Citation NR: 9622005 Decision Date: 08/05/96 Archive Date: 08/15/96 DOCKET NO. 92-24 894 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for a psychosis. 2. Entitlement to a temporary total rating pursuant to the provisions of 38 C.F.R. § 4.29 in connection with VA hospitalization from August 26, 1991 to September 25, 1991. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The veteran served on active duty from June 1970 to June 1973. The Regional Office (RO) granted service connection for residuals of a fractured skull with headaches; for a left eyebrow tender scar; and for sinusitis, in January 1977. Each disability was accorded a 10 percent rating. This appeal stems from a March 1992 RO rating decision denying service connection for a psychosis both on a direct basis and as secondary to the veteran's service-connected head injury, and denying a temporary total rating based upon Department of Veterans Affairs (VA) hospitalization from August to September 1991. The Board of Veterans' Appeals (Board) remanded the case to the RO in September 1994. The representative, in April 1993, made reference to a claim for service connection for burr holes as a result of a craniotomy the veteran had in service. This matter is referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL It is contended and believed by the veteran that he has a psychosis that is secondary to his service-connected head injury. In support thereof, the veteran has recounted incidents which occurred during and after his service. Reference is made to medical evidence of record, including an August to September 1991 VA hospital discharge summary which indicates that the veteran's psychotic features had an organic etiology. Reference is also made to medical texts. Dissatisfaction is expressed with the most recent VA neurology and psychiatry examinations, since neuropsychiatric tests were not performed. The representative wonders how and why the RO relied on a conclusion by a VA physician that a psychosis clearly and unmistakably existed prior to service, when the physician who opined this stated that the veteran could not be considered a reliable historian, yet relied on the history the veteran provided to produce that opinion. The representative also wonders why, on the other hand, the RO did not adopt the history provided by the veteran at the time of another examination, at which time the veteran had reported that strange things began happening to him when he was in Germany in 1972. The representative asserts that service connection for dementia has been conceded already, as the veteran is rated pursuant to 38 C.F.R. Part 4, Diagnostic Code 8045-9304 (1995), and that service connection is thus warranted for a psychosis, as the veteran's dementia has matured into a psychosis. The veteran also feels that a temporary total rating is warranted in light of his August to September 1991 VA hospitalization. Consideration of the benefit of the doubt doctrine is requested. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1995), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the claim for service connection for a psychosis is not well grounded, and that there is a relative equipoise of evidence with respect to the claim for a temporary total rating pursuant to the provisions of 38 C.F.R. § 4.29 (1995) in light of VA hospitalization from August 26, 1991 to September 25, 1991. FINDINGS OF FACT 1. There is no competent evidence of record in support of the proposition that a psychosis was incurred or aggravated in service, or manifested to a degree of 10 percent within one year of service discharge, or is proximately due to or the result of the veteran’s service-connected head injury with skull fracture and headaches. 2. A relative equipoise of evidence shows that the veteran received treatment at a VA hospital for more than 21 days for his service-connected head injury due to a fracture of the skull with headaches, and for sinusitis, between August 26, 1991 and September 25, 1991. CONCLUSIONS OF LAW 1. The veteran has not presented a well-grounded claim for service connection for a psychosis. 38 U.S.C.A. § 5107 (West 1991). 2. The criteria for a temporary total rating pursuant to the provisions of 38 C.F.R. § 4.29 based on VA hospitalization from August 26, 1991 to September 25, 1991, are met. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 4.29 (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Background. The veteran’s service medical records and service entrance examination and service discharge examination reports do not contain a diagnosis of a psychosis or any psychiatric disorder. He was found to be normal clinically on service entrance examination and on service discharge examination. The veteran was treated for a skull fracture in January 1971. At that time, a probable slightly depressed frontal skull fracture and slight depression over the left forehead area were found, as was a laceration over the left eye. He had lost consciousness temporarily at the time of the injury, but regained it quickly, and had vomited three times on the way to the hospital, with blood. X-rays were consistent with discontinuity of the left superior orbital rim. Opacification of the left maxillary sinus suggested a left maxillary sinus fracture. Thereafter, he was treated for headaches in July 1971; for left frontal sinusitis in December 1971, with a history of sinusitis since the January 1971 injury, and X-rays revealing thickening of the maxillary sinus; for chronic sinusitis in January 1972, when he complained of pain over the maxillary sinus; for headaches in March 1973 (sinusitis was the impression); and for complaints