BVA9502442 DOCKET NO. 93-09 402 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a psychosis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Anthony D. Dokurno, Associate Counsel INTRODUCTION The veteran performed active military service from September 1974 to September 1977. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 1993 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) which denied service connection for a psychosis. The Board notes that under 38 U.S.C.A. § 1702 (West 1991) the veteran is entitled to treatment benefits for psychosis. Additionally, he is entitled to a nonservice-connected pension based on schizophrenia. CONTENTIONS OF APPELLANT ON APPEAL The veteran and his representative contend that the veteran has a psychosis which demonstrated its symptomatology within one year of his discharge from service and that his condition persists to the present day. The veteran maintains that he was being examined in October 1977 by VA for a psychosis. The veteran's representative has requested that, if the Board declines to grant the claim, the case be remanded to the RO so that VA and private medical records from 1977 through 1980 may be obtained. DECISION OF THE BOARD The Board, in accordance with 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claim file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the Board's decision that the claim for entitlement to service connection for psychosis is not well- grounded. FINDING OF FACT The veteran and his representative have not presented competent medical opinion or other supporting evidence sufficient to establish that the veteran had a psychosis during service or within one year of separation from service. CONCLUSION OF LAW The veteran has not submitted a well-grounded claim for entitlement to service connection for psychosis. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 5107(a) (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1993). REASONS AND BASES FOR FINDING AND CONCLUSION The threshold inquiry in all cases is whether the veteran's claim is well-grounded. Under 38 U.S.C.A. § 5107, a person who submits a claim to the VA has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well-grounded. If the person meets this burden, the VA is obligated to assist in developing facts pertinent to the claim. A well-grounded claim is one that is plausible, that is, meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). There must be more than a mere allegation. The claim must be accompanied by evidence that justifies a belief by a fair and impartial individual that the claim is plausible. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). Where the issue is factual in nature, e.g., whether an incident occurred during service or whether a clinical symptom is present, competent lay testimony may constitute sufficient evidence to establish a well- grounded claim. See Cartright v. Derwinski, 2 Vet.App. 24 (1991). However, where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. King v. Brown, 5 Vet.App. 19 (1993); Grottveit v. Brown, 5 Vet.App. 91, 92-93 (1993). Any adjudication on the merits of a claim that is not well-grounded constitutes error. Grivois v. Brown, 6 Vet.App. 136 (1994). The clinical evaluation on the veteran's August 1974 induction physical examination reflects that his psychiatric condition was normal. His June 1977 separation examination similarly indicates a normal psychiatric condition on clinical evaluation. On the Report of Medical History completed by the veteran in conjunction with his separation examination, he denied that he had "frequent trouble sleeping," "depression or excessive worry," or "nervous trouble of any sort." He wrote that he was in "perfect health." A claim for disability benefits was received in September 1977 and made no reference to a psychiatric disorder. In October 1977, when the veteran underwent a VA examination for a condition affecting his toes, the examiner specifically noted that there was "no evidence of physical or mental distress. (The veteran) is alert, cooperative, intelligent, and an adequate historian." The examiner also noted that his psychiatric profile appeared normal. VA out-patient treatment records dated in September 1979 show the veteran was seen concerning his toes. No complaints or statements of medical history were noted relevant to the presence of a psychiatric disorder. In a claim for disability received in February 1980, the veteran referred to having been seen at St. Mary's Hospital in West Palm Beach, Florida in 1979 for psychiatric purposes. An August 1980 statement from that facility reveals no record of the veteran. In March 1980, however, the veteran appeared before another VA examiner complaining of auditory hallucinations. The examiner recorded that the veteran reported hearing voices while in service, but had not told others. He also reported that the voices had not gotten worse and "do not torture him," but the examiner noted his flat affect, poor concentration, and poor eye contact. The examiner recommended treatment with Haldol and Cogentin and diagnosed schizophrenia, chronic, undifferentiated type. He also remarked that the condition was not service connected and required no follow-up. The veteran also underwent a VA psychiatric examination in September 1980. The examiner recorded that the veteran had been diagnosed by "previous doctors" (whose identities were unspecified) as