Citation Nr: 0003765 Decision Date: 02/14/00 Archive Date: 02/15/00 DOCKET NO. 96-46 795 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUES 1. Entitlement to service connection for a mental disorder. 2. Entitlement to service connection for a lower back disability. REPRESENTATION Appellant represented by: Louis A. DeMier-LeBlanc, Esquire WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Acosta, Counsel INTRODUCTION The veteran served on active duty from October 1981 to October 1984. He also served on active duty for training (ADT) between June 27, 1993, and July 11, 1993. The above matters come before the Board of Veterans' Appeals (Board) on appeal from an April 1996 rating decision of the Department of Veterans Affairs (VA) San Juan, Puerto Rico, Regional Office (RO). FINDINGS OF FACT 1. It has not been shown that the currently-manifested mental disorder is causally related to service. 2. The veteran received medical treatment immediately after hurting his back while on ADT in 1993, did not receive any additional treatment for his lower back for almost a year after this incident, and he thereafter suffered trauma to multiple areas of his body, including his lower back, during an inmate riot that occurred while working as a prison guard in July 1994, after which date a left lumbar paravertebral fibromyositis was diagnosed. CONCLUSIONS OF LAW 1. The veteran has failed in his initial duty to submit a claim of entitlement to service connection for a mental disorder that is well grounded or capable of substantiation. 38 U.S.C.A. § 5107(a) (West 1991). 2. The diagnosed left lumbar paravertebral fibromyositis was not incurred in service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(d) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board notes that entitlement to service connection for a particular disability requires evidence of the existence of a current disability and evidence that the disability resulted from a disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1110 (West 1991). Service connection may also 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) (1999). Service connection may also be granted, on a presumptive basis, if a cardiovascular-renal disease, such as hypertension and systemic lupus erythematosus, is shown to be manifested within one year after separation from active military service, even in the absence of inservice manifestation. See, 38 C.F.R. §§ 3.307(a) and 3.309(a) (1999). Every claimant, however, bears the burden of submitting evidence that his or her claim of entitlement to service connection is well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). A well-grounded claim is one which is plausible, i.e., meritorious on its own and capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Unlike civil actions, more than just an allegation is required in order to prevail in a claim for VA benefits. In particular, it is noted that the claimant (who is, generally, a veteran) needs to submit supporting evidence that is sufficient to justify a belief by a fair and impartial individual that the claim for VA benefits is plausible. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992); Grivois v. Brown, 6 Vet. App. 136, 139 (1994). A claim for service connection benefits is considered to be well grounded when the following three criteria are met: (1) evidence of a current disability, as provided by a medical diagnosis; (2) evidence of incurrence or aggravation of a disease or injury in service, as provided by either lay or medical evidence, as the situation dictates; and (3) a nexus, or link, between the inservice disease or injury and the current disability, as provided by competent medical evidence. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995); 38 C.F.R. § 3.303 (1999). This means that there must be evidence of a disease or injury during service, a current disability, and a link between the two. Further, the evidence must be competent. That is, the presence of a current disability requires a medical diagnosis; and, where the claimant intends to link the current disorder to a cause during service or a service-connected disability, a competent opinion of a medical professional is required. See Caluza at 504; Reiber v. Brown, 7 Vet. App. 513 (1995). Whenever a claimant has not met the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that a claim for service connection benefits is well-grounded, VA has no duty to assist him or her in the development of facts pertinent to such claim, to include obtaining medical opinions. 38 U.S.C.A. § 5107. Further, if the veteran does not submit a well-grounded claim, the appeal of the claim must fail. 38 U.S.C.A. § 5107(a); Murphy, 1 Vet. App. at 81. Regarding the above, it is noted that the U.S. Court of Appeals for Veterans Claims ("the Court," known as the United States Court of Veterans Appeals prior to March 1, 1999) has said that the governing law, 38 U.S.C.A. § 5107(a), [R]eflects a policy that implausible claims should not consume the limited resources of the VA and force into even greater backlog and delay those claims which - as well grounded - require adjudication. . . . Attentiveness to this threshold issue is, by law, not only for the Board but for the initial adjudicators, for it is their duty to avoid adjudicating the implausible claims at the expense of delaying well grounded ones. Grivois v. Brown, 6 Vet. App. 136, 139 (1994). In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied, 524 U.S. 940 (1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, under 38 U.S.C. § 5107(a), VA has a duty to assist only those claimants who have established well grounded (i.e., plausible) claims. More recently, the Court issued a decision holding that VA cannot assist a claimant in developing a claim which is not well grounded. Morton v. West, 12 Vet. App. 477 (July 14, 1999), req. for en banc consideration by a judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam). First Issue Entitlement to service connection for a mental disorder: The veteran contends that he is entitled to be service- connected for a mental disorder that he believes is causally related to service. At an RO hearing that was conducted in November 1996, he acknowledged that he did not report any emotional problems during his 1981-1984 period of active military service. He also said at that hearing that he saw a psychiatrist approximately in 1986 in Massachusetts, but that he did not remember his name and that it "would be difficult" to secure copies of records from that psychiatrist. On further questioning, he also said, at the same hearing, that he was first treated or referred for emotional problems after a 1994 traumatic event at his place of employment. See, in this regard, pages 16-17 of the transcript of this hearing. A review of the evidentiary record reveals no complaints of any mental difficulties, or evidence of mental health treatment at any time during the veteran's 1981-1984 period of active military service, as well as the veteran's denial, in his report of medical history for separation of August 1984, of ever having had, or currently having, depression or excessive worry, loss of memory or amnesia, and nervous trouble of any sort. It is noted that, in that report, the veteran did indicate that he had had, or currently had, frequent trouble sleeping. However, his psychiatric evaluation was negative, as noted in his report of medical examination of the same date. A review of the record also reveals that, in an Applicant Medical Prescreening Form, DD Form 2246, that the veteran filled out and signed in December 1984, as part of the process of joining the Puerto Rico National Guard, he said that he had never been hospitalized, nor treated for a mental condition, and that he had not had any other medical problems or defects of any kind. Similarly, the reports of medical examinations that were conducted in January 1985 and February 1987, while the veteran was a member of the Puerto Rico National Guard, reveal negative psychiatric evaluations of the veteran, and the reports of medical history of the same dates reveal that the veteran denied ever having had, or currently having, frequent trouble sleeping, depression or excessive worry, loss of memory or amnesia, and nervous trouble of any sort. A barely-legible July 1990 VA outpatient medical record reveals complaints of anxiety and insomnia, and a diagnosis of an adjustment disorder, with an anxious mood. According to a July 1993 Statement of Medical Examination and Duty Status, DA Form 2173, the veteran hurt his inguinal area and back while picking up an M50 machine gun, the injury was incurred in the line of duty, but was not likely to result in a claim against the government and would only result in a temporary disability, and the veteran, who was not under the influence of alcohol or drugs, was considered "not mentally sound" at the time of the accident. No statement clarifying this opinion of the veteran's not being "mentally sound" was attached to this form, and no mental disorder was diagnosed. According to an April 1995 VA outpatient medical record, the veteran was receiving mental health treatment since July 20, 1994, "because of multiple blunt contusions when assaulted by the inmates of the public jail at Rio Piedras, Puerto Rico." His complaints were of insomnia, nervousness and nightmares, and the diagnosis was listed as a generalized anxiety disorder. VA outpatient and inpatient medical records that were produced in August and September 1995 reveal that the veteran, who used to work as a prison guard for the State Penitentiary (the "Oso Blanco") in Rio Piedras, Puerto Rico, had been nervous and depressed for one year, with auditory hallucinations. According to this record, the veteran had "feelings of rage and hatred against the people (inmates at the local penitentiary) who hurt him a year ago," during a July 1994 prison riot in which he was taken as a hostage, and he had been unemployed for approximately one year, due to these symptoms. The record shows that the symptomatology was so acute at this point in time (August 1995) that the veteran had to be hospitalized for more than two weeks at a VA medical facility, with the diagnoses of major depression, with psychotic features, post-traumatic stress disorder (PTSD), secondary to physical assault, and continuous alcohol abuse. The evidentiary record also contains a June 1996 decision from the Social Security Administration (SSA), finding the veteran disabled, for SSA purposes, since July 20, 1994, due to his severe lumbar and cervical pain radiating to the extremities, with resulting limitation of motion, as well as depression and mental distress. This document also contains a psychiatric review form, according to which the veteran suffers from a depressive syndrome, characterized by sleep disturbances, decreased energy, feelings of guilt, or worthlessness, and difficulty concentrating or thinking, as well as PTSD. As shown above, the Caluza criterion of a present disability has been met in the present case, as the veteran has been found to currently suffer from major depression and PTSD. However, the remaining Caluza criteria have not been met in the present case because there is no competent evidence of inservice incurrence of a mental disorder and of the existence of a nexus between the currently-manifested mental disorders and service. To the contrary, the record is clear in that these disabilities are directly related to the traumatic events that the veteran experienced on July 20, 1994, when he was no longer serving on active duty. In view of the above, the Board has no other recourse but to conclude that the veteran has failed in his initial duty to submit a claim for service connection for a mental disorder that