Citation Nr: 0000104 Decision Date: 01/04/00 Archive Date: 12/28/01 DOCKET NO. 98-19 580 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to permanency of a 100 percent disability rating currently in effect for service-connected schizoaffective disorder. 2. Eligibility for Dependents' Educational Assistance (DEA) under 38 U.S.C. Chapter 35. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. S. Nelson, Associate Counsel INTRODUCTION The veteran had active duty from October 1974 to July 1977. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an October 1998 rating decision by the Louisville, Kentucky, Regional Office (RO) of the Department of Veterans Affairs (VA), which decided that the assigned 100 percent evaluation for the veteran's service- connected schizoaffective disorder was not considered permanent. In his November 1998 substantive appeal, the veteran indicated that he wanted a hearing before a Member of the Board. In correspondence received in March 1999, the veteran indicated that he would not be able to attend his scheduled Board hearing. As he has asked that the hearing be rescheduled, the Board will proceed with its appellate review. 38 C.F.R. § 20.702 (c) (1999). FINDINGS OF FACT 1. By rating decision dated in February 1986, the RO granted service connection for schizoaffective disorder and assigned a 70 percent evaluation. 2. By rating decision dated in July 1995, the RO granted an increased 100 percent evaluation for the service-connected schizoaffective disorder, effective from February 1995, and the RO noted that the assigned 100 percent evaluation was not considered permanent and was subject to future review examination. 3. There is no competent medical evidence establishing that the veteran's total impairment due to service-connected schizoaffective disorder is permanent. CONCLUSIONS OF LAW 1. The veteran's claim of entitlement to permanency of a 100 percent scheduler evaluation for schizoaffective disorder is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. §§ 3.327, 3.340(b) (1999). 2. The basic eligibility requirements for entitlement to Dependents' Educational Assistance (DEA) allowance under Chapter 35, Title 38, United States Code have been met. 38 U.S.C.A. §§ 3500 and 3501 (West 1991); 38 C.F.R. § 3.807 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran has presented a claim of entitlement to Dependents' Educational Assistance under 38 U.S.C. Chapter 35. However, a claim of entitlement to a permanent 100 percent disability for schizoaffective disorder has also been raised, and is a requisite to a determination of eligibility for Chapter 35 benefits. Accordingly, the Board will address both issues. Total disability exists when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a) (1999). Total disability may or may not be permanent. Permanence of total disability exists when such impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 3.340(b) (1999). Diseases and injuries of long standing which are actually totally incapacitating will be regarded as permanently and totally disabling when the probability of permanent improvement under treatment is remote. 38 C.F.R. § 3.327(b)(2)(iii) (1999). However, the Board must first determine whether the veteran has submitted a well-grounded claim as required by 38 U.S.C.A. § 5107(a) (West 1991), and if so, whether the VA has properly assisted the veteran in the development of his claim. A well-grounded claim is one that is plausible, capable of substantiation or meritorious on its own. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). While the claim need not be conclusive, it must be accompanied by supporting evidence. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In cases in which the determinative issue involves a medical question, competent medical evidence is required to establish the claim as well grounded. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). By rating decision dated in February 1986, the RO granted service connection for schizoaffective disorder and assigned a 70 percent evaluation. By rating decision dated in July 1995, the RO granted an increased 100 percent evaluation for the service-connected schizoaffective disorder, effective from February 1995. In an October 1998 rating decision, the RO determined that the assigned 100 percent evaluation was not considered permanent and was subject to future review examination. The evidence of record reflects that the veteran has undergone continuous treatment for serious psychiatric disability ever since leaving service. In September 1977 the veteran was treated for an acute schizophrenic episode. A VA examination in September 1982 reflects that the veteran was diagnosed with schizophrenic reaction. It was noted that even without the presence of illicit drugs, the veteran had experienced hallucinations and delusions of persecution. It was noted that his state of remission at the time of the examination was "tenuous." A January 1986 VA examination reflects a diagnosis of schizoaffective disorder. It was noted that his capacity to be employed was chronically impaired. A September 1987 VA examiner noted that the veteran's prognosis was "very much guarded" and that he was not able to hold gainful employment. An October 1989 VA examiner also felt that the veteran's prognosis was guarded, and stated that his condition had not improved. The veteran most recently underwent a VA mental disorders examination in April 1995. The diagnosis was schizophrenia, chronic, undifferentiated. The examiner commented that the veteran had some periods of stability in the past, and, if given enough support, might be able to find some suitable type of work commensurate with his limited abilities. Treatment records dated January 1996 to June 1998 from a corrections facility indicate that the veteran had not exhibited "overly psychotic" symptomatology. The veteran was taken off Zoloft in favor of Risperdal. The records also show that the veteran complained of ailments that were not shown on physical examination and were thought to be psychogenic. After a review of the evidence, including the April 1995 VA examination and the recent treatment records from the veteran's correction facility, the Board finds that the veteran's psychiatric disability appears total. However, the present record does not contain any competent medical evidence, in the form of a medical opinion, demonstrating that his total psychiatric disability is reasonably certain to continue throughout his lifetime. The present record is simply devoid of any competent medical evidence showing that his schizoaffective disorder may not improve and is permanent. The Board notes that where the determinative issue requires a medical opinion, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Espiritu v. Derwinski, 2 Vet. App. 292 (1991). Since the record does not reflect that the veteran possesses the medical training and expertise necessary to render an opinion as to the permanency of his psychiatric disability, his statements, alone, cannot make the claim for permanency of a 100 percent schedular evaluation for schizoaffective disorder well grounded. See Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). The Board is aware of no circumstances in this matter which would put VA on notice that relevant evidence may exist or could be obtained, which, if true, would make the claim for permanency plausible. See generally McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997). By this decision, the Board is informing the veteran that his claim requires medical evidence demonstrating that his schizoaffective disorder may not improve and is permanent to meet the requirements of a well grounded claim. See 38 U.S.C.A. § 5103(a) (West 1991); Robinette v. Brown, 8 Vet. App. 69 (1995). Dependents' Educational Assistance allowance under Chapter 35, Title 38, United States Code may be paid to a child or surviving spouse of a veteran who meets certain basic eligibility requirements. Basic eligibility exists if the veteran has a permanent total service-connected disability. 38 U.S.C.A. §§ 3500 and 3501 (West 1991); 38 C.F.R. § 3.807 (1999). As noted above, the Board finds that the veteran does not have a permanent total disability rating. Accordingly, he does not meet the basic criteria for eligibility for Dependents' Educational Assistance allowance under Chapter 35, under 38 C.F.R. § 3.807(1). ORDER Evidence of a well grounded claim having not been submitted, entitlement to permanency of a 100 percent schedular evaluation for schizoaffective disorder is denied. Eligibility to Chapter 35 Dependents' Educational Assistance is denied. BRUCE KANNEE Member, Board of Veterans' Appeals