having paranoid schizophrenia, and recounted the veteran's assertion that his "nervous condition" had first begun bothering him in service, but that he had told no one. After noting the veteran's pointed avoidance of eye contact, reticence, suspicion, and complaints of auditory hallucinations, the examiner listed a diagnosis of chronic, paranoid schizophrenia. The veteran was admitted to Jackson Memorial Hospital in June 1981, reportedly after an act of violence at home. The private physician recorded the veteran's statement that his "seizures," as he called them, began in 1979 with an instance of dizziness, unconsciousness, and auditory hallucinations. After medication with Trilafon and Cogentin, the veteran stated that he had no auditory or visual hallucinations, and was subsequently discharged. The private physician's final diagnosis was chronic schizophrenia, paranoid type. His prognosis was "(g)uarded." In December 1983 a private clinical therapist reported that the veteran had been a client at the New Horizons Community Mental Health Center since April 1980 and had been receiving psychotropic medication since then. The therapist listed the veteran's diagnosis as chronic schizophrenia, undifferentiated type. Treatment notes from the same community mental health center for February 1983 through June 1992 report the veteran's continuing, occasional hallucinations, controlled by medication. VA records during this interval likewise show the veteran continued to manifest a chronic psychosis. On a hospital report dated in September 1991, the appellant was described as having a history of a psychosis "since 1978." Simply stated, there is no credible indication in the service medical records or the treatment records within one year after service separation of the presence of a psychosis by complaints, findings or statements of medical history. On the other hand, the veteran expressly denied the presence of psychiatric symptoms at his separation examination, and the clinical evaluation at that time, as well as at the VA examination in October 1977, clearly showed that a psychiatric disorder was not present. Although the veteran has since given statements of medical history to the effect that symptoms of a psychiatric disorder were present in service, but that he failed to report them, he made no such allegation at the time of his original claim or in conjunction with his initial treatment. He has also at other times described the onset of the symptoms as being in 1979, at the earliest. Accordingly, the Board does not find his statements of medical history placing the onset of the symptoms of a psychosis in service to be credible. Although the record supports the assertion that the veteran has manifested psychotic symptoms since early 1980, there is no competent medical evidence supporting the allegation that the veteran's condition is attributable to his active service. The United States Court of Veterans Appeals (Court) has held that a lay party is not competent to provide probative evidence as to matters requiring expertise derived from specialized medical education and training. Espiritu v. Derwinski, 2 Vet.App. 492, 494-95 (1992). Moreover, the Court has held that, where the determinative issue involves medical causation or diagnosis, there must be competent medical evidence supporting a claim to make it "plausible" and thus well-grounded. Grottveit, 5 Vet.App. at 93. Accordingly, the veteran is not competent to make a diagnosis of any disability and render an opinion as to its relationship to his active service. The record contains no competent medical evidence linking any current disability with service. The veteran's representative has argued that, if the Board does not find that the veteran's psychosis was incurred in or aggravated by service on the record before it, Board should remand the case to the RO to obtain VA and private treatment records for the period 1977 to 1980. In fact, the claims file contains a number of records from the New Horizons Community Mental Health Center and the VA Medical Center. The above- mentioned December 1983 communication from a therapist at that facility indicated the veteran was not first seen there until April 1980, over 2½ years following service. VA records from the 1977 to 1980 period show no psychiatric disability. The treatment records do not support the allegation that the veteran's psychiatric disorder was incurred in or aggravated by his military service or that symptoms became manifest to a compensable degree within one year of discharge. 38 C.F.R. §§ 3.307, 3.309 (1993). Because all requested records have been sought and either were secured, are unavailable, or are non- existent, a remand to the RO for additional record searches is not warranted. Finally, the Board notes that under the case law of the Court, by dismissing this claim as not well-grounded, the Board does not burden the veteran with a prior, final adjudication on the merits. Thus, if the veteran is able to submit a well-grounded claim in the future, he will not be confronted with the need to surmount the higher hurdle of providing new and material evidence sufficient to reopen a claim after final adjudication. 38 U.S.C.A. §§ 5108, 7104(b); McGinnis v. Brown, 4 Vet.App. 239, 244 (1993). ORDER The claim of entitlement to service connection for a psychosis is dismissed. RICHARD B. FRANK Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.