Citation Nr: 0006741 Decision Date: 03/13/00 Archive Date: 03/17/00 DOCKET NO. 96-41 168 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD P.M. DiLorenzo, Counsel INTRODUCTION The veteran served on active duty from May 1955 to April 1957. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a May 1995 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, that denied the above-noted claim. The case was previously before the Board in April 1998, when it was remanded to schedule the veteran for a video- conference hearing before a Member of the Board. In May 1998, a video-conference hearing was held before the undersigned, who is the Board member making this decision and who was designated by the Acting Chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7107(c) (West Supp. 1999). The case was again before the Board in August 1998, when it was remanded for additional records, to clarify representation, and for consideration of additional evidence. The requested development has been completed to the extent necessary. The Board now proceeds with its review of the appeal. FINDINGS OF FACT 1. The veteran currently has a personality disorder, which is not considered a disease or injury under the law for VA disability compensation purposes. 2. No medical evidence has been presented or secured to render plausible a claim that any current acquired psychiatric disorder is the result of a disease or injury incurred in service. CONCLUSIONS OF LAW 1. Service connection for a personality disorder is precluded by law. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. §§ 3.303(c), 4.9 (1999); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 2. The claim for service connection for an acquired psychiatric disorder is not well grounded and there is no statutory duty to assist the veteran in developing facts pertinent to this claim. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual background Service medical records disclose that the veteran was hospitalized in November 1956 for psychiatric symptomatology. Although some neurotic features were present, his adjustment did not seem basically neurotic in nature. It was felt that his present state was most likely due to excessive stress in an emotionally unstable personality. There was no evidence in the clinical examination of a psychotic or psychoneurotic process. The diagnosis was passive-aggressive reaction, chronic, mild; manifested by labile emotional attitude, poorly suppressed hostility, and guilt expressed in terms of somatic complaints of headaches, and manipulatory behavior with passive-obstructionism. Upon discharge from the hospital, the veteran went absent without leave (AWOL). A consistent diagnosis was rendered on re-hospitalization in December 1956. There was no evidence of psychotic material. On separation examination in March 1957, the veteran gave a history of frequent trouble sleeping, depression or excessive worry, and nervous trouble. The examiner diagnosed an anxiety reaction, chronic, moderate. The veteran was characterized as not qualified for further military duty. The veteran originally claimed entitlement to service connection for a psychiatric disorder in September 1994. He was afforded a VA mental disorders examination in November 1994, at which time he gave a history of a mental condition for years. The examiner diagnosed social phobia with chronic depressive features. In October 1996, the veteran underwent VA psychological evaluation. The examiner reviewed the claims file. The examiner concluded that the veteran's principal diagnosis was a personality disorder, both on the basis of the history and the results of current examination. It was further noted that, Examination of the available information of psychological evaluation at the time of [the veteran's] hospitalization strongly indicates that there was evidence of [his] personality disorder at the time of his 1956 hospitalization, and without any strong evidence of history of depression or anxiety or stress at that time. Indeed, the diagnostic impression of 'passive- aggressive reaction, chronic . . . .' appears to highlight that characterological issues that were seen at that time. . . . There was 'no evidence in the clinical examination of a psychotic or psychoneurotic process' . . . . which again does not support the existence of any service connected [sic] depressive features during military service. The current evaluation does suggest the presence of some dysthymic type depressive features. . . . In addition, there is no evidence that the dysthymic type features were exhibited during the military. . . . It would appear that any dysthymic-type depression appeared subsequent to military service and I would suspect that the dysthymia is directly related to his personality disorder features and his intentional alienation from others. The examiner diagnosed the veteran as having a dysthymic disorder, late onset, and a personality disorder, not otherwise specified (NOS) (schizoid, passive-aggressive, self-defeating traits) (principal diagnosis). Also associated with the claims folder are VA treatment records of the veteran, dated from 1994 to 1998, showing that he attended group counseling beginning in 1997. Pertinent diagnoses included depression. The veteran has offered lay statements on appeal, including at personal hearings at the RO in September 1996 and before the Board in May 1998. He stated that he received treatment for a psychiatric condition since his separation from service. It was his contention that his current psychiatric condition had its onset during active service. II. Legal analysis Establishing service connection for a disability requires the existence of a current disability and a relationship or connection between that disability and a disease contracted or an injury sustained during service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1999); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may also be established for a current disability on the basis of a "presumption" under the law that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C.A. §§ 1110, 1112 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a) (1999). Service connection for a psychosis may be established based on a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.307, 3.309 (1999). The first responsibility of a person seeking entitlement to VA benefits is to state a well-grounded claim. 38 U.S.C.A. § 5107(a) (West 1991). Establishing a well-grounded claim for service connection for a particular disability requires more than an allegation that the disability is service connected; it requires evidence relevant to the requirements for service connection and of sufficient weight to make the claim plausible, i.e., meritorious on its own or capable of substantiation. See Tirpak v. Derwinski, 2 Vet. App. 609, 610 (1992); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The kind of evidence needed to make a claim well grounded depends upon the types of issues presented by a claim. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). For some factual issues, competent lay evidence may be sufficient. However, where the claim involves issues of medical fact, such as medical causation or medical diagnoses, competent medical evidence is required. Id. at 93. A well-grounded claim for direct service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in- service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 504-06 (1995). The United States Court of Appeals for Veterans Claims (formerly the U.S. Court of Veterans Appeals) (Court) has held that the second and third Caluza elements can also be satisfied under 38 C.F.R. § 3.303(b) 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. See 38 C.F.R. § 3.303(b); see also Brewer v. West, 11 Vet. App. 228, 231 (1998); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Alternatively, under 38 C.F.R. § 3.303(b), service connection may be awarded for a "chronic" condition when: (1) a chronic disease manifests itself and is identified as such in service (or within the presumption period under 38 C.F.R. § 3.307) and the veteran presently has the same condition; or (2) a disease manifests itself during service (or during the presumptive period), but is not identified until later, and there is a showing of continuity of related symptomatology after discharge, and medical evidence relates that symptomatology to the veteran's present condition. Savage, 10 Vet. App. at 495-98. For purposes of determining whether a claim is well grounded, the evidence is generally presumed to be credible. See Robinette v. Brown, 8 Vet. App. 69, 75- 76 (1995), citing King v. Brown, 5 Vet. App. 19, 21 (1993). The veteran has been diagnosed as having a personality disorder both at present and during active service, as reported by the VA psychologist in October 1996. However, personality disorders are not diseases or injuries within the meaning of applicable law. 38 C.F.R. §§ 3.303(c), 4.9 (1999). There is a lack of entitlement under the law to service connection for these conditions unless the evidence shows that they were subject to a superimposed disease or injury during military service that resulted in disability apart from the developmental defect. See VAOPGCPREC 82-90; Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the claim should be denied or the appeal to the BVA terminated because of the absence of legal merit or the lack of entitlement under the law). In this case, there is no evidence of a superimposed disease or injury during the veteran's military service that resulted in disability. While the VA psychologist reported in October 1996 that the veteran had dysthymia related to his personality disorder, it was specifically noted that the dysthymic-type depression appeared subsequent to military service, and that there was no evidence of a psychotic or psychoneurotic process during active service. With respect to psychiatric conditions other than a personality disorder, the medical evidence shows recent diagnoses of acquired psychiatric disorders such as social phobia with chronic depressive features, depression, and a dysthymic disorder. Therefore, the Board finds that there is sufficient medical evidence of a current disability, and the first element of a well-grounded claim has been satisfied. The veteran was diagnosed as having an anxiety reaction, chronic, moderate, in March 1997, prior to separation from active service. Therefore, the Board finds that there is sufficient lay evidence of incurrence of a disease during service, and the second element of a well-grounded claim has been satisfied. However, the veteran has not satisfied the third element of a well-grounded claim for service connection. He has reported that he has suffered from psychiatric symptomatology since active service. Presuming the history of continuity of symptomatology since active service to be credible for the purpose of establishing a well-grounded claim, there is still no medical evidence of record of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 497 (holding that veteran's own testimony that he sustained a back injury in service, walked with a limp ever since, and received heat treatments over the years is presumed credible for the purpose of establishing a well grounded claim because it is not inherently incredible or beyond the competence of a lay person to observe and continuity of symptomatology had therefore been established even if the record did not contain service medical records showing treatment in service for a back problem); see Holbrook v. Brown, 8 Vet. App. 91, 92 (1995) (per curiam order noting Board's fundamental authority to decide a claim in the alternative). Medical expertise is required to relate the present disability etiologically to the veteran's post- service symptoms. However, there are no medical opinions contained in any of the veteran's post-service medical records relating the current acquired psychiatric disorder(s) to any inservice disease or injury or to the post-service symptomatology. To the contrary, in October 1996 the VA psychologist determined that the veteran's dysthymic-type depression had its onset after service. The veteran is not competent to ascribe his post-service difficulties to active service. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Although the veteran may have continuously experienced psychiatric symptomatology since active service, there is no medical evidence in the record at all tending to show that there was an underlying chronic disability which caused the symptoms in service and that that underlying disability also has caused all the intermittent complaints of symptomatology experienced since service. Similarly, there is no medical evidence tending to show that the inservice symptoms represented a chronic psychiatric disorder rather than acute and transitory conditions. While the anxiety reaction diagnosed in March 1957 was described as chronic, there have been no medical finding of this condition since that time. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The veteran is not currently diagnosed as having an anxiety reaction. Because no medical evidence has been presented or secured to render plausible a claim that the acquired psychiatric disorder(s) diagnosed more than 35 years after service had its onset in service or is the result of, or related to, any disease contracted or injury sustained in active military service, the Board concludes that this claim is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). The presentation of a well-grounded claim is a threshold issue, and the Board has no jurisdiction to adjudicate a claim on the merits unless it is well grounded. Boeck v. Brown, 6 Vet. App. 14, 17 (1993). There is no duty to assist further in the development of this claim because such additional development would be futile. See Murphy v. Derwinski, 1 Vet. App. 78 (1990). Where a claimant refers to a specific source of evidence that could make his claim plausible, VA has a duty to inform him of the necessity to submit that evidence to complete his application for benefits. See Epps v. Brown, 9 Vet. App. 341, 344-45 (1996), aff'd Epps v. Gober, 126 F.3d. 1464, 1468 (Fed. Cir. 1997). The Board finds VA has no outstanding duty to inform the appellant of the necessity to submit certain evidence to complete his application for VA benefits. 38 U.S.C.A. § 5103(a) (West 1991). Nothing in the record suggests the existence of evidence that might well ground the veteran's claim for service connection. The veteran has reported that his post-service private treatment records are not available. See Written statement of the veteran, dated June 5, 1998. Accordingly, the Board concludes that VA did not fail to meet its obligations with regard to the veteran's claim under 38 U.S.C.A. § 5103(a) (West 1991). ORDER Having found the claim not well grounded, entitlement to service connection for an acquired psychiatric disorder is denied. J. SHERMAN ROBERTS Member, Board of Veterans' Appeals