is well grounded or capable of substantiation. Consequently, the claim for that benefit has failed, and the appeal must be denied. Additionally, the Board notes that the veteran has not reported that any competent evidence exists that, if obtained, would establish a well-grounded claim for service connection for a mental disorder. Under these circumstances, VA has no further duty to assist the veteran in developing the matter on appeal. Epps v. Brown, 9 Vet. App. 341 (1996); Robinette v. Brown, 8 Vet. App. 69 (1995). Finally, the Board notes that the RO's failure to find the matter on appeal not well-grounded constitutes harmless error. Edenfield v. Brown, 8 Vet. App. 384 (1995). Second Issue Entitlement to service connection for a lower back disability: The veteran contends that he is entitled to be service- connected for a lower back disability that he believes is causally related to service. In particular, he asserts that this disability had its onset when he injured his back while performing ADT in June 1993. Initially, the Board finds that, in accordance with 38 U.S.C.A. § 5107(a) (West 1991), and Murphy v. Derwinski, 1 Vet. App. 78 (1990), the veteran has presented a well- grounded claim for service connection for a lower back disability, as there is evidence of inservice trauma, competent evidence of a present disability, and lay evidence suggesting a possible nexus between the present disability and service. The facts relevant to this appeal have been properly developed and VA's obligation to assist the veteran in the development of his claim (not to be construed, however, as shifting from the claimant to VA the responsibility to produce necessary evidence, per 38 C.F.R. § 3.159(a) (1999)), has been satisfied. Id. At the outset, it is noted that, not only does the veteran claim that his lower back problems started when he injured his back while on active duty in 1993, but his service medical records for the 1981-1984 period of active military service reveal no evidence of any lower back problems or disability. As noted earlier, the record shows that the veteran complained of hurting his back while serving on ADT in June 1993 and that the aforementioned DA Form 2173 of July 1993 revealed that the injury would only result in temporary disability. This document also reveals that the veteran received medical treatment at the Camp Santiago Health Clinic at the time of the injury and that he was then released back to his unit "for 48 h[ou]rs of quarters and light duty." A barely-legible VA outpatient medical record that was dated in July 1993, only several days after the above incident, reveals that the veteran had sprained his lumbosacral area a week earlier. No actual diagnosis of a chronic disability was listed, however. The aforementioned VA outpatient medical record of April 1995 reveals a diagnostic impression of chronic low back pain. According to the report of a VA June 1995 spine examination, the veteran reported a two to three-year history of lower back pain associated with numbness and tingling of his left leg upon standing for a long time. He claimed that this was secondary to a back injury three years earlier when he lifted an M-50 and that the pain worsened upon bending forward or standing or sitting for more than one hour. On examination, there were no postural abnormalities, fixed deformities or muscle atrophy in the lower extremities, although there was tenderness to palpation on the lumbar paravertebral muscles on the left side. The diagnosis was listed as left lumbar paravertebral fibromyositis. In addition to the above evidence, the VA document reflecting the veteran's August/September 1995 VA hospitalization for the treatment of the diagnosed PTSD and major depression contains a diagnosis of chronic cervical and lumbar spines pain syndrome. The above diagnoses notwithstanding, the Board notes that, according to an August 1995 VA radiology diagnostic report, X-Rays of the veteran's lumbosacral spine revealed intact vertebral bodies and pedicles, with no evidence of fracture or dislocation, warranting an impression of a "normal study." Finally, the Board notes that, at the RO hearing of November 1996, the veteran recounted the above history of having hurt his lower back while on ADT in July 1993, made reference, albeit briefly, to the physical trauma suffered during the prison riot of July 1994, and acknowledged that he did not receive medical treatment for his back between July 1993 and July 1994. As noted earlier, this claim is well grounded. Therefore, the Board needs to determine whether the preponderance of the evidence favors or is against the claim, or whether it is in relative equipoise, in which case reasonable doubt would be resolved in favor of the veteran. The Board finds that the evidence is not in relative equipoise but that the preponderance of the evidence is against the claim of entitlement to service connection for a lower back disability. The Board acknowledges that the record reveals that the veteran hurt his lower back in June 1993. However, an actual chronic disability was never diagnosed at that time and the facts that the veteran did not receive further medical treatment until the traumatic event of July 1994 and that he has been considered disabled, for SSA purposes, since July 20, 1994, preponderates against a finding that a chronic disability of the lower back was incurred as a result of the June 1993 incident. In view of the above, the Board concludes that, insofar as the preponderance of the evidence is against the appealed claim for service connection for a lower back disability, the benefit sought on appeal is not warranted, which means that the claim has failed and that the appeal must be denied. ORDER 1. Service connection for a mental disorder is denied. 2. Service connection for a lower back disability is denied. JEFF MARTIN Member, Board of Veterans' Appeals