Citation Nr: 0006662 Decision Date: 03/13/00 Archive Date: 03/17/00 DOCKET NO. 97-26 305 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include depressive disorder and schizophrenia. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD A. Pitts, Associate Counsel INTRODUCTION The veteran had active service from July 1993 to June 1996. This matter comes before the Board of Veterans' Appeals on appeal of a January 1997 rating decision of the Buffalo, New York Department of Veterans Affairs (VA) Regional Office (RO). The rating decision denied the veteran's claim of entitlement to service connection for an acquired psychiatric disorder. The veteran submitted a notice of disagreement with the rating decision in April 1997. In May 1997, the RO provided the veteran with a statement of the case. The veteran filed his substantive appeal in July 1997. A Travel Board hearing was scheduled to take place in May 1999. However, the hearing did not take place because the veteran failed to appear for it. FINDINGS OF FACT The evidence of record makes a plausible showing that the veteran's current psychiatric condition is related to his active service. CONCLUSION OF LAW A well-grounded claim of entitlement to service connection for an acquired psychiatric disorder, to include depressive disorder and schizophrenia, has been presented. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Background The veteran filed his claim in July 1996. Service medical records revealed that no psychiatric disorder was noted at the time that the veteran entered service. The July 1993 report of the veteran's enlistment examination was negative for psychiatric and/or emotional abnormalities. The report of the medical history taken for the examination documented that the veteran did not indicate that he was suffering, or had suffered, from a psychiatric or other emotional abnormality. The claims file documented that the veteran was seen during service with complaints of depression and that his diagnoses varied somewhat. Records from the VA Medical Center (VAMC) in Buffalo, New York showed that the veteran was treated there in 1995. They documented that in August 1995, the veteran stated that he had become depressed approximately one year before with the death of his grandfather. His provisional diagnosis was adjustment disorder with mixed anxiety and depressed mood. A psychiatric consultation during the same month resulted in an impression of rule out schizophrenic disorder. The veteran was prescribed Prolixin (fluphenazine) and Artane (trihexyphenidyl) and was advised to have further treatment. Service medical records showed that subsequently, in September 1995-October 1995, the veteran was treated for a psychiatric disorder as an inpatient at the Naval Medical Center in Portsmouth, Virginia. He was admitted with a provisional diagnosis of adjustment disorder with mixed depression and anxiety, rule out major depression. Upon being discharged from inpatient care, he was prescribed Prozac (fluoxentine). Subsequently he was seen as an outpatient. An October 1995 record of an outpatient visit stated that the veteran was still being treated with Prozac but exhibited a dysphoric mood. Other service records showed that the psychiatric problems being experienced by the veteran led to his being discharged for reason of disability. The report of the Medical Board at the Portsmouth, Virginia VAMC that made the disability determination was included in the claims file. The report noted that the veteran had been discharged in mid-October 1995 from inpatient care to limited duty In December 1995, the Medical Board determined that the veteran had a diagnosis of major depressive disorder, recurrent, moderate and that this disability rendered him unfit to perform all the duties of his active service. The claims file also contained the veteran's service performance records for January 1994 to June 1996. They documented a drastic decline in the veteran's performance rating for July 1995-October 1995 as compared with that for June 1994-March 1995 and March 1995-June 1995. Medical records from the Buffalo, New York VAMC documented that the veteran continued to be treated for psychiatric problems after service. In December 1996, he was seen at the mental health clinic with a provisional diagnosis of depression, rule out thought disorder and organic impairment. His symptoms included disrupted sleep, racing thoughts, hallucinations (consisting of "hearing noises as though someone is coming toward me"), impaired concentration, and anxiety about communicating and making decisions. A psychiatric consultation shortly thereafter produced a diagnosis of schizophrenia, undifferentiated, and the veteran was prescribed an anti-psychotic drug. (This was discontinued approximately one month later because of its side effects.) Subsequent records for the first part of 1997 documented that the veteran retained the diagnosis of schizophrenia. At that time, it is documented, he was reporting experiencing loss of memory. An April 1997 treatment note indicated that it had been recommended that the veteran have a neuropsychiatric assessment of the reason for his memory problems; it also suggested that the veteran's cognitive functioning might be impaired. May 1997 treatment notes by the veteran's psychiatrist indicated that the veteran was taking Navane (thiothixene) and that a CT scan of the veteran's head had been ordered. It stated the veteran's diagnoses as question paranoid schizophrenia and question dementia. In the note referring the veteran for a neuropsychiatric consultation, his psychiatrist indicated that the previous diagnosis of schizophrenia was open to question because of negative findings and stated a provisional diagnosis of dementia. II. Analysis The claim is for service connection for an acquired psychiatric disorder. It is contended that the current psychiatric condition of the veteran began during his active service. In general, service connection can be awarded for disability resulting from personal injury or disease incurred or aggravated during active service or an applicable presumptive post-service period. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1117, 1131, 1133 (West 1991); 38 C.F.R. §§ 3.303(a), 3.306, 3.307, 3.308, 3.309 (1999). With chronic disease shown as such in service (or within the applicable post-service presumptive period under 38 C.F.R. § 3.307), subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (1999). If a disability is not shown to be chronic during service or an applicable post-service presumptive period, service connection may nevertheless be granted where a disorder has been observed in service or an applicable post- service presumptive period and the symptomatology associated with that disorder is manifested with continuity post- service. Id. Regulations also provide that service connection may be granted for a disease diagnosed after discharge from service where all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). However, a person who submits a claim for benefits under a law administered by the Secretary shall have the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. The Secretary shall assist a claimant in developing facts pertaining to a well-grounded claim. 38 U.S.C.A. § 5107(a). The issue before the Board on this appeal is whether the veteran has established such a claim. If not, the appeal must fail, because the Board has no jurisdiction to proceed to adjudicate the merits of the claim. Boeck v. Brown, 6 Vet. App. 14 (1993). A well-grounded claim need not be established conclusively for the claimant's initial burden of producing evidence to be met. It is sufficient if the evidence of record establishes a plausible claim, one which is either meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78 (1990). In particular, the evidence of record must show: a current disability; the incurrence (or, in the case of preexisting conditions, the aggravation) of an injury or disease during service; and a nexus between the in-service injury or disease and the current disability. Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Evidence of record will be accepted as credible for the purposes of determining whether a claim is well grounded, except where the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the evidentiary source. King v. Brown, 5 Vet. App. 19 (1993). However, incompetent evidence will not be considered in an assessment of whether a claim is well grounded. Grottveit v. Brown, 5 Vet. App. 91 (1993). When the issue is medical in nature, such as medical etiology or diagnosis, expert medical evidence is required. Caluza, 7 Vet. App. at 506; Voerth v. West, 13 Vet. App. 117 (1999). Turning to the veteran's claim of entitlement to service connection for a psychiatric condition, the Board finds that the claim is well-grounded, that is, plausible. Sufficient competent evidence of current disability, the first element of a well-grounded claim, is of course supplied by the medical diagnoses documented in the record. As to inservice incurrence (or aggravation) of disease or injury, the second element of a well-grounded claim, inservice medical records clearly document psychiatric symptomatology with various diagnoses entertained. The veteran has asserted no preservice psychiatric problems and that he functioned extremely well in service until he started experiencing some problems after two years of active duty. His statement to this effect is presumed credible. Accordingly, the second element of a well-grounded claim is present. To satisfy the third requirement of a well-grounded claim in this case, the evidence of record must make a plausible showing of a nexus, or causal connection, between the veteran's inservice psychiatric condition and his current psychiatric disability. The law provides particular ways by which these elements of a service connection claim may be demonstrated in some instances. When, as in this appeal, an issue presented by the evidence is whether the claimed disability was chronic during service or has been ongoing since service, service connection may be established for a claimed current disability through application of the provisions dealing with chronicity of disease or, in the alternative, continuity of symptomatology. If a veteran is shown to have suffered during service from a disease that was "noted in service" (or in any applicable post-service presumptive period), then service connection may be established through a showing that the veteran has exhibited symptoms of that disease recurrently since discharge. 