Citation Nr: 0003602 Decision Date: 02/11/00 Archive Date: 02/15/00 DOCKET NO. 97-03 381 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to service connection for major depression with psychosis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Cryan, Associate Counsel INTRODUCTION The veteran had active service from June 1969 to June 1989. This case is before the Board of Veterans' Appeals (Board) on appeal from a June 1996 rating decision by the Winston-Salem, North Carolina Regional Office (RO) of the Department of Veterans Affairs (VA) which denied entitlement to service connection for major depression with psychosis. The Board notes that during the pendency of this appeal, a May 1999 RO rating decision granted the veteran entitlement to service connection for post-traumatic stress disorder, with a 50 percent rating assigned to that disability. The veteran has not appealed that decision, and therefore there is no issue as to the rating assigned for PTSD in appellate status before the Board at this time. FINDING OF FACT There is no competent medical evidence of a nexus between the veteran's currently diagnosed major depression with psychosis and service. CONCLUSION OF LAW The claim of service connection for major depression with psychosis is not well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION In this case, the veteran contends that he has major depression with psychosis which originated during service. At the outset, the Board notes that a May 1999 RO rating decision granted the veteran entitlement to service connection for PTSD based on various PTSD symptomatology. While the Board recognizes that there may be overlapping symptomatology associated with the veteran's service- connected PTSD and his alleged major depression, the only matter in appellate status and before the Board at this time is the issue of entitlement to service connection for major depression with psychosis, separate and distinct from the psychiatric disorder diagnosed as PTSD. As such, this decision only determines whether the veteran is entitled to service connection for major depression with psychosis, and it is not meant to distinguish between symptoms associated with the veteran's PTSD, and symptoms associated with the veteran's alleged major depression with psychosis. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1999). Service connection cannot be granted for a personality disorder. 38 C.F.R. § 3.303(c) Service connection may also be granted for a chronic disease, including psychoses, if manifest to a degree of 10 percent or more within one year from the date of separation from such service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). The threshold question which the Board must address in this case is whether the appellant has presented a well-grounded claim. A well-grounded claim is one which is plausible. If he has not, the claim must fail and there is no further duty to assist in the development of the claim. 38 U.S.C.A. § 5107 (West 1991); Murphy v. Derwinski, 1 Vet. App. 78 (1990). This requirement has been reaffirmed by the United States Court of Appeals for the Federal Circuit, in its decision in Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). That decision upheld the earlier decision of the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter "the Court") which made clear that it would be error for the Board to proceed to the merits of a claim which is not well grounded. Epps v. Brown, 9 Vet. App. 341 (1996). The United States Supreme Court declined to review that case. Epps v. West, 118 S. Ct. 2348 (1998). The veteran has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim is well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). The Court, in Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996), outlined a three prong test which established whether a claim is well-grounded. The Court stated that in order for a claim to be well-grounded, there must be competent evidence of a 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). The Court has also stated that a claim must be accompanied by supporting evidence; an allegation is not enough. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). A claim is not well- grounded where a claimant has not submitted any evidence of symptomatology of a chronic disease within the presumptive period, continuity of symptomatology after service, or other evidence supporting direct service connection. Harvey v. Principi, 3 Vet. App. 343 (1992). Evidentiary assertions by the veteran must be accepted as true for the purposes of determining whether a claim is well- grounded, except where the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19, 21 (1993). The Board notes, however, that inasmuch as the veteran is offering his own medical opinion and diagnoses, the record does not indicate that he has any professional medical expertise. See Bostain v. West, 11 Vet. App. 124, 127 (1998) ("lay testimony . . . is not competent to establish, and therefore not probative of, a medical nexus"); Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"), aff'd sub nom. Routen v. West, 142 F.3d 1434 (1998). See also Espiritu v. Derwinski, 2 Vet. App. 492 (1992); Moray v. Brown, 5 Vet. App. 211 (1993); Grottveit v. Brown, 5 Vet. App. 91 (1993). Further, although the veteran asserts that his major depression with psychosis had its onset during service, this assertion does not make the claim well-grounded if there is no competent medical evidence of record of a nexus between any disability in service and his alleged current disability. See Savage v. Gober, 10 Vet. App. 489 (1997); Heuer v. Brown, 7 Vet. App. at 387 (1995) (lay evidence of continuity of symptomatology does not satisfy the requirement of competent medical evidence showing a nexus between the current condition and service). As such, the Board will review the record to assess whether all three of the criteria of Caluza are met and the veteran's assertions are supported by the evidence of record. The service medical records showed that the veteran was diagnosed with schizoid personality disorder in January 1977. This diagnosis was re-affirmed in October 1977, January 1978, and May 1978. Specifically, in January 1977 and January 1978, the veteran was afforded psychiatric evaluations during which the evaluator indicated that there was no evidence of a major mood disturbance or disabling psychoneurosis. Moreover, during the veteran's May 1978 inservice psychiatric evaluation, the evaluator indicated that the veteran's problem was not one of mental illness, but rather was a long standing personality disorder of the schizoid type. In August 1978, the veteran was afforded an inservice psychiatric evaluation with a battery of psychological testing. The psychiatrist concluded that the veteran did not suffer from mental illness, including schizophrenia, manic depressive illness, organic brain syndrome, or disabling psychoneurosis. In March 1989, the veteran was diagnosed with anxiety reaction subsequent to his involvement in a motor vehicle accident. In sum, there were no complaints, findings or diagnosis of depression during service, and the