Citation Nr: 0001929 Decision Date: 01/24/00 Archive Date: 02/02/00 DOCKET NO. 93-00 015A ) DATE ) ) Received from the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia THE ISSUE Entitlement to service connection for a psychiatric disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Miyake, Associate Counsel INTRODUCTION The veteran served on active duty from June to December 1956, and from February 1957 to February 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 1992 rating decision by the Cleveland, Ohio RO that, among other things, denied a claim of entitlement to service connection for a nervous disorder. In July 1999, the veteran informed the RO that he would be a resident of West Virginia in August 1999. Therefore, jurisdiction of the claims file was transferred to the Huntington, West Virginia RO. In October 1995, the veteran appealed a denial of an increased rating for service-connected heart disability. However, by a November 1995 rating decision, a 100 percent rating was granted by the RO. Given that no greater rating is available for this disability, the Board finds that further action on this issue is not required. See 38 C.F.R. § 4.104 (1999). The Board also notes that the veteran initiated an appeal of certain actions taken in a February 1999 rating decision. A statement of the case was issued by the RO in June 1999, but no substantive appeal was thereafter filed. 38 C.F.R. § 20.200 (1999). Consequently, the only issue now before the Board is the claim of service connection for psychiatric disability. (The Board notes that the veteran has maintained that his appeal is of a denial of service connection for a "nervous" disorder, not a "psychiatric" disorder. In this regard, the Board notes that these terms have been used interchangeably by the RO to mean a psychiatric disability, not a neurologic disorder. Given that this issue is the only one developed for appellate review, the Board will use the term "psychiatric" in the same manner as the RO.) FINDING OF FACT Evidence has been presented which implicitly links a psychiatric disorder with the veteran's military service or already service-connected disability. CONCLUSION OF LAW The claim of service connection for a psychiatric disorder is well grounded. 38 U.S.C.A. §§ 1110, 1131, 5107(a) (West 1991); 38 C.F.R. §§ 3.303, 3.310(a) (1999). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(a) (1999). Service connection is also warranted where the evidence shows that a chronic disability or disorder has been caused or aggravated by an already service-connected disability. 38 C.F.R. § 3.310 (1999); Allen v. Brown, 7 Vet. App. 439 (1995). When disease is shown as chronic in service, or within a presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (1999). A person who submits a claim for VA benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. Only if the claimant meets this burden does VA have the duty to assist him in developing the facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied sub nom, Epps v. West, 118 S. Ct. 2348 (1998). If the claimant does not meet this initial burden, the appeal must fail because, in the absence of evidence sufficient to make the claim well grounded, the Board does not have jurisdiction to adjudicate the claim. Boeck v. Brown, 6 Vet. App. 14, 17 (1993). A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive, but only possible, to satisfy the initial burden of 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78 (1990). To be well grounded, however, a claim must be accompanied by evidence that suggests more than a purely speculative basis for granting entitlement to the requested benefits. Dixon v. Derwinski, 3 Vet. App. 261, 262-63 (1992). Evidentiary assertions accompanying a claim for VA benefits must be accepted as true for purposes of determining whether the claim is well grounded, unless the evidentiary assertion is inherently incredible or the fact asserted is beyond the competence of the person making the assertion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is plausible or possible is required. Murphy, 1 Vet. App. at 81. A claimant cannot meet this burden merely by presenting lay testimony, because lay persons are not competent to offer medical opinions. Espiritu, 2 Vet. App. at 495. The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (Court) has held that competent evidence pertaining to each of three elements must be submitted in order to make a claim of service connection well grounded. There must be competent (medical) evidence of a current disability, competent (lay or medical) evidence of incurrence or aggravation of disease or injury in service, and competent (medical) evidence of a nexus between the in-service injury or disease and the current disability. This third element may be established by the use of statutory presumptions. 38 C.F.R. §§ 3.307, 3.309 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Epps v. Gober, 126 F.3d at 1468. The Board finds that the veteran's claim of service connection for a psychiatric disorder is well grounded. The veteran claims that his psychiatric disability either had its onset in service or was the result of service-connected disability. He claims that service-connected paroxysmal atrial tachycardia (PAT) has had many residual effects such as depression. He also states that he was prescribed Valium in service, not for PAT, but because he had developed an extreme fear of having a heart attack and dying. He also notes that this fear led to his anxiety and, ultimately, caused depression. The veteran's service medical records show that, in February 1970, paroxysmal atrial flutter was diagnosed. In April 1974, Valium was prescribed. The records also show that the veteran had requested refills of Valium on a regular basis from July 1975 to September 1977. A March 1974 periodic examination report indicates that the veteran had a nervous problem related to work and medical problems. In January 1976, when the veteran reported having had daily episodes of palpitations, which had left him with an unpleasant nervous feeling in the chest, he also complained of general fatigue and nervousness. When he was seen in February 1976 for complaints of his heart fluttering, it was noted that he had had nervousness. A January 1978 separation examination report