Citation Nr: 0005502 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 98-19 615A ) DATE ) ) On appeal from the Department of Appellants Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for a psychiatric disorder. REPRESENTATION Appellant represented by: Disabled American Appellants ATTORNEY FOR THE BOARD M. Taylor, Associate Counsel INTRODUCTION The appellant's DD Form 214 indicates that the he had active duty for training (ACDUTRA) from August 22, 1972 to October 30, 1972. This matter is before the Board of Appellants' Appeals (Board) on appeal from a July 1998 rating decision of the Department of Appellants Affairs (VA) Regional Office (RO), located in Los Angeles, California. The appellant filed an application for service connection for a psychiatric disorder in August 1994. The RO, by letter dated March 1995, notified the appellant that more information was required in order to proceed. The appellant responded in a statement received later that month that he was unable to provide the additional information requested. Subsequently, the RO, by letter dated May 1995, notified the appellant that the claim was disallowed. The appellant's claim for service connection for a psychiatric disorder was reopened in February 1998. FINDINGS OF FACT 1. The appellant served as a member of the Marine Corps Reserve on a period of ACDUTRA from August 22, 1972 to October 30, 1972. 2. There is no competent evidence or opinion that the appellant had an acquired psychiatric disorder during service or that he currently has an acquired psychiatric disorder and that such is related to service. CONCLUSION OF LAW The claim of entitlement to service connection for a psychiatric disorder is not well grounded. 38 U.S.C.A. § 5107(a) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background The appellant's service entry examination report, dated in August 1972, shows no psychiatric complaints or diagnoses. Additionally, on the accompanying report of medical history the appellant denied having trouble sleeping, depression or excessive worry, loss of memory, or nervous trouble. Service department records show that the appellant was an extreme disciplinary problem. In service records dated between August and October 1972, the appellant was variously described as unreliable, disobedient, a wise guy, overboisterous, sad or depressed appearing, and a manipulator. It was noted that even with constant supervision he failed to complete basic assignments, including physical conditioning. A service department note in September 1972 indicates that the appellant stated that he wanted to go home, refused to exercise, complained of breathing problems which he first attributed to a hole in his lung and then to a history of LSD, cocaine and other drug abuse, and then "had some kind of a fit, saying that he was having a flashback." Service personnel opined that the appellant's inability to fulfill basic training requirements appeared to be "an act." The appellant was assigned to a motivational platoon for 14 days, with no improvement. It was noted that he occasionally became belligerent and violent. The reports indicate that the appellant complained of pre-service drug abuse related problems in order to avoid training and in an attempt to secure a discharge. In a psychiatric report, dated October 1972, the examiner referred the appellant to the Depot Aptitude Board (DAB) as a defective attitude or for want of readiness and recommended additional psychiatric evaluation. The examiner reported that the appellant was not psychotic, neurotic or clinically depressed. The appellant was given a general discharge by reasons of unsuitability due to defective attitude on October 30, 1972 In a claim for service connection for a psychiatric disorder filed in August 1994 the appellant reported service in the Army from June 1973 to January 1974 in addition to his Marine Corps service. The RO subsequently attempted to obtain any Army medical records but none were available and the appellant has provided no documentation of any such service. Hospitalization records from the VA Medical Center in Long Beach, California, dated in August 1994, show the appellant reported a significant history of drug and alcohol abuse, including then current use of $700 to $800 of crack cocaine per day and 7 to 8 pints of gin per day. The appellant indicated that he had been honorably discharged from the Marines for unknown medical reasons. The appellant reported that a psychiatrist, who prescribed Thorazine and Sinequan, treated him while he was incarcerated and that he spent one night at a Norwalk psychiatric institution for alcohol abuse. The examiner noted that it was unclear if there had been a psychiatric diagnosis. The relevant discharge diagnoses were polysubstance abuse and antisocial personality disorder with borderline traits. Private medical records, dated in November 1996, show that the appellant was brought to the hospital after being found wandering in the middle of the street and intake notes indicate that he was under the influence at the time he arrived. The preliminary medical examination report reflects that the appellant reported history of mental illness. The diagnosis was substance induced psychotic disorder. Subsequently, the appellant was transferred and admitted to an acute facility with an admitting diagnosis of substance induced mood disorder. In a report dated November 10, 1996, the examiner noted the appellant's history of multiple psychiatric hospitalizations. The appellant reported that while he was not taking medication, he had previously been taking Haldol and Cogentin. The impression was rule out chronic undifferentiated schizophrenia and a history of polysubstance abuse. Criteria The United States will pay to any veteran compensation for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre- existing injury suffered or disease contracted in the line of duty in the active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Personality disorders are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c); 4.9 (1999). Service-connected disability means that such disability was incurred or aggravated in line of duty in the active military, naval, or air service. 