Citation Nr: 0005996 Decision Date: 03/06/00 Archive Date: 03/14/00 DOCKET NO. 96-18 586 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE 1. Entitlement to service connection for depression due to undiagnosed illness. 2. Entitlement to service connection for memory loss due to undiagnosed illness. REPRESENTATION Appellant represented by: Disabled American Veterans INTRODUCTION The veteran served on active duty from August 1989 to August 1993. This matter comes to the Board of Veterans Appeals (Board) from a December 1995 rating decision of the Regional Office (RO) which denied the veteran's claim for service connection for depression and forgetfulness. When this case was before the Board in August 1999, it was remanded for additional development of the record. As the requested actions have been accomplished, the case is again before the Board for appellate consideration. The Board notes that numerous other claims were resolved in the August 1999 decision and, accordingly, this determination will be limited to the issues noted on the preceding page. Effective March 1, 1999, the name of the United States Court of Veterans Appeals was changed to the United States Court of Appeals for Veterans Claims ("the Court"). FINDINGS OF FACT 1. With respect to the claim for service connection for depression, all relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran had service in the Southwest Asian theater of operations during the Persian Gulf War. 3. Depression was first shown several years following the veteran's separation from service, and the most recent Department of Veterans Affairs (VA) examination failed to establish that it is related to service. 4. There is no competent medical evidence demonstrating that the veteran currently has memory loss. CONCLUSIONS OF LAW 1. Depression was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1117, 1131, 5107(a) (West 1991); 38 C.F.R. § 3.317 (1999). 2. The veteran has not submitted evidence of a well-grounded claim of entitlement to service connection for memory loss. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual background The service medical records are negative for complaints or findings concerning any psychiatric disability. On a report of medical history in June 1993, in conjunction with the discharge examination, the veteran denied having loss of memory or depression. A psychiatric evaluation on the separation examination in June 1993 was normal. The veteran's DD Form 214 shows that among the medals the veteran received were the Kuwait Liberation Medal and the Southwest Asia Service Medal. The veteran was afforded a general medical examination by the VA in March 1995. He related that starting in 1991, he would have episodes of depression, sometimes associated with paranoia. He also stated that he first noted having a short- term memory loss in 1993. He indicated that he was very forgetful of everyday items and had to use lists. Following an examination, the pertinent assessments were depression and short-term memory loss. VA outpatient treatment records show that the veteran was seen in the psychiatric clinic in April 1995. He reported that prior to the Persian Gulf War, he was always outgoing and had never been down or depressed. He stated that his mother and his friends noticed changes in his personality and behavior after he returned from the Gulf, and that these changes did not become apparent to him until approximately one year later. He maintained that during his last year in service, he began having problems with depression, sleep changes and anxious/paranoid behavior. He described unprovoked crying spells about six months to one year earlier. the veteran attributed his problems to his service in the Gulf War, especially "experimental NBC (non biological chemical warfare) pills" he had to take, and to exposure to burning oil. Following an examination the assessment was depression, not otherwise specified. He was seen the next month for complaints of depression and forgetfulness which started around the summer of 1990. The assessment was depression, not otherwise specified. On VA general medical examination in May 1997, the veteran stated that he forgets time and forgets directions. During the interview, he showed the examiner a photograph of himself in full combat gear in the desert. Oil fires could be seen in the background. It was noted that the veteran cried during the examination. The pertinent assessment was depression. Statements dated in September 1998 were received from the veteran's mother and sister. These were to the combined effect that the veteran was distant and moody after his return from service. His mother commented that she saw him during service, and he was a different person, moody and depressed. She added that he was worse following his separation from service. A VA examination for chronic fatigue syndrome was conducted in October 1998. The veteran stated that he was forgetful. Following an examination, the pertinent assessments were depression and memory loss. The veteran was afforded a neurological examination by the VA in October 1998. He described the memory problem as more of a problem with forgetfulness. He occasionally found himself having forgotten certain things. The pertinent diagnosis was memory problems of an unclear nature, could be secondary to previous diagnosis of depression. It was indicated that a mini mental status evaluation was essentially normal. On VA psychiatric examination in October 1998, the veteran stated that all his problems were caused by his service in the Persian Gulf. He claimed that he was damaged by the NBC pills and the environment. He related that he first got depressed when he was in Saudi Arabia. He reported that he was a heavy wheels operator, drove all day, and also had guard duty. He felt this was stressful. He indicated that he was never treated for depression in service. He noted that when he came back, he came to the VA and received some treatment. The examiner noted that the veteran's claims folder was available for review. On mental status evaluation, the veteran's mood was angry and anxious. His affect was controlled, but appropriate to his expressed thoughts. No lability of affect was noted. His thought process was coherent. He was mild to moderately preoccupied with the idea that he was somehow harmed from some mysterious or not some mysterious medication inoculation or air pollutant during the time he served in the Persian Gulf. He scored 30/30 on a mini mental status examination. The Axis I diagnoses were undifferentiated somatization disorder; depressive disorder, not