Citation Nr: 0003811 Decision Date: 02/14/00 Archive Date: 02/15/00 DOCKET NO. 98-17 323 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for major depression or depression. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant and [redacted], observer ATTORNEY FOR THE BOARD B. N. Booher, Associate Counsel INTRODUCTION The veteran had unverified service from February 1977 through April 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 1998 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which denied the benefit on appeal. The Board initially notes that in addition to the issue set forth on the title page of this decision, the veteran also appealed the RO's determination that the veteran had not submitted new and material evidence to reopen his claim for service connection for hearing loss. However, during the Travel Board hearing held before the undersigned in Chicago, Illinois in December 1999 and in a statement submitted in December 1999, the veteran withdrew his appeal regarding his entitlement to service connection for hearing loss. FINDINGS OF FACT 1. The veteran has a current diagnosis of depression. 2. The veteran was diagnosed with depression during his period of active service. 3. While there is no medical opinion that specifically links a current psychiatric diagnosis to service, the evidence of record shows some continuity of symptomatology and suggests a nexus between the veteran's period of active service and his current diagnosis of depression. CONCLUSION OF LAW The claim of entitlement to service connection for major depression is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran contends that he is entitled to service connection for depression, which he alleges was caused by an incident during service where he was beaten until he was unconscious. The VA may pay compensation for "disability resulting from personal injury or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in the active military, naval or air service." 38 U.S.C.A. § 1110 (West 1991). However, the threshold question that must be answered in this case is whether the veteran has presented a well-grounded claim for service connection. A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. In this regard, the veteran 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); Grivois v. Brown, 6 Vet. App. 136, 140 (1994); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). If the evidence presented by the veteran fails to meet this threshold level of sufficiency, no further legal analysis need be made as to the merits of the claim. Boeck v. Brown, 6 Vet. App. 14, 17 (1993). For a claim to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service disease or injury and the current disability. Where the determinative issue involves medical causation, competent medical evidence to the effect that the claim is plausible is required. See Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997). For disorders subject to presumptive service connection, the nexus requirement may be satisfied by evidence of manifestation of the disease to the required extent within the prescribed time period, if any. See Traut v. Brown, 6 Vet. App. 495, 497 (1994); Goodsell v. Brown, 5 Vet. App. 36, 43 (1993). A claimant may also establish a well-grounded claim for service connection under the chronicity provision of 38 C.F.R. § 3.303(b) (1999), which is applicable where the evidence, regardless of its date, shows that a veteran had a chronic condition in service or during an applicable presumption period, and that same condition currently exists. Such evidence must be medical unless the condition at issue is one which under case law, lay observation is considered competent to prove its existence. If the chronicity provision is not applicable, a claim still may be well- grounded pursuant to the same regulation if the evidence shows that the condition was observed during service or any applicable presumption period and continuity of symptomatology was demonstrated thereafter, and includes competent evidence relating the current condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-98 (1997). In this case, service medical records show that on his enlistment examination, the veteran indicated variously that he had a history of depression and that he did not have a history of depression. During service in July 1977 and October 1978, the veteran was treated in the psychiatric unit for difficulty with alcohol abuse. Additionally, in December 1977 the veteran underwent a psychiatric evaluation because of his involvement in numerous conflicts and fights. The examiner opined that the veteran's hypersensitivity in his relationships with his peers was a function of his personality and did not represent a serious psychiatric impairment. A January 1979 separation examination report reflects that the veteran had depression, which was attributed to a death in his family and his inability to adjust. Post-service medical records show that the veteran was admitted to Bethany Hospital in July 1991, April 1992, July 1992 and August 1993 for treatment of alcohol abuse and dependency. Records received from Riveridge Hospital dated January 1994, show that the veteran was hospitalized for alcohol abuse and feelings of depression. Upon discharge from Riveridge, the veteran was diagnosed with depression, NOS and alcohol dependency. An August 1997 statement from a VA physician indicates that the veteran had been receiving psychiatric treatment for approximately 2 years. The physician stated that pursuant to the veteran's history, his psychological symptoms started during his period of active service and ultimately resulted in his discharge from the military. The physician indicated that the veteran had a documented diagnosis of a dysthymic disorder, or chronic depression. Records from the veteran's employer, the United States Postal Service, dated September 1997 to July 1998 reflect that the veteran has been diagnosed variously with alcohol induced psychosis, depression, dysthymia, neurotic depression and major depression with a possible