indicates that the veteran's PAT/flutter was controlled. In his report of medical history, it was noted that the veteran had had "worry and nervous trouble, concern over medical problems, primarily P.A.T." The veteran reported that he had had depression or excessive worry, and indicated that his then-current medications included Valium. His DD-214 reveals that his military occupational specialty was an air traffic control operator from June 1961 to June 1965, and air traffic control technician from June 1965 to June 1969. Post-service treatment records show that, at a May 1978 VA examination, the veteran complained that a heart flutter made him nervous, exhausted, and unable to relax. VA outpatient treatment records also show that, since March 1992, the veteran has received psychiatric treatment. At a March 1992 VA examination, generalized anxiety disorder was diagnosed. At a May 1993 VA examination, dysthymia was diagnosed. In March 1996, the veteran was found to have depression and anxiety. The medical evidence also contains correspondence from a private clinical neuropsychologist at the Flexman Clinic, dated in March 1992, indicating that the veteran was evaluated in February and March 1992. The neuropsychologist opined that a great deal of fear and apprehension secondary to the veteran's significant medical problems had begun to surface. It was the neuropsychologist's belief that this was creating a significant depression for the veteran. Other correspondence from the same neuropsychologist, dated in August 1992, indicates that the veteran continued to receive psychological treatment for his nervous condition and difficulties associated with his medical problems. The neuropsychologist noted that, after reviewing notes made from the veteran's medical records in service, it was noted on several occasions that the veteran had had problems with nervousness as an air traffic controller, depression, and nervous conditions. The neuropsychologist noted that the veteran had been treated with Valium for his emotional difficulties. The neuropsychologist further opined that the veteran's medical records clearly establish an existing condition while in the military. The reasonable inferences from reading the private neuropsychologist's letters, in connection with the other evidence of record, lead the Board to conclude that the veteran's claim of service connection for a psychiatric disorder is well grounded. In other words, there is a strong suggestion by competent authority that the veteran has some sort of psychiatric disorder that is attributable to his military service or to service-connected disability. Under these circumstances, the Board finds that the claim of service connection for a psychiatric disorder is well grounded. ORDER The claim of service connection for a psychiatric disorder is well grounded; to this extent, the appeal is granted. REMAND Because the Board has concluded that the claim of service connection for a psychiatric disorder is well grounded, VA has a duty to assist the appellant in the development of facts pertaining to his claim. 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.159; Epps, supra. Although the veteran has submitted private medical opinions, dated in March and August 1992, which suggest that he suffers from a psychiatric disorder which originated in service or may be attributable to an already service-connected disability, it is not clear that the neuropsychologist's opinions were based on a thorough review of the veteran's entire history, especially review of records prepared contemporaneous with his military service. VA examination and outpatient treatment records, most recently from May 1993 to March 1996, do not contain a opinion regarding the etiology of the veteran's then-diagnosed anxiety, depression, or dysthymia. Therefore, in light of the uncertainty as to whether the veteran's diagnosed anxiety, depression, or dysthymia was the sort of disability contemplated by the March and August 1992 opinions, the Board finds that further evidentiary development would be helpful to clarify such relationship. In cases such as this, VA's duty to assist under 38 U.S.C.A. § 5107(a) includes the duty to provide the appellant with a thorough and contemporaneous medical examination, one that includes a medical opinion as to whether the claimed disability is related to service. Moore v. Derwinski, 1 Vet. App. 401, 405-06 (1991). Accordingly, the case is REMANDED to the RO for the following: 1. The RO should ask the veteran to provide information regarding any evidence of psychiatric treatment that has not already been made a part of the record, including treatment reports from the private neuropsychologist at the Flexman Clinic, and the RO should assist him in obtaining such evidence following the procedures set forth in 38 C.F.R. § 3.159 (1999). 2. The RO should then schedule the veteran for a VA psychiatric examination. The examiner should review the entire claims file, including the veteran's service medical and personnel records. The examiner should provide an opinion as to the medical probabilities that any currently diagnosed psychiatric disorder is related to military service, any event(s) coincident with service, or to already service-connected disability. An opinion should be set forth as to whether any service-connected disability has caused a worsening of any psychiatric disability. All opinions should be reconciled with the opinions set forth in March and August 1992 by the clinical neuropsychologist. 3. The RO should take adjudicatory action. If the benefit sought is denied, a supplemental statement of the case (SSOC) should be issued. After the veteran and his representative have been given an opportunity to respond to the SSOC, the claims folder should be returned to this Board for further appellate review. No action is required of the appellant until he receives further notice. The purpose of this remand is to comply with governing adjudicative procedures and to obtain clarifying evidence. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of the remanded issue. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. 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 or by the Court 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. MARK F. HALSEY Member, Board of Veterans' Appeals