Citation Nr: 0002939 Decision Date: 02/04/00 Archive Date: 02/10/00 DOCKET NO. 97-17 590 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for major depression. 2. Entitlement to service connection for a personality disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Johnson, Associate Counsel INTRODUCTION The veteran served on active duty from February 28, 1974 to May 7, 1974. This matter came to the Board of Veterans' Appeals (Board) from a February 1997 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York, which denied the claims of entitlement to service connection for major depression and a personality disorder. In March 1998, the veteran testified before the undersigned, and presented additional evidence with the proper waiver of Agency of Original Jurisdiction consideration as provided under 38 C.F.R. § 20.1304. In June 1998, the Board remanded this case. The requested actions were completed, and the case has been returned to the Board. FINDINGS OF FACT 1. There is no competent (medical) evidence of record that establishes the incurrence or aggravation of major depression during the veteran's service. 2. The veteran's personality disorder is not a ratable disability for VA compensation purposes, and the claim for service connection for a personality disorder has no legal basis. CONCLUSIONS OF LAW 1. The veteran has not submitted a well-grounded claim for service connection for major depression. 38 U.S.C.A. § 5107(a) (West 1991). 2. The claim for service connection for a personality disorder has no legal merit. 38 U.S.C.A. §§ 1110,1131 (West 1991); 38 C.F.R. § 3.303 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A November 1972 report from Hall-Brooke Hospital shows that upon admission, the veteran was diagnosed with adjustment reaction of adolescence. The mental status report reflects the examiner's diagnostic impression of non-psychotic development towards psychopathic tendencies. It was further noted that interpersonal anxiety was high, and from the record, it was normal for the veteran to fight with those who are close to him. The examiner felt that the veteran had started to develop in a psychopathic and sociopathic direction. The examiner diagnosed group delinquent reaction of adolescence. The service medical records, including the February 1974 enlistment examination and medical history reports, are negative with respect to psychiatric disorders. The records also show that there were problems with the veteran's behavior during service. Of record are hospitalization reports from Fairfield Hills Hospital, which reflect psychiatric treatment in 1975 and 1976. In May 1975, he was diagnosed with maladjustment reaction of adolescence. At that time, it was noted that there was a history of psychiatric treatment at Griffin Hospital in 1972. Other reports from 1975 and 1976 reflect reported diagnoses of antisocial type personality disorder and depressive neurosis. The veteran was admitted to Connecticut Valley Hospital in December 1976, and was initially diagnosed with latent type schizophrenia by history. However, the ultimate diagnosis was antisocial type personality disorder. It was noted that his psychiatric history dated back to 1975 when he was diagnosed with antisocial personality at Fairfield Hospital. In reports dated in 1976 and 1978, there are noted diagnoses of antisocial personality, passive aggressive personality, borderline personality, and depressive neurosis. In a March 1978 report, an examiner noted that the veteran had been hospitalized in 1972 at Hall-Brooke Hospital because of his suicide threats and antisocial behavior, and opined that the veteran's general surroundings and early upbringing had much to do with his chronic maladjustment, as well as his legal and psychiatric difficulties. Records of the veteran's hospitalization at Norwich Hospital in 1978 and 1979 indicate that the veteran was diagnosed with antisocial personality and depressive neurosis. In a May 1988 intake report from the Oneida County Department of Health, it was noted that the veteran's previous contact with an agency had been in 1979 and 1980 while in Connecticut, and that he was treated for three or four months for depression and his being suicidal. The following history was reported: criminal activity and problems with alcohol, dating back to the age of 15; at the age of 17, he took his father's revolver and threatened some kids who pushed him, and was given the option of serving time in jail or entering service; a history of fighting during service; and alcohol abuse since age 8. In a September 1990 report from Mohawk Valley Psychiatric Center, it was reported that the veteran had a history of a breakdown at the age of 17 due to the death of his grandmother, which occurred while he was in service. His history of suicide attempts dated back to the age of 15. His multiple hospitalizations were noted. Upon his admission, he was diagnosed with chronic paranoid schizophrenia with acute exacerbation. The final diagnoses reported in October 1990 were adjustment disorder not otherwise specified, and personality disorder not otherwise specified. In an October 1991 report from the Oneida County Department of Health, a history of treatment in 1990 and 1991 was mentioned. It was reported that the veteran was honorably discharged from service after three months because he could no longer cope, and since that time, he has been jailed for offenses such as arson, burglary and bad checks. The veteran was diagnosed with borderline personality disorder with antisocial features. Records from Madison County Health Department, reflecting treatment from 1992 to 1994, are associated with the claims folder. There are records that indicate that the veteran was receiving disability benefits from the Social Security Administration based on a determination that he suffers from post-traumatic stress disorder (PTSD). The records also reflect diagnoses of alcohol abuse, PTSD, and adjustment disorder rule out major depression. These records also include a social worker's report and conclusions based on interviews conducted in May and June 1994. The social worker noted that the veteran's contact with that particular facility commenced in April 1987, and that he used their services intermittently. Prior reported diagnoses included recurrent major depression, PTSD, borderline personality traits, and antisocial personality traits. It was further noted that the records from the Oneida County Mental Health Department were duplicative of the veteran's Madison County experience, which was intermittent crisis based treatment with failure to pursue