BVA9508041 DOCKET NO. 92-53 641 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for peroneal neuropathy. 2. Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Military Order of the Purple Heart WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. M. Barnard, Counsel INTRODUCTION The veteran served on active duty from August 1985 to September 1987. This appeal arises from an April 1990 rating decision of the Nashville, Tennessee, Department of Veterans Affairs (VA), Regional Office (RO), which denied entitlement to service connection for the requested benefits. This was confirmed and continued by a rating action issued in January 1991. The veteran testified at a personal hearing in March 1991; the hearing officer issued a decision which continued the denial of the requested benefits. This case was remanded by the Board in November 1992; following compliance with this remand, a rating action was issued in July 1993 which continued the denials. A second remand for further development was issued in May 1994, and a rating action confirming the denials was issued in October 1994. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that she currently suffers from peroneal neuropathy which first began in service. She states that she suffers from right leg pain and numbness which first began in boot camp and which has persisted to the present. She also asserts that she suffers from manic depressive illness that first manifested in service. Therefore, she believes that entitlement to service connection should be granted for both disabilities. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims files. 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 appellant has not submitted evidence sufficient to justify a belief by a fair and impartial individual that her claim for entitlement to service connection for peroneal neuropathy is well grounded; the Board also finds that the preponderance of the evidence is against her claim for entitlement to service connection for bipolar disorder. FINDINGS OF FACT 1. The veteran is not shown by competent medical evidence to suffer from peroneal neuropathy. 2. Bipolar disorder was not present in service, nor was it present to a compensable degree within one year of separation from service. CONCLUSIONS OF LAW 1. The appellant has not submitted evidence of a well grounded claim for entitlement to service connection for peroneal neuropathy. 38 U.S.C.A. §§ 1131, 5107(a) (West 1991); 38 C.F.R. § 3.303(b) (1994). 2. Bipolar disorder was not incurred in or aggravated by service, nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107(a) (West 1991); 38 C.F.R. §§ 3.303(c), 3.307, 3.309 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Entitlement to service connection for peroneal neuropathy. The threshold question to be answered in this case is whether the appellant has presented evidence of a well grounded claim; that is, one which is plausible. If she has not presented a well grounded claim, her appeal must fail and there is no duty to assist her further in the development of her claim because such additional development would be futile. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet.App. 78 (1990). As will be explained below, it is found that this claim is not well grounded. Under the applicable criteria, service connection may be granted for a disability the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131 (West 1991). For the showing of a 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 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) (1993). A review of the service medical records reveals that the veteran's condition was within normal limits at the time of the entrance examination performed in July 1985. A note from November 1985 revealed her complaints of a history of bilateral foot pain. The assessment was stress pain secondary to flexible pes planus. In December 1985, she presented with similar complaints and the previous diagnosis was confirmed. On December 16, 1985, she complained of bilateral foot pain, and swelling of the posterior right fibula. A neurological examination was intact. There was moderate edema on the lateral malleolus and palpation/percussion of the posterior fibula elicited tingling up the right leg. The assessment was peroneal muscle spasm with pain and possible entrapped nerve. On January 30, 1986, the veteran presented with diminished sharp pain sensation to the lateral one-third of the right foot and lateral border of the right ankle and leg up to the knee. There was some muscle weakness in the right leg. Percussion elicited paresthesia on the distal portion of the leg. The assessment was possible partial entrapment neuropathy right peroneal nerve, right leg weakness with common peroneal nerve involvement. A neurological evaluation performed in February 1986 revealed evidence of mild foot drop on the right, and decreased sensation over the lateral portion of the right lower leg. There were no symptoms of sciatica. Coordination was within normal limits. The impression was common peroneal neuropathy secondary to external trauma. By March 1986, the impression was essentially resolving common peroneal neuropathy. In April 1986, she reported that she received the most relief from non-weight bearing. She denied trauma, save for the wearing of combat boots. Her right foot displayed a markedly high longitudinal arch and a noticeable contraction of the toes. No neurological deficit of the right lower leg was noted. The left leg was noted to be one inch shorter than the right. The assessment was probable congenital contraction deformity of the right foot with associated paresthesia. On June 3, 1986, the veteran was noted to have a splay foot with peroneal neuropathy. She complained of the spread of numbness, although no gross deformity was noted. The impression was chronic right ankle/foot pain and paresthesia/pain possibly secondary to previous trauma, associated paresthesia/numbness. This was noted to follow a nonanatomic pattern, suggesting a functional overlay. EMG and nerve conduction studies performed in June 1986 were within normal limits. A note from August 12, 1986 found mild peroneal nerve palsy. The separation examination conducted in September 1987 revealed her complaints that she suffered from lameness, and bone, joint or other abnormalities. However, the objective examination was negative. The VA examined the veteran in February 1990. The physical examination noted her history that she had begun to experience pain and swelling in boot camp. At first, the right ankle was wrapped. When this failed, she was placed in a cast for six weeks. However, she received no relief. Several in-service EMG's revealed no abnormalities. The only significant finding was some weakness of the