Citation Nr: 0000420 Decision Date: 01/06/00 Archive Date: 01/11/00 DOCKET NO. 98-20 698 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for anxiety and depression. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Mainelli, Associate Counsel INTRODUCTION The appellant had active service from November 1968 to November 1971, and from April 1982 to May 1982. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 1997 rating decision, in which the North Little Rock, Arkansas, Regional Office (RO) of the Department of Veterans Affairs (VA) denied service connection for anxiety and depression, and determined that new and material evidence had not been submitted in order to reopen a claim for service connection for a back condition. With respect to the back disability claim, the Board notes that the RO found that its April 1972 rating decision, which denied a claim for "service connection" for back disability "FOR HOSPITALIZATION OR TREATMENT PURPOSES ONLY," constituted a prior final denial with respect to the claim currently on appeal. See generally 38 C.F.R. §§ 3.104, 3.160 (1999). Even assuming, arguendo, that the April 1972 rating constituted a prior denial with regard to the compensation claim on appeal, the Board nonetheless notes that the decision never finalized as the appellant was not provided notice of that decision and/or his appellate rights. 38 U.S.C.A. § 5104 (West 1991 & Supp. 1995); 38 C.F.R. §§ 3.103, 3.104 (1999); Hauck v. Brown, 6 Vet App 518 (1994)(where a claimant did not receive proper notification of a denial, the one year period within which to file an NOD did not begin to run). Accordingly, the Board has rephrased the issue listed on the title page in order to more properly reflect the claim on appeal. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). FINDINGS OF FACT 1. The appellant has presented a plausible claim for service connection for a back disability. 2. No competent medical evidence has been presented or secured to establish that a causal relationship exists between the appellant's dysthymic disorder, to include anxiety and depression, and his periods of active service and/or the symptoms manifested in service. 3. The appellant's claim for service connection for anxiety and depression is not plausible. CONCLUSIONS OF LAW 1. The claim for service connection for back disability is well grounded, and VA has a further statutory duty to assist the appellant in developing facts pertinent to this claim. 38 U.S.C.A. § 5107(a) (West 1991). 2. The claim for service connection for anxiety and depression, or any other acquired psychiatric disorder, is not well grounded, and there is no further statutory duty to assist the appellant in developing facts pertinent to this claim. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Summary The appellant contends that his current back disability and dysthymic disorder were incurred or aggravated during his active military service. According to his Application for Compensation and Pension, dated in January 1997, he manifests a lumbar back condition which first began during his first period of active duty in 1970. He was treated for "anxiety/depress[ion]" at a U.S. Naval Hospital in Illinois during his second period of active service in 1982. He did not list any civilian providers of medical treatment following his discharge from service. On his induction examination, dated in November 1968, the appellant reported a history of "recurrent back pain," "frequent trouble sleeping" and "nervous trouble of any sort." The examiner noted "low back strain - healing," "occas[sional] insomnia" and "nervous person," but otherwise evaluated the appellant's psychiatric status and "spine, other musculoskeletal" as "normal." In February 1969, he was prescribed Darvon for a muscle strain of the back. In November 1969, he underwent two weeks of inpatient treatment for left hip pain of undetermined etiology. At that time, x- ray examination of the lumbosacral spine was interpreted as within normal limits. He was given an impression of "lower back pain secondary to flatback" in December 1969. In April 1970, the appellant was hospitalized for complaint of left hip pain radiating into the back. Diagnostic testing failed to reveal an etiological basis for his complaint, but one examiner did entertain a diagnosis of herniated disc. In any event, his injury was noted to be in the line of duty. Subsequently, there were notations of back injuries in April and August 1971. Upon discharge in September 1971, he complained of "frequent trouble sleeping," "depression or excessive worry," "nervous trouble of any sort" and "back trouble of any kind." His psychiatric status was clinically evaluated as "normal", but he was given a diagnosis of "low back pain." In January 1972, the appellant presented to a VA outpatient clinic in St. Louis, Missouri, with complaint of back and nerve problems. He reported being involved in several recent automobile accidents and having