Citation Nr: 0005294 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 95-12 805 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUE Entitlement to service connection for a psychiatric disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Theresa M. Catino, Counsel INTRODUCTION The veteran served on active military duty from September 1972 to April 1979. This appeal arises from a November 1993 rating action of the Waco, Texas, regional office (RO). In that decision, the RO, in pertinent part, denied service connection for a nervous disorder (on direct basis and as secondary to the service-connected surgical absence of the veteran's right kidney and hydronephrosis in the remaining left kidney with ureter re-implantation). Further review of the claims folder indicates that, by a November 1994 rating action, the RO in Waco, Texas found clear and unmistakable error in a May 1979 rating action which had rated the kidney and hypertension disorders together as 60 percent disabling, effective from April 1979. By the November 1994 rating action, the RO confirmed the 60 percent disability evaluation for the service-connected surgical absence of the right kidney and hydronephrosis in the remaining left kidney with ureter re-implantation and assigned a separate evaluation of 10 percent for the service-connected hypertension, effective from April 1979. The RO notified the veteran of the November 1994 rating action in the same month. In several documents subsequently received at the RO, the veteran expressed disagreement with the denial of a rating greater than 60 percent for his service-connected kidney disorder and the assignment of a 10 percent evaluation for his service-connected hypertension. In September 1996, the RO in Wilmington, Delaware (to where the veteran's claims folder had been transferred) furnished the veteran with a statement of the case regarding these two rating issues. The cover letter to the statement of the case included instructions to the veteran that, in order to perfect his appeal of the rating issues, he would have to submit a substantive appeal within 60 days from the date of the letter or within the remainder, if any, of the one-year period from the date of the letter notifying him of the action with which he disagreed. Significantly, however, no appeal was received. Consequently, the issue of entitlement to a disability evaluation greater than 60 percent for the service-connected surgical absence of the right kidney and hydronephrosis in the remaining left kidney with ureter re-implantation and the issue regarding the evaluation of the service-connected hypertension, which is rated as 10 percent disabling, are not currently in appellate status before the Board of Veterans' Appeals (Board). 38 C.F.R. § 20.200 (1999). Further review of the claims folder indicates that, by a July 1997 rating action, the RO denied service connection for a post-traumatic stress disorder (PTSD). In the same month, the agency notified the veteran of this determination. Following receipt of additional evidence, the RO, by a December 1997 rating action, confirmed the previous denial of service connection for PTSD. In February 1998, the RO notified the veteran of this decision. In an August 1998 statement, the veteran's representative expressed disagreement with the RO's denial of service connection for PTSD. The RO, in turn, construed this statement as a notice of disagreement with the denial of service connection for PTSD and, in September 1998, furnished the veteran and his representative with a statement of the case regarding this issue. However, no substantive appeal was thereafter received. Consequently, the issue of entitlement to service connection for PTSD is not currently in appellate status before the Board. 38 C.F.R. § 20.200 (1999). The Board acknowledges that, in the August 1998 statement, the veteran's representative phrased the issue on appeal as entitlement to service connection for "a chronic nervous disorder to include Post Traumatic Stress Disorder." Significantly, however, as the Board has explained above, the veteran has not perfected an appeal as to the denial of service connection for PTSD. The only issue remaining in appellate status before the Board at this time is the claim of service connection for a psychiatric disorder other than PTSD. The decision below should be read as being limited in this way. FINDING OF FACT No competent evidence associating any currently shown psychiatric disability to military service or to already service-connected disability has been presented. CONCLUSION OF LAW The claim of entitlement to service connection for a psychiatric disability is not well grounded. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION The threshold question that must be resolved is whether the veteran has presented evidence that the claim is well grounded. See 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1999); Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). A well-grounded claim is a plausible claim, one that appears to be meritorious. See Murphy, 1 Vet.App. at 81. An allegation that a disability is service connected is not sufficient; the veteran must submit evidence in support of the claim that would "justify a belief by a fair and impartial individual that the claim is plausible." See 38 U.S.C.A. § 5107(a); Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). The quality and quantity of the evidence required to meet this statutory burden will depend upon the issue presented by the claim. Grottveit v. Brown, 5 Vet.App. 91, 92-93 (1993). In order for a claim of service connection to be well grounded, there must be proof of present disability. Brammer v. Derwinski, 3 Vet.App. 223 (1992); see also Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992) (requiring, for a well-grounded claim, competent evidence that a veteran currently has the claimed disability). In addition, there must also be evidence of incurrence or aggravation of a disease or injury in service. See Caluza v. Brown, 7 Vet.App. 498 (1995). The veteran must also submit medical evidence of a nexus between the in-service disease or injury and current disability. Id. Competent evidence demonstrating that a disability is due to, or was aggravated by, an already service-connected disability will also make a claim of service connection well grounded. 