BVA9505530 DOCKET NO. 91-18 713 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, including a post-traumatic stress disorder. 2. Entitlement to service connection for residuals of concussion. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States INTRODUCTION This matter came before the Board on appeal from a rating decision of May 1990 from the Pittsburgh, Pennsylvania, Regional Office (hereinafter RO) of the Department of Veterans Affairs (VA). The veteran served from July 1963 to June 1966. By Board decision of September 1991, the case was Remanded to the RO for additional development of the medical evidence of record, to include a Department of Veterans Affairs (hereinafter VA) special psychiatric evaluation. That evaluation was conducted in October 1991. The case was again remanded in May 1992 for the veteran to provide more specific information concerning claimed stressors in service, for verification of stressors, for additional VA medical records, and for a further VA psychiatric examination. The case is once again before the Board for a determination of the stated issues. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that the RO committed error in not granting service connection for an acquired psychiatric disorder, including post-traumatic stress disorder, and for residuals of concussion because it did not take into account or properly weigh the medical evidence of record. It is also contended that the appellant was hospitalized after service separation at the VA Medical Center, in Oakland, for treatment of residuals of concussion. 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 file. 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 failed to present well-grounded claims seeking entitlement to service connection for an acquired psychiatric disorder, including a post-traumatic stress disorder, (PTSD) and entitlement to service connection for residuals of a concussion. FINDING OF FACT The claims seeking service connection for an acquired psychiatric disorder, including PTSD and service connection for residuals of a concussion are not plausible. CONCLUSION OF LAW The claims seeking entitlement to service connection for an acquired psychiatric disorder including PTSD and entitlement to service connection for residuals of a concussion are not well- grounded. 38 U.S.C.A. § 51107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION The threshold question to be answered in this case is whether the veteran has presented a well-grounded claim; that is, one which is plausible. If he has not presented a well-grounded claim, this appeal must fail and there is no duty to assist him further in the development of his claim because such additional development would be futile. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet.App. 78 (1990). Under applicable criteria, in order to establish service connection for disability, there must be objective evidence that establishes that such disability either began in or was aggravated by service. 38 U.S.C.A. § § 1110, 1131 (West 1991). In addition, where a veteran served ninety (90) days or more of active service after December 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; 38 C.F.R. § § 3.307, 3.309 (1994). The Board remanded this case twice in the past because we considered the veteran's claims potentially well-grounded. The veteran is shown by the evidence to have served in the Republic of Vietnam from August 1965 to June 1966 with the First Cavalry Division and his military occupational specialty was a radioteletype operator. He has not been awarded a purple heart or a combat infantry badge and there is no evidence that he engaged in combat with the enemy. The service medical records are completely negative for complaints or findings of a psychiatric disorder and are completely negative for complaints, treatment or findings of a concussion. In May 1974, a service department examination was conducted for purposes of the veteran's enlistment in the Army Reserve. On this examination, it was indicated that the veteran was having depression at present because of inability to find a job. There is no evidence that the veteran actually enlisted in the Army Reserve at this time and he has not reported any subsequent periods of active service or active duty for training. In November 1990 the veteran stated that he sustained a mortar concussion in service and was hospitalized for the condition at the VA Medical Center in Oakland. The Board initially thought that this referred to Oakland, California. However, in 1992 the RO annotated the 1990 correspondence to reflect that Oakland is a section within the city of Pittsburgh, Pennsylvania. In any event, the first remand of the appeal in September 1991, sought all available post service medical records and a VA psychiatric examination. No medical records were obtained. The psychiatric examination conducted in October 1991 resulted in a clinical impression of rule out anxiety disorder and a recommendation for psychological testing. The psychological testing was not carried out. The second remand in May 1992, requested the development spelled out in the last paragraph of the Introduction Section. The veteran failed to respond to a June 1992 letter from the RO requesting detailed information concerning alleged stressors in service and the address of a Dr. Dippery, of Tyrone, Pennsylvania. He also failed to respond to a February 1993 letter from the RO requesting information as to whether and (presumably when) he was treated at the VA Medical Center in Oakland (Pittsburgh) or any other VA Medical Center. The veteran did appear for a further VA psychiatric examination in March 1993 which resulted in diagnostic impressions of an antisocial personality disorder and alcohol abuse and dependence. In view of all of this, we have a complete failure of evidence here to support favorable action. We have no clinical evidence of the veteran having sustained a concussion in service or having been treated for residuals of a concussion following service. We have no clinical evidence of an acquired psychiatric disorder during service, no evidence of a psychosis within the first post service year, no verifiable stressor in service, no current diagnosis of PTSD and no current diagnosis of any acquired psychiatric disorder. What we have is a diagnosis of a personality disorder which is not a disease or injury for which compensation benefits may be provided. 38 C.F.R. § 3.303(c) (1994). In Bethea v. Derwinski, 2 Vet.App. 252 (1992), the United States Court of Veterans Appeals held that a single-judge disposition of the Court is not binding in another case before a single-judge or panel; however, it may be cited or relied upon for any persuasiveness or reasoning it contains. In this context we cite the single-judge decision in Montgomery v. Brown, 4 Vet.App. 343 (1993). The reasoning is particularly applicable here. If service records do not show a claimed disability and there is no medical evidence to link a current disability with events in service or with a service-connected disability, the claim is not well-grounded. Although the Board has considered and denied the appeal on a ground different from that of the RO, that is, whether the appellant's claim was well-grounded rather than whether he is entitled to prevail on the merits, the appellant has not been prejudiced by this action. In assuming that the claim was well- grounded, the RO accorded the appellant greater consideration than his claim warranted under the circumstances. Bernard v. Brown, 4 Vet.App. 384, 392-94 (1993). ORDER Evidence of well-grounded claims seeking service connection for an acquired psychiatric disorder including PTSD and service connection for residuals of a concussion, not having been submitted, the claims are dismissed. BRUCE E. HYMAN 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.