Citation Nr: 0006001 Decision Date: 03/06/00 Archive Date: 09/08/00 DOCKET NO. 96-24 527 DATE MAR 06, 2000 On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for a psychiatric disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P. A. Kultgen, Associate Counsel INTRODUCTION The veteran had active service from August 1987 to April 1990. This matter is before the Board of Veterans' Appeals (Board) on appeal of an August 1995 rating decision from the Albuquerque, New Mexico, Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for a personality disorder and major depression. In March 1998, the Board remanded the veteran's claim for further development, to include obtaining the veteran's service medical and service personnel records, medical treatment records, and a VA examination. FINDING OF FACT The evidence preponderates against a finding of a current psychiatric disorder that was incurred in or aggravated by the veteran's military service. CONCLUSION OF LAW The veteran does not have a psychiatric disorder that was incurred in or aggravated by active service. 38 U.S.C.A. 1110, 5107 (West 1991 & Supp. 1999); 38 C.F.R. 3.303 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION I. Factual Background The veteran's service medical records show that he was seen at Community Mental Health Service in March 1990 with complaints of issues related to active duty - 2 - performance. A command consult was recommended. A psychiatric evaluation was conducted one week later. Diagnoses of occupational problem and personality disorder not otherwise specified with passive-aggressive and paranoid features. The physician noted that the recent emergency room visit was indicative of the veteran's tendency to overreact to stress in a highly emotional and potentially self-destructive way, without considering the consequences. The veteran was recommended for separation due to the findings of the psychiatric evaluation. Reports of the veteran's service entrance examination and separation physical examination are not of record. A VA examination was conducted in June 1995, and the examiner noted that the veteran's claims file was not available for review. The veteran reported that he began to have problems in March 1988, when his childhood friend, who was assigned to the same unit as the veteran, was killed in a training accident. He stated that he had increased irritability and got into a lot of fights after the death of his friend. He noted that he was separated from the service with a diagnosis of personality disorder. The veteran stated that he believed that there was a girl in his town, who was a witch and was trying to get him. He also reported frequent dreams, in which his deceased friend would talk to him, and intrusive thoughts about his friend's death. He stated that he had no current friends, felt anxious in crowds, and had increased irritability and difficulty concentrating. The examiner noted that the veteran's speech was normal, logical, and coherent, his mood depressed, and affect constricted. The veteran denied suicidal or homicidal thought and hallucinations. Insight and judgment were adequate. The Minnesota Multiphasic Personality Inventory (MMPI) was administered and suggested depression, paranoia, and unconventional thought or cognitive approach. The examiner provided diagnoses of major depression and schizotypal personality disorder. The examiner enumerated stressors of friend's death in the military; new marriage; new baby; current financial stressors; and potential custody battle. In September 1995, the National Personnel Records Center (NPRC) confirmed that there were no service medical records on file at that facility, including the veteran's physical examination at induction and discharge. In his notice of disagreement, the - 3 - veteran reported that he was being treated for post-traumatic stress disorder (PTSD) and severe depression at the VA outpatient clinic by Dr. V. 1 In his VA Form 9, substantive appeal, received in May 1996, the veteran further stated that he had spoken to numerous chaplains and psychiatrists during his military service, who informed him that he was suffering from PTSD. In March 1998, the Board remanded the veteran's claim for further development, to include obtaining the veteran's service medical and service personnel records, medical treatment records, and a VA examination. By letter in April 1998, the RO requested that the veteran identify all health care providers, VA or private, inpatient or outpatient, who had treated him for his psychiatric condition since April 1990. The record contains no response to this request. In April 1998, the NPRC sent copies of the veteran's service personnel records, and stated that medical records had previously been sent and if any clinical records were located, they would be sent separately. The record contains no further correspondence from the NPRC or any further records provided. A VA examination was conducted in February 1999, and the examiner noted review of the veteran's claims file. The veteran reported that he "went off the deep end" after his good friend and distant cousin was killed in a training accident. He stated that he had some paranoia with regard to the government. The examiner noted that the veteran related in a logical, coherent, and relevant manner with no sign of thought or mood disorder. Affect was somewhat subdued, and concentration and judgment appeared normal. The examiner stated that the veteran did suffer a significant grief reaction to the loss of his close friend during service. However, overall the veteran appeared to gave gradually adjusted to the loss and continued on in a successful and adaptive way with this life - having graduated from college with two degrees with a grade point average of 3.5, doing well in his job, and having a good marriage and family life. The examiner stated that there did not appear --------------------------------------------------------- 1 The Board notes that the physician identified by the veteran is the physician who performed the VA examination in June 1995. - 4 - to be any justification for the diagnosis of a personality disorder at that time. The examiner provided a diagnosis of no mental disorder. II. Analysis Service connection may be established where the evidence demonstrates that an injury or disease resulting in disability was contracted in the line of duty coincident with military service, or if pre-existing such service, was aggravated therein. 