Citation Nr: 9928273 Decision Date: 09/30/99 Archive Date: 10/12/99 DOCKET NO. 95-01 572 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a neck disorder claimed as torticollis. 2. Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD G. A. Wasik, Associate Counsel INTRODUCTION The veteran served on active duty from June 1944 to July 1946. This matter is before the Board of Veterans' Appeals (Board) on appeals of rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In October 1992, the RO denied the claim of entitlement to service connection for a neck injury. In August 1998, the RO denied the claim of entitlement to service connection for PTSD. The veteran has perfected appeals with respect to both denials of service connection. FINDINGS OF FACT 1. The claim of entitlement to service connection for a neck disorder claimed as torticollis is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. 2. The claim of entitlement to service connection for PTSD is supported by cognizable evidence showing that the claim is plausible or capable of substantiation. CONCLUSIONS OF LAW 1. The claim for service connection for a neck disorder claimed as torticollis is not well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The claim for service connection for PTSD is well- grounded. 38 U.S.C.A. § 5107(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Entitlement to service connection for a neck disorder claimed as torticollis. Factual Background Review of the service medical records shows that there were no complaints of, diagnosis of or treatment for any neck injuries or disorders during the veteran's period of active duty. The veteran was treated for damage to his teeth while on active duty. The cause of the damage to the teeth was not reported. The transcript of a February 1993 RO hearing has been associated with the claims file. The veteran reported that he was filing a claim for difficulty in controlling his head and neck. He stated that the disorder had been present for many years. It was the veteran's opinion that the difficulties with his neck began during active duty. He reported that he was attacked by six men while on active duty. He was knocked to the ground and struck with hands, feet and knives. He stated that his teeth were knocked out during the assault. He was hospitalized for 2 or three days in an infirmary. He reported that the disorder was first noted approximately 91/2 years after discharge when he was turned down for a job after failing a physical examination. A doctor allegedly had informed the veteran that the neck disorder was the result of either Parkinson's disease or trauma resulting from anxiety. VA outpatient treatment records have been associated with the claims file. In August 1992, the veteran complained of an inability to keep his head still. An X-ray of the cervical spine conducted in September 1992 was interpreted as revealing no evidence of trauma. A degenerated C5-6 disc was noted. A separate treatment record dated in September 1992 included an assessment of cervical dorsal myositis. In October 1992, the veteran sought treatment for neck spasms. He reported a 20 year history of the disorder. The pertinent impressions were muscular tension and essential tremor. The veteran submitted several treatises pertaining to torticollis and dystonia. None of the treatises referenced the veteran. Private treatment records have been associated with the claims file. The records evidence complaints of neck problems. On a treatment record dated in December 1993, it was recorded that the veteran's neck disorder began in 1968. The veteran opined that the disorder was the result of a personal attack which occurred while he was in the military. Assessments of cervical disc dystonia were made beginning in February 1994. The veteran reported that the disorder began "when he was in the service at the age of 47." No etiology was provided for the disorder. On a statement dated in September 1996, W. E. M, D. O., reported that he had been treating the veteran for cervical dystonia which was also known as spasmodic torticollis. The etiology of the disorder was unknown. The report of a March 1996 VA spine examination has been associated with the claims file. The veteran reported that he had an inability to move his neck and pain in the cervical spine as a result of a beating he suffered in 1946. He further reported that his torticollis started in 1969. The examiner noted that the symptomatology the veteran reported was consistent with a disc disease in the neck rather than a classical torticollis. The diagnosis was possible disc disease of the cervical spine with right sided radiculopathy possibly with some loss of motion. The transcript of an April 1996 RO hearing is of record. The veteran testified that he was claiming service connection for torticollis. He again alleged the injury was the result of an in-service personal assault. He stated that the injury occurred on March 27, 1946. Three of his teeth were knocked out during the assault. He did not sustain any neck trauma from the assault. He was not treated for a neck injury during active duty. He first noticed something wrong with his neck in 1969. The first time he consulted with a medical professional was in 1972. He did not have a written opinion from any doctors relating torticollis to an assault during active duty. The transcript of a March 1999 RO hearing has been associated with the claims file. The veteran testified that he had PTSD as a result of being subjected to personal assault while