Citation Nr: 0006213 Decision Date: 03/08/00 Archive Date: 03/17/00 DOCKET NO. 98-11 442 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire THE ISSUES 1. Entitlement to service connection for anxiety disorder. 2. Entitlement to service connection for right wrist strain. 3. Entitlement to service connection for residuals of injury to right middle finger. 4. Entitlement to service connection for chronic postural lumbosacral strain. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Mary C. Suffoletta, Associate Counsel INTRODUCTION The veteran had active service from November 1989 to February 1990. This matter comes to the Board of Veterans' Appeals (Board) from a September 1997 RO rating decision that denied service connection for anxiety disorder; denied service connection for right wrist strain; denied service connection for residuals of injury to right middle finger; and denied service connection for chronic postural lumbosacral strain. The veteran submitted a notice of disagreement in June 1998, and the RO issued a statement of the case in June 1998. The veteran submitted a substantive appeal in July 1998, and testified at a hearing in April 1999. At the April 1999 hearing, the veteran withdrew his requests for service connection for left wrist and left hand, and for a personality disorder. The veteran stated that the claim for service connection for a personality disorder was "covered" by his request for service connection for anxiety disorder. FINDINGS OF FACT 1. The veteran was suspected of having a personality problem in service. 2. There was no anxiety disorder noted in service. 3. The veteran has not submitted competent (medical) evidence linking a current anxiety disorder to an incident of service or to aggravation in service. 4. The veteran has not submitted competent (medical) evidence demonstrating the presence of a current right wrist disability. 5. The veteran has not submitted competent (medical) evidence linking his current right wrist condition to an incident of service or to a service-connected disability. 6. The veteran has submitted competent evidence tending to show an in-service occurrence of a right middle finger injury, and the continuity of symptomatology of right hand problems. 7. The veteran has not submitted competent (medical) evidence of a current right middle finger disability. 8. The veteran has submitted competent evidence tending to show an in-service occurrence of a back injury, continuity of symptomatology of back pain, and a current back disability. CONCLUSIONS OF LAW 1. A personality disorder is not a disease or injury for which applicable law permits compensation or service connection. 38 U.S.C.A. §§ 101(16), 105(a), 1131 (West 1991); 38 C.F.R. § 3.303(c) (1999). 2. The claim for service connection for anxiety disorder is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 3. The claim for service connection for right wrist strain is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 4. The claim for service connection for residuals of injury to right middle finger is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 5. The claim for service connection for chronic postural lumbosacral strain is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, under 38 U.S.C. § 5107(a), the Department of Veterans Affairs (VA) has a duty to assist only those claimants who have established well grounded (i.e., plausible) claims. More recently, the United States Court of Appeals for Veterans Claims (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). The threshold question to be answered in this case is whether the veteran has presented evidence of well-grounded claims; that is, evidence which shows that his claims are plausible, meritorious on their own, or capable of substantiation. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet. App. 78 (1990). If he has not presented such claims, his appeal must, as a matter of law, be denied, and there is no duty on the VA to assist him further in the development of the claims. Murphy at 81. The Court has also stated that a claim must be accompanied by supporting evidence; an allegation is not enough. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). In a claim of service connection, this generally means that evidence must be presented which in some fashion links a current disability to a period of military service, or as secondary to a disability which has already been service-connected. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. §§ 3.303, 3.310 (1998); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). "In order for a claim to be well-grounded, there must be competent evidence of current disability (a medical diagnosis) ...; of incurrence or aggravation of a disease or injury in service (lay or medical testimony), ...; and of a nexus between the inservice injury or disease and the current disability (medical evidence)." Caluza v. Brown, 7 Vet. App. 498 (1995). The chronicity provisions of 38 C.F.R. § 3.303(b) are applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service, or during an applicable presumptive period, and still has such condition. Such evidence must be medical unless it relates to a condition as to which under case law of the Court, lay observation is competent. If chronicity is not applicable, a claim may still be well grounded on the basis of continuity of symptomatology, if the condition is noted during service or during an applicable presumptive period, and if competent evidence, either medical or lay, depending on the circumstances, relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997). A pre-existing disease or injury will be considered to have been aggravated by military, naval, or air service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). See Green v. Derwinski, 1 Vet. App. 320, 322-23 (1991). Moreover, in the case of wartime service or in the case of peacetime service after December 31, 1946, clear and unmistakable evidence is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. §§ 1153, 1154 (West 1991); 38 C.F.R. § 3.306 (1998). Temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). See Browder v. Brown, 5 Vet. App. 268, 271-72 (1993) (citing Hensley v. Brown, 5 Vet. App. 155 (1993)). A lay person's opinion cannot alone provide a foundation for a well-grounded claim when the opinion requires expert knowledge, such as the medical knowledge necessary to establish a causal link between a service-connected disability and another post-service disability. In addition, a medical statement that is speculative will not support a well grounded claim. Franzen v. Brown, 9 Vet. App. 235 (1996); Johnson v. Brown, 9 Vet. App. 7 (1996); Gregory v. Brown, 8 Vet. App. 563 (1996); Tirpak v. Derwinski, 2 Vet. App. 609 (1992). Once a claimant has submitted evidence sufficient to justify a belief by a fair and impartial individual that a claim is well-grounded, the claimant's initial burden has been met, and VA is obligated under 38 U.S.C. § 5107(a) to assist the claimant in developing the facts pertinent to the claim. I. Anxiety disorder In this case, service medical records are negative of manifestations of an anxiety disorder. At the time of the veteran's examination for entrance into military service in January 1989, the veteran reported that he had in the past been treated by a psychologist due to physical abuse as a child. Records reflect that there was no evidence of any neuropsychiatric disorder. Service personnel records show that the veteran was given an administrative discharge due to his failure to adapt to the naval environment. A December 1989 report noted a possible personality problem, as evidenced by the veteran's inability to follow instructions and stay awake. Service connection cannot be granted for a personality disorder, but may be granted for a mental disorder which is superimposed upon it during service. 38 C.F.R. §§ 3.303(c), 4.127. Testimony of the veteran is to the effect that he never had any trouble with his nerves prior to military service, and that it was the stress associated with passing academic tests during military training that triggered his current nervous condition. The Board finds these lay statements, in and of themselves, incompetent with respect to showing an anxiety disorder in service, or that an anxiety disorder was misdiagnosed as a personality disorder in service. There is simply no competent (medical) evidence showing that an anxiety disorder began in service, or was aggravated by service. The absence of such evidence makes the claim not well-grounded. While a 1997 report by Phillip Massad, Ph.D., shows an Axis I diagnosis of anxiety, not otherwise specified, and depression, not otherwise specified, as well as an Axis II diagnosis of personality disorder with avoidant and schizoid traits, there is no competent medical evidence in the claims folder that links the veteran's current anxiety disorder to an incident in service or to aggravation in service. A claim is not well grounded where there is no medical evidence showing a nexus between a current disability and service. Caluza, 7 Vet. App. 498. Again, the veteran's statements are not considered competent to establish medical causation. Therefore, the veteran's claim for service connection for anxiety disorder is not plausible, and it is denied as not well grounded. The Board notes that the 1997 report by Phillip Massad, Ph.D., referred also to a "psychoeducational assessment" of the veteran in 1988, which noted that the veteran had a previous assessment and diagnosis of a schizoid disorder. Here, the Board finds that there is no competent (medical) evidence of record showing aggravation in service of any pre- existing condition. The veteran is advised that he may reopen the claim for service connection for anxiety disorder at any time by notifying the RO of such an intention and submitting supporting evidence. An example of supporting evidence is a medical opinion that links the veteran's current anxiety disorder to an incident of service or to aggravation in service. Robinette v. Brown, 8 Vet. App. 69 (1995). II. Right wrist strain Service medical records are negative of manifestations of a right wrist strain. Testimony of the veteran is to the effect that he injured his right wrist in January 1990, at the same time as when he injured the second digit of his right hand with a sledgehammer while breaking up cement cable. The veteran also testified that he has