as having PTSD as a result of his experiences in Vietnam. The examiner concluded, in part, that the evidence of record did not reflect a clearly traumatic stressor which would have been outside the range of usual human experience. It appears that the VA examiner’s conclusion was based on the criteria for diagnosing PTSD as adopted in the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, third edition (DSM- III). American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (3rd ed. 1981). On October 8, 1996, the VA issued a final rule amending that portion of its Schedule for Rating Disabilities pertaining to mental disorders. 61 Fed.Reg. 52,695 (Oct. 8, 1996). The revised regulation took effect on November 7, 1996, and, hence, is in effect at the current time. This new final rule revised 38 C.F.R. §§ 4.125 through 4.129, and replaced § 4.130 with a new section that specifically adopted the fourth edition of the DSM (DSM-IV) as the basis for the nomenclature of the rating schedule for mental disorders. 61 Fed.Reg. 52,700 (Nov. 1996 amendments); American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994). Despite this reference of DSM-IV in the recently revised VA general mental disability C.F.R. regulations now in effect, the Manual M21-1 PTSD provisions still specifically refer to the DSM-III-R. This version of the manual was adopted in 1987. See Manual M 21-1, PART VI, Para. 7.46(a) (1995) (sets forth detailed diagnostic criteria as required by DSM-III-R needed to establish PTSD). The Court of Veteran’s Appeals (Court) has held that the Manual M21-1 provisions in paragraph 7.26 dealing with PTSD are substantive rules that are the equivalent of VA regulations. The adoption of the specific PTSD criteria in May 1993 rendered moot the Manual M21-1 provisions regarding PTSD adjudication except where the manual is more favorable to a claimant. Where the Manual M21-1 imposes requirements not in the regulation that are unfavorable to a claimant, those additional requirements may not be applied against the claimant. Hayes v. Brown, 5 Vet.App. 60, 67 (1993). The criteria in DSM-III-R, as presently adopted by the Manual M21-1 and similar provisions in DSM-III, provide that an essential feature of a diagnosis of PTSD is the development of characteristic symptoms following an event that is outside the range of usual human experience and that would be markedly distressing to almost anyone. However, the Court has found that diagnostic criteria for a stressor now in effect for VA adjudication under DSM-IV differ substantially from those in DSM-III and DSM-III-R. The previous requirement that the psychologically traumatic event or stressor be one that would evoke significant symptoms of distress in almost everyone has been deleted, and DSM-IV instead requires that the person’s response to the stressor involve intense fear, helplessness, or horror. Cohen v. Brown, No. 94-661, p. 18 (U. S. Vet. App. March 7, 1997) The DSM-IV provides two requirements as to the sufficiency of a stressor: (1) A person must have been exposed to a traumatic event in which the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or to others and (2) the person’s response must have involved intense fear, helplessness, or horror. In short, the criteria is no longer based solely on usual experience and response but is individualized (geared to the specific individual’s actual experience and response). Id. Because of the change in criteria in determining the sufficiency of a stressor, a new examination for VA purposes is in order. The Board also notes in June 1996, the RO received medical records reflecting psychological treatment of the veteran. To ensure that the veteran's claim will receive a fully informed evaluation, clinical data taking into account the veteran's alleged PTSD condition, since June 1996, should be obtained and reviewed. The Board further notes that the veteran's DD-214 indicates that he served in Vietnam from May 1968 through March 1969, and that his primary specialty was communications electronics repair. During a March 1994 examination for VA purposes, the veteran stated that the first time he experienced combat in Vietnam was while he was on guard duty in bunkers. During his one year in Vietnam, the veteran primarily performed his duties on bases, though sometimes he performed repairs in the field. He spent his last 4 1/2 months in hospital security. The veteran reported “not much” direct combat experience, but stated that he did fire his weapon and was also shot at. He indicated that he “saw some people hit,” but was unaware if any of his rounds hit the enemy. He reported only superficial wounds on one occasion from grenade shrapnel which did not require treatment. He reported that his worse experiences occurred “downtown” when he was shot at by Vietcong, and he related another occasion when a “gung ho” officer attempted to persuade the veteran to enter an exploding ammunition dump, which he declined. The veteran denied any unusual awards or honors during his service. During his March 1994 compensation and pension examination for VA purposes, the veteran stated that his unit had been stationed in several areas, including LZ English, Qui Nhon, An Khe and Phu Bai. The veteran stated that he had several different MOS’s, including armor specialist. Salisbury VAMC treatment records associated with the record in December 1995 indicate that the veteran was examined in August 1994. He reported that he had served as a paratrooper trained to fix weapons in Vietnam. The veteran recalled duty with the 173 Airborne Brigade, Bon Son; with the 1st Air CAV, LZ English; and with the 76th EVAC, Phu Bai. The veteran stated that he typically choppered-out into the field to fix weapons, and might have returned the same day or two days later. He apparently was occasionally forced to stay out in the bush with the infantry. Asheville VAMC records reflect that in April 1996, the veteran reported having seen people injured and killed in Vietnam. He reported making one combat jump during which Americans were killed and further jumping was subsequently discontinued. During his February 1997 hearing, the veteran testified that when a weapon broke down in the field, he had to go out and fix