38 C.F.R. § 3.303(b) (1999); Savage v. Gober, 10 Vet. App. 488 (1997). However, proof of continuity of symptomatology requires that the evidence of record forge a specific link between the claimed current disability and the symptomatology continuing after service. Id. at 497. The record must contain competent medical evidence of a nexus between the continuous symptomatology (or an in-service injury or disease) and the alleged current disability in order for a claim of entitlement to service connection to be well grounded. Voerth v. West, 13 Vet. App. 117 (1999). Such evidence is present here. The medical evidence of record demonstrated that both during and after service, the veteran was assessed on the basis of his symptoms as having depression and/or schizophrenia. A plausible showing was made by that evidence that the veteran has suffered from the same psychiatric disorder since service, notwithstanding that the nomenclature and diagnoses attributed to his condition have varied. Thus, the Board finds that the third requirement of a well-grounded claim has been satisfied by the record. Therefore, the Board finds that the veteran has presented a well-grounded claim of service connection for an acquired psychiatric disorder. ORDER To the extent that the Board has found that a well-grounded claim for service connection for an acquired psychiatric disorder has been presented, the appeal is granted. REMAND Once there is a well-grounded claim, VA acquires a duty to assist a claimant in the development of evidence pertinent thereto. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). This duty includes obtaining medical records, Littke v. Derwinski, 1 Vet. App. 90 (1990) and a contemporaneous examination. Green v. Derwinski, 1 Vet. App. 121 (1991). After a careful review of the evidence of record, the Board has determined that additional development must be completed by the RO. Specifically, it appears that not all of the veteran's medical records from the Buffalo, New York VAMC have been obtained. The summary of the veteran's treatment history contained in the December 1995 report of the Medical Board at the Portsmouth, Virginia Navy Medical Center indicated that the veteran had been an inpatient there from September 19, 1995 to October 13, 1995 and an outpatient thereafter. The Naval hospital records currently contained in the claims file do not account for such period of time. The remainder of the records should be obtained and associated with the claims file. In addition, it appears that the complete treatment note dated April 15, 1997 from the Buffalo, New York VAMC was not captured for the claims file. Only one page of that note was included in the file, but the note itself indicated that it was comprised of more than one page. It is noted that the veteran was scheduled for a VA psychiatric examination in April 1999, but he failed to report for the examination. As this matter must be remanded to the RO for additional development, the opportunity will be taken to request that the veteran be again scheduled for examination. He is urged to report for the scheduled evaluation. In view of the foregoing, this case is REMANDED to the RO for the following actions: 1. The RO should obtain all medical records concerning the appellant at the Buffalo, New York VAMC from August 1995 to the present, excluding any records currently included in the claims file, and should associate them with the claims file. 2. The RO should obtain all medical records concerning the appellant at Portsmouth, Virginia Navy Medical Center from August 1995 to the present, excluding any records currently included in the claims file, and should associate them with the claims file. 3. When the above-requested development has been completed, the RO should schedule the veteran for a VA psychiatric examination to determine the nature and severity of any acquired psychiatric disorder, to include depressive disorder and schizophrenia. All indicated tests and studies should be performed. The diagnoses should include all disorders currently present and, on Axis V, a score on the Global Assessment of Functioning (GAF) Scale, along with an explanation of the importance of the score as it pertains to social and industrial adaptability. The examiner should express an opinion as to the medical probability that any currently diagnosed disorder is of service onset or otherwise related thereto, to include whether any psychiatric disorder preexisted service and, if so, whether it increased in severity during service. The claims file should be made available to the examiner for use in the study of the veteran's case. Due written notice of the time and place of the examination should be given to the veteran, and a copy of the notification letter should be placed in the claims file. 4. Thereafter, the RO should adjudicate the merits of the veteran's claim of entitlement to service connection for an acquired psychiatric disorder, to include depressive disorder and schizophrenia. If the determination concerning the claim is unfavorable to the veteran, the RO should furnish him and his representative with a supplemental statement of the case, in accordance with 38 U.S.C.A. § 7105 and 38 C.F.R. § 19.31. The veteran and his representative should then be given an opportunity to respond. 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 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. BARBARA B. COPELAND Member, Board of Veterans' Appeals