continuing problems with manual dexterity, and with writing and drawing. Caluza says that "incurrence" or "aggravation" of a disease or injury may be established by lay evidence, such as that presented here from the veteran. However, one of the evidentiary problems in this case is that the veteran has not submitted medical evidence to substantiate his claim that his current right wrist condition is attributable to disease or injury in service. Grivois v. Brown, 6 Vet. App. 136 (1994). The veteran's testimony to the effect that the problems with his right wrist are related to the injury in service is not considered competent to prove medical causation. Paulson v. Brown, 7 Vet. App. 466 (1995); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In this case, there is simply no competent medical evidence in the claims folder that links the veteran's right wrist condition to a disease or injury in service, or to a service- connected disability. A claim is not well grounded where there is no medical evidence showing a nexus between a current disability and service. Caluza, 7 Vet. App. 498. At a VA examination in July 1997, the examiner found no measurable residuals of a right wrist strain; x-rays did not reveal any bone or joint abnormalities. The Board notes that the claims folder contains neither medical evidence of a current right wrist disability, nor medical records of any treatment for the veteran's right wrist while in service or post-service. A service-connection claim must be accompanied by evidence which establishes that the veteran currently has the claimed disability. Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). It is the veteran's burden to submit evidence of a current disability. The absence of such evidence makes the claim not plausible and, therefore, not well-grounded. The veteran is advised that he may reopen the claim for service connection for right wrist strain at any time by notifying the RO of such an intention and submitting supporting evidence. An example of supporting evidence is a medical report demonstrating the current presence of the claimed disorder, and a medical opinion that links the veteran's claimed disorder to an incident of service or to a service-connected disability. Robinette v. Brown, 8 Vet. App. 69 (1995). III. Residuals of injury to right middle finger Service medical records show that the veteran sustained first degree burns to his right hand in January 1990. Service medical records also show that the veteran smashed the second digit of his right hand with a sledgehammer in January 1990. There were pain, swelling, and tenderness at the proximal interphalangeal joint, as well as decreased range of motion. X-rays were negative. The assessment was soft tissue injury right middle digit; a splint was applied. In February 1990, records show that the veteran was not able to fully flex his finger. While the veteran later reported that his fingers were okay, it was again noted that there was swelling of the veteran's right middle digit. Testimony of the veteran at a hearing in April 1999 was to the effect that he continues to experience problems with manual dexterity, and with writing and drawing. He is right- handed. The veteran also testified that he has not sought medical treatment for his right middle finger since his separation from service due to personal finances. The veteran underwent VA examinations in May 1997 and in July 1997. He reported that he smashed his left hand or both wrists in service while using a sledgehammer. He also reported that he continues to experience fatigue after attempting to write for a period of 30 minutes. The examiner noted that the veteran reported some difficulty in using his hand for small chores. A finger disability was not diagnosed. Here, the Board finds that the veteran has submitted competent evidence tending to show an in-service occurrence of a right middle finger injury, and a continuity of symptomatology. The Board notes that the claims folder contains neither medical evidence of a current right middle finger disability, nor medical evidence of a link between a current right middle finger disability and service or post- service continuity of symptomatology. A service-connection claim must be accompanied by evidence which establishes that the veteran currently has the claimed disability. Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). It is the veteran's burden to submit evidence of a current disability. The absence of such evidence makes the claim not plausible and, therefore, not well-grounded. The veteran is advised that he may reopen the claim for service connection for right middle finger disability at any time by notifying the RO of such an intention and submitting supporting evidence. An example of supporting evidence is a medical report demonstrating the current presence of the claimed disorder, and a medical opinion that links the veteran's claimed disorder to an incident of service or to a service-connected disability. Robinette v. Brown, 8 Vet. App. 69 (1995). IV. Chronic postural lumbosacral strain Statements and testimony of the veteran in the claims folder are to the effect that he slipped on ice while marching in full gear and fell backwards