anterior tibiale muscles on the right. It was noted that her right foot wanted to turn in on her when she walked. She also complained of decreased sensitivity on the right side of the right leg. There was no true foot drop, although the foot did turn in. The objective examination showed no gross abnormalities. The back was negative, and the leg lengths were equal. Reflexes were normal, and the right foot did turn in when she ambulated. The impression was possible peroneal neuropathy. As part of this VA examination, the veteran was afforded a neurological examination on March 3, 1990. The objective examination was completely normal. There was no weakness or sensory loss noted. She did display some give away weakness of the right foot dorsiflexors, but this was not consistent with any steady weakness. Position, vibratory and pin sensation were intact. There were no abnormalities, except for some give way weakness on the right which was found to be a functional finding. The veteran then testified at a personal hearing in March 1991. She stated that her right ankle pain began in basic training. A corpsman told her that she had "fallen arches." She said that she could recall no specific trauma, although she felt that the problem could have been related to excessive marching and military drills. The problem progressed until she noted numbness in December 1985. The pain and numbness extended to include the hip and back. She noted that peroneal neuropathy was suspected although the tests were all negative. In April 1993, the veteran was subjected to an extensive VA examination. On April 21, a neurological evaluation noted her complaints that she felt clumsy on the right side and said that, when she became fatigued, she would note foot drop on the right. Long periods of standing or sitting would cause the thighs to tingle. The objective examination noted no gross lower extremity wasting. Strength was good, as was range of motion of the lower extremities. Pin sensation was decreased over the right sole of the foot, as well over the lateral and dorsal foot, the lateral leg and the lateral thigh. There was also decreased pin sensation over the sole of the left foot. An x-ray of the lumbar spine was normal. An EMG and nerve conduction studies were normal. The diagnosis was no evidence of peroneal neuropathy found. An examination of the spine was performed on April 23. The veteran's gait and posture were normal. She reported decreased sensation to sharp discrimination when tested over the lateral right calf and dorso-lateral foot, and the right third, fourth, and fifth toes. The sciatic notch was slightly tender on the left. Straight leg raises were to 70 degrees on the right, and to 90 degrees on the left. Digital pressure to the right of L2 produced tenderness. Forward flexion was to 30 degrees, extension was to 25 degrees, bilateral lateral flexion was to 35 degrees, and bilateral rotation was to 30 degrees. There was no pain or spasm on range of motion. The diagnoses were history of recurrent low back pain, no objective evidence of any residual lumbar spine functional impairment by physical examination; and history of hypesthesia, pain lateral right leg, dorso-lateral right foot. A peripheral nerve examination was performed on April 28. It was noted that peroneal neuropathy was brought up in service, but from the records, nothing was documented. She complained that the pain that she had had moved into the back. She described some vague weakness or dysfunction of the leg that was inconsistent, that seemed to come and go. An EMG and nerve conduction studies obtained the week before were normal. The objective examination revealed that the cranial nerves were intact. Reflexes were normal, and the lower extremities had normal strength, except for some non-organic give away in the right anterior tibial and somewhat at the right peroneal and posterior tibial. She was able to heel/toe walk without difficulty. There was fairly good motion in the back, with complaints of pain, but no point tenderness. She complained of diffuse tenderness over the right lateral leg and thigh. There was no evidence of atrophy or fasciculations in the leg. There was no evidence of a disability found in the lower extremities or low back that could be associated to a neurological cause. There was some non-organic giving way when the muscles were tested but her function in the leg appeared to be very normal. There was no major restriction of her back and electrical testing did not conform with any definite neurological deficit. The diagnosis was no evidence of any neurological deficit and no definite neuropathy or radiculopathy. Initially, as noted above, the law pertaining to direct service connection clearly requires that there must exist a disability that resulted from disease or injury incurred in service. 38 U.S.C.A. § 1131 (West 1991). Finally, service connection for a chronic disease, established through chronicity of symptomatology, may be proven. 38 C.F.R. § 3.303(b) (1994). In the instant case, the evidence of record does not establish that the veteran suffers from any claimed disability or chronic disease which can be service-connected under the above-noted laws. There is no evidence of record to show that the she suffers from a neurological disorder of the right lower extremity. In fact, an extensive VA examination conducted between April 21 and 28, 1993 noted that the veteran did not suffer from peroneal neuropathy. While this disorder was referred to as a possibility in the service medical records, as well as in a VA examination performed in February 1990, the extensive work-up in April 1993 refuted the existence of this disorder. Therefore, there is no basis upon which to award service connection. The United States Court of Veterans Appeals has stated that, in order for a claim for service connection to be well grounded, there must be competent medical evidence of the existence or diagnosis of a current disorder that can be linked to the period of service. Grivois v. Brown, 6 Vet.App. 136 (1994); Grottveit v. Brown, 5 Vet.App. 91 (1993); Rabideau v. Derwinski, 2 Vet.App. 141 (1992). As noted above, there is no competent medical evidence of the current existence of peroneal neuropathy that can be linked to the veteran's period of service. Therefore, as the appellant's claim for service connection for peroneal neuropathy is not well grounded, it must be dismissed. To do otherwise and handle the issue on the merits would be inappropriate because it would require the appellant in the future to overcome the inertia of an earlier, adversely adjudicated claim. See Grottveit, at 93. II. Entitlement to service connection for an acquired psychiatric disorder. The veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, we