on active duty. He described the assault in detail. Criteria The threshold question that must be resolved with regard to this claim is whether the veteran has presented evidence of a well-grounded claim. See 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). A well-grounded claim is a plausible claim that is meritorious on its own or capable of substantiation. See Murphy, 1 Vet. App. at 81. An allegation of a disorder that is service connected is not sufficient; the veteran must submit evidence in support of a claim that would "justify a belief by a fair and impartial individual that the claim is plausible." See 38 U.S.C.A. § 5107(a); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). The quality and quantity of the evidence required to meet this statutory burden of necessity will depend upon the issue presented by the claim. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). In determining whether a claim is well grounded, the claimant's evidentiary assertions are presumed true unless 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). In order for a claim 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). Caluza v. Brown, 7 Vet. App. 498 (1995). Where the determinant issue involves a question of medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible or possible is required to establish a well-grounded claim. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Lay assertions of medical causation cannot constitute evidence to render a claim well grounded under 38 U.S.C.A. § 5107(a) (West 1991); if no cognizable evidence is submitted to support a claim, the claim cannot be well grounded. Id. In order to obtain service connection, there must be both evidence of a disease or injury that was incurred in or aggravated by service, and a present disability which is attributable to such disease or injury. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1998). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1998). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury or disease in line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1998). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after consideration of all of the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3 (1998). 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 his claim is plausible. Grivois v. Brown, 6 Vet. App. 136, 139 (1994); Grottveit v. Brown, 5 Vet. App. 91, 92 (1993). Where the determinative issue involves causation or a medical diagnosis, competent medical evidence to the effect that the claim is possible or plausible is required. 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. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Consequently, the veteran's lay assertions cannot constitute cognizable evidence, and as cognizable evidence is necessary for a well grounded claim, Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992), the absence of cognizable evidence renders a veteran's claim not well grounded. The Board finds the claim of entitlement to service connection for a neck disorder claimed as torticollis to be not well-grounded. A neck disorder was not complained of, diagnosed or treated during the veteran's tour of active duty. There is post-service evidence of record demonstrating the presence of a current neck disorder variously diagnosed as cervical dorsal myositis, cervical disc dystonia and spasmodic torticollis. Significantly, however, is the fact that there is no competent evidence of record linking any of the neck disorders to any incident of active duty. The veteran testified that the neck disorder was due to an alleged personal assault. The only evidence of record which supports the veteran's allegation is the fact that he was treated for damage to his teeth during active duty. The cause of the damage to the teeth was not reported. The veteran has testified that three of his teeth were knocked out during the alleged assault. The Board finds that even if it concedes the veteran was subjected to a personal assault during active duty, there is no competent evidence of record linking his neck disorder to the assault. The treatises that the veteran submitted are not pertinent to his claim as they do not mention the veteran. The only evidence of record demonstrating that the veteran currently has a neck disorder as a result of active duty is the veteran's own allegations and testimony. The veteran, however, is a lay person. As reported above, a lay person is not competent to make a medical diagnosis or to relate a medical disorder to a specific cause. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The veteran's assertion that he has a neck disorder as a result of any incident of active duty is clearly beyond his competence to make. King v. Brown, 5 Vet. App. 19, 21 (1993). As the veteran's claim for service connection for a neck disorder is not well grounded, the doctrine of reasonable doubt is not applicable to his case. Although the Board considered and denied the appellant's claim on a ground different from that of the RO, which denied the claim on the merits, the veteran has not been prejudiced by the decision. This is because in assuming that the claim was well grounded, the RO accorded the appellant greater consideration than his claim in fact warranted under the circumstances. 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 appeal for service connection for a neck disorder. The Board further finds that the RO advised the appellant of the evidence necessary to establish a well grounded claim, and the appellant has not indicated the existence of any post service medical evidence that has not already been requested and/or obtained that would well ground his claim. 