38 C.F.R. § 3.310(a). Where the issue is factual in nature (e.g., whether an incident or injury occurred in service), competent lay testimony, including the veteran's testimony, may constitute sufficient evidence to establish a well-grounded claim; however, if the determinative issue is one of medical etiology or a medical diagnosis, competent medical evidence must be submitted to make the claim well grounded. See Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). A lay person is not competent to make a medical diagnosis or to relate a medical disorder to a specific cause. Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992). However, where the issue does not require medical expertise, lay testimony may be sufficient. See Layno v. Brown, 6 Vet.App. 465, 469 (1994). Throughout the current appeal, the veteran has asserted that he developed a psychiatric disability as a result of his active military duty and, alternatively, as a result of his service-connected kidney problems and hypertension. Specifically, in a statement received at the RO in January 1995, the veteran described his current mental status as requiring medication and involving, in pertinent part, "depression, stress anxiety, psychotic nerves, . . . etc." The veteran also maintained that in May 1974 he was given Valium to control the anxiety and depression he had developed as a result of his involvement with "a lot of bodies that . . . [had come] into [the] 121[st] Evac Hosp[ital in] Seoul, Korea from Vietnam." Additionally, the veteran contended that this Valium was continuously prescribed by a physician in secret because the veteran did not wish "to expose . . . [his] medical weakness." The veteran also asserted that the kidney problems which he experienced during his active military duty caused him "much anxiety and depression." In a February 1994 statement, the veteran maintained that his service medical records included a notation that he "had an uneasy feeling towards . . . [his] health, which . . . [he] described as a feeling of tension and of feeling 'high' as though . . . [he] were on drugs." The veteran explained that these feelings of anxiety and depression, which he had prior to his discharge, had persisted since service and required medication. According to the service medical records which have been obtained and associated with the claims folder, at an enlistment examination which was conducted in September 1972, the veteran denied having frequent trouble sleeping but reported that he did not know if he had ever experienced depression, excessive worry, or nervous trouble of any sort. Upon examination, the veteran's psychiatric status was normal. A May 1974 entry indicates that the veteran was prescribed Valium. No explanation was given as to the reason for the prescription. A subsequent evaluation, conducted in October 1977, demonstrated that the veteran's neuro-psychiatric system was negative. Reports of Medical Board Proceedings dated in January and February 1979 indicate that the primary reason for the Medical Board was the veteran's kidney problems. No mention is made in any of the Medical Board's records of any psychiatric condition. An in-service examination conducted in February 1979 for "chronic illness" purposes revealed that the veteran's psychiatric system was normal. The veteran was discharged from active military duty in April 1979. At a VA genitourinary examination conducted in April 1981, the veteran described a "tired, uneasy feeling" which he assumed was the result of his blood pressure medication. Essentially, however, the veteran made no psychiatric complaints. At a VA examination subsequently completed in August 1983, the veteran again reported feeling tired at times but essentially made no psychiatric complaints. Medical records dated from July 1990 to July 1996 reflect examination of, and treatment for, psychiatric problems variously defined as a moderate recurrent major depressive disorder, undifferentiated schizophrenia, and anxiety. Significantly, the claims folder contains no evidence associating any psychiatric disability that the veteran may have (including any depression, undifferentiated schizophrenia, or anxiety) to his military service or to an already service-connected disability. In fact, the medical records which are included in the claims folder and which have discussed the etiology of the veteran's psychiatric problems have associated his psychiatric symptomatology with various non-service-related factors. First, the Board notes that, in a November 1993 report, a social worker at a Vet Center explained that the veteran had stated that, prior to his discharge from service, he had described feelings of tension and problems with anxiety. Based on this report from the veteran, the examiner concluded that "it does appear . . . [that the veteran] exhibited psychological problems prior to exiting the military." However, the social worker did not state that he had had access to the veteran's medical records. Furthermore, the social worker also concluded in November 1993 that the exact origin of the veteran's psychological problems was "nondeterminable." In short, no link was made between current diagnosis and any problems experienced prior to his exiting the military. Moreover, at a VA mental disorders examination conducted in May 1994, the examiner determined that the veteran's diagnostic picture was complex and unclear, that his symptom presentation was inconsistent, that working diagnoses in the record included depression and paranoid schizophrenia, and that, if the veteran's own report were taken at face value, a