Citation Nr: 0000497 Decision Date: 01/07/00 Archive Date: 01/11/00 DOCKET NO. 96-10 827 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for a psychotic disorder. 2. Entitlement to an evaluation in excess of 30 percent for post-traumatic stress disorder (PTSD), from November 3, 1994 to the present. 3. Entitlement to an evaluation in excess of 10 percent for PTSD, from October 18, 1994, to November 2, 1994. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant, his common-law spouse, and an associate ATTORNEY FOR THE BOARD D. Cherry, Associate Counsel INTRODUCTION The veteran served on active duty from January 1965 to October 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 1995 rating decision of the Los Angeles, California, Department of Veterans Affairs (VA) Regional Office (RO). The veteran filed his claim for an increased rating for PTSD on October 18, 1994. On November 3, 1994, the RO received additional material from the veteran. In July 1998, a 30 percent disability rating was granted for PTSD, effective November 3, 1994, on the basis that November 3, 1994, was the date of the claim. However, the claim has been pending since October 18, 1994. Therefore, the issues are as stated on the title page. In an August 1990 statement, the veteran raised the issues of entitlement to service connection for a skin disorder as a residual of exposure to Agent Orange and for a disorder caused by the human papilloma virus. In October 1990, the RO determined that the veteran had not submitted new and material evidence to reopen a claim of service connection for condyloma acuminatum. In an October 1990 statement, the veteran indicated that he was seeking service connection for a disorder that is manifested by the mere fact that he still has the human papilloma virus, which he claimed that he got in service. In a December 1999 statement submitted to the Board, the veteran raised the issue of entitlement to a total disability evaluation based on individual unemployability. These issues have not been adjudicated. They are referred to the RO for appropriate action. FINDING OF FACT There is competent evidence that the veteran's psychotic disorder, currently diagnosed as a persecutory type delusional disorder, is of service origin. CONCLUSION OF LAW The claim for service connection for psychotic disorder is well grounded. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.102 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION Initially, in view of the evidence of record, including the veteran's evidentiary assertions that must be presumed to be true for purposes of determining whether his claim is well grounded, the Board finds that his claim is plausible and thus well grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). King v. Brown, 5 Vet. App. 19 (1993). The Board also finds that all relevant evidence has been obtained and that the duty to assist the claimant is satisfied. Factual Background Service medical records reveal that on entrance examination the veteran reported that he had had frequent trouble sleeping. It was noted that the veteran's insomnia was non- symptomatic. No other psychiatric symptoms were reported. The psychiatric evaluation was normal. In December 1966, the veteran threatened to hurt himself if he was not sent home. The impression was a passive-aggressive reaction secondary to depression and anger. In March 1967, it was noted that the veteran had a passive aggressive personality with schizoid traits. In April 1967, the veteran had an episode of hyperventilation. He also admitted that he got nervous and felt sick. In August 1967, a passive-aggressive personality with schizoid personality features was diagnosed. It was strongly recommended that the veteran be administratively separated from service. Specifically, the veteran's behavior in service included a coercive self-destructive gesture, interpersonal isolation, marked difficulties in his relationships with authority, and frequent AWOLs (absences without leave). Mental status examination did not reveal the presence of a mental disorder sufficient to warrant disposition through medical channels. The veteran's maladjustment was considered to be related to chronic personality traits. In the report of medical history completed for separation in September 1967, the veteran reported that he had had depression or excessive worry and nervous trouble. A physician noted that the veteran had had occasional depression, a personal problem, and nervousness. It was also noted that the veteran had a passive-aggressive personality with schizoid personality features. In October 1967, the veteran reported that there had not been a change in his medical condition since his last separation examination. The veteran was discharged under honorable conditions. The veteran was afforded a VA psychiatric examination in February 1971. He reported that he was not treated fairly during active service. It was noted that the veteran was a suspicious person. He believed that he was being "taken lightly," and he did not trust anyone. Specifically, he indicated that he did not trust the examiner or his psychologist, and that almost everyone had tried to take advantage of him. The examiner indicated that the veteran was not psychotic, but that the veteran felt that he was mistreated in service. It was noted that the veteran had a great hostility toward the service. He was free of hallucinations and delusions, but he had mild ideas of reference. His real ideas of reference related to people with whom he came into contact with and felt that they did not do their share of work. The diagnosis was