Citation Nr: 0004005 Decision Date: 02/15/00 Archive Date: 02/23/00 DOCKET NO. 91-40 827 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for a psychiatric disability, to include schizophrenia and post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for headaches. 3. Entitlement to service connection for tinnitus. 4. Entitlement to service connection for disabilities involving the neck and back. 5. Entitlement to service connection muscle spasms. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The veteran had active duty from July 1978 to December 1978 with the United States Marine Corps; active duty for training from September 1, 1979, to September 16, 1979, and June 28, 1980, to July 12, 1980, with the Unites States Marine Corps Reserve; and active duty from June 1982 to September 1982 with the United States Army. This matter comes to the Board of Veterans' Appeals (Board) from rating determinations of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. FINDINGS OF FACT 1. PTSD or any other acquired psychiatric disorder, to include schizophrenia, was not present in service or manifest within one year thereafter, and there is no evidence of PTSD or any other acquired psychiatric disorder causally linked to service. 2. There is no competent medical evidence linking postservice headaches to any incident in service. 3. There is no competent medical evidence linking postservice tinnitus to any incident in service. 4. There is no competent medical evidence linking postservice neck and back complaints to any incident in service. 5. There is no competent medical evidence linking postservice muscle spasms to any incident in service. CONCLUSIONS OF LAW 1. The claim for service connection for an acquired psychiatric disorder, including PTSD and schizophrenia, is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The veteran has not submitted evidence of a well-grounded claim of entitlement to service connection for headaches. 38 U.S.C.A. § 5107(a) (West 1991). 3. The veteran has not submitted evidence of a well-grounded claim of entitlement to service connection for tinnitus. 38 U.S.C.A. § 5107(a) (West 1991). 4. The veteran has not submitted evidence of a well-grounded claim of entitlement to service connection for disability involving the neck and back. 38 U.S.C.A. § 5107(a) (West 1991). 5. The veteran has not submitted evidence of a well-grounded claim of entitlement to service connection for muscle spasms. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION Relevant Law and Regulations The basic framework of the law and regulations provides that service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1998). In the case of psychosis, service incurrence may be presumed if the disease is manifested to a compensable degree within one year of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1998). For a 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1998). The threshold question that must be resolved with regard to a claim is whether the veteran has presented evidence that the claim is well grounded. Under the law, it is the obligation of the person applying for benefits to come forward with a well-grounded claim. 38 U.S.C.A. § 5107(a). 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 § 5107(a)." Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997). Mere allegations in support of a claim that a disorder should be service-connected are not sufficient; the veteran must submit evidence in support of the claim that would "justify a belief by a fair and impartial individual that the claim is plausible." 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 depends upon the issue presented by the claim. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). The U.S. Court of Appeals for Veterans Claims (Court) has held that, in general, a claim for service connection is well grounded when three elements are satisfied with competent evidence. Caluza v. Brown, 7 Vet. App. 498 (1995). First, there must be competent medical evidence of a current disability (a medical diagnosis). Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Second, there must be evidence of an occurrence or aggravation of a disease or injury incurred in service (lay or medical evidence). Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991); Layno v. Brown, 6 Vet. App. 465 (1994). Third, there must be a nexus between the in-service injury or disease and the current disability (medical evidence or the legal presumption that certain disabilities manifest within certain periods are related to service). Grottveit v. Brown, 5 Vet. App. 91, 93; Lathan v. Brown, 7 Vet. App. 359 (1995). The Court has further held that the second and third elements of a well-grounded claim for service connection can also be satisfied under 38 C.F.R. § 3.303(b) (1998) by (a) evidence that a condition was "noted" during service or an applicable presumption 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 post-service symptomatology. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 495- 97 (1997). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of (i) the existence of a chronic disease in service or during an applicable presumption period and (ii) present manifestations of the same chronic disease. Ibid. Also controlling in this case are decisions of the Court concerning the types of evidence required to establish important facts. The Court has held that a lay person can provide probative eye-witness evidence of visible symptoms, however, a lay person can not provide probative evidence as to matters which require specialized medical knowledge acquired through experience, training or education. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The Court has further held that "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." Grottveit, 5 Vet. App. at 93. Factual Background Private records from April 1982 show that the veteran was transferred to the hospital from jail after being arrested for apparently living in a library. Following the evaluation the diagnoses were adult situational reaction with depression and passive-aggressive personality disorder. (The Board notes that this treatment was not during a period of active service.). A review of the service medical records (SMRs) is negative for any complaints, treatment, or report of headaches, tinnitus, neck or back complaints, or muscle spasms. These records do show that the veteran was referred for therapy in July 1982 during his fourth week of boot camp. It was noted that he was experiencing problems getting along with his peers and commanding officers. Following evaluation, the diagnoses were passive-aggressive personality disorder and pathological liar. In September 1989, the veteran filed his original claim for benefits. He related that he was struck by a drill sergeant in boot camp and that ever since he had had headaches and neck problems. At hearings in 1991 and 1993, the veteran expounded on his contentions, adding that this incident had resulted in chronic stiffness in the neck and back. He said that the ringing in the ears and muscle spasms began in 1989. A March 1992 statement by a fellow serviceman attests that a sergeant struck the veteran. At the 1993 hearing, the veteran argued that he had a psychiatric disorder also as a result of being struck by the drill sergeant. Post service medical records include private and VA records through 1997. These records are replete with treatment for psychiatric complaints from the time that the veteran underwent surgery on his hand in late 1983. In December 1983, the veteran was noted to have schizotypal personality disorder and Haldol was prescribed. A private physician, M. J. Vargas, M.D., reported in May 1984 that the veteran developed a paranoid disorder after a 2 week hospitalization for treatment of a hand infection in December 1983. It was noted that the veteran was ultimately transferred to a halfway house where he was placed on psychotropic medications. The Board notes that review of the additional records reflects that the veteran's psychiatric diagnosis has essentially remained the same over the years. For example, private physicians in 1984 and 1985 both diagnosed paranoid schizophrenia. The 1985 examiner also diagnosed a schizoid personality disorder. More recently, VA examiners diagnosed paranoid schizophrenia in May 1992 and in January 1997. At the May 1992 examination, the veteran reported that only one traumatic event occurred during service. He said that during his boot camp training, a drill sergeant became so frustrated with him that he forcibly struck him on both sides of the head with his palms. The examiner added that the veteran had apparently read of symptoms of PTSD in a pamphlet, and believed that he had that disorder. The veteran complained of non-specific, weird dreams that did not awaken him. He never experienced nightmares or relived any traumatic episodes sustained while in service and did not describe anything close to flashbacks. The veteran gave a history that included that his mother had had psychiatric problems, to include hospitalization. Following an evaluation, the examiner noted that the veteran apparently began having auditory hallucinations shortly after the inservice incident, but his illness, "apparently" schizophrenia, was not "attended to" until approximately 1984. He had since lived in a board-and-care home while receiving Social Security Administration (SSA) benefits. (The record reflects that the veteran has received these benefits since 1979.) At another VA psychiatric examination in January 1997, it was noted that the veteran was referred for compete evaluation of possible metal disorders and specific opinions as to certain questions. The examiner noted that she reviewed the claims file. The veteran had not worked since 1990. He admitted fourteen years of alcohol abuse from 1975 to 1989. Since 1995, he had been treated at the VA medical center. In 1995, he had been involuntarily hospitalized at a private facility. Following his release, he was not accepted back into the board-and-care house where had had lived, so he ended up on the streets until about November 1995 when he became involved in outpatient treatment at the VA facility. He currently resided at another board-and-care facility. He spent his time practicing with his guitar and working on electronic projects. The veteran reported that he had no current friends. The examiner noted that the MMPI profile was congruent with the diagnosis of paranoid schizophrenia. It was also reported that the appellant had read about PTSD and he believed that this diagnosis fit him. Again, it was related that the veteran had been struck by his drill sergeant. The examiner indicated, however, that the veteran did not describe the kind of trauma that meets the criteria for PTSD, and she stated that he clearly did not meet the criteria for this diagnosis. Further, it was noted that he had a long history of paranoid schizophrenia. On mental status examination, he was oriented times 3 and cooperative. His speech was guarded and lacked spontaneity. He tended to only answer questions asked. His verbal responses tended to be vague, and seemed to reflect a combination of paranoid tendencies and a lack of clear thinking. He admitted current auditory hallucinations. The examiner's diagnoses/conclusion were that the MMPI-II results were congruent with the diagnosis of a schizophrenic disorder, paranoid type. Similarly, the clinical interview and the patient's history were congruent with the diagnosis of paranoid schizophrenia. She added that while the veteran claimed