of difficulty sleeping, shakes, and nervousness in March 1973, when the impression was headaches probably secondary to tension. In May 1973, he was seen for complaints of feeling nervous and shaky and having difficulty sleeping. A sedative was prescribed. On VA examination in November 1976, the veteran did not appear to be nervous or anxious or to have any impairment of judgment. He reported sleeping well at night and having no psychotic manifestations. Records from D. N. Greenblum, M.D. dated in 1985 indicate that he started treating the veteran at that time for paranoid psychosis. An April 1989 report from A. A. Mirsajadi, M.D. indicates that the veteran was admitted to a private hospital on petition from his wife. He had claimed that everything was poisoned, and that he had been sick all of his life. He reported that when he had arrived in Germany in 1972, strange things started happening, and that he was being set up for certain things. The diagnosis was chronic paranoid schizophrenia. The veteran was hospitalized at a VA hospital from August 26 to September 25, 1991. He was complaining of severe headaches since 1971 when he had been assaulted and had received a concussion and loss of consciousness for several hours. He also believed that others had been trying to kill him and that a secret transmitter had been installed in his tooth. He reported that he believed that his father had been trying to kill him all his life, and that he had experimented with drugs while in the military and had been beaten up in 1971, sustaining a head injury. He reported that he had several types of headaches, the most typical being without a prodrome or inciting factors. Onset was at any time during the day and could be suddenly or gradually. The pain was bilaterally located across the forehead and behind the eye. He did not try to sleep the headaches off. They were episodic, occurring once per day, and lasting 10 minutes to hours with total relief after an episode. They were sometimes associated with sinusitis. He denied nausea, vomiting, and photophobia with the headaches. He had tried Advil™ and Tylenol™ without relief. A clinical examination took place, as did a mental status examination. It was reported that he also had a somatic preoccupation with his headaches and sinusitis. During hospitalization, he underwent a sleep-deprived electroencephalogram, which was normal. Numerous other laboratory studies were performed. A CT scan of the head revealed a possible small lacunar infarction in the posterior limb of the right internal capsule, and a definite lacunar infarct in the right globus pallidus/external capsule area. There was no hydrocephalus, blood, masses, edema, or sinusitis. He had slightly enlarged ethmoid, frontal, and sphenoidal sinuses. He was admitted voluntarily to the open unit. Neurology was consulted. His clinical presentation was dominated by schizophrenic symptoms of delusions and auditory hallucinations. Trilafon™ was started and gradually increased. He tolerated it well without the development of extrapyramidal symptoms. He had been on a low therapeutic dose for about a week at the time of discharge. His psychotic features had not improved. He was started on Tegretol™ during the course of the admission, but his refusal to permit blood to be drawn because he believed his soul was in his blood led to the discontinuation of Tegretol ™. Target symptoms for Tegretol™ were to be his head pain and psychotic features. In light of the positive CT scan findings, it was possible, it was reported, that the veteran's psychotic features were secondary to an organic etiology -- perhaps avasculitis, vasculitis, or syphilitic disease. A psychosis and the abnormality noted on CT scan were diagnosed. October 1991 VA medical records indicate that the veteran reported having had active hallucinations for years. Other 1991 and some 1992 VA medical records show continued treatment for psychosis. A March 1992 VA medical record indicates that the veteran reported being paranoid of being sprayed by the enemy, that nightmares of war caused him to awaken at night, and that the assessment was chronic paranoid schizophrenia with symptoms of post-traumatic stress disorder. A May 1992 VA medical record indicates that the veteran's headaches were probably not related to schizophrenic symptoms. A May 1992 VA behavioral neurology medical record indicates that the veteran reported having auditory hallucinations since 1975, and that the neurologist felt that the veteran's small lesion noted on CT scan was probably not related to his psychotic features. After VA examination in December 1991, the impressions were common vascular headaches, and possible post traumatic headaches. An August 1994 VA medical record indicates that the veteran reported a history of organic hallucinosis. Headaches, possibly due to trauma, and psychotic disorder, were assessed. A September 1994 VA medical record indicates that the impression was a severe chronic psychosis. It was noted that the veteran had had a negative organic work-up, and that there may have been a greater contribution of alcohol to the psychosis than the veteran was admitting. Prior to the impression, the veteran had advised that he had had visual and auditory hallucinations since 1975, which were complex and persecutory in nature. He had also reported a brain injury in 1971, and that since the brain injury, he had retrospectively reviewed his life experience in a persecutory fashion. A VA neurology examination that was conducted in February 1995 resulted in diagnoses of a head injury with left frontal skull fracture and concussion; post-traumatic headaches; and chronic