delayed until service medical records were obtained. In an April 1971 addendum, it was noted that the service medical records did not reveal any psychotic symptoms. The diagnosis was passive-aggressive personality disorder. The veteran underwent another VA examination in June 1981. He reported that he had arguments with sergeants during service in the Republic of Vietnam. Mental status examination revealed that the veteran continued to complain in a general way about the way he was being treated in society. Specifically, he said that people had taken unfair advantage of him. There was no evidence of a psychosis or post-traumatic stress syndrome, but there was good evidence of a personality disorder. The diagnosis was delayed stress syndrome, not found. In an enclosed statement with a November 1981 VA Form 1-9, the veteran reported that he was accused during music school in service of being gay. He also indicated that he was sent to the Republic of Vietnam because of a "grand scheme" to have him killed. He reported that one time a sergeant had put a rifle in his face and threatened to kill him. In a June 1983 Board decision, service connection was granted for PTSD. VA medical records reveal that the veteran was hospitalized in January 1988 for an adjustment disorder with mixed emotional features. Mental status examination revealed no overt psychotic behavior. On a June 1991 VA examination, the veteran reported again that he was verbally harassed during music school in active service and that a sergeant threatened to kill him when he was in the Republic of Vietnam. He indicated that he was the victim of general mistreatment and that he had never fit in with society. The examination revealed no direct evidence of psychotic ideation or bizarre behavior. The diagnoses were the following: dysthymia, possible PTSD, and alcohol and marijuana abuse. A mixed personality disorder with paranoid, passive-aggressive and anti-social traits was also diagnosed. The veteran was afforded another VA examination in November 1992. He again reported that he was accused of being gay during music school and that he was assigned "bad" details during service in the Republic of Vietnam. The mental status examination revealed no evidence of psychotic ideation or bizarre behavior. The diagnoses included mild PTSD, and a personality disorder, not otherwise specified, with passive- aggressive and antisocial traits. VA medical records reveal that the veteran was hospitalized in July 1994. He reported that he had attempted to commit suicide while in the service because of being in the brig and because of feeling that people were attacking him. He also indicated that he was hospitalized in service because of persecutory feelings. The diagnoses on discharge were the following: psychosis, not otherwise specified; rule out schizophrenia; alcohol abuse; marijuana dependence; and PTSD. In August 1994, the assessment was psychosis, not otherwise specified. The veteran underwent a VA psychiatric examination in February 1995. He complained of a long-term feeling that people were staring at him and that others were trying to turn him into a homosexual. He indicated that these feelings began sometime around his active service. It was noted that it was unclear when the referential thinking actually began because this problem was not noted during a 1988 psychiatric hospitalization. The veteran indicated that he had a preference for an introverted lifestyle prior to active service, which may have been in part related to his difficult childhood. The mental status examination revealed that, while the veteran indicated that he did not experience hallucinations, he did endorse experiencing referential ideation involving being watched or others wanting him to become a homosexual. The diagnoses were the following: psychotic disorder, not otherwise specified; PTSD; and polysubstance abuse, in remission. It was noted that, although the veteran's psychosis had many similarities to schizophrenia, a diagnosis of psychotic disorder not otherwise specified was given because, in addition to not satisfying the diagnostic criteria for schizophrenia, there might have been a contribution from his past substance abuse. It was noted that parts of the veteran's history suggested that because of his introverted preference, his psychotic disorder began prior to active service. However, it was also noted that there was no mention of any psychosis during the 1988 hospitalization. The examiner concluded that the veteran's history suggested that the onset of referential thinking began during or after active service. VA medical records reflect that in August 1995 schizophrenia was diagnosed. At a November 1995 hearing held at the RO before a hearing officer, the veteran testified that he was accused of being gay in service. VA medical records indicate that in December 1995 schizophrenia was again diagnosed. In January 1996, the veteran was treated for panic attacks. In April 1996, the veteran had a major depressive episode. In December 1996, the veteran was granted Social Security disability benefits. The Social Security Administration (SSA) determined that the veteran had a psychotic disorder, not otherwise specified, with schizophrenic traits. In May 1997, the veteran was afforded a VA examination by a two-person panel consisting of a psychiatrist and a psychologist. The veteran reported that as early as his active service he was suspicious of others, trusted no one, and thought that others were trying to take advantage of him. He indicated that he was sent to Vietnam because a sergeant wanted him to be killed. The