Citation Nr: 0003392 Decision Date: 02/10/00 Archive Date: 02/15/00 DOCKET NO. 95-04 677 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Entitlement to service connection for a psychiatric disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Ferrandino, Associate Counsel INTRODUCTION The veteran had active service from February 14, 1984 to August 9, 1984. The veteran filed a claim in February 1994 for service connection for disabilities to include a psychiatric disability. This appeal arises from the June 1994 rating decision from the Togus, Maine Regional Office (RO) that denied the veteran's claim for service connection for a nervous disability. A Notice of Disagreement was filed in July 1994 and a Statement of the Case was issued in August 1994. A substantive appeal was filed in January 1995 with a request for a hearing at the RO before a Member of the Board. In January 1995, the veteran canceled his request for a hearing before a Member of the Board. This case was remanded in December 1996 for further development. The case was thereafter returned to the Board. FINDING OF FACT There is no competent medical evidence linking the veteran's current psychiatric disability to his military service; the claim is not plausible. CONCLUSION OF LAW The claim of entitlement to service connection for a psychiatric disability is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION I. Factual Background On a service enlistment examination in September 1975, no history of nervous trouble was reported. On examination, the veteran's psyche was clinically evaluated as normal. In an undated Unit Commanders Report for Psychiatric Examination, it was noted that the veteran got along with others but had fears of failing. He was hypersensitive to criticism and corrections. The veteran was repelled by the thought of being in the military. His whole outlook was affected by his being in the army, and it was recommended that the veteran be released immediately as there was absolutely no room for potential. On a Chapter 13 physical examination in June 1984, no history of nervous trouble was reported. On examination, the veteran's psyche was clinically evaluated as normal. On a June 1984 Mental Status Evaluation, the veteran's behavior was normal, he was fully alert, he was fully oriented, his mood was level, his thinking process was clear, his thought content was normal, and his memory was good. The impressions included no significant mental illness. On a June 1984 counseling report it was noted that the veteran stated that he wanted to get out of the army and had no desire to be in the army. The army was not like he thought it would be. He had tried to get out during OSUT but the instructors refused. He stated that he could not handle the pressure of the army. He would do whatever it took to get discharged. It was recommended that the veteran be released under Chapter 11 as soon as possible. On a July 1984 counseling report it was noted that the veteran stated that he did not want to be in the unit to which he was assigned and did not want to be in the army. He feared being in the infantry, particularly when the other soldiers talked about killing people. He stated that it was not what he expected and if he did not get out, he would go off. It was additionally noted that he was counseled and was told to give himself more time, but the veteran felt strongly about the matter. A July 1984 report indicates that the veteran was separated under Chapter 11 due to his negative attitude towards his obligations as a soldier. In February 1994, the veteran filed a claim for service connection for disabilities to include an acquired psychiatric disability. Associated with the file were records from Mid-Maine Medical Center from February 1993 that shows that the veteran was seen with a history of schizophrenia. He had been hospitalized in the past for schizophrenia. The assessment included acute psychosis with good response to Haldol. An additional record from the Mid-Maine Medical Center from later in February 1993 shows that the veteran was seen with a history of paranoia. His father said that he had been agitated, was not eating or sleeping recently, and had been noted to have hallucinations. The assessment included psychosis. Associated with the file were records from Kennebec Valley Medical Center that show that the veteran was admitted from February 1993 to March 1993 because of not eating, hearing voices of deceased relatives, and fear of sleeping. The veteran reported being seen at Thayer Hospital several times and at Augusta Mental Health Institute about seven to nine years ago. The diagnoses included schizophrenia, paranoid type, chronic, with acute exacerbation. By rating action of June 1994, service connection for a nervous disability was denied. The current appeal to the Board arises from this denial. Records from Mid-Maine Medical Center from March 1995 show that the veteran was admitted with feelings of passive suicidal ideation. Of relevance is that the veteran reported that he was in the army for six months in 1983. He was vague about the reasons for getting out of the service. The diagnostic impressions included schizoaffective disorder, bipolar type, depressed, and polysubstance abuse. Records from the Augusta Mental Health Institute from May 1988 were associated