Citation Nr: 9915969 Decision Date: 06/10/99 Archive Date: 06/21/99 DOCKET NO. 93-09 496A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Neil T. Werner, Associate Counsel INTRODUCTION The veteran served on active duty from August 31, 1963, to April 1, 1969, and from April 3, 1969, to January 3, 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 1992 decision of the Pittsburgh, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA) which denied the veteran's claims of service connection for PTSD and a non- service-connected disability pension. Subsequently, by a February 1996 decision, the RO granted the veteran's claim for a non-service-connected disability pension. Therefore, this issue is no longer in appellate status. FINDING OF FACT Competent medical evidence showing a current diagnosis of PTSD has not been presented. CONCLUSION OF LAW The veteran's claim of service connection for PTSD is not well grounded. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.304(f) (1998). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran asserts, in essence, that he developed PTSD as a result of stressful events experienced while stationed in the Republic of Vietnam. In this regard, the Board notes that, in order to grant service connection for PTSD, there must be medical evidence establishing a clear diagnosis of the condition, 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(s). 38 C.F.R. § 3.304(f) (1998); Gaines v. West, 11 Vet. App. 353 (1998). The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (Court) has addressed these requirements and has held that the evidence necessary to establish the occurrence of a recognizable stressor during service to support a claim of entitlement to service connection for PTSD will vary depending on whether or not the veteran was engaged in combat with the enemy. Zarycki v. Brown, 6 Vet. App. 91 (1993), citing Hayes v. Brown, 5 Vet. App. 60 (1993), Hamilton v. Derwinski, 2 Vet. App. 671 (1992), (appeal dismissed on other grounds, 4 Vet. App. 528 (1993)). If the claimed stressor is related to combat, evidence that the veteran engaged in combat or that the veteran was awarded the Purple Heart Medal, Combat Infantry Badge or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the in-service stressor. 38 C.F.R. § 3.304(f) (1998). It should also be pointed out that a person who submits a claim for 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. 38 U.S.C.A. § 5107(a) (West 1991). Only if the claimant meets this burden does VA have the duty to assist him in developing the facts pertinent to his claim. Epps v. Gober, 126 F.3d 1464, 1468-69 (Fed. Cir. 1997). If the claimant does not meet this initial burden, the appeal must fail because, in the absence of evidence sufficient to make the claim well grounded, the Board does not have jurisdiction to adjudicate the claim. Boeck v. Brown, 6 Vet. App. 14, 17 (1993). Initially, the Board will address the issue of whether the veteran has presented medical evidence of a diagnosis of PTSD. 38 C.F.R. § 3.304(f) (1998). This is required, in part, because a claim of service connection may not be considered well grounded without evidence of current disability. Caluza v. Brown, 7 Vet. App. 498 (1995). VA treatment records, dated from January 1990 to May 1992, as well as a March 1997 Vet Center letter, have been received by the RO. The treatment records show multiple hospitalizations for detoxification programs. They also included diagnoses of polysubstance abuse (including alcohol, opiates, cocaine, and Valium) and manipulative personality behavior. See VA treatment records dated in July 1991, August 1991, September 1991, and April 1992 and VA hospitalization records for the periods April 1990 to May 1990, July 1991, September 1991, and May 1992. However, these voluminous medical records do not include a diagnosis of PTSD. Private treatment records, dated from October 1991 to April 1995, as well as July 1991, August 1991, and March 1992 depositions of private physicians, were also obtained by the RO. However, these records primarily refer to diagnoses, and/or treatment for disabilities unrelated to the current issue on appeal. An October 1992 record shows that the veteran underwent detoxification for opiate addiction while hospitalized for another problem. Additionally, a May 1992 record shows the veteran was diagnosed with drug abuse. Tellingly, these records also fail to include a diagnosis of PTSD. Additionally, the veteran filed a November 1991 award from the Social Security Administration (SSA) that reports he was found disabled as of September 1990. However, while the SSA examiner reported that the veteran was depressed, and had some homicidal feelings towards the Vietnamese people, the SSA worksheet only shows that the veteran was diagnosed with a personality disorder and substance addiction disorder. Moreover, the SSA's grounds for finding the veteran disabled included a severe substance abuse disorder, not PTSD. Furthermore, the record on appeal shows that the veteran appeared for VA examinations in May 1992 and August 1997. However, these examiners also failed to provide the veteran with a diagnosis of PTSD. Specifically, the May 1992 examiner diagnosed the veteran with opioid, cocaine, and alcohol dependence. He also opined that VA needed to rule out PTSD, a fictitious disorder with physical symptoms, malingering, and an antisocial personality disorder. The August 1997 VA examiner, after reviewing the veteran's records and interviewing the veteran, also diagnosed the veteran with opiate, cocaine, and alcohol dependence. He also opined that VA needed to rule out malingering and an antisocial personality disorder. The examiner further opined that psychiatric testing of the veteran appeared to be consistent with a profile of exaggeration of