difficulty coping with his father's declining health. He was prescribed Fiorinal for his back problems, but the examiner declined any treatment for his nerves at that time. In April 1972, he filed a VA Form 10-7131 requesting medical treatment for a back condition which he believed was aggravated during service. On his induction examination for his second tour of duty, dated in February 1982, the appellant denied complaint frequent trouble sleeping, depression or excessive worry, nervous trouble of any sort, history of treatment for a "mental condition" or recurrent back pain. He reported that his back had been "OK" for the past twelve years and that military examiners failed to find a reason for his complaint of back pain during his first period of service. He was given "normal" clinical evaluations of his psychiatric status and "spine, other musculoskeletal." On May 13, 1982, he presented to the Naval Regional Medical Center in Great Lakes, Illinois, with complaint of blisters on the feet and low back pain. Muscle spasms were noted upon physical examination, and he was treated with balm, aspirin, warm moist soaks and light duty assignment. He returned on May 18, 1982 with complaint of lower back pain and nervousness. He was given an assessment of "strain." He signed a statement, dated on May 20, 1982, waiving further medical examination following a finding that he did not manifest any defect which would disqualify him from the performance of his duties or entitle him to disability benefits from the naval service. VA clinical records next show treatment for back disability and depression in the 1990's. With regard to the back disability, the appellant admitted back problems prior to service. He also reported a worsening of back problems during service which continued beyond his discharge from service. He underwent a diskectomy in 1994. His current diagnoses include osteopenia and degenerative osteoarthritis of the lumbar spine and mild lumbar spondylosis with mild congenital stenosis of the lower lumbar spinal canal. His psychiatric disorder has been variously diagnosed as depression, unspecified anxiety state, depressive disorder not otherwise classified, mixed anxiety, depression and dysthymic disorder. On VA mental disorders examination, dated in May 1998, the appellant reported a 20- year history of depression since his father passed away. He recalled seeing a therapist at six months to one year following his father's death. He further recalled a hospitalization, which included treatment with medication and electroconvulsive shock therapy, for a possible nervous breakdown. His current problems included physical disability and financial difficulties. The examiner noted that the appellant's "problem with anxiety and depression appear to be related to his present life circumstances." It was also noted that he apparently had problems with depression since the loss of his father in 1983. II. Applicable law and regulations In making a claim for service connection, the appellant has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). That is, "a plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). A well grounded claim for service connection requires evidence of 1) a current disability as provided by a medical diagnosis; 2) evidence of incurrence or aggravation of a disease or injury in service as provided by either lay or medical evidence, as the situation dictates; and 3) a nexus, or link, between the in- service disease or injury and the current disability as provided by competent medical evidence. See Caluza v. Brown, 7 Vet.App. 498 (1995); see also 38 C.F.R. § 3.303 (1999). Congenital or developmental defects may not be service- connected because they are not considered "injuries" under VA law and regulations. 38 C.F.R. § 3.303(c) (1999). However, congenital or development defects may be service- connectable where a superimposed injury occurs during, or as a result of, active service. VA O.G.C. Prec. Op. No. 82-90 (July 18, 1990). With respect to the second Caluza requirement, a veteran will be considered to have been in sound condition when examined, accepted and enrolled in service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. 38 C.F.R. § 3.304(b) (1999). Determination of the existence of a pre- existing condition must be supported by contemporaneous evidence, or recorded history in the record, which provides a sufficient factual predicate to support a medical opinion. Miller v. West, 11 Vet.App. 345, 348 (1998). With respect to the third Caluza requirement, medical or, in certain circumstances, lay evidence of a nexus between the symptomatology manifested during service and continued symptomatology following service may satisfy the nexus requirement. See Savage v. Gober, 10 Vet. App. 488, 495 (1997). III. Service connection - back disability Service medical records show that the appellant entered his first period of active service with a low back strain which was presumed to be "healing." However, he received numerous treatments for complaint of back pain which included two hospitalizations. Apparently, he was also involved in two accidents which involved injury to his back. In- service diagnoses included muscle strain, low back pain due to flatback and herniated disc, but the etiology of his low back pain remained underdetermined. His statements of record attest to a worsening of symptoms during service, and continuity of symptomatology thereafter. See Savage, 10 Vet.App. 488 (1997). His current VA medical records indicate that he may have entered service with a congenital defect of the lumbar spine. Based upon the above, the Board finds that the appellant has presented a well grounded claim for service connection for a back disability. As addressed in the remand appended to this decision, the Board is of the opinion that VA orthopedic examination is necessary in order to determine the nature and etiology of the appellant's back disability. IV. Service connection - acquired psychiatric disorder The evidence does show that the appellant voiced complaint of nervousness, sleeping trouble and depression or excessive worry prior to and during his first period of active service. However, he was examined contemporaneously with these symptoms and clinical evaluations indicated a normal psychiatric status. There is no evidence of record suggesting that he was formally diagnosed with an acquired psychiatric disorder, to include depression and anxiety, prior to, or during, his first period of active service. See 38 C.F.R. § 3.304(b) (1999). Intermediate between his first and second periods of active service, VA clinical records reveal the appellant's complaint of nervousness in January 1972. At that time, he was not given a formal diagnosis and the examiner specifically noted that treatment was not warranted. On his induction examination for his second tour of duty, the appellant denied complaint of frequent trouble sleeping, depression or excessive worry and nervous trouble of any sort. He also denied a history of treatment for a "mental condition." Again, he was clinically evaluated as psychiatrically "normal." During service, he complained once of "nervousness" in conjunction with his treatment for a muscle strain of the back, but he was given no formal treatment or diagnosis for an acquired psychiatric disorder. Rather, he was first formally diagnosed with an acquired psychiatric disorder, namely dysthymic disorder, many years following his discharge from his second period of active service. Upon review of the record, the Board finds no medical opinion correlating the appellant's current dysthymic disorder, to include anxiety and depression, to his active service period(s) and/or the symptoms manifested in service. Rather, a VA examiner noted that the appellant had problems with depression since his father passed away subsequent to his discharge from his second period of active service, and that his problems with anxiety and depression appeared to be related to his "present life circumstances." The appellant's statements reflecting his belief that a relationship exists between his in- service symptoms and his current diagnosis, while presumed credible, are not sufficient to well ground his claim. In this respect, he is competent to describe psychiatric signs and symptoms, but he is not qualified to render a medical diagnosis. Grottveitt, 5 Vet.App. at 93. Any linkage of his current symptomatology to that displayed in service requires opinion from a medical practitioner. See Savage v. Gober, 10 Vet.App. 488 (1997); 38 C.F.R. § 3.303(b) (1999) (medical expertise required to relate a current disability etiologically to post- service symptoms). Accordingly, the Board must deny the appellant's claim of service connection for anxiety and depression. See Edenfield v. Brown, 8 Vet.App. 384 (1996) (en banc) (disallowance of a claim as not well grounded amounts to a disallowance of the claim on the merits based on insufficiency of evidence). The United States Court of Appeals for Veterans Claims has recently held that, absent the submission and establishment of a well grounded claim, VA cannot undertake to assist a claimant in developing facts pertinent to his/her claim. Morton v. West, 12 Vet.App. 477, 486 (1999), req. for en banc consideration by a judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam). See also Epps v. Gober, 126 F.3d 1464, 1467 (Fed.Cir. 1997), cert denied, ____ U.S. ____,118 S.Ct. 2348, 141 L.Ed.2d 718 (1998). However, VA may be obligated under 38 U.S.C.A. § 5103(a) to advise a claimant of evidence needed to complete his or her application. See Graves v. Brown, 8 Vet.App. 522 (1996). Review of the claims folder on appeal clearly shows that the appellant has been notified of the type of evidence needed to complete his application. In a letter dated in May 1997, the RO advised the appellant of his need to submit lay and/or medical evidence of treatment for his depression during