Citation Nr: 0005815 Decision Date: 03/03/00 Archive Date: 03/14/00 DOCKET NO. 98-04 106 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for residuals of a nasal fracture. 2. Entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia. 3. Entitlement to service connection for glaucoma. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESSES AT HEARING ON APPEAL Appellant and mother ATTORNEY FOR THE BOARD Kelli A. Kordich, Associate Counsel INTRODUCTION The veteran served on active duty from April 1974 to February 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office in Detroit, Michigan (RO), which denied the veteran's attempt to reopen his claim for service connection for residuals of a nasal fracture, and denied service connection for an acquired psychiatric disorder, to include schizophrenia, and glaucoma. FINDINGS OF FACT 1. A February 1983 Board decision denied the veteran's claim of entitlement to service connection for residuals of a nasal fracture. 2. The evidence associated with the claims file subsequent to the February 1983 Board decision does not tend to establish any material fact which was not already of record at the time of the February 1983 Board decision and is not so significant that it must be considered in order to fairly decide the merits of the claim. 3. There is no competent medical evidence linking the veteran's current acquired psychiatric disorder, to include schizophrenia to military service. 4. There is no competent medical evidence linking the veteran's current glaucoma to military service. CONCLUSIONS OF LAW 1. The Board's February 1983 decision, denying entitlement to service connection for residuals of a nasal fracture, is final. 38 U.S.C.A. § 7104 (West 1991); 38 C.F.R. § 20.1100 (1999). 2. The evidence received since the Board's February 1983 decision is not new and material, and the veteran's claim for service connection for residuals of a nasal fracture is not reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1999). 3. The veteran's claim for entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia is not well grounded. 38 U.S.C.A. § 5107 (West 1991). 4. The veteran's claim for entitlement to service connection for glaucoma is not well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Entitlement to service connection for residuals of a nasal fracture a. New and material The veteran's claim for service connection for residuals of a nasal fracture was denied in a February 1983 Board decision. The decision was based on the fact that service medical records did not show that the veteran sustained a broken nose while on active duty. The veteran attempted to reopen his claim and the RO issued a denial in August 1996. The August 1996 rating decision is now on appeal. The Board notes that unless the Chairman orders reconsideration, or one of the other exceptions to finality apply, all Board decisions are final on the date stamped on the face of the decision. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. A claim denied by a final decision may not be reopened and readjudicated by the VA, except on the basis of new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). When a veteran seeks to reopen a final decision based on new and material evidence, a three-step analysis must be applied. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998); Winters v. West, 12 Vet. App. 203 (1999); Elkins v. West, 12 Vet. App. 209 (1999). The first step is to determine whether new and material evidence has been received under 38 C.F.R. § 3.156(a). Secondly, if new and material evidence has been presented, then immediately upon reopening the veteran's claim, the VA must determine whether the claim is well- grounded under 38 U.S.C.A. § 5107(a). In making this determination, all of the evidence of record is to be considered and presumed to be credible. Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995). Third, if the claim is found to be well grounded, then the merits of the claim may be evaluated after ensuring that the duty to assist under 38 U.S.C.A. § 5107(a) has been met. New and material evidence means evidence not previously submitted which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with the evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a); see also Hodge, 155 at 1363. Further, when determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The veteran essentially contends that while taking a military hop returning from Guam he was beaten while asleep by an unknown individual which resulted in a broken nose. The relevant evidence of record at the time of the Board's February 1983 decision consisted of the veteran's service medical records. The service medical records indicate the veteran was seen in January 1975 for blood continuously running from his nose, but no history of a nasal injury was noted and there were no clinical findings that were attributed to nasal trauma, to include a fracture. Evidence subsequent to the February 1983 Board decision included a January 1984 VA examination noting the veteran had a mild curvature of the bridge of the nose which was nontender, a January 1992 VA examination again indicating the veteran's irregular nasal bridge and his request