38 U.S.C.A. § 5103(a) (West 1991); McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997); Epps v. Gober, 126 F. 3d. 1464 (Fed. Cir. 1997). II. Entitlement to service connection for PTSD. Factual Background Review of the service medical records shows that the veteran was not treated for any mental disorders while on active duty. Review of the service personnel records shows that the veteran did not receive any awards or decorations indicative of participation in combat. Included in the claims file is a clinical record from D. S., D.O., which includes a diagnosis of PTSD and recurrent severe major depression, based on the veteran's having reported that he had been attacked while serving on active duty and severely beaten. There are several transcripts of RO hearings which have been associated with the claims file. In the transcripts, the veteran consistently reports that he was the victim of a personal assault while serving on active duty. Criteria Service connection for PTSD requires medical evidence establishing a clear diagnosis of the condition, credible supporting evidence that the claimed in-service stressor 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) (1998); Cohen v. Brown, 10 Vet. App. 128 (1997). Analysis The Board finds that the veteran's claim of entitlement to service connection for PTSD is well grounded within the meaning of 38 U.S.C.A. § 5107(a). In this case, the veteran claims to have PTSD as a result of an in-service personal assault. The veteran's testimony with respect to his in- service stressor must be accepted as true for the purpose of determining whether the claim is well grounded. See King v. Brown, 5 Vet. App. 19, 21 (1993). Included in the claims file is an opinion from a medical professional to the effect that the veteran currently has PTSD which is related to his experience during service. This, too, must be presumed to be credible for the limited purpose of establishing whether the claim of entitlement to service connection for PTSD is well grounded. As the veteran's testimony with respect to his in-service stressor must be accepted as true for the purpose of determining whether the claim is well grounded and as there is a current diagnosis of PTSD based on this stressor, the veteran's claim for service connection for PTSD is well grounded. To that extent, the appeal is granted. As will be discussed in greater detail below, the Board finds that additional development is necessary and the issue of entitlement to service connection for PTSD will be further addressed below in the remand portion of this decision. ORDER The veteran not having submitted a well grounded claim of entitlement to service connection for a neck disorder claimed as torticollis, the appeal is denied. The veteran's claim for service connection for PTSD is well grounded. To that extent only, the appeal is allowed. REMAND The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) 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. 1999) (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. Since the veteran's claim of entitlement to service connection for PTSD has been found to be well grounded, VA's statutory duty to assist attaches. 38 U.S.C.A. § 5107 (West 1991). As noted above, service connection for PTSD requires 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). See 38 U.S.C.A. § 1154(b) (West 1991); 38 C.F.R. § 3.304(d), (f) (1998). In this case, as there is no evidence that the veteran was engaged in combat with the enemy or that the claimed stressor is related to such combat, there must be corroborative evidence of the claimed in-service stressors. See Zarycki v. Brown, 6 Vet. App. 91 (1993). While the claims file includes a diagnosis of PTSD, this diagnosis of PTSD was based upon a reported in-service stressor that has not been verified, the alleged in-service personal assault. Verification of the veteran's aforementioned reported in-service stressor is necessary. The existence of an event alleged as a "stressor" that results in PTSD, though not the adequacy of the alleged event to cause PTSD, is an adjudicative, not a medical determination. See Zarycki, supra. The sufficiency of the stressor is a medical determination and adjudicators may not render a determination on this point in the absence of independent medical evidence. See West; Colvin v. Derwinski, 1 Vet. App. 171 (1991). As discussed above, the presumption of credibility in King applies only to the matter of the well groundedness of the claim. Once all of the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In so doing, the Board has a duty to assess the credibility and weight to be given to the evidence. See Madden v. Gober, 125 F.3d 1477 (Fed.Cir. 1997) and cases cited therein. It is noted that victims of in-service personal assault may find it difficult to produce evidence to support the occurrence of the stressor. However, alternate sources are available that may provide credible support to a claim of an in-service personal assault. These include medical or counseling treatment records following the incident, military or civilian police reports, reports from crisis intervention or other emergency centers, statements from confidants such as family members, roommates, clergy, or fellow service members, or copies of personal diaries or journals. VA Adjudication Manual M21-1 (M21-1), Part III, 