Citation Nr: 0003127 Decision Date: 02/08/00 Archive Date: 02/15/00 DOCKET NO. 95-11 489 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD William D. Teveri, Associate Counsel INTRODUCTION The veteran served on active duty from May 1977 to May 1979. This appeal arises from a November 1993 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Board notes the veteran failed to appear for a personal hearing at the RO on October 22, 1996. There is no indication that the September 1996 notice to the veteran of the hearing, which was mailed to her at her address of record, to which all other correspondence to the veteran had previously been mailed, was returned as not being deliverable. The veteran has not requested that the hearing be rescheduled. Hence, the Board deems that the hearing request has been withdrawn. 38 C.F.R. § 20.704 (1999). Therefore, the veteran's claim must be adjudicated on the evidence now of record. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran did not engage in combat with the enemy. 3. There is no medical evidence of a nexus between any acquired psychiatric disorder, including PTSD, and any incident of service. CONCLUSION OF LAW The veteran's claim for service connection for an acquired psychiatric disorder, to include PTSD, is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board notes the veteran's claim was remanded in December 1997 to obtain private treatment records, and, if the claim was found to be well-grounded by the RO, for a VA psychiatric examination. In March 1998 the RO wrote the veteran to submit authorizations to obtain the requested medical records, and to encourage the veteran to obtain and submit those records. Although no response was received from the veteran, and no records were obtained, the RO provided the veteran a VA PTSD examination. As noted below, as the veteran's claim has been found to be not well-grounded due to a lack of a nexus between any acquired psychiatric disorder and the veteran's active duty service, there is no duty to assist under 38 U.S.C.A. § 5107(a). See Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S.Ct. 2348 (1998). The veteran is seeking service connection for an acquired psychiatric disorder, to include PTSD. She asserts that her current psychiatric disorders had their onset in service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131 (West 1991); 38 C.F.R. § 3.303(a) (1999). In addition, certain chronic diseases, including a psychosis, may be presumed to have been incurred during service if they become manifest to a compensable degree within an applicable period after separation from active duty. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). No conditions other than those listed in § 3.309(a) can be considered chronic for purposes of presumptive service connection. 38 C.F.R. § 3.307(a). The United States Court of Appeals for Veterans Claims (Court) has established rules for the determination of a well grounded claim based upon the chronicity and continuity of symptomatology provisions of 38 C.F.R. § 3.303(b). The Court has held that the chronicity provision of § 3.303(b) is applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the Court's case law, lay observation is competent. If the chronicity provision is not applicable, a claim may still be well grounded or reopened on the basis of § 3.303(b) if the condition is observed during service or any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology. See Savage v. Gober, 10 Vet. App. 488, 493 (1997). The rules concerning chronicity and continuity of symptomatology, however, still require "medical expertise" to relate the veteran's present disability to his or her post-service symptoms. Savage, 10 Vet. App. at 497-98. The initial question which must be answered in this case is whether the veteran has presented a well grounded claim for service connection. In this regard, the veteran has "the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded," that is, the claim must be plausible and capable of substantiation. See 38 U.S.C.A. § 5107(a); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In order for a claim to be well grounded, there must be competent evidence of current disability (established by medical diagnosis); of incurrence or aggravation of a disease or injury in service (established by lay or medical evidence); and of a nexus between the inservice injury or disease and the current disability (established by medical evidence). See generally Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S.Ct. 2348 (1998); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table). Medical evidence is required to prove the existence of a current disability and to fulfill the nexus requirement. Lay or medical evidence, as appropriate, may be used to substantiate service incurrence. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The Board notes that by regulatory amendment effective June 18, 1999, substantive changes were made to the criteria for determining service connection for PTSD, as set forth in 38 C.F.R. §§ 3.304(f). See 64 Fed. Reg. 32808 (1999). Where the law or regulations change while a case is pending, the version most favorable to the claimant applies, absent congressional intent to the contrary. Karnas v. Derwinski, 1 Vet. App. 308, 312-313 (1991). Accordingly, as the veteran's claim was received in June 1993, the Board will adjudicate her claim under both the former and revised criteria. Under the former criteria, service connection for PTSD required medical evidence establishing a clear diagnosis of the condition, credible supporting evidence that the claimed inservice stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed inservice stressor. If the claimed stressor was related to combat, service department evidence that the veteran engaged in combat or that the veteran was awarded the Purple Heart, Combat Infantryman Badge, or similar combat citation would be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed inservice stressor. 38 C.F.R. § 3.304(f) (1998); Cohen v. Brown, 10 Vet. App. 128 (1997). Under the revised criteria, which essentially were modified in conformance with Cohen, supra, service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f) (1999). 38 C.F.R. § 4.125(a) provides that, if the diagnosis of a mental disorder does not conform to DSM-IV (American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition) or is not supported by the findings on the examination report, the rating agency shall return the report to the examiner to substantiate the diagnosis. Cohen, 10 Vet. App. at 128 (1997). Accordingly, under either the former or revised criteria the diagnosis must conform to the criteria of DSM-IV, which, while replacing the former version, DSM-IIIR, in 1994, has been determined to be more liberal to the veteran than DSM- IIIR. Id. A claim for service connection for PTSD is well grounded where the veteran submits medical evidence of a current disability; lay evidence (presumed to be credible for these purposes) of an inservice stressor, which in a PTSD case is the equivalent of inservice incurrence or aggravation; and medical evidence of a nexus between service and the current PTSD disability. Gaines v. West, 11 Vet. App. 353 (1998). In an April 1993 rating decision, the RO denied service connection for residuals of a head injury concluding that the head injury in service was acute and transitory with no residuals shown in service; denied service