Citation Nr: 0001136 Decision Date: 01/13/00 Archive Date: 01/27/00 DOCKET NO. 98-15 575A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for depression (also claimed as bipolar disorder). 2. Entitlement to a permanent and total disability rating for pension purposes. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. E. Larkin, Associate Counsel INTRODUCTION The veteran served on active duty from May 1992 to July 1994. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 1997 rating action of the Philadelphia, Pennsylvania Regional Office (RO) of the Department of Veterans Affairs (VA). FINDINGS OF FACT 1. There is no competent medical evidence of a nexus between the veteran's currently demonstrated depressive or bipolar disorder and any in-service disease or injury. 2. The veteran's claim of entitlement to a permanent and total disability rating for pension purposes is plausible. CONCLUSIONS OF LAW 1. A well-grounded claim of service connection for depression (also claimed as bipolar disorder) has not been presented. 38 U.S.C.A. § 5107(a) (West 1991). 2. The claim of entitlement to a permanent and total disability rating for pension purposes is well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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) (West 1991), 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 (1999). 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. Accordingly, the threshold question that must be resolved in this appeal is whether the veteran has presented evidence that the claims are well grounded; that is, that the claims are plausible. I. Service Connection Background. The report of a March 1992 enlistment examination and medical history revealed no psychiatric findings or defects. A careful review of the service medical records reveals no complaints or findings pertaining to depression or bipolar disorder. In March 1993, the veteran was directed to undergo a mental health evaluation, at which time he denied any medical, financial, family, job, alcohol or drug abuse problems. Stressors were noted to include marital problems and alcohol intoxication. Following testing, the examiner assigned multiaxial diagnoses of marital problems and alcohol intoxication on Axis I; no diagnosis on Axis II (although the examiner noted immature traits) ; and no diagnosis on Axis III. It was further noted that the veteran had declined further appointments for supportive counseling. The report of a June 1994 separation examination and Medical History included a detailed summary of the veteran's medical history, but was negative for complaints or treatment pertaining to depression or a bipolar disorder. It was noted that the veteran denied personal history of psychosis. Post-service medical records include reports pertaining to treatment received from both private and VA physicians. In a November 1998 statement, a private physician reported that he had cared for the veteran from October 1994 through October 1995, during which time the veteran had displayed evidence of a major depressive disorder coupled with a substance problem of alcohol and signs and symptoms of irritable bowel syndrome. The physician then reviewed the veteran's psychiatric history from October 1995 until he saw the veteran again in November 1998. The physician indicated that it was "reasonable to believe" that the veteran was significantly impaired and it was recommended that he obtain psychiatric care. The report of January 1997 VA hospitalization summary noted that the veteran had been referred for treatment following a suicide attempt. He was noted to have a longstanding history of behavioral problems with antisocial features, "starting from around eighth grade." A February 1997 psychological evaluation included the veteran's self-report of a "very problematic childhood and adolescence," with the treatment provider's notation that a number of events and relationships "appear to have had a significant negative impact" on the veteran's development. A March 1997 progress note included the comment that the veteran showed a long history of behavioral instability, poor school performance, marital difficulty, and failure to adjust to military or occupational live thus far. While the veteran claimed to be diagnosed bipolar, he wasn't being treated medically for that condition, rather for depression. The veteran's symptom picture and behavioral history were noted to support a diagnosis of borderline personality disorder, such that bipolar disorder was not clearly ruled in. In addition, the veteran apparently saw himself as more impaired than he was, adding the additional consideration of malingering, to some extent. An October 1997 chart notation detailed results of psychological testing and noted diagnoses of episodic substance abuse, bipolar disorder-depression, and rule out anxiety disorder. The veteran was afforded a VA examination in January 1999 at which time his social, military and past medical and psychiatric histories were reviewed. The examiner also reviewed reports of previous psychological testing. The veteran's primary complaint was that of low self-esteem, with additional complaints of low energy alternating with periods of hypermania, sleep difficulties, fatigues, impulsivity and poor coping skills. Following mental status examination, the diagnoses included substance dependence, in partial remission and depressive disorder, not otherwise specified, by history. The examiner also entered a diagnosis of personality disorder with borderline, antisocial and dependent features on Axis II. The examiner opined that the veteran had a longstanding