38 C.F.R. § 3.1(k). The term "active military, naval, or air service" includes: (1) active duty; (2) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. See 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). For a claim to be well grounded, there generally must be (1) a medical diagnosis of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. See Anderson, supra; Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table). In any case, a claim for service-connection for a disability must be accompanied by evidence which establishes that the claimant currently has the claimed disability. Absent proof of a present disability there can be no valid claim. See, e.g., Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ; Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). Medical evidence is required to prove the existence of a current disability and to fulfill the nexus requirement. Lay or medical evidence, as appropriate, may be used to substantiate service incurrence. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). For the purposes of determining whether this claim is well- grounded, the Board must presume the truthfulness of the evidence, "except when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion." King v. Brown, 5 Vet. App. 19, 21 (1993). If a claim is not well grounded, the application for service connection must fail, and there is no further duty to assist the appellant in the development of his claim. 38 U.S.C.A. § 5107, Murphy v. Derwinski, 1 Vet. App. 78 (1990). Analysis Section 5107 of Title 38, United States Code unequivocally places an initial burden upon the appellant to produce evidence that his claim is well grounded; that is, that his claim is plausible. Grivois v. Brown, 6 Vet. App. 136, 139 (1994); Grottveit v. Brown, 5 Vet. App. 91, 92 (1993). In this case, service records reflect that the appellant had only reserve service and was on ACDUTRA from August 22, 1972 to October 30, 1972. He claims that he developed a psychiatric condition during that service. The appellant's service department records do not reflect any diagnosis of a psychiatric disorder. Rather, they show essentially unsatisfactory performance, which resulted in the appellant's separation for unsuitably. The in-service psychiatric report, dated in October 1972, specifically indicates that the appellant was not psychotic, neurotic or clinically depressed. The initial post-service medical evidence is many years after service and does not include a current diagnosis of a mental condition for which service connection is available. While a hospitalization report, dated in August 1994, shows that the appellant had a personality disorder, service connection may not be allowed for a personality disorder as that disorder is not a disease or injury within the meaning of applicable legislation referable to service connection. 38 C.F.R. §§ 3.303(c), 4.9 (1999). Further, while private medical records dated in November 1996 show a diagnosis of substance induced psychotic disorder, service connection may not be granted for disability which results from primary abuse of alcohol or drugs. See 38 U.S.C.A. §§ 105, 1110 (West 1991); 38 C.F.R. § 3.301 (1999). In any event, there is no competent opinion attributing any current psychiatric disorder to the appellant's brief period of ACDUTRA decades earlier. Although there is a recent diagnostic impression of rule out schizophrenia there is no competent evidence of an acquired psychiatric disorder in service or that any current, non- substance related, acquired psychiatric disorder, if present, is related to service. In the present case, the determinant issue is one of medical diagnosis and etiology; therefore, competent medical evidence must be submitted to make the claim well grounded. Lay assertions of medical causation cannot constitute evidence to render a claim well grounded if no cognizable evidence is submitted to support a claim. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). The appellant is not qualified to render a medical diagnosis of a mental condition. The Board finds that the claim of entitlement to service connection for a psychiatric disorder is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. Thus, the Board concludes that the claim of entitlement to service connection for a psychiatric disorder is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). Pursuant to 38 U.S.C.A. § 5103(a), if VA is placed on notice of the possible existence of information that would render the claim plausible, and therefore well grounded, VA has the duty to advise the appellant of the necessity to obtain the information. McKnight v. Gober, 131 F.3d 1483, 1484-1485 (Fed. Cir. 1997); Robinette v. Brown, 8 Vet. App. 69, 80 (1995). However, such evidence must be identified with some degree of specificity; with an indication that the evidence exists and that it would well ground the claim. See Carbino v. Gober, 10 Vet. App. 507, 510 (1997). In this case, the appellant has not identified medical evidence that would make his claim well grounded. Therefore, 38 U.S.C.A. § 5103(a) is not applicable to the present case. As the appellant's claim for service connection for a mental condition is not well grounded, the doctrine of reasonable doubt has no application to his case. The Court has held that if the appellant fails to submit a well-grounded claim, VA is under no duty to assist in any further development of the claim. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); 38 C.F.R. § 3.159(a) (1999). The Board views its foregoing discussion as sufficient to inform the appellant of the elements necessary to complete his application for service connection. See Graves v. Brown, 8 Vet. App. 522 (1996); Robinette v. Brown, 8 Vet. App. 69, 77-78 (1995); McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997); Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). ORDER Service connection for a psychiatric disorder is denied. JANE E. SHARP Member, Board of Appellants' Appeals