Citation Nr: 0003318 Decision Date: 02/09/00 Archive Date: 02/15/00 DOCKET NO. 98-20 513 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for an acquired psychiatric disorder to include post traumatic stress disorder and a dysthymic disorder. ATTORNEY FOR THE BOARD Bernie Gallagher, Counsel INTRODUCTION The veteran had active service from June 1967 to May 1970. This matter comes before the Board of Veterans' Appeals (the Board) on appeal as a result of a rating decision in November 1997 by the Department of Veterans Affairs (VA) regional office (RO) in New Orleans, Louisiana. This rating decision denied entitlement to service connection for an acquired psychiatric disorder, to include post traumatic stress disorder (PTSD) and a dysthymic disorder, boils and peripheral neuropathy secondary to exposure to herbicides and swollen feet and an enlarged heart. The veteran was originally represented in this appeal by the Veterans of Foreign Wars. In November 1998, A VA Form 22a was received which disclosed that James E. Stanley, Jr., attorney, had been designated as the veteran's representative. In November 1998, a letter was received from Mr. Stanley, which requested a personal hearing and indicated that the veteran was only appealing the issue of service connection for PTSD and a dysthymic disorder. The hearing was eventually scheduled in February 1999. The veteran failed to appear for the scheduled hearing. Subsequently, in a letter received in March 1999, Mr. Stanley noted that he was withdrawing as the veteran's counsel. In a report of contact in May 1999, a VFW appeals consultant reported that when the VA Form 2-22a was submitted, it had the effect of revoking the VFW power of attorney. VFW considered that the old VAF 21-22, dated August 6, 1997, had been revoked. It was suggested that the veteran be afforded an opportunity to select a new representative. In June 1999, the Board's Director of Administrative Services provided the veteran an opportunity to select a new representative. He was given 30 days to respond. The veteran failed to do so. FINDINGS OF FACT 1. The veteran was not engaged in combat in Vietnam. 2. The veteran does not have a diagnosis of PTSD and therefore this claim is not plausible. 3.. There is no competent medical evidence of a dysthymic disorder in service or of a nexus between dysthymic disorder and service. CONCLUSION OF LAW The claim for service connection for a psychiatric disorder to include PTSD and a dysthymic disorder is not well grounded, and there is no statutory duty to assist the appellant in developing facts pertinent to these claims. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual background The veteran served in Vietnam from January 1968 to August 1969. His military occupational specialty was general vehicle repairman. His service personnel records disclose that he received a special court-martial in May 1970 for violation of a general regulation, operating a vehicle while drunk, and behaving with disrespect toward his superior officer. He also received a summary court martial for two periods of absence without leave (AWOL) in July and August 1970. The service medical records disclose the veteran received a psychiatric evaluation in May 1970 prior to discharge from service. He had received a total of 6 Article 15's and one special court martial for disrespect of an officer. He admitted to extensive use of drugs. He stated that he did not wish to complete his obligation and his only wish was to become separated from service to join the Black Panthers. He felt prejudice against him in service an the only solution was to be discharged. The examiner stated that the veteran did not manifest a psychosis or neurosis. He believed the veteran would not adjust to military service. He was found to be mentally responsible and able to distinguish right from wrong and adhere to the right. He had the mental capacity to understand and participate in board proceedings. On the report of medical history at the time of the separation examination in May 1970, the veteran denied that he had any psychiatric symptoms and a psychiatric disorder was not noted on this examination. The veteran filed his initial claim for PTSD in August 1997. The veteran received a VA psychological evaluation in September 1997. He described his military history including the incident where he struck an officer, for which he served five months in a stockade. He claimed that his duties as a supply clerk included convoy missions delivering supplies and as a security guard guarding the perimeter. He claimed the worst thing that happened to him was receiving incoming rounds at night. Also, a friend was killed on a convoy mission. He reported extensive alcohol use, as well as marihuana and cocaine. On mental status/behavioral observation, the veteran appeared mildly depressed but there was no evidence of agitation or anxiety. He appeared to relate well socially and the examiner saw no evidence of problems with attention, concentration, memory, etc. There was no evidence of a psychosis. Results of psychological testing showed that the raw scale on the Mississippi Scale was 105 which was below the cutoff suggested for Vietnam veterans and well below the mean (average) found for the population. The summary disclosed that the veteran was very open and honest in providing information for this assessment. Unfortunately, the evaluation was made more difficult because of the veteran's strong history of strong substance use problems, including current use. Neither the self-report, psychological testing, nor the interview supported the diagnosis of PTSD. His self report did not indicate the first and primary criterion of a traumatic event, in spite of twice