Citation Nr: 0000657 Decision Date: 01/10/00 Archive Date: 01/19/00 DOCKET NO. 95-37 029 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechter, Associate Counsel INTRODUCTION The veteran had active military service from March 1976 to March 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 1994 rating action in which the RO denied service connection for an acquired psychiatric disorder. The veteran appealed and was afforded a hearing at the RO in February 1995. His claim was denied by the hearing officer in an August 1995 Supplemental Statement of the Case (SSOC). The Board in December 1998 remanded the claim for additional development. Following development actions by the RO, the claim was appropriately returned to the Board for further review. FINDING OF FACT The veteran's claim for service connection for an acquired psychiatric disorder is not plausible. CONCLUSION OF LAW The veteran has not submitted evidence of a well-grounded claim for service connection for an acquired psychiatric disorder. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION On enlistment examination in November 1975, psychiatric evaluation was normal. The veteran did not report any history of psychiatric complaints or treatment. The service medical records reflect that the veteran was seen on June 17, 1976, for a non-psychiatric complaint. Recorded clinical data on that date noted that the veteran had been hospitalized for two weeks prior to his enlistment in the military at which time he had been diagnosed with a nervous condition and was prescribed Valium. He was seen for an initial session of psychotherapy on June 24, 1976. Recorded clinical data noted increased anxiety symptoms. The assessment was nausea and vomiting attributed to a possible neuropsychiatric condition. The veteran was prescribed Valium at that time. He returned on June 28, 1976, for a refill of Valium medication for nervous anxiety. He reported that he had dropped the other medication overboard while at the boat docks. A diagnosis was deferred at that time. There is no record of additional psychiatric treatment in service. The service discharge examination in December 1979 did not contain any diagnosis of a psychiatric disorder. The veteran was hospitalized by VA in January 1990 with a diagnosis of adjustment disorder with depressed mood. He was noted to have a history of alcohol and drug abuse since the age of thirteen. The discharge summary reported a history of sexual and physical abuse by a relative during childhood. Further post-service medical records within the claims file, including VA and private outpatient treatment records, reference varying histories of childhood psychological, physical, and sexual abuse, and also reference a history of abuse of alcohol and barbiturates since the age of 13, and a history of prostitution for alcohol or drugs from the age of 15. The veteran was seen for a VA psychiatric examination on July 1, 1993. The claims folder was not available for review by the examiner. The diagnosis was major depression in partial remission, and bipolar disorder with paranoid features, by history, in full remission. The examination on July 1, 1993, was conducted by a VA psychologist (Ph.D.) and not a psychiatrist (M.D.). The RO subsequently requested additional VA examination by a VA psychiatrist. Thereafter, a second copy of the examination report prepared by the VA psychologist at the July 1, 1993 examination was added to the claims folder. The only change was a handwritten note indicating the following: "Reviewed. Examination is adequate." Below this note is a signature by an M.D. Records were received showing that the veteran was hospitalized at McLean Hospital from May 24, 1994, to June 1, 1994. The diagnoses included alcohol and barbiturate addiction, slightly improved, rule out major depression with obsessive compulsive disorder, kleptomania and sexual promiscuity, slightly improved, and mixed personality disorder. He was hospitalized again at that facility from July 2, 1994, through July 19, 1994, with diagnoses including rule out major depression with psychotic features, rule out bipolar disorder, not otherwise specified, and history of anxiety disorder, not otherwise specified. The veteran was readmitted on July 22, 1994, and remained until August 1, 1994, with multiple diagnoses as listed above as well as a probable mixed personality disorder with narcissistic, borderline and antisocial features. The records from these hospitalizations all reference a history of sexual and physical abuse during the veteran's childhood and adolescence. At his RO hearing in February 1995, the veteran testified that his pre-service history was a big part of his problem. He said that he knew there was something wrong prior to his enlistment. He reported that he had experienced problems since he was a child, but that he had learned to adjust to it. The veteran indicated that he started to lose weight in service; he was not aware that he had a psychiatric problem, but the base medical personnel suggested that he go to see a psychiatrist. He reported that he elected not to continue psychiatric treatment in service because he did not want it to be on his record. He said that after his discharge from service he continued to experience anxiety and panic attacks. He testified that he had been