Citation Nr: 0002280 Decision Date: 01/28/00 Archive Date: 02/02/00 DOCKET NO. 98-11 861A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for a psychiatric disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. M. Rogers, Associate Counsel INTRODUCTION The veteran had active duty from March 9, 1982 to April 18, 1983. This matter comes to the Board of Veterans' Appeals (Board) from a May 1997 rating decision of the Department of Veterans Affairs (VA) Los Angeles, California Regional Office (RO), in which the RO denied entitlement to service connection for a psychiatric disability. The veteran perfected an appeal of the May 1997 decision. FINDINGS OF FACT 1. All relevant evidence necessary for an informed decision on the veteran's claim has been obtained. 2. The claim of entitlement to service connection for a psychiatric disability is plausible and there is competent evidence of a nexus between a current psychiatric disability and active service. CONCLUSION OF LAW The claim of entitlement to service connection for a psychiatric disability is well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background An examination upon entry into service in February 1982 revealed a psychological system. On his February 1982 report of medical history, the veteran stated that he had been treated for a mental condition and that when he was sixteen he saw a psychologist for problems that he had in high school. The veteran's service medical records are negative for complaints, findings, diagnosis or treatment of a psychiatric disability. The veteran's DD214 reveals that the veteran was discharged from the service due to his failure to participate in a drug rehabilitation program. May 1985 private medical records indicated that the veteran was hospitalized and diagnosed according to the Diagnostic and Statistical Manual of Mental Disorders, Revised (DSM-III- R) with atypical psychosis. The medical report also showed that a diagnosis of schizophrenia and bipolar disorder were ruled out. In August 1995 the veteran received treatment for suicidal ideation. After the examination, the private physician found that the veteran met the Diagnostic and Statistical Manual of Mental Disorders, Revised (DSM-III-R) criteria for bipolar disorder. A February 1997 private medical report showed that the veteran had been hospitalized on several occasions from January 1992 to November 1994. The psychiatrist noted that the current diagnoses included bipolar disorder, polysubstance abuse, and an antisocial personality disorder. During a March 1997 VA examination, the veteran reported that he had approximately 15 to 20 psychiatric hospitalizations and he had made several suicide attempts in the past. He further stated that while in the service he was referred to a psychiatrist due to his use of alcohol and hashish. According to the veteran, his first psychiatric treatment occurred in 1984 when he was troubled by insomnia and grandiose thoughts. He was admitted to a psychiatric unit but he refused medication. The VA psychiatrist observed that the veteran was cooperative and slightly tense, and there was no evidence of psychosis. The veteran's cognition, orientation, memory, and speech were within normal limits. The VA psychiatrist found the veteran to be of average intelligence with no suicidal or homicidal ideation expressed. After the examination, the VA psychiatrist concluded that the veteran met the Diagnostic and Statistical Manual of Mental Disorders, Revised (DSM-III- R) criteria for bipolar affective disorder. In March 1997, the veteran told the VA social worker that his mental problems began while he was in the service. He stated that he had difficulty sleeping and he began using hashish to alleviate his insomnia. He further stated that he was treated by a psychiatrist while in the service but he was told that there was nothing wrong with him. After that, the veteran continued to use hashish to relieve stress and insomnia. The veteran complained that he was having problems with insomnia, concentration, irritability, and racing thoughts. The veteran also admitted to still smoking marijuana. The VA social worker found that the veteran has had a history of substance abuse and mental instability since service. The VA social worker explained that while the veteran justified his continuing use of hashish in the service and his continuing use of marijuana as self-medicating in order to alleviate insomnia, the veteran may have been exhibiting early evidence of what became manifest as a psychosis in 1984 and has disabled him to the present. It was also noted that the veteran's adaptability in work situations appears to be severely impaired. A July 1998 private medical report indicated that the veteran had been hospitalized in the past year and that his condition remains semi-stable and unchanged. According to the report, he continues to cycle with insomnia, anger control, and with unpredictable mood swings. He is always defensive and volatile and extremely guarded with paranoid ideation. He continues to use alcohol and smoke marijuana frequently. The report further showed that the veteran met the Diagnostic and Statistical Manual of Mental Disorders, Revised (DSM-III-R) criteria for bipolar disorder, polysubstance dependence, and antisocial personality disorder. His GAF (global assessment functioning) was 65. In August 1998 the veteran again stated that his mental illness, bipolar disorder and psychosis, began in service. He believes that his insomnia is a symptom of his mental illness. The veteran also recounted that he was told by a private physician that his alcohol and marijuana abuse maybe an attempt to medicate the outbreak of any type of manic symptoms. In January 1999 the RO requested treatment records from a private hospital. In February 1999, the RO received a response indicating that no medical records could be located for the veteran. II. Laws and Regulations Under the law, service connection can be granted for any disability resulting from disease or injury incurred in or aggravated during active military service in wartime. 38 U.S.C.A. § 1110 (West 1991). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when 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. 38 C.F.R. § 3.303(b). The threshold question that must be resolved with regard to the claim is whether the veteran has presented evidence that the claim is well grounded. 38 U.S.C.A. § 5107(a); Epps v. Brown, 9 Vet. App. 341 (1996), aff'd , 126 F.3d 1464 (Fed.Cir. 1997), cert. denied, 118 S.Ct. 2348(1998). A well- grounded claim is a plausible claim, meaning a claim that appears to be meritorious on its own or capable of substantiation. Epps, 126 F.3d 1468. An allegation of a disorder that is service connected is not sufficient; the veteran must submit evidence in support of the claim that would "justify a belief by a fair and impartial individual that the claim is plausible." Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). The quality and quantity of the evidence required to meet this statutory burden depends upon the issue presented by the claim. Grottveit v. Brown, 5 Vet.App.91, 92-93 (1993). In order for a claim for service connection to be well grounded, there must be a medical diagnosis of a current disability, medical or lay evidence of the incurrence of a disease or injury in service, and medical evidence of a nexus between the in-service disease or injury and the current disability. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed Cir. 1996)(table). Alternatively, the second and third elements can be satisfied by evidence showing that a disorder was noted during service or any applicable presumptive period, evidence of post- service continuity of symptomatology, and medical or, in some circumstances, lay evidence of a nexus between the present disability and post-service symptomatology. In addition, if the claim for service connection pertains to a disease rather than the residuals of an injury, a well grounded claim can be established by evidence showing a chronic disease in service or during any applicable presumptive period and present disability from that disease. See Savage v. Gober, 10 Vet. App. 488, 495-497 (1997); 38 C.F.R. § 3.303(b). A lay person is not competent to make a medical diagnosis or to relate a medical disorder to a specific cause. Therefore, if the determinant issue is one of medical etiology or a medical diagnosis, competent medical evidence is generally required to make the claim well grounded. See Grottveit, 5 Vet. App. at 93. A lay person is however, competent to provide evidence of an observable condition during and following service. Savage, 10 Vet. App. at 496. If the claimed disability relates to an observable disorder, lay evidence maybe sufficient to show the incurrence of a disease or injury in service and continuity of the disorder following service. Medical evidence is required, however, to show a relationship between the current medical diagnosis and the continuing symptomatology. See Clyburn v. West, 12 Vet. App. 296 (1999). In determining whether the claim is well grounded, the evidence is generally presumed to be credible. See Arms v. West, 12 Vet. App. 188 (1999). If the veteran fails to submit evidence showing that his claim is well grounded, VA is under no duty to assist him in further development of the claim. See Schroeder v. West, 12 Vet. App. 184 (1999). VA may, however, dependent on the facts of the case, have a duty to notify him of the evidence needed to support his claim. 38 U.S.C.A. § 5103; see also Robinette v. Brown, 8 Vet. App. 69, 79 (1995). The veteran has not reported the existence of any other records that, if obtained, would make his claim well-grounded. Beausoleil v. Brown, 8 Vet. App. 459 (1996). The Board has no further duty, therefore, to notify him of the evidence needed to support his claim. McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997). III. Analysis The veteran contends that he has a bipolar disorder and psychosis as the result of problems in service. An August 1995 psychiatric examination, a February 1997 medical report, a March 1997 VA psychiatric examination, and a July 1998 psychiatric examination all show a diagnosis of bipolar disorder. A May 1985 private medical report shows a diagnosis of psychosis. The veteran's service medical records reflect no symptoms or clinical findings pertaining to a psychiatric disability. However, the medical evidence shows that the veteran has a bipolar disorder and psychosis, and the social worker in March 1997 suggested that the veteran's substance abuse in service may have been an early manifestation of psychosis. This is competent evidence of a nexus between his acquired psychiatric disability and active service. Therefore, the Board finds that the claim of service connection for psychiatric disability is well grounded. See 38 U.S.C.A. § 5107. ORDER The claim of entitlement to service connection for a psychiatric disability is well-grounded. To this extent, the appeal is allowed. REMAND The Board finds the veteran's claim for service connection for a psychiatric disability is well-grounded, meaning plausible, and based on a review of the file, there is a further VA duty to assist him in developing the facts pertinent to the claim. See 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1999); 38 C.F.R. § 3.159 (1999); Proscelle v. Derwinski, 2 Vet.App. 629, 631- 32 (1992); Epps v. Brown, 9 Vet. App. 341 (1996), aff'd , 126 F.3d 1464 (Fed.Cir. 1997), cert. denied, 118 S.Ct. 2348(1998). Accordingly, this case is REMANDED to the RO for the following development: 1. The veteran should be afforded a VA psychiatric examination to determine the etiology of his psychiatric disability. The claims file and a copy of this remand should be made available to and be reviewed by the examiner in conjunction with the examination. The examination should include any diagnostic tests or studies, that are deemed necessary for an accurate assessment. The examiner should also provide an opinion, based on a review of the evidence in the case file, as to whether it is less likely, more likely or as likely as not that the veteran's psychiatric disability had its onset in service or that a psychosis was manifested within his first year of post-service. 2. The RO should then review the claims file to ensure that the above requested development has been completed. In particular, the RO should ensure that the requested examination and opinion are in complete compliance with the directives of this remand and, if they are not, the RO should take corrective action. See Stegall v. West, 11 Vet. App. 268 (1998). 3. After undertaking any additional development deemed appropriate in addition to that requested above, the RO should adjudicate the issue of entitlement to service connection for a psychiatric disability on the merits of the case. In the event that any benefit sought is not granted, the veteran and his representative should be furnished with a Supplemental Statement of the Case and be given the opportunity to respond. The case should then be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. 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). 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 Veterans Appeals 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. _____________________________________ THOMAS J. DANNAHER Member, Board of Veterans' Appeals