prompting him about the bad experiences in Vietnam. It appeared the closest event to a trauma was the death of his friend in the convoy but the veteran was not in immediate proximity to the death. He principally served as a supply clerk and the examination request sheet indicated that "Vet's DD 214 did not show verifiable stressor." Even his bad dreams and nightmares related to mortar sounds and not death, direct traumatic injury, etc. Lastly, his report did not meet minimal criteria of DSM-IV for a diagnosis of PTSD. The examiner reported that although the claims file was not available, it did not appear critical in this case because he believed the current findings would remain unchanged and , especially because this was the initial evaluation for PTSD and there was no history of psychiatric treatment. The veteran's history and current use of substances made the issue of his depression more difficult to assess. He did not seem to meet the criteria for major depression. He did report symptoms consistent with a diagnosis of dysthymic disorder but this diagnosis was complicated by the regular use of alcohol and other substances and called into question whether the diagnosis of dysthymia should be included, or whether the depression could be related to the substance abuse. In addition, the veteran noted that he drank and used heroin in service, even though he did not attribute any problems to that use in service. The clinical assessments were: dysthymic disorder; alcohol dependence; cannabis use, in partial remission. Legal Analysis Establishing service connection for a disability requires the existence of a current disability and a relationship or connection between that disability and a disease contracted or an injury sustained during service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. §§ 3.303 and 3.304 (1998); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). The United States Court of Veterans Appeals for Veterans Claims in Cohen v. Brown, 10 Vet. App. 128, stated that Section 5107(a) of title 38, U.S. Code, provides in pertinent part: "[A] person who submits a claim for benefits under a law administered by the Secretary 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 Court has defined a well-grounded claim as follows: "[A] plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of [section 5107(a)]." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). A well-grounded service-connection claim generally requires medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of nexus between an in-service injury or disease and a current disability. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). For purposes of determining whether a claim is well grounded, the evidence is generally presumed to be credible. See Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995) (citing King v. Brown, 5 Vet. App. 19, 21 (1993)). In order for a claim for service connection for PTSD to be successful, there must be (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed inservice stressor actually occurred; and (3) a link, established by medical evidence, between the current symptoms and the claimed inservice stressor. 38 C.F.R. § 3.304(f) (1998) (as amended, 64 Fed. Reg. 32807-32808 (June 18, 1999), effective March 7, 1997); see also Cohen v. Brown, 10 Vet. App 128 (1997). In this case, the veteran has failed to satisfy the first element of a well-grounded claim for service connection for PTSD because the medical evidence does not establish the existence of PTSD. The VA psychological evaluation noted that test scores were well below the cutoff suggested for Vietnam veterans. Also, his self report did not indicate the first and primary criterion of a traumatic event. In addition, the veteran's examination report did not meet the minimal criteria of DSM-IV for a diagnosis of PTSD. The veteran has not presented any competent medical evidence demonstrating the existence of PTSD. Therefore, this claim is not plausible and therefore not well grounded. With regard to the claim for service connection for a dysthymic disorder or other acquired psychiatric disorder, the Board notes that the psychiatric evaluation prior to the veteran's separation from service disclosed no evidence of any psychoses or neurosis. In addition, the VA examiner reported the veteran's regular use of alcohol and other substances called into question the current diagnosis of dysthymia because the current depression could be related to substance abuse. In any event, the dysthymic disorder was not reported until many years after service, and, further, there is no medical opinion linking dysthymic disorder, if present, to service. Accordingly, this claim is not well grounded. In Epps v. Brown, 9 Vet. App. 341 (1996), the Court stressed that Robinette v. Brown, 8 Vet. App. 69 (1995), held that 38 U.S.C.A. § 5103(a) imposes an obligation upon the Secretary to notify an individual of what is necessary to complete the application in the limited circumstances where there is an incomplete application which references other known and existing evidence. The Court found in Epps, however, that the appellant's application was not incomplete and the VA was not on notice of the existence of any evidence which would have made the claim plausible. In this case, the appellant has not put the VA on notice of the existence of any additional evidence concerning the claims for service connection for PTSD and a dysthymic disorder which would have made this claim plausible. (CONTINUED ON NEXT PAGE) ORDER The claim for service connection for an acquired psychiatric disorder to include PTSD and a dysthymic disorder is not well grounded and is denied. NANCY I. PHILLIPS Member, Board of Veterans' Appeals