veteran was discharged in June 1989. The veteran's post-service medical records consist of private hospital reports and VA treatment records dated from 1994 showing, inter alia, treatment for depression. Specifically, on October 6, 1995 the veteran was admitted to Brynn Marr Hospital in Jacksonville, North Carolina with suicidal ideation. Psychological testing was completed with diagnostic impressions of major depression, recurrent, moderate, and generalized anxiety disorder. Mental status examination indicated that the veteran was easily tearful and frequently agitated. The veteran exhibited bizarre behavior such as sitting on the floor facing the wall in the hallway. The veteran was disheveled with poor eye contact. His affect was restricted. No abnormal movements, delusions, or hallucinations were noted. The veteran's GAF score was 20 upon admission, and 50 at discharge on October 23, 1995. The next day, the veteran was admitted to the Adult Partial Hospitalization Program at Brynn Marr for group, individual, family, and recreational therapy. The veteran's diagnosis upon discharge was major depression, recurrent with psychotic features. The veteran's GAF score was 55 on admission and upon discharge on November 10, 1995. The veteran was thereafter admitted to the Craven Regional Medical Center in New Bern, North Carolina on November 26, 1995 with a diagnosis of major depression with psychosis. Specifically, the veteran was severely depressed with suicidal ideation, and grossly impaired insight and judgment. Mental status examination revealed a disheveled, unkempt veteran with gross psychomotor retardation. The veteran's mood was dysphoric, affect was restricted and constricted. Speech was slow and impoverished, with a long latency of response. Thought content showed delusional thought of a paranoid and referential nature. There were no hallucinations. He was oriented times three. Attention, concentration, and recent memory were grossly impaired. Insight and judgment were poor. He appeared to be within the normal range of intelligence. He had suicidal ideation, including specific thoughts of shooting himself. The veteran denied any immediate intent to self injury. The veteran's GAF score was estimated at 40 upon admission, and 80 during the past year. In July 1995, the veteran was afforded an outpatient clinical consultation at the Camp Lejeune, North Carolina Naval Hospital. At that time, the veteran complained of "nervous problems." Specifically, the veteran reported that his palms sweat frequently, and that he can feel the nerves in his hands tingling. Mental Status examination revealed that the veteran was appropriately dressed and appeared self- conscious. Affect was appropriate to stated mood of anxiety. The veteran denied psychotic processing. The veteran denied suicidal and homicidal ideations for the last four years. The veteran was fully alert times three, with memory intact for recent and remote events. Intelligence was clinically estimated to be in the low average range. Insight and judgment were fair to good. The examiner noted that the veteran did not present with signs and symptoms indicative of a major depressive disorder, psychotic disorder, or bipolar disorder, although the examiner opined that the veteran may have been converting depressive symptoms into somatic complaints. Diagnoses included generalized anxiety disorder with mild panic, and rule out dysthymia. In March 1996, clinical psychologist G. J. Fatica, MA, LPA and Victor Barnes, MD of Carolina Psychological Health Services in Jacksonville, North Carolina, prepared a statement regarding the veteran's psychiatric disabilities. The veteran was diagnosed with major depression, recurrent (melancholic in type), without psychotic features; and PTSD. Drs. Fatica and Barnes indicated that the veteran continues to seek treatment for medication management, using medications to address his severe, deep depression, anxiety, and inability to establish regular sleep patterns. Drs. Fatica and Barnes opined that the veteran's severe and long- standing dysthymic and depressive process is felt to be "directly involved in problems that he has had in resolving his history of duty in Vietnam." The veteran reports nightmares and flashbacks. His affect has remained flat and he has had difficulty with short-term memory. Finally, in August 1997, the veteran was afforded a VA psychological assessment and evaluation. At that time, the veteran reported moderate levels of depression, as well as extremely high levels of state and trait anxiety. Results of testing were consistent with a diagnosis of combat-related PTSD based on the veteran's stressful experiences in Vietnam. The veteran was diagnosed with a primary Axis I diagnosis of PTSD based on the veteran's experiences in Vietnam. In addition, the veteran was also diagnosed with major depressive disorder, recurrent, in partial remission, based on the veteran's report of depressed mood and marked diminished interest in activities. In sum, the service medical records showed that the veteran suffered from a schizoid personality disorder. His post- service medical records clearly show that the veteran's current major depression with psychosis had its onset after the veteran's discharge from service. Moreover, the medical evidence of record does not show a diagnosis of major depression until more than five years after the veteran's discharge from service in June 1989. There is no medical evidence showing that there is any relationship whatsoever between service and his currently diagnosed major depression with psychosis. Thus, as there is no competent medical evidence establishing a nexus between the current diagnosis of major depression with psychosis and service, all of the criteria of Caluza have not been met. As such, the claim for service connection for major depression with psychosis is not well-grounded. Since the veteran's claim is not well-grounded, he cannot invoke the VA's duty to assist in the development of the claim under 38 U.S.C.A. § 5107(a) (West 1991). Grivois v. Brown, 6 Vet. App. 136 (1994). In claims that are not well-grounded, the VA does not have a statutory duty to assist a claimant in developing facts pertinent to his claim. However, the VA may be obligated under 38 U.S.C.A. § 5103(a) (West 1991) to advise a claimant of evidence needed to complete his application. This obligation depends upon the particular facts of the case and the extent to which the Secretary of the Department of Veterans Affairs has advised the claimant of the evidence necessary to be submitted with a VA benefits claim. Robinette v. Brown, 8 Vet. App. 69 (1995). A review of the correspondence in this case, to include the statement of the case shows that the RO fulfilled its obligation under 38 U.S.C.A. § 5103(a) (West 1991) as the veteran was fully informed of the reason for the denial of his claim and was advised of what evidence was needed in order to support his claim. ORDER The appeal as to the issue of entitlement to service connection for major depression with psychosis is denied as the claim is not well-grounded. D. C. Spickler Member, Board of Veterans' Appeals