to have PTSD, he clearly did not meet the criteria for that disorder. In response to the question of when was the apparent psychiatric illness first clinically manifested, the physician answered that it was not known whether there were obvious or subtle manifestations of psychiatric illness in the veteran's childhood. The effect of a parental model (mother) who was mentally ill may have affected his early childhood development. It was also noted that he had admitted to considerable truancy in high school and associated with others who experimented with drugs. The examiner reflected that her review of the claims file suggested that he started to hear voices about 1978 or 1979. Therefore, he was manifesting symptoms of psychiatric illness in 1978 or 1979, but it was not known whether these were the first psychiatric symptoms manifested. Also, inasmuch as he stated to this examiner that he did not stop abuse of alcohol until 1989, it was possible that his hearing voices was precipitated by alcohol or polysubstance abuse. That is, it had an organic basis. The examiner was also requested to respond to the question of "[i]f manifested prior to the veteran's entry into the military, did the psychiatric illness undergo any chronic pathological advancement during periods of active duty or active duty for training?" She opined that there was no evidence that the veteran's psychiatric illness had any pathological advancement during periods of active duty or active duty for training. The opportunity for work, and the structure of active duty might have helped provide a focus for him. She was also asked to respond to the following: "[i]f the psychiatric illness was not manifested during active duty, within the one year presumptive period, or was not aggravated by active duty or active duty for training, what it the clinical significance of the psychiatric problems found during the military service?" In response, she pointed out that he served only three months of active duty in 1982. She added that review of the claims file suggested that he was discharged from the army because he was already on active duty in the Marine Corps Reserve and that this was not known to the army at the time of enlistment. Regarding his reserve duty, she added that he apparently was discharged because he did not participate in, i.e., was absent from scheduled practice drill. She opined that the clinical significance of any psychiatric problems he might have experienced was not clear. It was added that his paranoid schizophrenia disorder might have a genetic component since his mother was also hospitalized repetitively. She concluded that there was "no evidence" that the appellant's schizophrenia psychiatric disorder was "in any way related to his being in the Marine Reserves, or his three months of active duty Army service." As to the other issues on appeal, the Board notes that the postservice records show treatment on numerous occasions for each of these disorders. For example, he was first seen for headaches and spasms in 1985. Subsequently dated records include a CT scan of the brain in April 1989 that was interpreted as normal. Subsequently dated records show, however, that his headaches continued. He reportedly had muscle contraction headaches in May 1989 and was seen in 1991 and 1992 for further complaints. More recently in May 1995, when seen for psychiatric symptoms, he reported that he still experienced severe headaches. These postservice records also show complaints of tinnitus since around March 1989. Additional VA records reflect continued reports of tinnitus, to include at the time of VA audiometric testing in 1995 when he again complained of tinnitus. His neck and back complaints appear to have begun in 1989. However, a cervical spine CT scan in January 1989 was negative, and in February 1989, a private physician noted that there was no evidence of spine pathology. In March 1990, his multiple complaints included neck pain. Analysis After careful review of the evidence, the Board finds that of the three elements of a well grounded claim, the evidence of record in these cases fails to show a current disability (element one) and/or fails to show that a current disability is linked to a disease or injury of service origin (element three). See Caluza, supra. For the sake of convenience and clarity, the Board will separately address each disorder that may be involved in this case. Schizophrenia There is ample evidence of a current acquired psychiatric disability, chronic paranoid schizophrenia. The first prong of the Caluza analysis has thus been satisfied. There is also of evidence of psychiatric problems just prior to his 1982 stint in service and in July 1982 after entry into service when he was diagnosed as having a personality disorder. Furthermore, the veteran's own account of being struck during active service is sufficient lay evidence of such occurrence, at least for the purposes of making the claim well grounded. See King v. Brown, 5 Vet. App. 19, 121 (1993). Thus, the Board will assume that the second element of a well-grounded claim is established. However, the claim is not well grounded due to the lack of evidence to satisfy element three, a nexus between any current manifestation of an acquired psychiatric disorder and disease or injury in service, or for a psychosis, to a period of one year following service. The only evidence advanced to support the existence of this element of a well-grounded claim is the assertions and statement of the veteran. The United States Court of Appeals for Veterans Claims (Court) has said that claimants unversed in medicine are not competent to make medical determinations involving medical diagnosis or causation. In other words, since the veteran has had no medical training, his assertion that he currently