onset in 1991 or 1992. In July 1999, the veteran submitted another statement from a VA physician who indicated that the veteran had been seeking treatment for psychiatric illnesses including depression and dysthymia from the Edward Hines, Jr. VA Medical Center (VAMC). The VA physician stated that additional information regarding cognitive tests, mental status exams and relevant laboratory and imaging tests could be obtained from Hines VAMC. However, it does not appear that these records were ever associated with the veteran's claims file. In December 1999, the veteran gave testimony during a Travel Board hearing held before the undersigned in Chicago, Illinois. The veteran testified that he did not have difficulty with depression prior to service, and that during service he began to drink heavily. The veteran also testified that during service he was the victim of a racial attack and was beaten to the point of being unconscious. The veteran testified that he first sought treatment for depression in approximately 1992. He indicated that he had difficulty with alcohol abuse from the time he separated from service until he sought treatment for depression. The veteran testified that he currently takes medication to treat his symptomatology which includes anxiety, depression and hearing voices. He also stated that he goes to the VAMC once a month for medication and to see his psychiatrist. The veteran indicated that he retired from employment with the United States Postal Service due to the disabling effects of his depression. Based on the veteran's contentions, which are presumed to be credible for the purpose of determining well groundedness, and on medical evidence of record which suggests a link between the veteran's period of active service and his current diagnosis of depression, the Board finds the veteran's claim well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). Specifically, the Board finds that the evidence shows that the veteran developed depression during service and that he has current diagnosis of depression. While there is no medical opinion of record that specifically links any of the veteran's current diagnoses of major depression, depression, or dysthymic disorder to service, there is some medical evidence of record that suggests such a relationship. Accordingly, the Board finds that the veteran has presented a well grounded claim for service connection for major depression or depression. 38 U.S.C.A. § 5107(a) (West 1991); Epps, supra. ORDER The claim of entitlement to service connection for major depression is well grounded. To this extent only, the appeal is granted. REMAND In view of the Board's decision finding the veteran's claim well grounded, the RO must adjudicate the issue on the merits of the veteran's claim. See Bernard v Brown, 4 Vet. App. 384 (1993). Also, as the veteran's claim is well grounded, the Board's duty to assist the veteran in the development of his claim has been triggered. The Board finds that a thorough psychiatric examination, which includes a complete review of the relevant evidence of record and an opinion that more fully addresses the contended causal relationship is warranted. Green v. Derwinski, 1 Vet. App. 121 (1991). The veteran is advised that a failure to report to his examinations may result in the denial of his claim. 38 C.F.R. § 3.655(b) (1999). The duty to assist also includes an obligation to obtain pertinent treatment records, the existence of which has been called to its attention. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Ivy v. Derwinski, 2 Vet. App. 320 (1992), Murincsak v. Derwinski, 2 Vet. App. 363 (1992). The veteran referred to relevant treatment records from the Edward Hines, Jr. VA Medical Center at the December 1999 Travel Board hearing. The RO should secure these records. In view of the foregoing, this case is REMANDED for the following action: 1. The RO should contact the veteran and obtain and associate with the claims file any VA and non-VA medical records relating to evaluation or treatment for a psychiatric disorder, to include any treatment he has received for major depression or depression, since his separation from service. In particular, the RO should obtain all medical records from the Edward Hines, Jr. VA Medical Center. The veteran should provide the RO with the appropriate authorizations to obtain the aforementioned records. 2. Thereafter, the veteran should be scheduled for a VA psychiatric examination for the purpose of determining the etiology and extent of any psychiatric disorder that may be present, to include major depression or depression. The claims file should be made available to the examiner for review in connection with the examination, and all indicated studies or tests are to be accomplished. The examiner is requested to review the claims folder, including the service medical records, and post- service VA and private medical records and letters, and to offer an opinion as to whether it is at least as likely as not that there is an etiological relationship between any current psychiatric disorder, to include major depression or depression, and the veteran's service, with specific discussion of the veteran's contention that his current psychiatric disorder is related to an incident that occurred during service where he was beaten until he was unconscious. 3. The case should then be reviewed by the RO on the basis of all of the evidence of record. If the benefit sought is not granted, the veteran and his representative should be furnished a Supplemental Statement of the Case and afforded a reasonable opportunity to respond thereto before the record is returned to the Board for further review. The purpose of this REMAND is to develop further the veteran's claim, and the Board does not intimate any opinion, favorable or unfavorable, as to the claim's merits. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded to the RO; however, he is not obligated to act unless otherwise notified. Kutscherousky v. West, 12 Vet. App. 369 (1999). R. F. WILLIAMS Member, Board of Veterans' Appeals