Citation Nr: 0000912 Decision Date: 01/12/00 Archive Date: 01/27/00 DOCKET NO. 97-10 535 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUES 1. Entitlement to service connection for bronchial asthma. 2. Entitlement to service connection for chronic rhinitis. 3. Entitlement to service connection for major depression with psychotic features. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Nancy R. Kegerreis INTRODUCTION The veteran served on active duty from April 1968 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) from July 1996 and September 1996 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico, which denied the above service connection claims. FINDINGS OF FACT 1. The veteran has presented no medical evidence of bronchial asthma in service and there is no competent medical evidence of a connection between his current diagnosis of chronic bronchial asthma and any disease in active service. His claim of entitlement to service connection is not plausible. 2. The veteran has presented no medical evidence of chronic rhinitis in service, nor is there current medical evidence of present disability due to chronic rhinitis. His claim of entitlement to service connection is not plausible. 3. The veteran has presented no medical evidence of major depression with psychotic features during active military service and there is no medical evidence of a connection between his current diagnosis and any psychiatric disorder in service. His claim of entitlement to service connection is not plausible. CONCLUSIONS OF LAW 1. The veteran has not submitted evidence of a well-grounded claim of entitlement to service connection for bronchial asthma. 38 U.S.C.A. § 5107(a) (West 1991). 2. The veteran has not submitted evidence of a well-grounded claim of entitlement to service connection for chronic rhinitis. 38 U.S.C.A. § 5107(a) (West 1991). 3. The veteran has not submitted evidence of a well-grounded claim of entitlement to service connection for major depression with psychotic features. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background Service medical records disclose that the veteran was treated at Dispensary No. 7, an outpatient facility, at Fort Benning in May 1968 for a sore throat with nose bleed which had occurred the day before, but was not present at examination. The diagnosis was upper respiratory infection and nose drops were provided. In July 1968, he sought treatment for a cold and was treated at Dispensary No. 8 at Fort Benning. In November 1969, he reportedly had a slight sore throat. The impression was upper respiratory infection with mild (emphasis retained) bronchitis. Finally, he was treated in Germany for symptoms of a cough and cold in March 1970. The diagnosis at that time was mild upper respiratory infection with congestion. His separation examination, dated in March 1970, reported no disabilities and stated that the veteran had denied any known medical problems. The earliest VA medical record is dated in October 1980. He had been referred by a private physician for evaluation of a left maxillary polypoidal symptomatic lesion. He was also noted to have chronic obstructive pulmonary disease secondary to exposure to chemical substances during employment at Union Carbide Graphite Plant. The assessment was chronic obstructive pulmonary emphysema, and a paranasal sinus disorder. A left polypoidal maxillary lesion was to be ruled out. An ear nose and throat consultation report the following month noted a history of postnasal and nasal dripping for years and exposure to tar products at Union Carbide. Nasoscopic examination showed hyperemic mucosa, the tonsils were hypertrophic, and the post-pharyngeal mucosal folds enlarged. Transillumination of the sinuses indicated that they were adequate. On x-ray examination a polyp was revealed in the left maxillary sinus. The evaluation was stated to be compatible with allergic mucosal component, and medication was prescribed. Response to a VA Request for Employment Information from Union Carbide Grafito, Inc. indicated that the veteran had worked there since September 1970 as a Process Controller in Quality Control, but that he had not been working since January 1981 due to sickness. A letter, dated in February 1981, from C. M. Rivera Ofray, M.D., stated that the veteran had been under his care since August 1980. He carried a diagnosis of chronic pulmonary disease with pulmonary functions showing a moderate restriction and also polyps in the maxillary sinus, which had been evaluated by a specialist in otorhinolaryngology. Dr. Ofray opined that exposure to substances at the veteran's place of employment had precipitated these two conditions. A VA disability evaluation examination in October 1981 included a special pulmonary examination, which reported the veteran's statement that he had been exposed to several toxic substances at his employment at Union Carbide, for ten years and that these substances had affected his pulmonary function. He claimed that he became short-winded on mild exertion, for which he used inhalers and other medications. Examination revealed the veteran to be well developed and nourished, but ill-kempt. A pulmonary function test had revealed restrictive