5.14(c) (February 20, 1996). The Court has held that the provisions in M21-1, Part III, 5.14(c), which addresses PTSD claims based on personal assault are substantive rules which are the equivalent of VA regulations. Cohen; YR v. West, 11 Vet. App. 393, 398-99 (1998); Patton v. West, 12 Vet App 272 (1999). The Board finds the RO complied with one of the development requirements from M21-1, Part III, 5.14(c) by sending the veteran a stressor development letter specifically tailored for personal assault cases. The Board further finds, however, that the RO failed to comply with the of provisions in M21-1, Part III, 5.14(c) regarding behavior changes. Behavior changes that occurred at the time of the incident may indicate the occurrence of an in-service stressor based on personal assault. The RO must determine whether the veteran exhibited behavior changes in service. See M21-1, Part III, 5.14(c)(8). If there is evidence of behavior changes, it should be determined whether these indicate the occurrence of a stressor. Secondary evidence may need interpretation by a clinician, particularly if it involves behavior changes, and evidence that documents such behavior changes may require interpretation in relationship to the medical diagnosis by a VA neuropsychiatric physician. M21-1, Part III, 5.14(c)(9); Patton. In order to ensure that the record is fully developed, this case is REMANDED to the RO for the following: 1. The RO should request the veteran to identify the names, addresses, and approximate dates of treatment for all health care providers, VA and non-VA, inpatient and outpatient, who may possess additional records pertinent to his claim of entitlement to service connection for PTSD. After obtaining any necessary authorization or medical releases, the RO should request and associate with the claims file legible copies of the veteran's complete treatment reports from all sources identified whose records have not previously been secured. Regardless of the response from the veteran, the RO should obtain all outstanding VA treatment records. 2. The RO should afford the veteran the opportunity to submit any additional evidence in support of his claim for service connection for PTSD. The veteran is advised that this information is necessary to obtain supportive evidence of the stressful events and that he must be as specific as possible because without such details an adequate search for verifying information can not be conducted. The RO should then request any supporting evidence from alternative sources identified by the veteran and any additional alternative sources deemed appropriate, if the veteran has provided sufficiently detailed information to make such request feasible. 3. If the RO determines that there is evidence of behavior changes at the time of an alleged stressor which might indicate the occurrence of an in-service stressor, or if otherwise deemed necessary, the RO should obtain interpretation of such evidence by a clinician as provided in M21-1, Part III, 5.14(c)(9). 4. The RO should then review the file and make a specific written determination, in accordance with the provisions of 38 C.F.R. § 3.304(f) and M21-1, Part III, 5.14(c), with respect to whether the veteran was exposed to a stressor, or stressors, in service, and, if so, the nature of the specific stressor or stressors established by the record. In reaching this determination, the RO should address any credibility questions raised by the record. 5. Thereafter, if any claimed in-service stressor is corroborated by the evidence or if otherwise deemed warranted, the veteran should be afforded a VA psychiatric examination. The claims file, a separate copy of this remand, and a list of the stressor(s) found by the RO to be corroborated by the evidence must be provided to the examiner for review, the receipt of which should be acknowledged in the examination report. The examiner must determine whether the veteran has PTSD and, if so, whether the in-service stressor(s) found to be established by the RO are sufficient to produce PTSD. The examiner should be instructed that only the verified events listed by the RO may be considered as stressors. The examiner should utilize the DSM-IV in arriving at diagnoses and identify all existing psychiatric diagnoses. If PTSD is diagnosed, the examiner must explain whether and how each of the diagnostic criteria is or is not satisfied. Also, if PTSD is diagnosed, the examiner must identify the stressor(s) supporting the diagnosis. A complete rationale must be given for any opinion expressed and the foundation for all conclusions should be clearly set forth. 6. Thereafter, the RO should review the claims file to ensure that all of the foregoing requested development has been completed. In particular, the RO should review the requested examination report and required opinions to ensure that they are responsive to and in complete compliance with the directives of this remand and if they are not, the RO should implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 7. The veteran's claim should then be readjudicated with consideration of all pertinent law, regulations, Court decisions and M21-1, Part III, 5.14(c). If the benefit sought on appeal is not granted to the veteran's satisfaction, the RO should issue a supplemental statement of the case which includes any additional pertinent law and regulations, specifically to include M21-1, Part III, 5.14(c). 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. RONALD R. BOSCH Member, Board of Veterans' Appeals