38 U.S.C.A. 1110 (West 1991); 38 C.F.R. 3.303 (1999). Where certain diseases, such as psychoses, are manifested to a compensable degree within the initial post-service year, service connection may be granted on a presumptive basis. 38 U.S.C.A. 1101, 1112 (West 1991 & Supp. 1999); 38 C.F.R. 3.307, 3.309 (1999). Personality disorders and mental deficiency as such are not diseases or injuries within the meaning of the legislation. 38 C.F.R. 3.303(c) (1999). When a disability is not initially manifested during service or within an applicable presumptive period, service connection may nevertheless be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in or aggravated by service. See 38 U.S.C.A. 1113(b) (West 1991); 38 C.F.R. 3.303(d). The threshold question to be answered in the veteran's appeal is whether he has presented evidence of a well-grounded claim. Under the law, a person who submits a claim for benefits shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. 5107(a); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). A claim need not be conclusive but only possible to satisfy the initial burden of 5107(a). Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). If a claim is not well grounded, the application for service connection must fail, and there is no further duty to assist the veteran in the development of his claim. 38 U.S.C.A. 5107, Murphy, 1 Vet. App. 78 (1990). 5 - The United States Court of Appeals for the Federal Circuit held that, "For a claim to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in[-]service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service [disease or injury] and the current disability. Where the determinative issue involves medical causation, competent medical evidence to the effect that the claim is plausible is required." Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997) quoting Epps v. Brown, 9 Vet. App. 341, 343-344 (1996); see 38 C.F.R. 3.303, 3.307, 3.309; Caluza v. Brown, 7 Vet. App. 498, 506 (1995). For the purpose of determining whether a claim is well grounded, the credibility of the evidence is presumed. See Robinette v. Brown, 8 Vet. App. 69, 75 (1995). In the instant case, the veteran has submitted evidence of a current disability. The VA examiner in June 1995 reported a diagnosis of major depression. Although the veteran reported that he was diagnosed with PTSD, the record contains no clear diagnosis or medical evidence diagnosing PTSD as required for a claim for service connection for PTSD. See 38 C.F.R. 3.304(f) (1998); 38 C.F.R 3.304(f) (June 18, 1999); Cohen v. Brown 10 Vet. App. 128, 138 (1997). The diagnosis of schizotypal personality disorder is not a disability under the regulations. See 38 C.F.R. 3.303(c). Although the veteran underwent a psychiatric evaluation during service, there was no diagnosis or complaints of depression or depressed feelings in the veteran's service medical records. The veteran reports that his problems during service began following the death of his childhood friend. The Board notes that the veteran's service entrance and separation examinations are not of record. The VA examiner in June 1995 indicated stressors including the death of the veteran's friend during military service in the Axis IV section of the diagnosis of major depression. As the Board stated in the March 1998 remand, this suggests that the friend's death may have led to the veteran's diagnosis of depression. See Hernanadez-Toyens v. West, 11 Vet. App. 379, 381-382 (1998); AMERICAN - 6 - PSYCHIATRIC ASSOCIATION's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (DSM-IV) (Fourth Edition 1994). Based on the veteran's statements and the opinion of the VA examiner in June 1995, the Board finds that the veteran's claim for service connection for a psychiatric disability, is well grounded. 38 U.S.C.A. 5107(a) (West 1991). The VA has a duty to assist the veteran in the development of all facts pertinent to his claim. 38 U.S.C.A. 5107(a); 38 C.F.R. 3.103(a) (1999). The claims folder contains all available service medical records, as confirmed by the NPRC. The RO has requested and received the available reports of VA medical examinations. The veteran has not identified any post- service VA or private treatment of his psychiatric disorder, which has not already been requested or obtained. The representative has requested that the Board proceed with a decision in this appeal. It appears that all possible development has been completed, and the VA has satisfied its duty to assist the veteran under these circumstances. 38 U.S.C.A. 5107(a). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board finds that the evidence preponderates against an award of service connection for a psychiatric disorder. The most recent VA examination provided a diagnosis of no mental disorder. This examiner, unlike the examiner in June 1995, noted review of the veteran's claims file. The examiner also considered the reported stressor, to which the June 1995 examiner attributed, at least in part, the diagnosis of major depression. The Board gives more weight to the opinion of the February 1999 VA examination, as the examiner had a more complete picture of the veteran's condition. In addition, the Board notes that during psychiatric evaluation during service in March 1990, there is no mention of the veteran's reported trauma following the death of his friend and no diagnosis of depression or depressive symptoms. The evidence preponderates against a finding that the 7 - veteran has a psychiatric disorder that was incurred in or aggravated by his military service. ORDER Entitlement to service connection for a psychiatric disorder is denied. John E. Ormond, Jr. Member, Board of Veterans' Appeals - 8 -