hospitalized and prescribed Valium on several occasions. The Board in a December 1998 remand found that the July 1993 examination by a VA psychologist and subsequent review of the examination report by an M.D., rather than a further examination of the veteran by a psychiatrist following review of the claims folder, was a completely inadequate response to the request by the RO for a further VA psychiatric examination. The Board accordingly requested further development, to obtain additional medical records and for a VA psychiatric examination. Specifically, the RO was to request from the veteran the name of the private medical facility where, according to the veteran's statement at a medical treatment in service in June 1976 (as noted above), he was hospitalized prior to service for a period of two weeks for a nervous condition and prescribed Valium. Upon remand, the RO in August 1999 sent a letter to the veteran at his two last known addresses of record requesting that he provide the name of the facility where he was reportedly hospitalized for a two week period prior to his entry into service in 1976. No reply was received from the veteran. The RO also scheduled VA examinations in September 1999, October 1999, and November 1999, in each case appropriately contacting the veteran to notify him of the pending examination. The veteran failed to appear for each of these scheduled examinations. In a November 1999 statement the veteran's representative acknowledged that the veteran had failed to appear for scheduled VA examinations. The representative informed that repeated attempts to contact the veteran had been unsuccessful. When entitlement to a benefit cannot be established without a current VA examination and a claimant, without good cause, fails to report for such an examination, action shall be taken in accordance with 38 C.F.R. § 3.655(a),(b) (1999). When a claimant fails to report for an examination scheduled in conjunction with an original claim, the claim shall be rated based on the evidence of record. Id. Accordingly, the veteran having repeatedly failed to appear for a scheduled VA examination without good cause shown, the Board herein makes its determination on the veteran's claim based on the evidence of record. According to the provisions of 38 U.S.C.A. § 5107 (a) (West 1991), the veteran has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim is well grounded. A claim is well grounded when it is plausible. In Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990), the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (Court) held that a plausible claim is one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive, but only plausible to satisfy the initial burden of 38 U.S.C.A. § 5107(a). If the veteran submits no cognizable evidence to support a claim, the claim cannot be well grounded. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). If the claim is not well grounded, the claimant cannot invoke the VA's duty to assist in the development of the claim. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993); See 38 U.S.C.A. § 5107(a) (West 1991); Rabideau v. Derwinski, 2 Vet.App. 141, 144 (1992). In order for a claim to be well grounded, there must be competent evidence of 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). Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Tidwell v. West, 11 Vet. App. 242 (1998). As the record now stands we have a current diagnosis of an acquired psychiatric disorder. As such, the first Caluza requirement is met. The veteran was treated for psychiatric symptoms in service as shown by the service medical records, although a specific psychiatric diagnosis was not made in service. The second Caluza requirement is met. There is no current medical opinion linking a currently diagnosed psychiatric disorder to the psychiatric symptoms noted in service. As such, the third Caluza requirement for establishment of a well-grounded claim is not met. By way of further explanation, at the time of the December 1998 remand the Board sought to ascertain if a chronic acquired psychiatric disorder clearly and unmistakably pre- existed service, and, if so, to obtain a medical opinion as to whether it increased in severity during service. If it was ultimately shown that a chronic acquired psychiatric disorder did not clearly and unmistakably pre-exist service, the Board sought a medical opinion as to whether the current psychiatric disorder developed during service. In summary, the Board ascertained at that time that the veteran's claim for service connection for a psychiatric disorder was potentially well grounded. See Robinette v. Brown, 8 Vet. App. 69 (1995). The veteran's failure to provide the requested information and to report for further examination by a VA psychiatrist has resulted in a failure to develop the evidence needed to well ground the claim and/or grant the appeal. In the absence of cognizable (medical) evidence of a causal nexus between the inservice psychiatric symptoms and the current disorder, a well-grounded claim for service connection for an acquired psychiatric disorder has not been presented. Caluza. ORDER As the veteran has not submitted a well-grounded claim for service connection for an acquired psychiatric disorder, his appeal is denied. BRUCE E. HYMAN Member, Board of Veterans' Appeals