Citation Nr: 0007883 Decision Date: 03/23/00 Archive Date: 03/28/00 DOCKET NO. 98-17 475 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Togus, Maine THE ISSUE Entitlement to service connection for depression. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD A. C. Mackenzie, Associate Counsel INTRODUCTION The veteran served on active duty from July 1968 to July 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 1997 rating decision issued by the Department of Veterans Affairs (VA) Medical and Regional Office Center (RO) in Togus, Maine. FINDING OF FACT There is no competent medical evidence of a nexus between the veteran's currently diagnosed depression and service. CONCLUSION OF LAW The claim of entitlement to service connection for depression is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(a) (1999). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1999). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). Also, certain chronic diseases, including psychoses, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). The initial question which must be answered in this case, however, is whether the veteran has presented a well-grounded claim for service connection. In order for a claim for service connection to be well grounded, the claim must be shown to be at least plausible and capable of substantiation. Specifically, there must be: (1) a medical diagnosis of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence 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. Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S.Ct. 2348 (1998); Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). The nexus requirement may be satisfied by evidence showing that a chronic disease subject to presumptive service connection was manifested to a compensable degree within the prescribed period. See Traut v. Brown, 6 Vet.App. 495, 497 (1994); Goodsell v. Brown, 5 Vet.App. 36, 43 (1993). Where the determinative issue involves medical causation or etiology, or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Epps v. Gober, 126 F.3d at 1468. Furthermore, in determining whether a claim is well grounded, the supporting evidence is presumed to be true and is not subject to weighing. King v. Brown, 5 Vet.App. 19, 21 (1993). 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) (1999) 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). Symptoms, not treatment, are the essence of evidence of continuity of symptomatology. Savage v. Gober, 10 Vet.App. at 496. Moreover, a condition "noted during service" does not require any type of special or written documentation, such as being recorded in an examination report, either contemporaneous to service or otherwise, for purposes of showing that the condition was observed during service or during the presumption period. Id. at 496-97. However, medical evidence noting the specific symptomatology is required to demonstrate a relationship between the present disability and the demonstrated continuity of symptomatology unless such a relationship is one for which a lay person's observation is competent. Id. at 497. The Board has reviewed the veteran's service medical records and finds that, in reporting his medical history at the time of his March 1968 enlistment examination, he described a history of insomnia, worrying, and anxiety since receiving his draft notice; however, no psychiatric problems were noted upon examination. On one occasion during service, in May 1969, the veteran complained of insomnia, but his March 1971 separation examination report is entirely negative for any psychiatric problems. In reviewing the veteran's post-service records, the Board observes that a December 1998 statement from a state disability claims supervisor indicates that the veteran had "some sort of emotional problem" since 1976 that worsened in 1979. Records of psychiatric treatment from the Kennebec Valley Medical Center in Augusta, Maine, beginning November 1980, reflect treatment for manic depression. However, neither these records nor any subsequent private treatment records in the claims file contain an opinion to the effect that the veteran's current psychiatric disorder was of service onset; in fact, the November 1980 report from the Kennebec Valley Medical Center indicates that the veteran "had no psychiatric problems in the service." Overall, there is no competent medical evidence of record of a nexus between the veteran's currently diagnosed depression and service. There is also no evidence of a psychosis within one year following service. Indeed, the only evidence of record suggesting a nexus between a current psychiatric disorder and service is the lay evidence of record, including the testimony from the veteran's December 1998 VA hearing. During this hearing, the veteran argued that he was involved with stressful situations while serving in Vietnam and that he was seen by a military psychiatrist for counseling during that time. However, the veteran has not been shown to possess the medical expertise necessary to establish a nexus or link between a currently diagnosed disorder and service. See Espiritu v. Derwinski, 2 Vet.App. 492, 494-95 (1992). See also LeShore v. Brown, 8 Vet.App. 406, 409 (1995) (evidence which is simply information recorded by a medical examiner and unenhanced by any additional medical commentary from that examiner does not constitute competent medical evidence); Robinette v. Brown, 8 Vet. App. 69, 77 (1995) (a lay account of a physician's statement, "filtered as it [is] through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute 'medical' evidence"). Therefore, the lay contentions of record, alone, do not provide a sufficient basis upon which to find this claim to be well grounded. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). A well-grounded claim must be supported by evidence, not merely allegations. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). In the absence of competent medical evidence to support the veteran's claim for service connection for depression, this claim must be denied as not well grounded. Since the veteran's claim for service connection is not well grounded, the VA has no duty to assist the veteran in developing the record to support his claim. See Epps v. Gober, 126 F.3d at 1467-68 (Fed. Cir. 1997) ("there is nothing in the text of § 5107 to suggest that [VA] has a duty to assist a claimant until the claimant meets his or her burden of establishing a 'well grounded' claim"). During his December 1998 hearing, the veteran made a reference to treatment by "Dr. Stewart" and indicated that he had not made efforts to retrieve records from this doctor to date. In this regard, the Board points out that the VA has a duty under 38 U.S.C.A. § 5103(a) (West 1991) to notify the veteran of the evidence needed to complete his application for service connection when the VA is aware of the existence of relevant evidence. See McKnight v. Gober, 131 F.3d 1483, 1484-85 (Fed. Cir. 1997); see also Robinette v. Brown, 8 Vet. App. at 77-78. In this case, the Board believes its discussion alerts the veteran to the fact that, in order to well ground his claim, he needs to submit competent medical evidence linking his current disability to service. ORDER A well-grounded claim not having been submitted, entitlement to service connection for depression is denied. L. J. NOTTLE Acting Member, Board of Veterans' Appeals