diagnosis of a moderate recurrent major depressive disorder would be appropriate. The examiner expressed his opinion that "[t]he record is clear that . . . [the veteran] did not report psychiatric symptoms while on active duty." The examiner also noted that the veteran had dated the onset of his depression, not to his service, but to a time following his discharge from active duty. Additionally, the Board notes that, at the July 1996 VA hypertension examination, the veteran reported that he "was diagnosed to have depression in 1979 and has had 'schizophrenia' since that time." Significantly, however, as the Board has discussed in this decision, a diagnosis of a psychiatric disorder was not made until 1990, more than 10 years after the veteran's separation from active military duty. The Board acknowledges that, according to November 1993 medical records, the veteran was experiencing some side effects (including insomnia, abnormal dreams, hallucinations, and nervousness) of a new medication which had been prescribed for his service-connected hypertension. Significantly, however, as the medical records which have been obtained and associated with the claims folder illustrate, the veteran had been evaluated and treated for psychiatric problems prior to the change in his hypertensive medicine in November 1993. Moreover, medical records dated after November 1993 indicate that the veteran's hypertensive medication was then changed and that he no longer took the medicine which allegedly caused the side effects of insomnia, abnormal dreams, hallucinations, and nervousness. Furthermore, the veteran has not described similar side effects with any new hypertensive medication. In fact, the examiner who conducted the May 1994 VA mental disorders examination explained that, during the course of the evaluation, the veteran did not report that his depression was precipitated or worsened by his current service-connected disability. Also, in the report of the July 1996 VA hypertension examination, the examiner noted the medication that the veteran was taking for his hypertension (which was different than the medicine which caused the side effects in November 1993) and stated that the veteran "reports no problems at this time." Consequently, competent medical evidence of any cause or worsening by service-connected disability or medication therefor has not been presented. Additional medical records have associated the veteran's psychiatric symptoms with employment issues. In particular, in a July 1990 letter, a private physician explained that he was treating the veteran for a nervous condition "which could be aggravated by stress or pressure from other people around his job." At an August 1993 treatment session, the veteran reported that he began receiving treatment for a nervous condition in 1987 or 1989 due to job difficulties. In October 1993, the veteran asked if he could take more than the prescribed three tablets per day due to job stress. The veteran's request was denied. In the following month, the veteran reported having had an altercation with his supervisor who allegedly had told him "to stop being a kid and grow up." Additionally, the social worker who interviewed the veteran in November 1993 associated the veteran's psychological problems, which had lasted more than six months, with "marital and employment issues since exiting the military." Further medical records provide evidence that the veteran's psychiatric problems are related to alcohol abuse. In particular, at a March 1994 treatment session at the local Mental Health Clinic, the veteran stated that he had been drinking "all [of his] . . . life." The examiner, in turn, expressed his opinion that "[t]he probable alcohol abuse certainly sheds more light on his symptoms-although he tends to minimize his drinking." At a July 1994 treatment session, the veteran was instructed on the need not to mix alcohol with his psychiatric medication. In September 1994, an examiner explained that, once the veteran's sobriety was established, he (the physician) would try to taper the veteran off medication in order to make an accurate diagnosis. The examiner also expressed his opinion that "[t]he dilemma remains-schizophrenia versus alcohol-induced psychosis." Subsequently, in March 1995, the veteran reported that he had been drinking the previous evening. The examiner informed the veteran that drinking caused depression and that "there was little . . . [he, the physician] could do as long as he [the veteran] continue[d] . . . to drink." In summary, the claims folder does not contain competent evidence associating any psychiatric disorder that the veteran may currently have (including any depression, undifferentiated schizophrenia, or anxiety) to his active military duty or to an already service-connected disability. Additionally, no competent evidence has been presented to show that a psychosis was demonstrated to a compensable degree within a year of the veteran's separation from service. §§ 3.307, 3.309. Competent medical evidence of a nexus between current disability and the veteran's military service is required for a finding of a well-grounded claim. See Jones v. Brown, 7 Vet.App. 134 (1994). Such evidence is lacking in this case. In other words, no one with sufficient expertise has provided an opinion that the veteran has a psychiatric disability (including any depression, undifferentiated schizophrenia, or anxiety) that had its onset during service or as the product of continued symptoms since service. Additionally, no competent evidence has been presented to link a psychiatric disability (including any depression, undifferentiated schizophrenia, or anxiety) to an already service-connected disability. Consequently, the veteran's claim for service connection for a psychiatric disability must be found to be not well grounded. Caluza, supra. ORDER Service connection for a psychiatric disability is denied. MARK F. HALSEY Member, Board of Veterans' Appeals