ventilatory dysfunction with small airways obstruction. The diagnosis was bronchial asthma. A VA psychiatric examination report noted a history of emphysema, which had reportedly caused the veteran to quit his job at Union Carbide. Mental status examination revealed a well-developed, well-nourished, shabbily dressed, unkempt male, who had been brought to the interview by his wife. When he was forced to talk about his problems and feelings, he broke down and cried. He had no apparent thought disorder, but had feelings of hopelessness and helplessness. He was very depressed, desperate, sad, and angry. He admitted to suicidal ideations, insomnia, lack of libido, and no desire to care even for his own personal hygiene. He stayed in his room and ruminated, and did not engage in reading, TV, radio or social engagement of any sort. Although he was oriented and memory was preserved, concentration was not possible. Frustration tolerance had greatly decreased. His judgment was poor and he had no insight and no ego strength. The diagnosis was dysthymic disorder, severe and incapacitating. He was considered a suicide risk. The RO granted him a pension in March 1982, due principally to his psychiatric condition. In March 1996, the RO received an informal claim for service connection, which it interpreted as claims for service connection for bronchial asthma, rhinitis, and aid and attendance. In this communication, the veteran stated that, while in service, he had been hospitalized for two weeks at Fort Benning Army Hospital for a pulmonary condition with symptoms of bleeding from the nose and mouth. Records dated in July 1996 from Mario Espinosa Garcia, M.D., a private specialist in internal medicine and pulmonary diseases, are handwritten and indecipherable. In response to a questionnaire, however, the veteran did report that he had begun smoking cigarettes regularly at the age of 16, but had not smoked for the past year, From what evidence can be deciphered, it appears that Dr. Espinosa Garcia had been treating the veteran for a chronic pulmonary disorder. A psychiatric report, dated in July 1996, from William Galindez Antelo, M.D., a private psychiatrist, revealed that he had been treating the veteran since January 1985. Medical history included the veteran's statements that he had suffered from bronchial asthma and retinitis, as well as depression, for which he had received treatment in the Army and that, following discharge, he had been granted service connection for a pulmonary condition. He had stopped working in 1980. Dr. Galindez Antelo found the veteran very depressed, with poor attention and concentration and poor interpersonal and interfamiliar relationships. He had turned toward himself, preferring to be alone, locked in his room; he became upset on speaking to friends and neighbors. He was unable to accomplish any tasks or to deal with any employment situations. Due to his severe depression, his memory was diminished and he was unable to focus attention for any length of time. This physician concluded that the veteran was totally impaired socially and industrially and that his prognosis was very poor. Dr. Galindez Antelo also opined that the veteran's emotional condition had been triggered by his service-connected physical condition. In a statement dated in February 1997, the veteran wrote that he had been trying to obtain medical evidence for a hospitalization while stationed at Fort Benning in May of 1968. He first claimed to have been taken to a hospital in Columbus, Georgia, called "Saint Martin." The RO accordingly attempted to obtain records from that hospital pertaining to the veteran. Subsequently, however, upon being queried several times by the RO, the veteran stated that the correct address was Saint Martin Army Medical Hospital, Building 9200, Fort Benning, Georgia. Although the RO attempted to obtain records from that facility at Fort Benning, there was no response to its letter. In July 1997, the veteran testified at a hearing before the RO. He claimed that he had suffered from a respiratory condition in basic training, which started with bleeding from his throat and nose. He said that he had been admitted to a hospital, where he remained for one week, claiming that he had arrived almost unconscious and running a high fever. Following hospitalization, he complained, he had been sent back to training without any kind of special consideration, even though he had had continuous breathing problems ever since. He added that he had later been diagnosed with bronchitis in Germany. Although he had worked for ten years after service, he had to stop because of an asthma condition. His wife then divorced him, taking his children, leaving him severely depressed. He claimed that he had never had any respiratory disorder before entering military service, that he had never smoked, and that he had received treatment following service as early as 197l. In August 1999, the RO received a "medical evaluation" from Jose M. Soba, M.D., a practitioner of general medicine for children, who stated that he had evaluated the veteran medically and found two conditions: chronic bronchial asthma with frequent acute stages since 1968 and chronic obstructive pulmonary