onto his backpack. He hurt his back when steel-toed boots inside his pack were driven into his lower back. Service medical records show that the veteran sought treatment in January 1990 when his back had gotten stiffer after five days. The examiner noted diffuse lumbar muscular tenderness, and no spasm; motor sensation was grossly intact. The assessment was lumbar strain, mild. For purposes of well-groundedness, the evidence of record is presumed true and supports a finding that a back injury was noted in service. The veteran also testified that he continues to experience back pain, and that he gets spasms occasionally on the day following an hour of physical activity. The veteran testified that he has not sought medical treatment since his separation from service, due to personal finances. At a VA examination in May 1997, the veteran reported daily discomfort in his back. The veteran was diagnosed with obesity complicating chronic postural lumbosacral strain. For purposes of well groundedness, the veteran's statements as to the continuity of symptomatology of a back condition post-service is presumed credible. Savage, 10 Vet. App. at 496. The United States Court of Appeals for Veterans Claims has found that symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. See Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). In light of this evidence, the Board finds that the veteran has presented a plausible claim for service connection for chronic postural lumbosacral strain. As such, the claim is well grounded. ORDERS The claim for service connection for anxiety disorder is denied as not well grounded. The claim for service connection for right wrist strain is denied as not well grounded. The claim for service connection for residuals of injury to right middle finger is denied as not well grounded. The claim of entitlement to service connection for chronic postural lumbosacral strain is well grounded. To this extent only, the appeal is granted. REMAND The veteran's claim for chronic postural lumbosacral strain is well grounded. However, having found that his claim is well grounded does not end the Board's inquiry. Rather, in this case, it places upon VA the duty to assist the veteran in the development of his claim. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet. App. 78, 82 (1990). Where there is a reasonable possibility that a current condition is related to or is the residual of a condition experienced in service, VA should seek a medical opinion as to whether the veteran's claimed current disability is in any way related to the condition experienced in service. Horowitz v. Brown, 5 Vet. App. 217 (1993). Accordingly, both a psychiatric evaluation and a medical examination are required to obtain a medical opinion as to whether the veteran's current back disability is the same disability or is in any way related to the back injury noted in service. The examiners should take into account prior medical evaluations and treatment of the veteran. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). These include service medical records and any records of the veteran's motor vehicle accident prior to service. In view of the above, the case is REMANDED to the RO for the following actions: 1. The RO should ask the veteran and his representative to prepare a detailed list of all sources (VA and non-VA) of evaluation and treatment for the veteran's back disability before and after service. Names and addresses of the medical providers, and dates of evaluations and treatment, should be listed. After obtaining any needed release forms from the veteran, the RO should directly contact the medical providers, including Dartmouth-Hitchcock Medical Center, and obtain copies of the records not already in the file. 2. The RO should schedule the veteran for a VA examination to determine the current nature, severity, and etiology of his back condition. The examiner should also review all relevant records and offer an opinion as to whether it is at least as likely as not that the veteran's current back disability is related to the injury of the veteran's back as noted in service. The claims folder should be made available to the examiner for review in conjunction with the examination, and the examiner should acknowledge such review in the examination report. 3. The RO should then review the veteran's claim for service connection for chronic postural lumbosacral strain. If action remains adverse to the veteran, an appropriate supplemental statement of the case should be sent to him and his representative, and they should be afforded an opportunity to respond before the case is returned to the Board for further appellate consideration. The veteran need take no further action unless notified otherwise, but may furnish additional evidence and argument while the case is in remand status. Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992); Booth v. Brown, 8 Vet. App. 109 (1995); see also Kutscherousky v. West, 12 Vet. App. 369 (1999). The Board intimates no opinion as to the ultimate outcome of this case. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims 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. J. E. DAY Member, Board of Veterans' Appeals