that his nose not be examined, and a November 1995 RO hearing transcript. The newly received VA examinations add nothing new to the record and essentially duplicates medical evidence before the Board in February 1983 which showed residuals of a broken nose with no medical nexus to service. The veteran's RO testimony indicates that he was beaten while asleep aboard a military aircraft by an unknown individual for an unknown reason. The newly received evidence, while not of record in 1983, is nevertheless not new and material since it essentially confirms what was already known in 1983; that is, that the veteran has an irregular curvature of the nose. However, the additional evidence in question does not in any manner suggest that a nasal fracture was incurred in or aggravated during service. What is lacking to reopen the veteran's claim is evidence (not before the Board in February 1983) which shows that the veteran sustained a broken nose in service or that suggests that the claimed disability is causally linked to service. While the Board acknowledges the veteran's statements and testimony which express the veteran's personal belief that his disorder was manifested in service, to the extent that he is attempting to present argument regarding medical causation, he is not competent since it has not been shown that he has the necessary medical skills and training to offer opinions as to medical causation. Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1992). The Board views the above discussion as sufficient to inform the veteran of the elements necessary to reopen his claim for service connection for the claimed disability. Graves v. Brown, 8 Vet. App. 522, 524-525 (1996); Robinette, 8 Vet. App. at 77-78. II. Service connection The issues before the Board involve claims for entitlement to service connection. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Certain chronic disabilities, such as psychoses, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). It should also be noted that personality disorders are not diseases or injuries within the meaning of applicable legislation concerning service connection. 38 C.F.R. § 3.303(c). However, it should be noted at the outset that statutory law as enacted by the Congress charges a claimant for VA benefits with the initial burden of presenting evidence of a well- grounded claim. 38 U.S.C.A. § 5107(a). A well-grounded claim has been defined by the United States Court of Appeals for Veterans Claims (Court) as "a plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet. App. 78, 91 (1990). Where the determinative issue involves a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). A claimant therefore cannot meet this burden merely by presenting lay testimony and/or lay statements because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Consequently, lay assertions of medical causation 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. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In order for a service connection claim to be well-grounded, there must be competent evidence: i) of current disability (a medical diagnosis); ii) of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and; iii) of a nexus between the inservice injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498, 506 (1995). The Board emphasizes, however, that the doctrine of reasonable doubt does not ease the veteran's initial burden of submitting a well-grounded claim. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Alternatively, the Court has indicated that a claim may be well grounded based on application of the rule for chronicity and continuity of symptomatology, set forth in 38 C.F.R. § 3.303(b). See Savage v. Gober, 10 Vet. App. 488 (1997). The Court held that the chronicity provision applies where there is evidence, regardless of its date, which shows that a veteran had a chronic condition either in service or during an applicable presumption period and that the veteran still has such condition. That evidence must be medical, unless it relates to a condition that the Court has indicated may be attested to by lay observation. If the chronicity provision does not apply, a claim may still be well grounded "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." Savage, 10 Vet. App. at 498. a. Acquired psychiatric disorder, to include schizophrenia The record includes a diagnosis of a personality disorder during service but, as already noted, a personality disorder is not a disability for VA compensation purposes and is not service connectable. 