disease, "secondary to 1980" and a secondary psychiatric condition with depressive anxiety syndrome, followed by severe major depression with frequent psychotic episodes. He added that these conditions had kept the veteran disabled since 1980. II. Legal Analysis A. Service Connection for Bronchial Asthma Service connection may be granted for diseases or injuries incurred or aggravated while in active service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). The initial question which must be answered is whether the veteran has presented 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). To be well grounded, a claim must be "plausible;" that is, it must be one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive, but only possible to satisfy the initial burden of § 5107(a). Epps v. Gober, 126 F. 3d 1464 (1997), adopting the definition in Epps v. Brown, 9 Vet. App. 341, 344 (1996). A claim which is not well grounded precludes the Board from reaching the merits of a claim. Boeck v. Brown, 6 Vet. App. 14, 17 (1993). To establish that a claim for service connection is well grounded, a veteran must present medical evidence of a current disability; medical evidence, or, in certain circumstances, lay evidence, of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus or link between the claimed in-service disease or injury and the present disease or injury. Epps v. Gober, 126 F.3d 1464 (1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Alternatively, a claim may be well grounded based on application of the rule for chronicity and continuity of symptomatology, set forth in 38 C.F.R. § 3.303(b) (1998). Savage v. Gober, 10 Vet. App. 489, 495-98 (1997). The chronicity provision applies where there is evidence, regardless of its date, which shows that a veteran had a chronic condition in service or during an applicable presumption period and still has that condition. Such evidence must be medical unless it relates to a condition as to which, under case law, lay observation is competent. If the chronicity provision is not applicable, a claim may still be well grounded or reopened on the basis of § 3.303(b) if the condition is observed during service or any applicable presumption period, if continuity of symptomatology is demonstrated thereafter, and if competent evidence relates the present condition to that symptomatology. Id. Although the veteran has submitted evidence that he currently has a diagnosis of chronic bronchial asthma with frequent acute stages, there is no evidence that he had this disorder or any other pulmonary disease during service. Service medical records do not show treatment or diagnosis for bronchial asthma and only one occasion of a pulmonary disorder, the November 1969 upper respiratory infection with mild bronchitis. Since his service separation examination reported no disabilities, it must be concluded that the bronchitis in service was transitory and that it resolved without incident. In fact, the first diagnosis of bronchial asthma was made by a VA pulmonary specialist as a result of examination in October 1981, more than ten years after the veteran had been discharged from service. The veteran appears to contend, additionally, that his current pulmonary disorder, whether bronchial asthma or chronic obstructive pulmonary disease, had its inception in May 1968 with a nose bleed. Although the veteran is competent to state that he had severe bleeding through the nose and throat and breathing difficulties during service, his statements are not consistent. He stated, first, that he had been hospitalized for a lung disorder for two weeks, but revised this during his hearing to one week. Moreover, his statements relative to treatment at "Saint Martin Hospital" are not credible, as he initially identified the hospital as being a private hospital in Columbus, Georgia, but then referred to it as "Saint Martin Army Hospital" at Fort Benning. He has stated on several occasions that he had had continuous pulmonary problems since 1968, yet during his 1970 separation examination he had denied any known medical problems. He testified at his hearing that he had never smoked, but the questionnaire from Dr. Espinosa Garcia disclosed that he had reported smoking regularly since the age of 16. For the purpose of determining whether a claim is well grounded, the truth of the evidence submitted, including testimony, is presumed, unless the assertion is inherently incredible or is beyond the competence of the person making the assertion. Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995), citing King v. Brown, 5 Vet. App. 19, 21 (1993). In this instance, however, the veteran's various statements and testimony are inherently in conflict with each other and thus cannot be accorded the usual presumption of credibility. As to the nexus criteria, Dr. Galindez Antelo stated that the veteran's emotional condition had been triggered by his "service-connected" physical condition, i.e., a pulmonary condition. It is clear from the record, however, that this physician based his opinion on an incorrect medical history provided by the veteran, as the veteran has never been granted service connection for a pulmonary disorder. Since Dr. Galindez Antelo had not formed his opinion on a basis separate from the veteran's recitation of his medical background, his statement cannot be considered competent medical evidence. Elkins v. Brown, 5 Vet. App. 474, 478 (1993). Dr. Soba implied that the veteran had had chronic bronchial asthma with frequent acute stages since 1968. His brief statement does not reveal the source of the information regarding the inception of the disorder, nor does he offer any rationale for his opinion. Evidence which is simply information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute competent medical evidence. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). It is noted as well that the veteran has contended that he had acquired a pulmonary disorder in service and that it had continued from that time until the present. This contention is clearly inconsistent with the medical records, which show no pulmonary disorder until 1980, a clear absence of continuous symptomatology. McManaway v. West, 13 Vet. App. 60 (1999). Moreover, records in 1980 and 1981 attribute the veteran's pulmonary disease to continued exposure to toxic chemical substances during employment at Union Carbide, where he had been employed following service. Accordingly, the Board finds that the veteran's claim for service connection for bronchial asthma must be denied. The Board recognizes that the RO denied the veteran's claim on the merits, whereas the Board has concluded that the claim is not well grounded. The United States Court of Appeals for Veterans Claims has held that when an RO does not specifically address the question whether a claim is well grounded, but proceeds to adjudication on the merits, there is no prejudice to the veteran solely from the omission of the well-grounded analysis. Meyer v. Brown, 9 Vet. App. 425, 432 (1996). Furthermore, the Board views its discussion as sufficient to inform the veteran of the elements necessary to submit a well-grounded claim for service connection for the claimed condition and the reasons why his current claim is inadequate. Robinette v. Brown, 8 Vet. App. 69, 77-78 (1996). B. Service Connection for Chronic Rhinitis This claim is also not well grounded. The veteran initially received diagnoses of a polyp in the left maxillary sinus, stated to be compatible with an allergic mucosal component in 1980 and 1981. There is no current evidence that he still has a nasal polyp or polyps. Dr. Soba, who had medically evaluated the veteran, did not report any nasal obstruction or rhinitis. Although it is conceivable that the veteran may continue at present to have chronic rhinitis due to allergy, there is no evidence to this effect. As to whether he had rhinitis in service, there is no evidence in the service medical records of any type of chronic upper respiratory disorder during active military service. Although the veteran did, on several occasions, develop upper respiratory infections, with symptoms of sore throat, cough, and congestion, these illnesses appear to have been mild, as he was given conservative treatment and returned to duty. Since his separation examination reported no disabilities, these disorders were transitory and had resolved within a reasonable time. If the veteran is contending that his May 1968 nose bleed has resulted in chronic rhinitis, rather than in a pulmonary disorder, there is no chronicity and continuity of symptomatology. A nasal polyp and nasal condition due to allergy were not found until 1980, more than ten years subsequent to service. Without evidence of a current disability due to rhinitis and without evidence of nasal polyps or rhinitis during service, the nexus element does not need to be reached. Accordingly, the claim for service connection for chronic rhinitis is not well grounded and must be denied. C. Service Connection for Major Depression with Psychotic Features The Board is also unable to find this claim well grounded. While the veteran does have a current psychiatric disability, the evidence does not show that he incurred such disability during service. His separation examination was negative as to any psychiatric disorder and his DD 214 indicates an honorable discharge with early release granted to an overseas returnee. The first evidence of a psychiatric disorder was reported in the October 1981 VA mental status examination, less than a year after termination of employment at Union Carbide. Whether the veteran's mental illness may be attributed to the loss of employment or, as he himself has inferred at his hearing, to his divorce, is unknown. What is clear, however, is that the disorder was not incurred until many years after service and that, even if secondary to a pulmonary disorder, as suggested by Dr. Galindez Antelo and Dr. Soba, it may not be service connected since the underlying pulmonary disorder is not service connected. Accordingly, the claim for service connection for major depression wiith psychotic features is not well grounded and must be denied. ORDER Service connection for bronchial asthma is denied. Service connection for chronic rhinitis is denied. Service connection for major depression with psychotic features is denied. J. SHERMAN ROBERTS Member, Board of Veterans' Appeals