paranoid schizophrenia. The neurologist stated that the veteran most likely suffers from a functional rather than an organic head trauma disorder, and that the veteran's in-service head trauma had nothing to do with the veteran's development of schizophrenia. The report of a VA psychiatric examination that was conducted in March 1995 indicates that at that time, the veteran gave a history of long-standing psychotic thinking which went back to childhood, in which he felt people were talking about him behind his back and coaches were making it particularly difficult on him. He also reported that his mother had tried to kill him when he was 3 years old, just after she had killed the mailman and buried him. He admitted that he had always been shy, bashful, and a loner, and that he had been beaten frequently by his father and mother. He admitted becoming involved in polysubstance abuse and alcoholism after leaving service, including such drugs as marijuana, methamphetamine, cocaine, heroin, LSD, and Quaaludes™. He was not felt to be a credible historian. He stated that he thought his brothers and sisters were plants, and that he had thought that when he was a child. He stated that his father was a severe alcoholic, and a shark fisherman who frequently beat his wife. The veteran admitted to skipping a lot of school in the 11th grade and to quitting school and joining the service at the urging of his father. He reported feeling from the very earliest weeks in the service that various sergeants in the army were trying to kill him, and that they had orders from “higher up”. When asked if he was in combat during his 3 years of service, he reported that he was in his own private war. When asked when he thought his problems began, he clearly stated that it was at the induction center. The psychiatrist noted that the veteran's head injury had not occurred until February 1971, and that according to the veteran's personal history, what the psychiatrist deemed psychotic symptoms existed in early childhood. The psychiatrist noted that the veteran had reported severe dysfunction in childhood, low school performance, poor social adaptability, disorganization, paranoid ideation, withdrawal, isolation, low self-esteem, and sexual, physical, and emotional abuse from the earliest day in childhood. In the psychiatrist’s judgment, the veteran had a severe psychiatric disturbance with a frank psychosis as early as childhood. The psychiatrist also felt that the veteran's paranoia and hallucinations were typical of schizophrenia and were not in any way affected by his in-service head trauma. The psychiatrist’s examination suggested that they had existed prior to the time of the head trauma. He reported that the head trauma probably did not exacerbate the veteran's functional psychiatric problems, but probably gave the veteran one more thing on which to focus. The diagnoses were paranoid schizophrenic reaction, probably in existence prior to service enlistment; polysubstance abuse allegedly in remission; and a schizoid personality disorder. The psychiatrist also diagnosed head trauma. He stated that he did not feel that the head trauma sustained in February 1971 was a causative factor or a significant exacerbator of the veteran's basic severe psychiatric problem. The history, he felt, indicated that it clearly existed prior to enlistment in the service. II. Analysis. Under 38 U.S.C.A. § 5107(a), a person who submits a claim for benefits under a law administered by the VA shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. Only when the claim is well grounded does the Secretary have an obligation to assist such a claimant in developing the facts pertinent to the claim. The Court of Veterans Appeals has defined a well-grounded claim as "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 38 U.S.C.A. § 5107(a). Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is plausible or possible is required. Grottveit v. Brown, 5 Vet.App. 91, at 93. Lay assertions of medical causation cannot constitute evidence to render a claim well grounded pursuant to 38 U.S.C.A. § 5107(a). Grottveit, 5 Vet.App. at 93. A claimant may not rely on his own or his representative's opinions as to medical matters to meet the initial burden of establishing a well grounded claim. Grottveit, 5 Vet.App. 93. A doctor’s statement indicating a possibility that something had its onset at a certain point or a possibility as to what a medical disability was caused by is not sufficient to make a claim requiring proof of the same well grounded. Goss v. Brown, 9 Vet.App. 109 (1996). A. Service connection for psychosis. In order for service connection to be granted, it must be shown that there is disability present which was the result of disease or injury which was incurred or aggravated in service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. §§ 3.303 and 3.304 (1995). The service incurrence or aggravation of a psychosis may be presumed if it is manifested to a degree of 10 percent within one year of service discharge. 