connection for situational reaction finding that the treatment for depression in service was related to her then ongoing divorce action; denied service connection for organic brain syndrome as secondary to nonservice-connected diabetic coma; and denied PTSD as due to a post-service sexual assault. In June 1993, a statement was submitted on the veteran's behalf in which assistance was requested to reopen the veteran's claim to establish service connection for PTSD with major depression, asserting that the veteran experienced trauma in service. In a November 1993 rating decision, the RO determined that a chronic psychiatric disorder was not demonstrated in service and was shown to be secondary to a post-service medical event. The RO found that the veteran was suffering from a cognitive deficit secondary to a number of brain insults, and that she had secondary depression, although the RO also stated that the veteran did not demonstrate a depressive disorder. In December 1993, the RO received a notice of disagreement with respect to the denial of service connection for PTSD. The Board notes, however, that although the statement of the case addressed the claim for PTSD as the veteran's only psychiatric disorder, the veteran's substantive appeal referenced PTSD and a nervous disorder, and additional argument submitted on her behalf addresses various psychiatric disorders including PTSD. Thus, the Board finds that the issue is more properly characterized as entitlement to service connection for an acquired psychiatric disorder, to include PTSD. The Board notes that the veteran's service medical records indicate that she received a head injury in June 1977 after striking her head on her locker in her barracks. Although there was no initial loss of consciousness, she apparently became nauseated, vomited, and passed out that evening. She was released to duty the next day, and a discharge note indicated that her head injury had resolved. There is no mention in any of her service medical records of any residuals of this injury. Her service medical records also indicate that she was hospitalized in March 1979 after attempting suicide with Sinequan, which she had been prescribed for her "long history of psychiatric difficulties." She was described as being depressed. The diagnosis was drug overdose, Sinequan; depression. She was referred to Mental Hygiene two days later with a provisional diagnosis of suicide attempt/situational depression. The subsequent psychiatric consult described the veteran as having numerous problems, including a recent divorce and custody battle, where she retained custody of her son. The examiner indicated that the veteran had been seeing both a private psychiatrist with her son and had seen the examiner on 4-5 occasions. The examiner noted that the veteran had a disassociation with alcohol, and had a long history of depression treatment with medication in the past, with only a fair response. The impression was adjustment reaction to adult life manifested by anxiety, sleep disturbance, suicide attempt; mixed personality disorder with features of hysterical, impulsive, and passive dependent features. Two December 1992 VA psychiatric examination reports noted the veteran's history of spousal abuse, abortions, homelessness, and brain damage due to insulin shock due to diabetes, and of a recent assault and rape. The December 9, 1992, report contained diagnostic impressions of Axis I, organic brain syndrome, probably secondary to diabetic coma, history of major depression; Axis II, no diagnosis; Axis III, insulin dependent diabetes mellitus; Axis IV, psychosocial stressors the past year, severe; Axis V, highest level of functioning the past year, fair. The examiner also noted that the veteran's major depression was resolving at that point. The December 15, 1992 psychiatric examination report included the following: Axis I, PTSD, adjustment reaction with depressed mood, dementia; Axis II, personality disorder, not otherwise specified (provisional); Axis III, diabetes, diabetic coma, head trauma; Axis IV, psychosocial stressors, brain injury, rape, level 5, extreme; Axis V, Current GAF (Global Assessment of Functioning), 50, language disturbance, continued PTSD, highest GAF that year, 50. These reports indicate that the veteran was being followed on a regular basis for major depression at Orange County Mental Health where she was receiving therapy and medication. A July 1998 VA PTSD examination report, which indicates the examiner had thoroughly reviewed the veteran's claims file, contains diagnoses of: (Axis I) dementia, moderate, secondary to diabetic coma, recurrent major depressive disorder with panic attacks, PTSD, secondary to childhood abuse; (Axis II) mixed personality disorder; (Axis III) please see medical file; (Axis V) Global Assessment of Functioning (GAF) 30. The examiner stated that "[a]s with previous evaluators, I cannot find any occurrence or documentation of circumstances which would connect any of her current ongoing diagnos[e]s to her military service. I do believe that her overdose which ultimately led to her discharge can be attributed to her personality disorder." The examiner also indicated he could find no documentation in the veteran's service medical records of the diagnosis or treatment of diabetes mellitus during service, which the veteran has also contended caused her PTSD. As the record now stands, there is no medical evidence demonstrating that the veteran currently suffers from PTSD related to service. There is also no medical evidence of a nexus between any acquired psychiatric disorder and the veteran's active duty service. At the July 1998 examination, the examiner found that the veteran has PTSD related to being abused as a child, not related to any event during her active duty service. While the veteran contends she has PTSD related to events during service, the veteran's contentions, alone, are insufficient to establish a current disability or to satisfy the nexus requirement. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995); Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1995) (holding that laypersons are not competent to offer medical opinions). A well grounded claim must be supported by evidence, not merely allegations. See Tirpak, supra. Consequently, as a well grounded claim for service connection requires medical evidence of a nexus between an inservice injury or disease and a current disability in order to be plausible, as noted above, and no such evidence has been submitted, the veteran's claim for service connection for an acquired psychiatric disorder, to include PTSD, must be denied as not well grounded. See Epps, supra. By this decision, the Board is informing the veteran that a medical diagnosis of PTSD related to an inservice stressor, or of a nexus between an acquired psychiatric disorder and her active duty service, is required to render her claim well-grounded. 38 U.S.C.A. § 5103(a) (West 1991); 38 C.F.R. § 3.304(f) (1998-1999); Robinette v. Brown, 8 Vet. App. 69 (1995). The Board is aware of no circumstances in this matter which would put VA on notice that relevant evidence may exist or could be obtained, which, if true, would make the claim for service connection "plausible." See generally McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997). ORDER Service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder, is denied. JAMES A. FROST Acting Member, Board of Veterans' Appeals