treatment recommendations and the same diagnostic background. The veteran reported a military history of an honorable discharge from service in 1978, but declined to give his consent for the facility to obtain information from the VA for purposes of verifying contradictory information regarding his service. At that time, the veteran related his feelings of depression back to his childhood when he suffered from abuse. The social worker noted that the veteran displayed persistent distress disability and risk of harm to himself and others. His depression was considered to be of major proportions at times and are recurrent in nature. The social worker pointed out that the veteran's use of alcohol complicated a diagnostic evaluation since it precipitates or exacerbates his depression. The social worker noted that the veteran seemed to abuse and was perhaps dependent on alcohol, and this syndrome needed to be properly diagnosed so his mental health problems could be more clearly discerned. The social worker indicated that the diagnosis of PTSD seemed to be based on past reports of being a Vietnam veteran and the report of the veteran killing a child. However, the social worker noted that the reports were unverified due to the veteran's refusal to consent to access his military records. It was also indicated that the veteran's childhood abuse might support the diagnosis of PTSD. The social worker determined that major depression seemed to be the more valid syndrome. Also, there may have been a malingering facet to the veteran's reported distress that needed to be ruled out. In this regard, the social worker offered an example of how the veteran reported that working around others distresses him, yet he enjoys going to the casino with its crowds. The diagnoses reported were rule out malingering, rule out PTSD, rule out alcohol dependence and abuse, recurrent major depression in partial remission, and antisocial personality traits. VA treatment records, covering a period of treatment from 1996 to 1999, reflect the diagnoses of personality disorder, antisocial borderline personality, borderline personality disorder, antisocial personality disorder, depressive disorder, major depressive disorder with psychotic features in remission, and rule out PTSD. In October 1996, it was noted that the veteran suffered an anxiety attack. In a January 1998 report, a psychologist noted diagnoses of schizophrenia, paranoid type, continuous, as well as polysubstance dependence, self-reported sustained, full remission, and antisocial personality disorder, provisional. In March 1998, the veteran testified that he entered service at the age of 17. He mentioned that he had a close relationship with his grandmother, and became upset and depressed when he was not allowed to attend his grandmother's funeral, even though he was initially given permission to do so. After that incident, his attitude changed and he started having problems, and he was disciplined after he was charged with being disrespectful to a noncommissioned officer. He experienced difficulties with depression immediately after service because he had problems securing employment and his unemployment had run out. He also mentioned that since service he has had legal troubles, and that he was not allowed to reenlist in another branch of service. He was placed in a state hospital due to a suicide attempt in either 1970 or 1975. Eventually he was eligible to receive disability benefits from SSA. Although he was not certain of the basis for the grant of benefits, he did note that his personality disorders were mentioned. He testified that a VA physician related his psychiatric problems to the death of his grandmother, but he could not recall which physician reached that conclusion, or when it was made. He mentioned that other than problems with school, he felt that he had a pretty happy childhood. Of record is an SSA decision of March 1998 regarding the grant of benefits. The personality disorder was considered the primary diagnosis, and anxiety disorder was found to be secondary. Pursuant to the Board's remand, a VA examination was conducted in February 1999. The examiner observed that the veteran was agitated and short tempered, and that his demeanor was immature. There was no evidence of thought blocking, and his insight and judgment were poor. He denied recently feeling suicidal. He reported that he heard voices back in 1974. The examiner noted that the veteran had been variously diagnosed with psychotic symptoms as well as PTSD, and most recently adjustment reaction with depressed mood. The veteran has been on a diazepam and Risperdal regimen. He had a history of alcohol abuse until 1982, and it was noted that he stopped drinking because he was arrested and could not get alcohol while in jail. He has rarely had alcohol since then. In the past, the veteran was on Trilafon, Haldol and Mellaril to control his hallucinations. According to the veteran, his emotional problems started in childhood because he always disappointed others. He was administered the MMPI and Beck Depression Inventory. He received a score of 38 on the Beck Depression Inventory, which is consistent with extremely severe depression. His MMPI profile was invalid. The examiner noted that the veteran appeared to be malingering and overdramatized his symptoms. The examiner diagnosed adjustment reaction with depressed mood, and antisocial personality disorder by history. The examiner opined that the veteran's emotional debilitation, in particular his depression, is not related to service experiences. II. Legal Analysis Under applicable criteria, service connection will be granted for a disability resulting from personal injury suffered or disease incurred or aggravated during service. 38 U.S.C.A. §§ 1110, 1131 (West 1991). If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (1999). Service connection may also be granted for a disease first diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). A claimant for benefits under a law administered by the Secretary of the Department of Veterans 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) (West 1991). Thus, the threshold question is whether the veteran has presented evidence of a well-grounded claim under 38 U.S.C.A. § 5107(a) for service connection for major depression. There must be more than a mere allegation; a claimant must submit evidence that justifies a belief by a fair and impartial individual that the claim is plausible. Murphy v. Derwinski, 1 Vet. App. 78 (1990), Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). If he has not, his appeal must fail and there is no duty to assist him in the development of facts pertinent to that claim. 