38 C.F.R. § 3.303(c). However, the record also includes post-service medical diagnoses of schizophrenia. The veteran contends that such psychiatric disorder was manifested while in serving in the Air Force between April 1974 and February 1976. Service medical records show a report dated January 1976 indicating that the veteran was referred to the Mental Health Clinic for psychiatric evaluation by his squadron as a result of an AWOL charge and other difficulty getting along with the squadron. The psychiatric evaluation found no psychiatric disorder, but there was evidence of a character and behavior disorder classified as a personality disorder, inadequate personality, moderate to severe. It was further noted that the veteran was sufficiently free from mental illness, defect or derangement to both distinguish right from wrong and to adhere to the right; he was considered responsible for his actions and could participate in his own defense. On the veteran's separation examination dated February 1976, the veteran indicated that he had trouble sleeping. The examiner noted that the cause was unknown for the veteran's sleeping problem. There was no psychiatric disorder reported on the clinical examination. After separation from service the veteran was admitted to Metropolitan Regional Psychiatric Hospital in June 1979 and was diagnosed with schizophrenia, paranoid type. Private and VA hospital and outpatient treatment records show that the veteran was hospitalized and treated for his psychiatric disorder since 1979. In his November 1995 RO hearing the veteran testified that during basic training he was diagnosed with a chemical imbalance and schizophrenic tendencies and prescribed Haldol. He also testified that after his training he was given injections of experimental psychotropic drugs. The evidence clearly establishes that the veteran currently has schizophrenia. However, there is no medical evidence of a nexus between the veteran's schizophrenia and his period of active duty service. Further, there is no medical evidence of schizophrenia during service and no medical evidence of any psychiatric disorder until 1979, three years after discharge from service. Given the fact that there was no medical evidence of a schizophrenia during service (the military psychiatric report noted that the veteran was sufficiently free from mental illness, defect or derangement to both distinguish right from wrong and to adhere to the right; he was considered responsible for his actions and can participate in his own defense) with no medical evidence of a psychiatric disorder for three years after service. Without medical evidence of such a nexus, the Board must find his claim not well-grounded. The Board notes the representative's recent request for another search for service medical records. However, as pointed out by the representative, the RO has previously conducted such a search. Moreover, as noted above, the service medical records on file include a report of a psychiatric evaluation performed at Barksdale Air Force Base in January 1976, just prior to the veteran's separation from service, and that examination showed nothing more than a personality disorder. A report of the veteran's separation examination dated shortly thereafter shows that it was specifically reported at that time that the veteran denied a history of psychotic symptoms and, clinically, his psychiatric status was reported as normal. There is no medical evidence or opinion in the post-service medical evidence that links the veteran's schizophrenia with any incident of service. Under these circumstances, the Board finds that there is no duty to assist the veteran with this claim. b. Glaucoma In the present case, service medical records are silent for any complaints or treatment for glaucoma. His vision was reported as 20/20 upon his February 1976 separation examination. A January 1992 VA examination noted pupils equal, round, and reactive to light. The examiner was unable to see the discs due to the veteran constantly moving his eyes. A subsequent VA consultation report indicated on Axis III possible borderline glaucoma. The record establishes that the veteran currently has borderline glaucoma. However, the record has failed to provide any competent medical evidence illustrating a nexus between the veteran's borderline glaucoma and his active duty service. In the absence of competent medical evidence to support the claim of entitlement to service connection for glaucoma, the Board finds that the veteran has not presented evidence sufficient to justify a belief by a fair and impartial individual that his claim is well grounded. c. Conclusion The Board acknowledges the veteran's statements and testimony regarding what he believes is a history of a psychiatric disorder and glaucoma since service. However, the Court has clearly indicated that the Board cannot rely solely on the statements of the veteran because evidence of a medical nexus cannot be established by lay testimony. Brewer v. West, 11 Vet. App. 228 (1998); Espiritu, 2 Vet. App. at 494-495. In sum, based on the evidence currently of record, the Board is compelled to view the veteran's claims as not well- grounded due to a lack of medical evidence of a link to service. As to any such medical evidence of causation which the veteran believes is in existence, the Board hereby informs him that such evidence of causation might well ground the veteran's claims. McKnight v. Gober, 131 F.3d 1483, 1484-1485 (Fed. Cir. 1977). ORDER As no new and material evidence has been submitted to reopen a claim for service connection for residuals of a nasal fracture, the appeal on that issue is denied. Entitlement to service connection for an acquired psychiatric disorder, to include schizophrenia, is denied. Entitlement to service connection for glaucoma is denied. R. F. WILLIAMS Member, Board of Veterans' Appeals