Citation Nr: 0007547 Decision Date: 03/21/00 Archive Date: 03/28/00 DOCKET NO. 97-34 435 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUES 1. Entitlement to service connection for a chronic acquired psychiatric disability. 2. Entitlement to special monthly pension based on the need for the regular aid and attendance of another person or due to being housebound. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Robert E. O'Brien, Counsel INTRODUCTION The veteran had almost 15 years of active service at the time of his separation from the Navy in January 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 1997 rating decision of the VARO in Houston. At that time it was determined that the veteran was entitled to nonservice-connected pension benefits based on major depression with psychotic features, from July 10, 1996. The disability was rated as 100 percent disabling. FINDING OF FACT There is competent evidence that the veteran's current bipolar disorder is related to active service. CONCLUSION OF LAW The claim for service connection for a chronic acquired psychiatric disability is well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The threshold question to be answered is whether the appellant has presented evidence of a well grounded claim, that is, a claim which is plausible and meritorious on its own or capable of substantiation. If he has not, his appeal must fail and the Board has no duty to further assist him with the development of his claim. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78 (1990). Case law provides that, although a claim need not be conclusive to be well grounded, it must be accompanied by evidence. A claimant must submit supporting evidence that justifies a belief by a fair and impartial individual that the claim is plausible. Dixon v. Derwinski, 3 Vet. App. 261, 262 (1992); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In order for a claim to be well grounded, there must be competent evidence of 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). Caluza v. Brown, 7 Vet. App. 498 (1995); see also Epps v. Gober, 126 F.3d 1464 (1997) cert. denied 118 S.Ct. 2348 (1998). Under the provisions of 38 C.F.R. § 3.303(b), chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. The second and third Caluza elements can also be satisfied under 38 C.F.R. § 3.303(b) (1998) by (a) evidence that a condition was "noted" during service or during an applicable presumption period; (b) evidence showing post- service continuity of symptomatology; and (c) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Clyburn v. West, 12 Vet. App. 296 (1999); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); 38 C.F.R. § 3.303(b). Alternatively, service connection may be established under § 3.303(b) by evidence of (i) the existence of a chronic disease in service or during an applicable presumption period and (ii) present manifestations of the same chronic disease. Brewer v. West, 11 Vet. App. 228, 231 (1998). Where the determinant issue involves a question of medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible or possible is required to establish a well-grounded claim. Sacks v. West, 11 Vet. App. 314, 315 (1998); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Lay assertions of medical causation or diagnosis cannot constitute evidence to render a claim well grounded under 38 U.S.C.A. § 5107(a); if no cognizable evidence is submitted to support a claim, the claim cannot be well grounded. Id. Evidentiary assertions accompanying a claim for VA benefits must be accepted as true for purposes for determining whether the claim is well grounded, unless the evidentiary assertion is inherently incredible or the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19, 21 (1993). Analysis A review of the evidence of record discloses that there is competent evidence of an inservice injury in the form of the service medical records showing a self-inflicted laceration of the wrist. There are current diagnoses of psychiatric disability, and an opinion by a VA psychiatrist following examination in April 1998 that the veteran's current bipolar disorder was related to veteran's laceration of his wrists during service. Accordingly, the Board finds that the veteran has satisfied all three of the Caluza elements for a well-grounded claim for service connection for a psychiatric disability. ORDER The claim for service connection for a chronic acquired psychiatric disability is well grounded. REMAND Inasmuch as the veteran's claim for service connection is well grounded, the Board has a duty to assist the veteran with the development of his claim. 