history of personality dysfunction predating his enlistment in service, which was evidenced by poor school performance, impulsivity and struggles with authority. The veteran continued to suffer similar problems at present. It was the examiner's opinion that the veteran had "impaired social and industrial functioning, which likely as not predated his military service." Analysis. Generally, a well-grounded claim of service connection requires (1) medical evidence of a current disability; (2) medical, or, in certain circumstances, lay evidence of incurrence or aggravation of a disease or injury in service; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Epps, 126 F.3d at 1468; Caluza v. Brown, 7 Vet. App. 498, 506 (1995). In regard to establishing a well-grounded claim, the second and third Epps and Caluza elements (incurrence and nexus evidence) can also be satisfied under 38 C.F.R. § 3.303(b) by (1) evidence that a condition was "noted" during service or during an applicable presumption period; (2) evidence showing post-service continuity of symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). The evidentiary assertions by the appellant must be accepted as true for purposes of determining whether the claim is well grounded, except where the claim is beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19 (1993). When the issue involves a medical question of diagnosis or causation, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91 (1993). Statements and testimony from lay witnesses or the appellant in this regard are not sufficient to establish a plausible claim as they are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In essence, the veteran contends that he is suffering depression which was incurred in service. In this regard, such lay assertions are beyond the veteran's expertise (see King, supra), and the Board must look to other evidence of record to determine whether he has presented a well-grounded claim of service connection. Initially, the Board notes that there is no evidence of complaints or treatment pertaining to depression or bipolar disorder during service. Post-service medical evidence includes notations referable to personality disorder and questions as to whether a diagnosis of bipolar disorder is warranted. However, the record also includes an October 1997 VA diagnosis of bipolar disorder and depression and a November 1998 statement from a private physician who reported that the veteran evidenced a major depressive disorder from October 1994 to October 1995. What the record does not include is competent evidence relating those conditions to service. Regarding the veteran's own assertions that his current condition is related to service, the Board points out that, as a lay person, he is not competent to offer a medical opinion. See Grottveit; Espiritu, supra. The January 1999 VA examination included the opinion, based on an examination and review of the veteran's complete history, that the veteran's personality dysfunction predated service. The Board points out that a personality disorder is a constitutional or developmental abnormality for which service connection may not be granted. 38 C.F.R. § 3.303(c). Although the examiner included a diagnosis of depressive disorder, by history, there was no opinion offered as to whether that condition was related to service. Absent competent medical evidence which relates the veteran's present condition to service, the Board concludes that the veteran has not met his burden of submitting well-grounded claims. See Caluza; Savage, supra. The Board notes that the fact that VA authorized an examination for the veteran's claimed condition does not mean that the veteran, who did not fulfill his statutory requirements to establish a well-grounded claim, is entitled to the duty to assist. Slater v. Brown, 9 Vet. App. 240 (1996) (Whether a VA examination should be conducted under 38 C.F.R. § 3.326 is an issue that arises only where a claim has already been determined to be well-grounded). See Morton, supra. Finally, the Board has considered the "benefit of the doubt" doctrine: however, as the veteran's claim does not meet the threshold of being well grounded, a weighing of the merits of the claim is not warranted and the benefit of the doubt doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II. Pension With regard to the veteran's claim for nonservice-connected pension benefits, there is evidence of active military service of 90 days or more during a period of war and evidence that the veteran is unemployable. In an October 1997 chart extract, a VA psychologist opined that the severity of the veteran's psychiatric problems prevented him from working. Thus, the Board finds that the veteran's claim of entitlement to a permanent and total disability rating for pension purposes is well grounded. ORDER As a well-grounded claim has not been presented, service connection for depression (also claimed as bipolar disorder) is denied. The claim of entitlement to nonservice-connected pension benefits based on permanent and total disability is well grounded. To this extent only, the appeal is granted. REMAND Inasmuch as the veteran has submitted a well-grounded claim of entitlement to nonservice-connected pension benefits based on permanent and total disability, VA is obligated to assist him in the development of that claim. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78 (1990). The veteran contends that he is unable to work as a result of his nonservice-connected disabilities, and seeks a permanent and total rating for pension purposes. Pension is payable to a veteran who has served for 90 days or more during a period of war and who is "...permanently and totally disabled from non-service connected disability not the result of the veteran's willful misconduct." 