veteran asserted that over the years others thought that he was gay and that he was a victim of prejudice. He noted that he had a hard time trusting others and that he was always suspicious. The examiners noted that they had reviewed the veteran's claims file. The mental status examination revealed that the veteran had delusions of others watching him and thinking that he is gay. Specifically, he interpreted the gestures and statements of others to confirm his thoughts and beliefs. It was noted that he had had this persistent belief throughout the years. It was also noted that the veteran thought that many of the events have been directed at him in order to get him killed. In particular, the events included being sent to Vietnam, being ordered to wear a flamethrower, and being assigned to missions. The examiners indicated that the most prominent and consistent finding was the veteran's thoughts about others looking at him as if he was gay and "sizing him up for homosexual encounters." It was noted that the veteran did not have any hallucinations. The diagnoses were the following: PTSD; delusional disorder, persecutory type; and polysubstance abuse, in remission. It was noted that the veteran's rather consistent delusional thinking had been present, according to the veteran, as early as his active service. In particular, he reported that he was called "sweetie-pie." It was also noted that a diagnosis of psychosis not otherwise specified was not warranted because the veteran had a rather typical case of delusional disorder. Legal Criteria The threshold question to be answered is whether the appellant has presented evidence of a well grounded claim, that is, a claim which is plausible and meritorious on its own or capable of substantiation. If he has not, his appeal must fail and the Board has no duty to further assist him with the development of his claim. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78 (1990). Case law provides that, although a claim need not be conclusive to be well grounded, it must be accompanied by evidence. A claimant must submit supporting evidence that justifies a belief by a fair and impartial individual that the claim is plausible. Dixon v. Derwinski, 3 Vet. App. 261, 262 (1992); 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 (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); see also Epps v. Gober, 126 F.3d 1464 (1997) cert. denied 118 S.Ct. 2348 (1998). Under the provisions of 38 C.F.R. § 3.303(b), chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date. For the 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." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) 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. The second and third Caluza elements can also be satisfied under 38 C.F.R. § 3.303(b) (1998) by (a) evidence that a condition was "noted" during service or during 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 the post-service symptomatology. Clyburn v. West, 12 Vet. App. 296 (1999); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); 38 C.F.R. § 3.303(b). Alternatively, service connection may be established under § 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. Brewer v. West, 11 Vet. App. 228, 231 (1998). Where the determinant issue involves a question of medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible or possible is required to establish a well-grounded claim. Sacks v. West, 11 Vet. App. 314, 315 (1998); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Lay assertions of medical causation or diagnosis cannot constitute evidence to render a claim well grounded under 38 U.S.C.A. § 5107(a); if no cognizable evidence is submitted to support a claim, the claim cannot be well grounded. Id. Evidentiary assertions accompanying a claim for VA benefits must be accepted as true for purposes for determining whether the claim is well grounded, unless the evidentiary assertion is inherently incredible or the fact asserted is beyond the competence of the person making the assertion. King v. Derwinski, 5 Vet. App. 19, 21 (1993). A secondary service connection claim is well grounded only if there is medical evidence to connect the asserted secondary condition to the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 10 Vet. App. 432 (1997); see Locher v. Brown, 9 Vet. App. 535, 538-39 (1996) (citing Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995), for the proposition that lay evidence linking a fall to a service-connected weakened leg sufficed on that point as long as there was "medical evidence connecting a currently diagnosed back disability to the fall"); Jones (Wayne) v. Brown, 7 Vet. App. 134, 136-37 (1994) (lay testimony that one condition was caused by a service-connected condition was insufficient to well ground a claim). Analysis The veteran has a current diagnosis of psychotic disorder, currently listed as a persecutory type delusional disorder. Thus there is competent evidence of a current disability. The service medical records together with the symptoms reported by the veteran provide competent evidence of inservice disease or injury. The opinions reported by the examiners on the February 1995 and May 1997 VA examinations provide competent evidence of a nexus between the inservice findings and the current diagnosis. Accordingly, the Board finds that the veteran's claim for service connection for a psychosis is well grounded. ORDER The claim for service connection for a psychotic disorder is well grounded. REMAND On the VA examination in June 1981, the veteran reported that he was receiving psychiatric treatment at a VA facility. It