it. The helicopter would drop him off and would not come back until at least 30 minutes later. The veteran had to “walk the clicks just like everybody else” until the helicopter came back. One time, when he was hit with shrapnel in the shoulder, the veteran did not tell his leader. He just pulled it out and kept going. The veteran further testified that when he was with the 173rd decision, on his first night in Vietnam at Cam Ranh Bay, “they shot us on bunker guard.” The veteran also reported seeing incoming mortar rounds while he was with the 173rd decision. The veteran was later transferred to the 76th Evac Hospital, where he worked on a “dusting crew” which helped secure the hospital. The veteran testified that he also helped secure ammunition that came off the ocean from the United States, and during this time, “Charlie used to mess with us a lot . . . trying to blow it up and everything like that.” The veteran also described an incident in which the Viet Cong attacked one night while he had a foot locker filled with ammunition. During the ensuing fire fight, the veteran apparently pulled the foot locker from the bunker and distributed the ammunition to his fellow soldiers. The veteran also saw several bodies laying on the side of the road, and experienced a Viet Cong attack after he assisted in blowing up old accessories ammunition. The RO should attempt to confirm all the stressor incidents alleged by the veteran with the Environmental Support Group (ESG). Under the circumstances, the Board finds that further development is required, and the case is remanded to the RO for the following action. 1. The veteran should be asked to provide the names and addresses of all medical providers from whom he has been treated for PTSD since June 1996. All available records, including those from the VAMCs in Salisbury and Asheville, should be obtained. Once obtained, all records must be associated with the claims folder. 2. The veteran should also be asked to provide any further details, including specific locations, dates, and names of officers and fellow soldiers involved, regarding the stressor incidents he has alleged. In particular, the veteran should be asked for details regarding the incidents in which he went “downtown” and was shot at by Viet Cong, when the officer asked him to enter the exploding ammunition dump, the combat jump in which Americans were allegedly killed and the fire fight in which he allegedly had to distribute ammunition. If any individuals are aware of the incidents in question, especially fellow serviceman, the veteran should attempt to obtain a statement from these individuals. 3. The RO should provide the relevant information obtained from the veteran to the US Army & Joint Service Environmental Support Group, 7798 Cissna Rd., Suite 101, Springfield, Virginia 22150-3197 and request that they confirm, if possible, the alleged stressor incidents. 4. Upon completion of the above action, the veteran should be afforded a special VA psychiatric examination. The purpose of this examination is to determine if the veteran currently suffers from PTSD. If the veteran is found to have PTSD, the examiner should express an opinion for the record on whether the veteran’s claimed stressors from his military service are etiologically related to any current PTSD. The examining physician should specifically identify which stressors are linked to any diagnosed PTSD and determine the sufficiency of the stressors as a cause of any PTSD. The examiner should apply the diagnostic criteria of both DSM III-R and DSM-IV and indicate whether one or the other would lead to a different result, and what that result would be. All tests deemed necessary by the examiner must be conducted and the clinical findings and reasoning which form the basis of the opinions requested should be clearly set forth. The claims folder and a copy of this Remand must be made available to the examiner prior to the examination in order that he or she may review pertinent aspects of the veteran’s service and medical history. 5. Upon receipt of the examination report, the RO should review the report to ensure that it is adequate for rating purposes. If not, the RO should return the examination report to the examining physician and request that all questions be answered. 6. Regarding the veteran’s claim for service connection for PTSD, the RO’s attention is directed to the recent decision of the Court in the case of Cohen v. Brown, No. 94-661 (U. S. Vet. App. March 7, 1997). Therein, the Court held that adoption of new regulations based on the criteria of DSM-IV had drastically changed the way the VA was to adjudicate service connection for PTSD. The Court further held that the version most favorable to the appellant, either 38 C.F.R. §§ 4.125 through 4.130 (Effective November 7, 1996) or M21-1, PART VI, Para. 7.46(a) (1995), would apply in the adjudication of service connection for PTSD. Id. at 15. If the determination on the issue of entitlement to service connection for PTSD remains adverse to the veteran, he and his representative should be furnished with a supplemental statement of the case and given a reasonable opportunity to respond. In doing so, the RO should specifically cite the new criteria, 38 C.F.R. §§ 4.125 through 4.130, and the old criteria, M21-1, and provide reasons and bases determining which one is most favorable to the veteran. Thereafter, the case should be returned to the Board for further appellate consideration. The veteran need take no further action until he is informed. The purpose of this REMAND is to obtain additional medical evidence and to afford due process. No inference should be drawn regarding the final disposition of the claim as a result of this action. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Veterans Appeals for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans’ Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1997) (Historical and Statutory Notes). In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. I. S. SHERMAN 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 1991 & Supp. 1997), 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 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. 38 C.F.R. § 20.1100(b) (1996). - 2 -