38 U.S.C.A. § 5107(a) (West 1991). For a claim of service connection 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 inservice injury or disease and the current disability (medical evidence). The nexus requirement may be satisfied by a presumption that certain diseases manifesting themselves within certain prescribed periods are related to service. Caluza v. Brown, 7 Vet. App. 498 (1995). As explained below, the Board finds that the veteran's claim is not well grounded. Presuming the truthfulness of the evidence for the purpose of determining whether this claim is well grounded, the Board notes that the record on appeal includes medical records and reports dated prior to, during and after service. As presented above, the medical records do show that the veteran has been diagnosed with major depression. Therefore, the first requirement for a well-grounded claim has been met. However, the evidence is lacking with respect to the second requirement, incurrence or aggravation of the condition during service. Here, the record shows that the veteran had a history of psychiatric problems prior to his entry into service. As noted, he was treated in November 1972 at Hall-Brooke Hospital and diagnosed with group delinquent reaction of adolescence. Also, the examiner pointed out that the veteran had started to develop psychopathic and sociopathic tendencies. The service and post-service records document the veteran's ongoing psychiatric and behavioral problems. However, an actual diagnosis of depressive neurosis first appears in records dated in 1975, and a solid diagnosis of major depression was noted in an evaluation report by a social worker in 1994. Despite these reported diagnoses, the VA and non-VA records are void of medical opinions which specifically state that any of the psychiatric conditions diagnosed were related to his service with regard to incurrence or aggravation. However, the veteran did testify that a VA physician opined that his major depression was related to the death of his grandmother, which did occur during service. A review of the VA treatment reports of record are negative with regard to that particular opinion. In fact, the VA examiner in February 1999 opined that the veteran's emotional debilitation, particularly his depression, is not related to his service experiences. At this point, this is the only opinion from a medical professional which addresses this matter, and other opinions in support of the veteran's assertions are not of record. Therefore, the second requirement for a well-grounded claim has not been met since the incurrence or aggravation of depression has not been shown by the evidence of record. Normally, where the issue is factual in nature, e.g., whether an incident or injury occurred in service, competent lay testimony, including the veteran's solitary testimony may constitute sufficient evidence. Grottveit v. Brown, 5 Vet. App. 91 (1993). Therefore, the veteran's account of events during service is sufficient with regard to showing that he found certain events were depressing. However, the United States Court of Appeals for Veterans Claims (Court) has held that where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to render a medical opinion. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). The assertions of a lay party on matters of medical causation of a disease or disability are not sufficient to make a claim well grounded. Moray v. Brown, 5 Vet. App. 211 (1993). As stated, the evidence of record is void with regard to medical opinions that support the veteran's contention that his major depression is related to service. Therefore, the veteran's assertions, standing alone, do not constitute competent medical evidence of a well-grounded claim. 38 U.S.C.A. § 5107(a) (West 1991). Here, the veteran and his representative have argued that the February 1999 VA examination was inadequate because the examiner failed to accomplish the actions set forth in the Board's June 1998 remand. The Board finds that the examiner performed the essential acts requested in the remand, which was to review the medical records and offer an opinion regarding any relationship between the psychiatric disorders diagnosed and the veteran's service. Therefore, the examination is adequate. Another examination would not be in order since the Board has concluded that the claim is not well grounded. As discussed, the controlling statute, 38 U.S.C.A. § 5107, specifically requires that a claimant for VA benefits present a well-grounded claim, and if a claimant has not presented a well-grounded claim there is no "duty to assist" the claimant. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Consequently, the veteran has not met the initial burden under 38 U.S.C.A. § 5107(a) (West 1991) as the lay evidence submitted does not cross the threshold of mere allegation. Thus, the claim is not well grounded, and the Board does not have jurisdiction to adjudicate it. Boeck v. Brown, 6 Vet. App. 14 (1993). Accordingly, the veteran 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). There is no prejudice to the appellant in denying the claim as not well-grounded even though the RO decision was on the merits, because the "quality of evidence he would need to well ground his claim or to reopen it would seem to be...nearly the same..." Edenfield v. Brown, 8 Vet. App. 384 (1995)(en banc). Compare Bernard v. Brown, 4 Vet. App. 384 (1993). To obtain further consideration of the matters on appeal before the Board, the veteran may file a claim supported by medical evidence connecting his major depression to his period of service. Regarding the claim of service connection for a personality disorder, the evidence of record clearly shows that the veteran has been diagnosed with the disability he claims is service-connected, a personality disorder. However, under 38 C.F.R. § 3.303(c), congenital or developmental defects, refractive error of the eye, personality disorders and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation. Where a claim is absent of legal merit or there is a lack of entitlement under the law, it must be terminated. Sabonis v. Brown, 6 Vet. App. 426 (1994). Therefore, service connection cannot be granted for a personality disorder, as is requested here. ORDER The claim of entitlement to service connection for major depression is not well grounded, and the appeal is denied. The claim for service connection for a personality disorder is denied as having no legal merit. J. E. Day Member, Board of Veterans' Appeals