with the file and show that the veteran was admitted because of paranoid behaviors, not eating properly, weight loss, and seclusiveness. There was a report that he had deteriorated in his personal and social habits over the past year. His psychiatric history included that there were no previous mental health contacts. He was in the army for six months in 1984 and received an early discharge, but the reason was unknown. The veteran denied having any nervous or mental condition and did not provide any of the history that was sent down from the hospital regarding his behavior for the past two years. He was guarded about his military service. The diagnoses included paranoid psychosis, possible paranoid schizophrenia. An additional record from the same admission notes that the veteran had become increasingly different in his behavior since around Christmas. It was noted that the veteran would not tell his parents why he was released from the service early. Received in December 1997 were records from Kennebec Valley Mental Health Center from March 1993 to December 1997 that show that in March 1993, the veteran was seen for admission for not eating, hearing voices of dead relatives, and paranoid and disorganized thinking. This was his second psychiatric admission. The first one was in 1988 for similar symptoms. It was noted that the veteran was a poor historian. Records from October 1994 to October 1997 show treatment for schizophrenia. The veteran was seen for medication follow ups in September 1997 and October 1997. The assessment was schizoaffective disorder. Records from the Jackson Brook Institute from April 1994 to May 1994 were associated with the file and show that the veteran was admitted with a history of chronic paranoid schizophrenia. The veteran's mother reported that he was discharged from the service after six months and while she was not clear about the circumstances, she felt that he was probably diagnosed with a mental illness at that time. The principal diagnoses included paranoid schizophrenia, chronic, with acute exacerbation. Additional records from Augusta Mental Health Institute from May 1988 were associated with the file and include progress notes from the veteran's admission that show that the veteran was treated for schizophreniform disorder. A psychiatric treatment record from John Hess, M.D., dated in March 1992 was associated with the file and notes that the veteran was seen at the Kennebec Valley Mental Health Clinic for evaluation. As part of the veteran's past history, it was noted that the veteran was discharged from the Army after 5 months and one would presume that this was related to his psychiatric problems though the veteran would not acknowledge this. The diagnostic impression included schizophrenic disorder, paranoid type, chronic. Admission summaries from KVMHC, Waterville from March 1992 were associated with the file and note that the veteran was seen with sleep and appetite disturbance, thought disorder with paranoia and delusions, and interpersonal isolation. The key factors included paranoid personality disorder, rule out schizophreniform disorder, and rule out schizophrenia, paranoid type, chronic. Associated with the file was a psychological evaluation from the Social Security Administration from April 1992 that shows that the veteran was diagnosed with schizophrenia, paranoid, and other psychotic disorders. It was noted that onset of January 1, 1988 was reasonable. A notation from Kennebec Valley Mental Health Center from June 1998 shows that the veteran's first contact there was in March 1993. In a statement from the veteran's representative, it was noted that the veteran had no treatment at Augusta Mental Health Institute, Mid-Maine Medical Center's Thayre Unit, or Maine General Medical Center (formerly Kennebec Valley Medical Center) prior to May 1988. Associated with the file were records from the Social Security Administration (SSA) that are duplicative of records previously addressed. II. Analysis Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if preexisting such service, was aggravated by service. 38 U.S.C.A. § 1131 (West 1991); 38 C.F.R. § 3.303(a) (1999). Where a veteran served 90 days or more during a war period or after December 31, 1946 and a psychosis becomes manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991 and Supp. 1999); 38 C.F.R. §§ 3.307, 3.309 (1999). A claimant seeking benefits under a law administered by the Secretary of the Department of Veteran Affairs shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. The Secretary has the duty to assist a claimant in developing facts pertinent to the claim if the claim is determined to be well grounded. 38 U.S.C.A. § 5107(a). Thus, the threshold question to be answered is whether the veteran has presented a well grounded claim; that is a claim which is plausible. If he has not presented a well grounded claim, his appeal must fail, and there is no duty to assist him further in the development of his claim as any such additional development would be futile. Murphy v. Derwinski, 1 Vet. App. 78 (1990). In general, to sustain a well grounded claim, the claimant must provide evidence demonstrating that the claim is plausible; mere allegation is insufficient. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). The determination of whether a claim is well grounded is legal in nature. King v. Brown, 5 Vet. App. 19 (1993). A well grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of 38 U.S.C.A. § 5107(a). Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). To be well grounded, a claim must be accompanied by supportive evidence, and such evidence must justify a belief by a fair and impartial individual that the claim is plausible. Where the determinative issue involves a question of either medical causation or diagnosis, medical evidence is required to fulfill the well grounded claim requirement of 38 U.S.C.A. § 5107(a). Lathan v. Brown, 7 Vet. App. 359 (1995). In particular, establishing a well-grounded claim for service connection generally requires medical evidence of a current disability, see Rabideau v. Derwinski, 2 Vet. App. 141 (1992); medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in- service disease or injury and the present disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997) (expressly adopting definition of well- grounded claim set forth in Caluza, supra), petition for cert. filed, No. 97-7373 (Jan. 5, 1998); Heuer v. Brown, 7 Vet. App. 379 (1995); Grottveit v. Brown, 5 Vet. App. 91 (1993). The second and third Caluza elements can also be satisfied by evidence that a condition was "noted" during service or during an applicable presumption period; evidence showing post-service continuity of symptomatology; and 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) (1999); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). In the case of a disease only, service connection also may be established by evidence of the existence of a chronic disease in service or of a disease, eligible for presumptive service connection pursuant to statue or regulation, during the applicable presumption period and present disability from it. Savage, 10 Vet. App. at 495. The veteran is claiming that he currently has a psychiatric disability that was incurred during service. The service medical records are silent regarding complaints, clinical findings, and diagnoses of a psychiatric disability. The evidence in this case reveals that the first postservice evidence of a psychiatric disability was many years postservice. This evidence is contained in the treatment records from the Augusta Mental Health Institute from May 1988 where the veteran was diagnosed with paranoid psychosis, possible paranoid schizophrenia. The veteran has submitted no competent medical evidence to establish a nexus between his current psychiatric disability and his service. The only evidence that would support the veteran's claim is found in his statements. However, lay evidence is inadequate to establish a medical nexus. Epps v. Gober, 126 F.3d 1464 (1997)]. Since all three criteria to establish evidence of a well-grounded claim have not been met, it follows that the veteran's claim must be denied based on his failure to submit evidence of a well-grounded claim. Absent a well-grounded claim, the Board has no duty to assist or decide the case on its merits. The undersigned notes that Dr. Hess in March 1992 noted as follows: "[The veteran] was discharged from the Army after 5 months and one would have to presume that this was related to psychiatric problems though Paul did not acknowledge this." Although this physician "presumed" that the veteran's discharge from service was for psychiatric problems, he did not attribute the veteran's currently diagnosed psychosis to his military service. This statement is not sufficient to well ground the veteran's claim as it does to provide a nexus between the current psychiatric disability and military service. While the representative has argued that the VA has a duty to assist claimants whose claims are not well grounded, this proposition has been rejected by the United States Court of Appeals for Veterans Claims. On July 14, 1999, the Court affirmed a September 6, 1996 Board decision which denied claims for service connection for several disabilities as not well grounded. Morton v. West, 12 Vet. App. 477 (1999). In that case, the Court addressed and rejected the appellant's argument on appeal that, by virtue of various regulations, VA ADJUDICATION PROCEDURE MANUAL M21-1 provisions, and Compensation & Pension Service (C&P) policy concerning the development of claims, VA had taken upon itself a duty to assist in fully developing the facts pertinent to a claim even in the absence of a well-grounded claim. Because there is no duty to assist under 38 U.S.C. § 5107(a) absent the submission of a well- grounded claim, see Epps v. Gober, 126 F.3d 1464, 1467 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 2348 (1998), the Court held that the Secretary cannot undertake to assist a veteran in developing facts pertinent to his or her claim until such a claim has first been established. In the order, the Court addressed and rejected the request of a judge for en banc consideration. Morton v. West, 12 Vet. App. 477 (1999) (per curiam). The veteran having failed to present evidence of a plausible claim for entitlement to service connection for a psychiatric disability, that claim must be denied. ORDER As a well grounded claim has not been presented, entitlement to service connection for a psychiatric disability is denied. Iris S. Sherman Member, Board of Veterans' Appeals