symptoms and not consistent with his presentation. The examiner indicated that, since the veteran's trauma could not be verified, the first criteria for PTSD could not be fulfilled. More importantly however, the examiner reported that, while the veteran claimed to have symptoms related to PTSD, there was no consistent evidence to warrant a diagnosis of PTSD. What is significant about the evidence described above is what it does not include. None of the clinical assessments includes a diagnosis of PTSD. The Board recognizes that VA examiners reported that the veteran was to be evaluated for PTSD, that PTSD had to be ruled out and/or he had PTSD like complaints (i.e., nightmares, flashbacks, hypervigilance, startled response, avoidance behaviors, and sleep disturbance). See July 1991 VA treatment record, May 1992 VA examination report, March 1997 VetCenter Letter, and August 1997 VA examination report. Additionally, a Vet Center therapist reported that the veteran himself had indicated that he had several PTSD symptoms that he related to Vietnam. However, the salient point to be made is that none of the foregoing examiners diagnosed the veteran with PTSD. Next, the Board finds that, to the extent that the veteran has offered his own opinion that he has PTSD because of his experiences in Vietnam, he has not been shown to be competent to provide the evidence necessary to make his claim of service connection for PTSD well grounded. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992); Moray v. Brown, 5 Vet. App. 211 (1993) (persons without medical expertise are not competent to offer medical opinions.); Grottveit v. Brown, 5 Vet. App. 91 (1993). Furthermore, lay assertions of medical causation cannot constitute evidence to render a claim well grounded. See Grottveit, at 93. The Board finds that, given the absence of a diagnosis of PTSD, a grant of service connection is not warranted. This is so despite suggestions in the record that the veteran has symptoms consistent with PTSD. Having such symptoms does not equate to having PTSD as recognized by practitioners of psychiatry. Even the examiner who indicated that the veteran had such symptoms did not diagnose PTSD. Therefore, the veteran has not met his burden of presenting a well-grounded claim. It has also been suggested in a November 1998 informal hearing presentation that the Board should determine whether the RO complied with M21-1, Part III, 1.03(a) (Change 50) (Feb. 23, 1996) and M21-1, Part VI, 2.10(f) (Change 48) (Aug. 5, 1996). The provisions of M21-1 Part VI, 2.10(f) provide that "the duty to assist will prevail while development is undertaken." A careful reading of this provision clearly shows the initiation of this "development" is predicated on the claim being "potentially plausible on a factual basis." Essentially, "potentially plausible on a factual basis" means the claim is well grounded. Epps, supra. Consequently, development is undertaken pursuant to M21-1 Part VI, 2.10(f) only after the veteran has presented a well-grounded claim. As the veteran has not done so here, M21-1 Part VI, 2.10(f) is not applicable to his case. M21-1 Part III, 1.03(a) provides that "[b]efore a decision is made about a claim being well-grounded, it will be fully developed." However, only when a claim is well grounded does VA have an obligation to assist the claimant in "developing the facts pertinent to the claim." Robinette v. Brown, 8 Vet. App. 69, 77-74 (1995) (emphasis added) (referring to evidentiary development required by the duty to assist under 38 U.S.C.A. § 5107(a)); Epps, supra; Beausoleil v. Brown, 8 Vet. App. 459, 465 (1996). In contrast to the evidentiary development referred to in 38 U.S.C.A. § 5107(a), the provisions of M21-1, Part III, 1.03(a) refer to development of the claim. The requirement to fully develop a claim - as compared to development of the evidence underlying the claim - merely demands that VA ensure that the veteran has not filed a defective or incomplete application. See 38 U.S.C.A. § 5103 (West 1991); Robinette, 8 Vet. App. at 78. See 38 C.F.R. §§ 3.1(p), 3.160(a) (1997)(defining a claim as an application for VA benefits); see also M21-1, Part III, 1.01(a) (discussing development of pertinent facts "concerning a well-grounded claim"); M21-1, Part VI, 2.10(f) (discussed, supra); compare M21-1, Part III, 2.01(c) (during initial screening stage of claims processing, the RO shall review all applications and evidence immediately to determine if "a claim" is incomplete and requires "further development"). Indeed, M21-1, Part III, 1.03(a) relies upon Grottveit v. Brown, 5 Vet. App. 91 (1993), in which the Court stated that, "[i]f the claim is not well grounded, the claimant cannot invoke the VA's duty to assist [under 38 U.S.C.A. § 5107(a)] in the [evidentiary] development of the claim." Grottveit at 93, citing 38 U.S.C.A. § 5107(a). Therefore, until a veteran has submitted a well-grounded claim, VA is under no duty to assist the veteran in establishing the evidentiary elements of his claim. In other words, the requirement to "fully develop" a claim pursuant to M21-1, Part III, 1.03(a) is not identical to the duty to assist which arises after a well-grounded claim has been submitted; instead, it appears to merely reiterate the duty to inform under 38 U.S.C.A. § 5103. Consequently, ensuring that a claim is "fully developed" under M21-1 Part III, 1.03(a) means that, where the veteran's application for benefits is incomplete, VA shall notify the veteran of the evidence necessary to complete the application. Id. at 80. As there is no indication in the present case that the veteran's application is incomplete, the Board finds that the RO complied with 38 U.S.C.A. § 5103 and 1.03(a). ORDER Service connection for PTSD is denied. MARK F. HALSEY Member, Board of Veterans' Appeals