38 U.S.C.A. § 1521; 38 C.F.R. § 3.342. The veteran satisfies the requirement of service during a period of war. 38 C.F.R. § 3.2(f). Thus, the issue of entitlement to pension turns on whether he is found to be permanently and totally disabled. The Court has provided specific guidance on how a permanent and total disability rating for pension purposes should be adjudicated. Talley v. Derwinski, 2 Vet. App. 282 (1992); Roberts v. Derwinski, 2 Vet. App. 387 (1992); Abernathy v. Derwinski, 2 Vet. App. 391 (1992); and Brown v. Derwinski, 2 Vet. App. 444 (1992). Among the instructions provided is a requirement that the Board review the assignment of percentage ratings for each disability identified. In instances where percentage ratings for one or more of the veteran's disabilities has not been assigned by the RO, further development is required so that the Board can undertake the review process set out by the Court. Additionally, even where the RO has identified a disability and assigned a rating, further development may be required in order to properly apply the rating criteria by which the disability is evaluated. The RO has identified the following disabilities: depression, bipolar disorder, chronic lumbosacral strain, irritable bowel syndrome and external hemorrhoids (each evaluated as 0 percent disabling) and personality disorder with borderline, antisocial and dependent features, evaluated as 30 percent disabling. Although the veteran was afforded a VA examination in January 1999, the Board finds that the evidence of record is inadequate for rating the severity of each of the veteran's nonservice-connected disabilities. In addition, the report of a gastrointestinal examination conducted at that time included the assessment of history of dyspepsia; yet the RO has not identified that as a disability suffered by the veteran. In light of the Court's directive that all disabilities be evaluated as part of the adjudication of the veteran's claim for pension, additional examination must be performed. While a remand is necessary to obtain additional evidence in order to identify each disability suffered by the veteran, it is also necessary to remand the case so that the veteran can be examined with respect to his disabilities. The examinations performed on remand must provide sufficient detail to allow the RO to properly apply the rating criteria by which the veteran's disabilities are evaluated. In that regard, the Board points out that any examination of musculoskeletal disability done for rating purposes must include consideration of all factors identified in 38 C.F.R. §§ 4.40, 4.45. DeLuca v. Brown, 8 Vet. App. 202 (1995). In light of the foregoing, the case is REMANDED to the RO for the following action: 1. The RO should take appropriate steps to contact the veteran in order to obtain the names and addresses of all medical care providers who treated him for the claimed disabilities since 1996. The RO should ask the veteran to provide information regarding any evidence of current or past treatment for his disabilities that has not already been made part of the record. After securing the necessary release, the RO should attempt to obtain copies of all records from the identified treatment sources. 2. The veteran should be afforded appropriate VA examinations in order to clarify the nature and severity of each of the nonservice-connected disabilities. The claims folder must be made available to the examiner(s) for review and all indicated tests should be conducted. The examiner(s) should indicate any and all complaints made by the veteran. All findings should be reported in detail and must be responsive to the appropriate rating criteria. Regarding orthopedic disabilities, findings that take into account all functional impairments identified in 38 C.F.R. §§ 4.40, 4.45, including pain on use, incoordination, weakness, fatigability, abnormal movements, etc. should be included. Any functional impairment identified should be expressed in terms of additional range-of-motion loss beyond that clinically demonstrated. See DeLuca, supra. The degree of severity of each nonservice-connected disability, and the effect of each disability on the veteran's ability to follow a substantially gainful occupation should be discussed. All findings, opinions and bases therefor should be set forth in detail. 3. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, including if the requested examination does not include all test reports, special studies or opinions requested, appropriate corrective action is to be taken. 4. Thereafter, the RO should again review the veteran's claim of entitlement to a permanent and total rating for pension purposes. The RO should assign disability ratings to all disabilities shown by the medical evidence. A rating decision should be prepared which reflects all appropriate ratings, as determined by application of relevant diagnostic criteria. If any benefit sought on appeal remains denied, the veteran and representative should be furnished a supplemental statement of the case. If nonservice-connected pension benefits are denied, the supplemental statement of the case should include the rating criteria for all disabilities found. The veteran and his representative should be given the opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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. K. OSBORNE Acting Member, Board of Veterans' Appeals