does not appear that these records have been secured. It further appears that while examiners have suggested that certain of the veteran's psychotic symptoms could have begun in service, examiners have not specifically commented as to whether the veteran has a current psychosis that began in service. The veteran reported in an August 1998 statement that he was still receiving treatment at a mental hygiene clinic on an outpatient basis. Medical records from the West Los Angeles, California, VA Medical Center were last received in September 1997, but only contained records up to September 1996. In addition, Dr. F. did not respond to the January 1995 request for medical records. As previously noted, the veteran is receiving Social Security disability benefits. The duty to assist for a claim of an increased rating includes obtaining SSA records. Baker v. West, 11 Vet. App. 163 (1998). In light of the fact that service connection is now warranted for a psychotic disorder and the fact that the latest VA examination was over two years ago, the veteran should undergo another psychiatric evaluation to determine the social and industrial impairment resulting from the PTSD. Moreover, the RO did not consider the veteran's claim under the old criteria for PTSD in the July 1998 rating decision and supplemental statement of the case, which granted a 30 percent disability rating. See Karnas v. Derwinski, 1 Vet. App. 308 (1991). Accordingly, this claim is REMANDED for the following actions: 1. The veteran should be asked to identify all sources of treatment or evaluation for a psychiatric disorder since service. The RO should take all necessary steps to obtain all treatment records from Dr. F. After obtaining appropriate authorization, the RO should attempt to obtain any medical records that are not already in the claims file, specifically to include copies of all treatment records of the veteran from the West Los Angeles (Brentwood), California, VA Medical Center. 2. The RO should contact the SSA for the purpose of obtaining any records from that agency, which pertain to the award of disability benefits to the appellant. The RO should obtain copies of the award letters/notices; administrative/appellate decisions; hearing transcripts, if applicable; and all medical records relied upon concerning claims/appeals filed by the appellant for SSA benefits. The RO should proceed with all reasonable follow-up referrals that may be indicated by the inquiry. All attempts to obtain records that are ultimately unsuccessful should be documented in the claims folder. 3. The veteran should be scheduled for an appropriate psychiatric examination to determine the nature and extent of his service-connected PTSD and any psychotic disorder that may be present. His entire claims folder and a separate copy of this remand must be made available to the examiner, the receipt of which should be acknowledged in the examination report. The report of examination should include a detailed account of all manifestations of psychiatric pathology found to be present. The examiner should further describe how the symptoms of the service- connected PTSD affect the veteran's social and industrial capacity. All necessary special studies or tests including psychological testing, if indicated, are to be accomplished. The examiner should assign a numerical code under the Global Assessment of Functioning Scale (GAF). The diagnosis should be in accordance with the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994). The examiner is requested to express an opinion as to whether a psychosis is present, and if present, whether it is at least as likely as not that the psychosis had its onset in service or was caused or aggravated by the service connected PTSD. If it is concluded that the psychosis did not have its onset in service and is unrelated to the service connected PTSD, the examiner should, if possible, note those symptoms attributable to PTSD, and express an opinion as to the severity of symptoms attributable solely to PTSD. It is not possible to distinguish symptoms attributable to PTSD from other psychiatric disabilities that may be present, the examiner should so note. 4. Following completion of the above actions, the RO must review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. In particular, the RO should review the examination report. If it is not responsive to the Board's instructions, it should be returned to the examiner as inadequate. 5. After the requested evidentiary development has been completed to the fullest extent possible, the RO should again review the record in order to consider all of the additional evidence. The RO should evaluate the veteran's claims under a broad interpretation of the applicable regulations, consistent with 38 C.F.R. §§ 4.3 and 4.7 (1999), and with consideration of the mental disorders rating criteria in effect prior to and as of November 7, 1996. If the decisions regarding PTSD remains adverse, the veteran and his representative should be furnished with an appropriate supplemental statement of the case along with an additional opportunity within which to respond thereto. Thereafter, these claims should be returned to the Board for further appellate consideration, if appropriate. 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 veteran is advised that the examination requested in this remand is necessary to evaluate his claims, and that a failure, without good cause, to report for the examination could result in denial of those claims. 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. Mark D. Hindin Member, Board of Veterans' Appeals