BVA9505188 DOCKET NO. 93-10 136 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for post traumatic stress disorder (PTSD). 2. Entitlement to service connection for drug and alcohol dependence. 3. Entitlement to service connection for a personality disorder. 4. Restoration of service connection for a generalized anxiety disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.W. Engle, Counsel INTRODUCTION The appellant served on active duty from July 1985 to February 1987. This matter came before the Board of Veterans' Appeals (the Board) on appeal from a decision dated in November 1992 by the Wichita, Kansas, Department of Veterans Affairs Regional Office (VARO). In August 1993, K. M. Carpenter, Attorney at Law, the appellant's representative at the time, filed a motion for withdrawal as attorney for the appellant pursuant to 38 C.F.R.§ 20.608(b)(2) (1993). That motion was granted by the Board in October 1993. We note that the appellant is currently represented by Disabled American Veterans. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that service connection is warranted for PTSD, drug and alcohol dependence and a personality disorder. He further argues, in essence, that severance of service connection for the generalized anxiety disorder was improper and that service connection for that disability should be restored. 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 not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim to service connection for PTSD is well grounded. Furthermore, the preponderance of the evidence is against service connection for drug and alcohol dependence and a personality disorder. However, the record supports restoration of service connection for the generalized anxiety disorder. FINDINGS OF FACT 1. The evidence of record, including the service medical records, reflect no objective evidence of PTSD. 2. The record reflects that the appellant has been diagnosed with an alcohol abuse and polysubstance abuse disorder and a borderline personality disorder. 3. In December 1987, service connection was granted for a generalized anxiety disorder. 4. In March 1993, service connection for a generalized anxiety disorder was severed based upon a change of diagnosis reported on VA examination in September 1992. 5. The diagnosis of a generalized anxiety disorder, reported on VA examination in September 1987, upon which service connection was predicated, was not identified as clearly erroneous by the examining physicians in September 1992 or by other proper medical authority, in light of all of the accumulated evidence of record. CONCLUSIONS OF LAW 1. The appellant has not submitted evidence of a well grounded claim for service connection for PTSD. 38 U.S.C.A. § 5107(a) (West 1991). 2. The appellant's alcohol and polysubstance addiction is the result of his own willful misconduct. 38 U.S.C.A. §§ 105, 1131 (West 1991); 38 C.F.R. §§ 3.1(n), 3.301(c) (1994). 3. The appellant's personality disorder is not a disease within the meaning of applicable legislation providing VA disability compensation benefits. 38 C.F.R. §§ 3.303(c), 4.9, 4.127 (1994). 4. The March 1993 rating decision which severed service connection for a generalized anxiety disorder was clearly and unmistakably erroneous. 38 C.F.R. §§ 3.104(a), 3.105(a) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Well Grounded Claims The threshold question to be answered at the outset of the analysis of any case is whether the veteran's claims are well grounded; that is, whether they are plausible, meritorious on their own, or otherwise capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78 (1990). If a particular claim is not well grounded, then the appeal fails and there is no further duty to assist in developing facts pertinent to the claim since such development would be futile. 38 U.S.C.A. § 5107(a) (West 1991). For service connection to be granted, it is required that the facts, as shown by the evidence, establish that a particular injury or disease resulting in chronic disability was incurred in service, or, if pre-existing service, was aggravated therein. 38 U.S.C.A. § 1110, (West 1991); 38 C.F.R. § 3.303, 3.304(f) (1993). An appellant has, by statute, the duty to submit evidence that his claims are well grounded. The evidence must "justify a belief by a fair and impartial individual" that the claims are plausible. 38 U.S.C.A. § 5107(a) (West 1991). Where such evidence is not submitted, the claims are not well grounded, and the initial burden placed on the appellant is not met. See Tirpak v. Derwinski, 2 Vet.App. 609 (1992). Evidentiary assertions by the appellant must be accepted as true for the purposes of determining whether a claim is well grounded, except where the evidentiary assertion is inherently incredible. See King v. Brown, 5 Vet.App. 19 (1993). In this case, the appellant's evidentiary assertions as to the claim of PTSD is inherently incredible when viewed in the context of the total record. The evidence before us includes the service medical records which are entirely negative for complaints, findings or manifestations of PTSD. Relevant post service medical evidence including VA psychiatric examinations in September 1987, September 1989 and September 1992 as well as periods of hospitalization from February 11, 1991 to June 10, 1991, from June 12, 1991 to October 7, 1991 and from November 29, 1991 to January 28, 1992 reflect no evidence to establish the presence of PTSD. In fact, the entire record is silent, other than the appellant's claim, with respect to the