38 U.S.C.A. § 5107(a). The Court has not yet had occasion to specify the elements necessary for a well-grounded claim for special monthly pension. The Board has found that the claim for special monthly pension based on the need for aid and attendance or on account of being housebound is well grounded. The veteran's psychiatric disability is currently rated as 100 percent disabling, and he asserts that it essentially confines him to his home. The record shows that in April 1998, the veteran reported that he was receiving regular treatment at the Victoria, Texas VA outpatient center. Records of this treatment are not part of the claims folder. Under Bell v. Derwinski, 2 Vet. App. 611 (1992), VA is deemed to have constructive knowledge of certain documents which are generated by VA agents or employees, including VA physicians. Id. at 612-13. If those documents predate a Board decision on appeal, are within VA's control, and could reasonably be expected to be part of the record, then "such documents are, in contemplation of law, before the Secretary and the Board and should be included in the record." Id. at 613. If such material could be determinative of the claim, a remand for readjudication is in order. Dunn v. West, 11 Vet. App. 462, 466 (1998). It has also been reported that the veteran is in receipt of Social Security Administration disability benefits. Pursuant to its statutory duty to assist, "VA has a duty to assist in gathering social security records when put on notice that the veteran is receiving social security benefits." Clarkson v. Brown, 4 Vet. App. 565, 567-68 (1993); see Murincsak v. Derwinski, 2 Vet. App. 363 (1992) (pursuant to duty to assist, VA must seek to obtain all pertinent records, including Social Security Administration records, of which it is put on notice); Masors v. Derwinski, 2 Vet. App. 181, 187- 88 (1992); 38 C.F.R. § 3.159 (1999). The Board also notes that while the veteran has been afforded examinations for aid and attendance or housebound status, there is no opinion in the record as to whether the veteran is in fact housebound. VA regulations provide that where "diagnosis is not supported by the findings on the examination report or if the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes." 38 C.F.R. § 4.2 (1996); see 38 C.F.R. § 19.9 (1996). Where the Board makes a decision based on an examination report which does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination.'" Goss v. Brown, 9 Vet. App 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569 (1993). In view of the foregoing this case is remanded for the following: 1. The RO should obtain the names and addresses of all medical care providers who have treated the veteran for any disability since 1991. After securing the necessary release, the RO should obtain these records. The RO should also take all necessary steps to obtain all records of the veteran's treatment at the Victoria, Texas, VA outpatient treatment facility. 2. The RO should obtain from the Social Security Administration the records pertinent to the appellant's claim for Social Security disability benefits as well as the medical records relied upon concerning that claim. 3. If the RO obtains additional information, it should be referred to the examiners who conducted the September 1998 psychiatric examination, and the examiners should be requested to review the evidence and report whether it changes the opinions reported on that examination. 4. The veteran should be afforded an appropriate examination to determine whether he is in need of regular aid and attendance or is housebound. The examiner should specifically report whether the veteran is bedridden, unable to dress or undress himself, to keep himself ordinarily clean and presentable, to feed himself due to loss of coordination in the upper extremities or weakness, to attend to the wants of nature, or to protect himself from the hazards incident to his environment. The examiner should also opine as to whether the veteran is able to leave his home and its immediate premises. The examiner should review the claims folder prior to completing the examination. 5. If the examiners who conducted the September 1998 examination are unavailable to review the additional evidence obtained through this remand, the veteran should be afforded an appropriate examination in order to obtain an opinion as to whether any current psychiatric disability is related to service, including the incident in which he attempted to slash his wrists in 1960. The examiner should review the claims folder prior to completing the examination, and should provide an explanation for any opinion given. 6. If the additionally obtained evidence reveals additional physical disability, or a worsening of the already recognized chronic obstructive pulmonary disease, the veteran should be afforded appropriate examinations to evaluate the severity of those disabilities. The examiners should review the claims folder prior to conducting those examinations. 7. The RO should ensure that all requested development has been completed (to the extent possible) in compliance with this REMAND. If any requested action is not undertaken, or is deficient in any manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). The veteran is advised that the examinations requested in this remand are necessary to adjudicate his claims, and that his failure without good cause, to report for scheduled examinations could result in the denial of his claims. 38 C.F.R. § 3.655 (1999). 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. Mark D. Hindin Member, Board of Veterans' Appeals