has an acquired psychiatric disorder which is related to certain symptoms he experienced in service or to a period of one year following service, carries no weight. See Espiritu, supra. Nor can lay evidentiary assertion establish the nexus element on the basis of continuity of symptoms because acquired psychiatric disorders are not those subject to lay observations. See Savage, supra. Where the determinative issue involves medical causation or medical diagnosis, competent medical evidence to the effect that a claim is plausible is required for the claim to be well grounded. See Grottveit, supra. As for the medical evidence of record, there is no medical evidence which relates paranoid schizophrenia, first diagnosed over a year after separation from service, to service or to within one year of service. Moreover, the most recent examiner specifically opined after reviewing the claims file and examining the veteran that there was no causal relationship between his paranoid schizophrenia and his periods of service. Accordingly, as to this part of the veteran's claim, the Board finds that a well grounded claim has not been established, based on the lack of competent medical nexus evidence. PTSD The Board notes that the evidence of record does not reveal a current diagnosis of PTSD. Thus, as to the veteran's claim for service connection for PTSD, the first element of a well- grounded claim, competent evidence of a current disability (medical diagnosis), is lacking here. See 38 C.F.R. § 3.304(f) (1998); Rabideau, supra; Brammer, supra. Since the Board is constrained to follow the evidence, and there is no evidence of a current diagnosis of PTSD of record, that part of the claim must be denied. As was noted previously, the veteran is not competent to provide evidence as to matters requiring medical expertise, such as formulating a medical diagnosis or providing a medical opinion as to causation. Therefore, his lay assertions that he has PTSD and that it is linked to being struck by a drill sergeant during active duty can not establish a medical diagnosis or to relate a medical disorder to service. Espiritu, supra. Personality Disorder As to any personality disorder that has been reported, the Board points out that service connection may not be granted for a personality disorder as a matter of law pursuant to 38 C.F.R. §§ 3.303(c), 4.9 (1999). Also see Winn v. Brown, 8 Vet. App. 510, 516 (1996), and cases cited therein. Conclusion As to each of these psychiatric disabilities, 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). As the board finds that the veteran has not met the initial burden of submitting a well-grounded claim as to entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia and PTSD, the appeal must be denied. Headaches, Tinnitus, Disabilities Involving the Neck and Back, and Muscle Spasms As to the veteran's claims for service connection for headaches, tinnitus, neck and back disorders, or muscle spasms, the Board notes that a review of the SMRs is negative for any complaints, treatment, or report of any of these disabilities. While it may be argued that postservice records do not reflect chronic disabilities of the neck and/or back and for muscle spasms, the Board concedes that postservice records do show complaints of, or treatment for each of these symptoms. The veteran has expressed his belief that each of these disabilities is related to service, particularly the incident when he was struck in the head. As there is medical evidence of headaches, tinnitus, neck and back pain, and muscle spasms, the Board concludes that for the purpose of establishing well-grounded claim, the first prong of the Caluza analysis (the existence of a current disability) has been satisfied. The Board will assume without deciding that the second prong has been met by the lay evidentiary assertions. However, the third prong (inservice disease or injury and medical nexus evidence) clearly has not been met. As reported above, the SMRs are negative for these disorders, and there is no competent medical evidence to suggest incurrence or aggravation of any of these disorders during service. No postservice complaints of headaches, tinnitus, neck or back pain, or muscle spasms has been associated in any way to the veteran's military service by any party with medical expertise. In the absence of competent medical evidence showing the incurrence of any of these disabilities during service, and no competent medical nexus evidence linking the veteran's service and any postservice headaches, tinnitus, neck or back pain, or muscle spasms, the claims are not well grounded. Additional Matters The Board is, of course cognizant of, and accepts, the veteran's testimony and supporting lay evidence that he was struck on each side of the head by his drill sergeant. While he has contended that this incident resulted in many of the above discussed disorders, the medical evidence of record does not indicate that this incident resulted in any medically identified disability during or after service, and as discussed above, as a lay person the veteran is not competent to ascribe any current pathology to the reported inservice injury. Espiritu, supra. ORDER A well-grounded claim not having been presented, service connection is denied for an acquired psychiatric disorder, to include schizophrenia and PTSD. A well-grounded claim not having been presented, service connection is denied for headaches. A well-grounded claim not having been presented, service connection is denied for tinnitus. A well-grounded claim not having been presented, service connection is denied for disability involving the neck and back. A well-grounded claim not having been presented, service connection is denied for muscle spasms. Richard B. Frank Member, Board of Veterans' Appeals