presence of PTSD. The Board notes that 38 C.F.R. § 3.304(f) (1994) provides that service connection for PTSD requires medical evidence establishing a clear diagnosis of the condition, credible supporting evidence that the claimed inservice stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed inservice stressor. The evidence in this case does not even establish a diagnosis of PTSD. Accordingly, in view of the above, the Board concludes that evidence sufficient to establish that the claim to service connection for PTSD is well grounded has not been presented. II. Alcohol and Polysubstance Dependence Service connection essentially requires that the facts, as shown by the evidence, establish that a particular injury or disease resulting in chronic disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C.A. § 1131 (West 1991); 38 C.F.R. § 3.303 (1994). Service connection may also be established where there is additional disability which is proximately due to or the result of a service-connected disorder. 38 C.F.R. § 3.310(a) (1994). However, a disability will not be considered to have been incurred or aggravated in the line of duty, if the disability was the result of the veteran's willful misconduct. 38 U.S.C.A. § 105 (West 1991). Primary alcoholism and drug abuse are considered, by regulation, the result of willful misconduct. 38 C.F.R. § 3.301(c)(2), (3) (1994). The evidence of record in this case reflects that the appellant has reported a long history of alcohol and polysubstance abuse, prior to service, during service and after service discharge. See VA outpatient treatment reports dated in February 1988 reflecting reports of hospitalization in 1981, prior to service, for "drinking", reported multiple drug use including "speed, coke (cocaine), MJ (marijuana), heroin IV (intravenous) and coke IV," while attending college in 1978, the VA hospitalization reports dated from June 12, 1991 to October 7, 1991, during which the appellant reported a 10 to 12 year history of doing "little else besides drugs, "and the VA psychiatric examination report from a board of two psychiatrists and a psychologist dated in September 1992 which noted that the appellant's diagnoses before, during and after service included alcohol abuse and polysubstance abuse. In view of the above, the undersigned concludes that there is no basis within the record for establishing service connection for primary alcoholism or drug abuse. There is no objective medical evidence to establish a relationship between the appellant's service-connected anxiety disorder and his alcohol and polysubstance dependence. In light of the lack of evidence to the contrary, service connection is found to be precluded by the appellant's willful misconduct. 38 U.S.C.A. §§ 105, 1131 (West 1991); 38 C.F.R. §§ 3.1(n), 3.301(c) (1994); Hayward v. Derwinski, U.S. Vet. App. No. 90-159 (1991) III. Personality Disorder With respect to the appellant's borderline personality disorder, the Board notes that such disorders are not considered to be diseases within the meaning of applicable legislation providing VA disability compensation benefits. 38 C.F.R. §§ 3.303(c), 4.9, 4.127, Beno v. Principi, 3 Vet.App. 439, 441 (1992). IV. Severance of Service Connection In December 1987 service connection was granted for an anxiety disorder, based upon findings during service which noted indicators of an affective disorder and an anxiety disorder as well as a diagnosis of an anxiety disorder reported on VA examination in September 1987. In November 1992 VARO proposed severance of service connection for an anxiety disorder based upon a change of diagnosis identified on VA psychiatric examination by a board of two psychiatrists and one psychologist in September 1992. The most appropriate preservice, in-service and post-service diagnoses were reported to be alcohol abuse, polysubstance dependence and borderline personality disorder. The appellant was notified of that decision in December 1992. In March 1993 service connection for an anxiety disorder was severed pursuant to 38 C.F.R. § 3.105(a), (d) (1994). Review of 38 C.F.R. § 3.105(d) (1994) reveals that a change in diagnosis, as in this case, may be accepted as the basis for severance action if the examining physician or physicians or other proper medical authority certifies that, in the light of all accumulated evidence, the diagnosis on which service connection was predicated was clearly erroneous. In this case, two different VA physicians in September 1987 and again in September 1989 reported diagnoses which included generalized anxiety disorder. There is no certification by the examining psychiatrists and psychologist in September 1992 that these diagnoses were clearly erroneous, and in particular, that the September 1987 diagnosis was clearly erroneous based upon all accumulated evidence of record. Accordingly, in view of the above, the undersigned concludes that the requirements as set forth by § 3.105(d) (1994) have not been met and therefore restoration of service connection for the generalized anxiety disorder is warranted. ORDER Having found the claim not well grounded, the appeal of service connection for PTSD is dismissed and the VARO rating decision of September 1991 from which this appeal arose is vacated. Service connection for alcohol and polysubstance dependence is denied. Service connection for a personality disorder is denied. Restoration of service connection for a generalized anxiety disorder is granted. C.P. RUSSELL 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.