Citation Nr: 0001440 Decision Date: 01/18/00 Archive Date: 01/27/00 DOCKET NO. 98-04 734A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for depression and anxiety as secondary to the service-connected Crohn's disease. 2. Entitlement to an increased rating for Crohn's disease, currently evaluated as 30 percent disabling. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disability. REPRESENTATION Appellant represented by: R. Edward Bates, Esquire ATTORNEY FOR THE BOARD D. M. Casula, Associate Counsel INTRODUCTION The veteran had active service from June 1986 to August 1986, and from May 1987 to January 1992. This matter comes before the Board of Veterans' Appeals (Board) from a December 1997 rating decision of the Buffalo, New York Regional Office (RO) of the Department of Veterans Affairs (VA) which denied service connection for depression and anxiety as secondary to the service-connected Crohn's disease, denied a rating in excess of 30 percent for the service-connected Crohn's disease, and denied entitlement to a total disability rating based on individual unemployability. The issue of entitlement to a total disability rating based on individual unemployability due to service-connected disability will be addressed in the Remand following the decision. FINDINGS OF FACT 1. The veteran's claim that his depression and anxiety are related to his Crohn's disease was not accompanied by any medical evidence to support that allegation. 2. The claim for service connection for depression and anxiety is not plausible. CONCLUSION OF LAW The veteran's claim of service connection for depression and anxiety as secondary to the service-connected Crohn's disease is not well-grounded. 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1999); 38 C.F.R. § 3.310 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background On the veteran's Report of Medical History prepared in conjunction with his separation examination in September 1991, he responded "yes" to the question of whether he had depression or excessive worry. He indicated that he had constant worry about his life while waiting for a discharge from the Army. Service medical records show no other complaints of or findings of depression or anxiety. In November 1996, the veteran's representative, on behalf of the veteran, filed a claim for service connection for depression, anxiety, and pain, as secondary to the service- connected Crohn's disease. In a letter dated in May 1997, the RO requested that the veteran submit medical evidence in support of his contention that he had a psychiatric disorder that was directly due to and proximately the result of the service-connected Crohn's disease. Analysis Under applicable criteria, service connection will be granted for disability resulting from injury suffered or disease incurred in or aggravated during service. 38 U.S.C.A. §§ 1110, 1131. The law also provides that a disability which is proximately due to or the result of a service-connected disability shall be service-connected. 38 C.F.R. § 3.310. When service connection is thus established for a secondary condition, the secondary condition is considered part of the original condition. Id. Service connection may also be established when aggravation of a veteran's non-service- connected condition is proximately due to or the result of a service-connected condition. Allen v. Brown, 7 Vet. App. 439 (1995). A claimant for benefits under a law administered by the VA shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. The VA has the duty to assist a claimant in developing facts pertinent to the claim, if the claim is determined to be well grounded. 38 U.S.C.A. § 5107(a). Thus, the threshold question to be answered is whether the veteran has presented a well grounded claim; that is, a claim which is plausible. If he has not presented a well grounded claim, his appeal must fail, and there is no duty to assist him further in the development of his claim, as any such development would be futile. Murphy v. Derwinski, 1 Vet. App. 78 (1990). As explained below, the Board finds that the veteran's claim for service connection for depression and anxiety as secondary to the service-connected Crohn's disease is not well grounded. To sustain a well grounded claim, the veteran must provide evidence demonstrating that the claim is plausible; mere allegation is insufficient. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). The determination of whether a claim is well grounded is legal in nature. King v. Brown, 5 Vet. App. 19 (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, 81 (1990). To be well grounded, a claim must be accompanied by supportive evidence, and such evidence must justify a belief by a fair and impartial individual that the claim is plausible. Where the determinative issue involves either medical etiology or a medical diagnosis, competent medical evidence is required to fulfill the well grounded claim requirement of 38 U.S.C.A. § 5107(a ); Lathan v. Brown, 7 Vet. App. 359 (1995). In order for a claim for service connection 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 inservice injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498 (1995). Evidentiary assertions by the veteran must be accepted as true for the purposes of determining whether a claim is well- grounded, except where the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King, supra. The veteran contends that he has depression and anxiety resulting from his service-connected Crohn's disease. The threshold requirement that must be met in any claim of service connection is that the disability claimed must be shown present. 38 U.S.C.A. §§ 1131, Caluza, supra. Here, the veteran has not submitted any competent (medical) evidence that he has a depression or anxiety disorder. Therefore, he has failed to satisfy the threshold Caluza requirement for a well-grounded claim of service connection. Lay statements, such as the veteran's own assertions that he has a depression or anxiety disorder, are not competent evidence in this matter. As a layperson, he does not have the expertise to establish a medical diagnosis. Layno v. Brown, 6 Vet. App. 465 (1994). Without medical evidence of a current disability, the claim of service connection for such disability is not well-grounded. Caluza, supra. ORDER Entitlement to service connection for depression and anxiety as secondary to the service-connected Crohn's disease is denied. REMAND Turning to the veteran's claim for a TDIU, the veteran contends that he is unable to work due to his service- connected Crohn's disease. The Court held in Friscia v. Brown, 7 Vet. App. 294 (1995), that the Board has a "duty to supplement the record by obtaining an examination which includes an opinion on what effect the appellant's service- connected disability has on his ability to work." The record reflects that VA examiner in 1997 did not provide such an opinion regarding the veteran's service-connected Crohn's disease. Accordingly, an opinion on what effect the veteran's Crohn's disease has on his ability to work, with supporting rationale, should be obtained on remand. With regard to the service-connected Crohn's disease, the Board notes that it is unclear as to whether the VA examiner in 1997 reviewed the veteran's claims file in conjunction with the examination. There are several treatment records in the veteran's claims folder, showing treatment and hospitalizations related to his Crohn's disease. Fulfillment of the statutory duty to assist includes conducting a thorough and contemporaneous medical examination, one which takes into account the records of prior treatment, so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991). To that end, an appropriate VA examination should be scheduled to evaluate the current severity of the veteran's service-connected Crohn's disease. Accordingly, the case is REMANDED to the RO for the following actions: 1. The RO should contact the veteran and request that he provide the name(s) and address(es) of all medical care providers (VA and private) who may have treated him for his Crohn's disease since June 1997. After obtaining any necessary releases, the RO should obtain copies of complete clinical records from the identified treatment sources, and associate them with the claims folder. 2. The veteran should be afforded a VA examination to determine the current severity of his service-connected Crohn's disease, and its impact on his industrial adaptability. It is imperative that the examiner review the claims folder prior to the examination. The examiner should comment on whether the veteran's Crohn's disease is moderately severe, severe, or pronounced, and comment on the frequency of the exacerbations of his Crohn's disease. The examiner should also provide an opinion regarding the extent to which the veteran's service-connected disability impairs his ability to obtain and retain substantially gainful employment. The examiner should provide supporting rationale for any opinions rendered. 3. Following the completion of all requested development, the RO should review the veteran's claims on the basis of all evidence of record and all applicable law and regulations. If action taken remains adverse to the veteran, he and his representative should be provided a supplemental statement of the case and a reasonable period for response thereto Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The appellant need take no action until otherwise notified. Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992); Booth v. Brown, 8 Vet. App. 109 (1995). The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of this REMAND is to obtain additional information and to ensure due process of law. No inference should be drawn regarding the final disposition of the claim as a result of this action. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims 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. C. W. SYMANSKI Member, Board of Veterans' Appeals