38 U.S.C.A. §§ 1101(3), 1110, 1112(a) (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1995). Service connection may also be granted for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a) (1995). In this case, there is no competent medical evidence plausibly showing that a psychosis had its onset or was aggravated in service or that it was manifested to a degree of 10 percent within one year of service discharge, or that it was proximately due to or the result of the veteran's service-connected head injury disability. Goss v. Brown, 9 Vet.App. 109 (1996). Thus, as there is no medical evidence to link the veteran's psychosis to events in service, to the one year period after service to the requisite degree, or to a service-connected disability, the claim is not well grounded. Montgomery v. Brown, 4 Vet.App. 343 (1993). Caluza v. Brown, 7 Vet.App. 498 (1995). With respect to the contention about a VA physician opining about pre-service existence of a psychosis, and the RO adopting this, the Board notes only that it need not address the question of existence prior to service, as the claim is not well grounded, and the question of pre-service existence would be needed to be addressed only if the claim were being considered on the merits. It is sufficient to note that the medical evidence does not link the psychosis to service or to the veteran’s service-connected disabilities. Whether or not the VA examinations could have been better, there is no duty to assist the veteran by remanding for further study. The examiners did not recommend further study, and the claim, being not well grounded from the onset, does not require it. The veteran is free to submit competent medical evidence at any time to make his claim well grounded, and reopen it. The representative argues, in essence, that dementia is already service-connected, as the veteran’s service-connected skull fracture disability has been rated pursuant to 38 C.F.R. Part 4, Diagnostic Code 9304, which is entitled “dementia associated with brain trauma”. The assertion of service connection for psychosis based thereupon, however, is not supported by the evidence. The veteran was rated under Diagnostic Code 8045-9304. The provisions of 38 C.F.R. Part 4, Diagnostic Code 8045 provide for rating some disabilities under Diagnostic Code 9304 when there are purely subjective complaints after a head injury, such as headache, dizziness, insomnia, etc. There is no competent medical evidence of record showing that the veteran's head injury has matured into a psychosis. The medical texts referenced by the representative do not pertain to the veteran's case in particular, and so do not make the claim well grounded. Edenfield v. Brown, 8 Vet.App. 384 (1995). The benefit of the doubt doctrine does not apply, as the merits of the claim have not been reached. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1991). While the RO purported to adjudicate the veteran's claim on the merits and the Board's conclusion is that the claim is not well grounded, the veteran is not prejudiced thereby. Bernard v. Brown, 4 Vet App 384 (1993). The RO has already accorded the veteran’s claim more consideration than it was entitled. B. Temporary Total Rating. The Board concludes that the veteran's claim for a temporary total rating is well-grounded, and that the VA has fulfilled its duty to assist him pursuant to 38 U.S.C.A. § 5107. Accordingly, it may discuss the claim on the merits. 38 U.S.C.A. § 5107; Gilbert, 1 Vet.App. 55. A temporary total disability rating will be assigned without regard to other provisions of the rating schedule when it is established that a service-connected disability has required hospital treatment in a VA or an approved hospital for a period in excess of 21 days or hospital observation at VA expense for a service-connected disability for a period in excess of 21 days. 38 C.F.R. § 4.29. Here, when the veteran was admitted to the VA hospital in August 1991, it was because he was complaining of severe headaches. While a psychosis was diagnosed and treated during such period of hospitalization, and is not service-connected, there was substantial work-up to determine the etiology of and to treat the veteran's headaches. A CT scan of the head was performed because of the complaints and in light of the history of head trauma, and the veteran is service-connected for both sinusitis (which can produce headaches (see 38 C.F.R. Part 4, § 4.97, Diagnostic Code 6513 (1995)), and did so in service) and headaches from a skull fracture. The headaches as described by the veteran were consistent with those described in his service medical records, and he had attempted to relieve them with Advil™ and Tylenol™ before seeking hospitalization for them. An electroencephalogram was ordered, possibly to determine the etiology of the headaches. Additionally, the CT scan revealed slightly enlarged sinuses, which could have been accounting, in part, for the headaches, in light of the veteran's complaints of headaches at times with sinusitis. A neurologist was consulted. Medication prescribed during hospitalization, moreover, evidently was for a dual purpose - - to control both the psychosis and the head pain. As such, the Board must resolve reasonable doubt in the veteran's favor and grant the benefits sought. While the veteran’s clinical presentation was dominated by schizophrenic symptoms, and they were also treated and diagnosed, and have not been service-connected, there is a relative equipoise of the evidence as to whether or not service-connected skull fracture and headaches required hospital treatment or observation for a period in excess of 21 days. In light of the provisions of 38 C.F.R. § 4.29(b), a temporary total rating is warranted with respect to the period of hospitalization. ORDER The claim for service connection for a psychosis is denied as not well grounded. A temporary total rating pursuant to the provisions of 38 C.F.R. § 4.29 based on VA hospitalization from August 26, 1991 to September 25, 1991 is granted, subject to provisions governing the payment of monetary benefits. D. C. SPICKLER Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741 (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1995), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. - 2 -