find that he has a presented claim which is plausible. We are also satisfied that all relevant facts have been properly developed. The record is devoid of any indication that there are other records available which should be obtained. Therefore, no further development is required in order to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Under the applicable criteria, service connection may be granted for a disability the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991). Where a veteran has served for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and a psychosis becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). It is noted that personality disorders as such are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303(c) (1994). The service medical records reveal that the veteran was psychiatrically normal at the entrance examination performed in July 1985. In October 1986, she was evaluated at the Mental Health Clinic. She recounted that her father had died when she was eight years old, and that her stepfather was jealous and verbally abusive. She had had trouble with teachers but did finish high school; she also noted that her relationships with men were disruptive and unstable. She complained of tension headaches, insomnia, crying spells, loss of energy, premenstrual tension, chronic aches and pains, an inability to relax, and chronic fatigue. The mental status examination showed that she was alert, passively cooperative and manifested mild anxiety. Her affect was constricted though it was appropriate to her anxious/guarded mood. Her speech was goal-directed, and at times was self-dramatizing. There was no homicidal or suicidal ideation and no evidence of a psychosis. The assessment was psychological factors affecting physical condition, and mixed personality disorder with histrionic, passive-aggressive, dependent, and borderline features. In May 1987, she again complained of insomnia, moodiness, nightmares, swings in appetite, and crying spells. The mental status examination revealed that she was alert, oriented, and subtly manipulative. There was no thought disorder, but her presentation was overly dramatic and circumstantial. Her mood was sullen with a labile affect. She denied suicidal ideation. Her motivation for treatment and for naval service was nil. The impression was mixed personality disorder. The separation examination conducted in September 1987 indicated that the personality disorder was noted. The objective examination showed that she was psychiatrically normal. A VA examination was performed in February 1990. The veteran was oriented times three, with no evidence of hallucinations, delusions or a thought disorder. Her affect was within appropriate limits. She was noted to be attending college and caring for her child. There was no psychiatric diagnosis. However, the examiner noted that if a diagnosis of a particular personality disorder was wanted, psychological testing would need to be performed. The veteran did attend group therapy between November 1989 and April 1990. The Axis I diagnosis was dysthymia and the Axis II diagnosis was narcissistic personality disorder. In March 1991, the veteran testified at a personal hearing. She noted that her problems began at her first duty station after basic training. She stated that she experienced nightmares, nervousness, paranoia, and decreased concentration. She commented that this was job-related stress. She said that the Navy psychiatrists diagnosed a personality disorder and problems coping with stress. She stated that she had attended group therapy and that her symptoms had decreased since service. While the VA examination failed to identify a disorder, her private physician did note that she had depression. The veteran was examined by VA in April 1993. The C-file was reviewed, and it was noted that she began to see a psychiatrist two years before. She commented that she started having mood swings, depression and hyperactivity two years before. She stated her mood changes occurred mostly during her premenstrual period. The objective examination revealed that her affect was premenstrual, stable, euthymic, and appropriate. There was no thought disorder and no psychotic symptoms. Her concentration was good and her memory was intact. Psychological testing was also performed. She was given the Millon Clinical Multiaxial Inventory (MCMI); this confirmed the presence of manic symptoms. There was no anxiety or depression. The more salient aspects of the results involved a personality disorder. Prominent narcissistic, histrionic and anti-social elements were featured. She had disturbed interpersonal relationships marked by egocentrism, superficiality, demandingness, aggressiveness, impulsivity and explosive tendencies. The impressions were bipolar disorder in partial remission and personality disorder with narcissistic, histrionic and anti-social features. The Axis I diagnosis was manic depressive illness, mixed type; and the Axis II diagnosis was personality disorder with histrionic features. Initially, it is noted that the veteran was diagnosed with suffering from a personality disorder, defined as mixed in type, in service. However, such a personality disorder cannot be service-connected under the applicable legislation, since personality disorders are not diseases or injuries for which service connection may be granted. 38 C.F.R. § 3.303(c) (1994). Moreover, while the veteran is currently diagnosed as suffering from bipolar disorder, it is noted that this disability was not diagnosed in service, nor did it manifest to a compensable degree within one year of separation from active duty. In fact it was not diagnosed until the VA examination conducted in April 1993, several years after release from active duty. Furthermore, it is noted that, during this examination, the veteran indicated that her mood swings had first developed two years before, that is, in 1991. This date of onset is still more than one year after discharge. Therefore, it is the conclusion of the undersigned that entitlement to service connection on either a direct or presumptive basis has not been established. In conclusion, the undersigned finds that the preponderance of the evidence is against entitlement to service connection for a bipolar disorder. ORDER The appeal of the claim for service connection for peroneal neuropathy is dismissed. So much of the rating decision of April 1990 as denied this claim on the merits is vacated. Service connection for bipolar disorder is denied. KENNETH R. ANDREWS, JR. Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (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), 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 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.