otherwise specified; and anxiety disorder, not otherwise specified. The Axis IV diagnosis was Persian Gulf conflict. The examiner commented that the veteran's primary problem appeared to be an undifferentiated somatoform disorder, that is, he had physical complaints that had not been substantiated with physical or laboratory findings. Due to this, he was becoming increasingly distrustful and anxious and depressed. Based on the records the examiner was able to find, the veteran's depression and anxiety began in 1995, although his family indicated otherwise. There was no indication that the veteran had any psychiatric difficulties while he was in service. The veteran stated that he had already had neuropsychological testing but the examiner could find no indication of this in the chart. Based on the testing he was able to perform, the veteran did not have any diagnosable cognitive problem. In September 1999, the veteran's claims folder was reviewed by the examiner who performed the October 1998 VA psychiatric examination. He commented that the record supported a diagnosis of depressive disorder, somatization and anxiety disorder. Based solely on the evidence of record, "it is likely as not that this disorder was not present during the service. However, it is the veteran's belief that it is related to the service. There is no medical reason for this disorder to be related to the service." The examiner added that the clinical data of record did not support a finding that the veteran had a memory loss. He noted that neuropsychological testing was ordered, but apparently never performed. Based on the testing that was available in the record and the veteran's presentation, there was no evidence that he had a memory loss, and he simply was complaining of forgetfulness. He concluded that the veteran did not have a memory loss and, therefore, it could not be related to any other diagnosis he had. As far as the examiner was able to tell, the veteran had only simple, ordinary forgetfulness that did not reach clinical significance. Analysis Service connection may be granted for disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. For Persian Gulf claims, Section 3.317 provides except as provided in paragraph (c) of this section, VA shall pay compensation in accordance with Chapter 11 of Title 38, United States Code, to a Persian Gulf veteran who exhibits objective indications of chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed in paragraph (b) of this section, provided that such disability: (i) became manifest either during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2001; and (ii) by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(1)(i)(ii). For the purposes of this section (1) the term "Persian Gulf veteran" means a veteran who served on active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War. (2) the Southwest Asia theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317. "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. For purposes of this section, disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. The 6-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. A chronic disability resulting from an undiagnosed illness referred to in this section shall be rated using evaluation criteria from part 4 of this chapter for a disease or injury in which the functions affected, anatomical localization, or symptomatology are similar. A disability referred to in this section shall be considered service-connected for purposes of all laws. 38 C.F.R. § 3.317(2), (3), (4), (5). For the purposes of paragraph (a)(1) of this section, signs or symptoms which may be manifestations of undiagnosed illness include, but are not limited to: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). The regulations also provide that compensation shall not be paid under this section: (1) if there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; or (2) if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the veteran's most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or (3) if there is affirmative evidence that the illness is the result of the veteran's own willful misconduct or the abuse of alcohol or drugs. The enabling legislation for this regulation is 38 U.S.C.A. § 1117 (West 1991 and Supp. 1998). The legislative history of this provision demonstrates an intent on the part of Congress to provide compensation for Persian Gulf War veterans who suffer from signs and symptoms of undiagnosed illnesses, and who may have acquired these symptoms as a result of exposure to the "complex biological, chemical, physical and psychological environment of the Southwest Asia theater of operations. The threshold question that must be resolved with regard to a claim is whether the veteran has presented evidence of a well-grounded claim. See 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). A well- grounded claim is a plausible claim that is meritorious on its own or capable of substantiation. Murphy, at 81. An allegation that a disorder is service connected is not sufficient; the veteran must submit evidence in support of a 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 of necessity will depend upon the issue presented by the claim. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). In order for a claim to be well grounded, there must be competent evidence of a current disability (a medical diagnosis); of incurrence or aggravation of a disease or injury in service (lay or medical evidence); and of a nexus between the in-service injury or disease and the current disability (medical evidence). See Caluza v. Brown, 7 Vet. App. 489, 504, 506 (1995); see also Epps v. Gober 126 F.3d 1464, 1468 (Fed. Cir. 1997) (expressly adopting definition of well-grounded claim set forth in Caluza, supra). The second and third Caluza elements can be satisfied under 38 C.F.R. 3.303(b) (1999) by (a) evidence that the condition was "noted" during service or during an applicable presumptive period; (b) evidence showing post-service continuity of symptomatology; and (c) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See 38 C.F.R. 3.303(b); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). For the purpose of determining whether a claim is well grounded, the credibility of the evidence in support of the claim must be presumed. See Robinette v Brown, 8 Vet. App. 69, 75 (1995). Where the determinant issue involves a question of medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible or possible is required to establish a well-grounded claim. Grottveit, at 93. Lay assertions of medical causation cannot constitute evidence to render a claim well grounded under 38 U.S.C.A. § 5107(a); if no cognizable evidence is submitted to support a claim, the claim cannot be well grounded. Id. Accordingly, to establish a well-grounded claim, there must be competent evidence of incurrence or aggravation of a disease or injury in service, of a current disability and of a nexus between the in-service injury or disease and the current disability. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. For Persian Gulf War claims, based on the above-referenced statutory and regulatory terms, the necessary elements of a claim for benefits under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 are as follows: (1) proof of active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; (2) proof of one or more signs or symptoms of undiagnosed illness; (3) proof of objective indications of chronic disability manifest during service or to a degree of disability of 10 percent or more during the specified presumptive period; and (4) proof that the chronic disability is the result of the undiagnosed illness. O.G.C. Prec. 4-99 (May 3, 1999). For the reasons set forth below, the Board finds that the claim for service connection for depression is well grounded, but the claim for service connection for memory loss is not well grounded. With respect to the claim for service connection for service connection for depression, the Board notes that the service medical records contain no indication of complaints or findings of any psychiatric disability. Moreover, a psychiatric evaluation on the discharge examination in June 1993 was normal. Indeed, the Board points out that veteran, at the time of the VA psychiatric examination in October 1998, denied seeking treatment during service for any psychiatric complaints. The Board acknowledges that VA medical records reflect diagnoses of depression. In this regard, the Board points out that a depressive disorder was diagnosed on the October 1998 VA psychiatric examination. However, it is crucial to note that the examiner specifically stated that the veteran had no psychiatric problems in service and that his depression began in 1995, more than one year following the veteran's discharge from service. In addition, in September 1999, the same examiner again reviewed the records and reaffirmed his conclusion that the veteran's depression did not have its onset in service. Accordingly, there is no basis on which service connection on a direct basis may be granted. The veteran also claims that service connection for depression may be granted on the basis of 38 C.F.R. § 3.317. In this regard, the Board notes that following the October 1998 VA psychiatric examination, when depression was diagnosed, an Axis IV diagnosis of Persian Gulf Conflict was made. While this is sufficient to render the claim well grounded, see Hernandez-Toyens v. West, 11 Vet. App. 379 (1998), it does not provide a basis on which to grant the claim. This is true because the veteran's psychiatric disability has been attributed to a diagnosed disorder. In light of the fact that the veteran has a diagnosed psychiatric disability, namely, depressive disorder, service connection pursuant to the provisions of 38 C.F.R. § 3.317 is not warranted. The veteran also argues that service connection should be established for memory loss either on a direct basis or that it was due to his service in the Persian Gulf. A review of the record shows that there is no indication in the service medical records of any problems involving loss of memory. While some medical records show that the veteran has variously reported the onset of memory loss in 1990 or 1993, the service medical records do not show that he reported a memory loss at any time. Indeed, he specifically indicated on a report of medical history in June 1993, in conjunction with his separation from service, that he had not experienced a loss of memory. The Board acknowledges that the veteran has described being forgetful. On a VA examination for chronic fatigue syndrome in October 1998, he was found to have memory loss. However, he was also afforded a VA psychiatric examination at that time. The examiner stated that the veteran did not have a diagnosable cognitive problem. In September 1999, the same examiner was provided the opportunity to again review the record and state his medical opinion concerning the presence of memory loss. He specifically commented that the veteran did not have a memory loss. The Court has held that "[i]n the absence of competent medical evidence of a current disability and a causal link to service or evidence of chronicity or continuity of symptomatology, a claim is not well grounded." Chelte v. Brown, 10 Vet. App. 268 (1997). In Brammer v. Derwinski, 3 Vet. App. 223 (1992), the Court noted that Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability. In the absence of proof of a present disability, there can be no valid claim. In Rabideau v. Derwinski, 2 Vet. App. 141 (1992), the Court held that the failure to demonstrate that a disability is currently manifested constitutes failure to present a plausible or well-grounded claim. Accordingly, based on the evidence of record, the Board finds that the veteran's claim for service connection for memory loss on either a direct basis or under the provisions of 38 C.F.R. § 3.317 is not well grounded. Additional matters When the Board addresses in its decision a question that has not been addressed by the RO, it must consider whether the veteran has been given adequate notice to respond and, if not, whether he has been prejudiced thereby. Bernard v. Brown, 4 Vet. App. 384 (1993). The Board concludes, however, that a claim which is not well grounded is inherently implausible, and any error by the RO in the adjudication of the claim could not be prejudicial. Although when a claim is not well grounded, the VA does not have a statutory duty to assist a veteran in developing facts pertinent to his claim, the VA may be obligated to advise a veteran of the evidence needed to complete the application. This obligation depends upon the particular facts of the case and the extent to which the Secretary of the VA has advised the veteran of the evidence necessary to be submitted with a VA benefits claim. Robinette v. Brown, 8 Vet. App. 69 (1995). By this decision, the Board is providing the veteran with notice of the evidentiary insufficiency of his claim, and what evidence would be necessary to make the claim well grounded. ORDER Service connection for depression and memory loss is denied. James R. Siegel Acting Member, Board of Veterans' Appeals