and following service. Specifically, he was advised to submit "[m]edical evidence from hospitals, clinics, and private physicians who provided treatment, especially soon after separation from service." Additionally, the RO advised him of the reasons and bases for the denial of his claim in a Statement of the Case dated in October 1998. During his May 1998 VA mental disorders examination, the appellant did report clinical treatment for depression following his father's death, to include hospitalization and electroshock therapy. However, he noted at that time that he could not recall the name of the hospital. In a letter dated in September 1998, he identified treatment records from VA in Poplar Bluff and St. Louis as medical records pertinent to his claim. His application for service connection did not list any previous civilian providers of treatment. Additionally, he reported that he had never received treatment for a "mental condition" during his second period of active service. The RO has attempted to obtain all records identified by the appellant, and there do not appear to be any additional sources of relevant information which may be obtainable concerning the present claim. Accordingly, the Board is satisfied that the obligation imposed by section 5103(a) has been satisfied. See generally Wood v. Derwinski, 1 Vet.App. 190 (1991) (VA "duty" is just what it states, a duty to assist, not a duty to prove a claim). ORDER The claim of entitlement to service connection for back disability is well grounded. To this extent only, the appeal is granted. The claim of entitlement to service connection for anxiety and depression, or any other acquired psychiatric disorder, is denied as not well grounded. REMAND As the claim of claim of entitlement to service connection for back disability is well grounded, VA may undertake development to assist the appellant in developing facts pertinent to his claim. See Morton, 12 Vet.App. at 486 (1999). Based upon the particular facts of this claim, the Board is of the opinion that further evidentiary development is necessary. In this respect, the appellant should be afforded VA orthopedic examination, conducted with benefit of review of the claims folder, in order to determine the nature and etiology his back disability. Accordingly, the case is REMANDED for the following: 1. The RO should obtain the appellant's current private and VA medical treatment records, to include inpatient and outpatient records as well as surgical records pertaining to his 1994 diskectomy, and associate those records with the claims folder. 2. The appellant is hereby informed of his right to present any additional evidence or argument while the case is on remand status. Kutscherousky v. West, 12 Vet. App. 369 (1999). 3. When this development is completed, the appellant should be scheduled for VA orthopedic examination in order to determine the nature and etiology of his back disability. The examiner should review the contents of the claims file, and obtain relevant history from the appellant. Following the examination, the examiner should express opinion on the following questions: 1) What is the diagnosis, or diagnoses, of the appellant's back disability; (2) Which of the diagnoses (if any) represents an acquired or congenital disorder; (3) Is it at least as likely as not that any acquired back disability is the result of injury during active service or, alternatively had its onset in service; (4) If a pre- existing back disorder was present prior to either period of service, is it least as likely as not that such disorder underwent a permanent increase in severity in service that was beyond the natural progress of the disorder? and; (5) If the appellant entered service with a congenital disorder of the back, is it least as likely as not that a superimposed injury occurred or resulted from his period(s) of active duty service? The examiner must provide a rationale for the opinions expressed. The claims folder and a copy of this remand should be made available to the examiner. 4. The appellant is hereby advised that, in the event he fails to report for a scheduled VA examination without good cause, his original claim shall be rated based upon the evidence of record. 38 C.F.R. § 3.655(b) (1999). 5. After completion of the above- referenced development, the RO should readjudicate the issue of service connection for back disability on the merits with consideration given to all of the evidence of record and any additional evidence obtained by the RO pursuant to this remand. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the appellant and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto. Thereafter, the case should be forwarded to the Board, if in order. The Board intimates no opinion as to the ultimate resolution of this case. The appellant need take no action unless otherwise notified. 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. NANCY I. PHILLIPS Member, Board of Veterans' Appeals