Citation Nr: 9838086 Decision Date: 12/31/98 Archive Date: 01/05/99 DOCKET NO. 97-34 215 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Neil T. Werner, Associate Counsel INTRODUCTION The veteran served on active duty from June 1968 to March 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 1997 decision of the Philadelphia, Pennsylvania, Regional Office (RO) which denied a claim of service connection for an acquired psychiatric disorder. CONTENTIONS OF APPELLANT ON APPEAL The veteran and his representative contend, in essence, that the veteran’s schizophrenia with depressive features was caused by his experiences in service. It is also requested that the veteran be afforded the benefit of the doubt. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1998), 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 veteran has failed to submit a well-grounded claim of service connection for an acquired psychiatric disorder. FINDING OF FACT No competent medical evidence has been submitted which tends to show that a psychiatric disability is attributable to military service. CONCLUSION OF LAW The claim of service connection for an acquired psychiatric disorder is not well grounded. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1998). REASONS AND BASES FOR FINDING AND CONCLUSION The Board notes that a person who submits a claim for VA benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. Only if the claimant meets this burden does VA have the duty to assist him in developing the facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); Epps v. Gober, 126 F.3d 1464, 1468-69 (Fed. Cir. 1997). If the claimant does not meet this initial burden, the appeal must fail because, in the absence of evidence sufficient to make the claim well grounded, the Board does not have jurisdiction to adjudicate the claim. Boeck v. Brown, 6 Vet.App. 14, 17 (1993). A well-grounded claim is 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). To be well grounded, however, a claim must be accompanied by evidence that suggests more than a purely speculative basis for granting entitlement to the requested benefits. Dixon v. Derwinski, 3 Vet.App. 261, 262-63 (1992). Evidentiary assertions accompanying a claim for VA benefits must be accepted as true for purposes of 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. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). 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. Murphy, 1 Vet.App. at 81. A claimant cannot meet this burden merely by presenting lay testimony because lay persons are not competent to offer medical opinions. Espiritu, 2 Vet.App. at 495. The United States Court of Veterans Appeals (Court) has held that competent evidence pertaining to each of three elements must be submitted in order make a claim of service connection well grounded. There must be competent (medical) evidence of a current disability; competent (lay or medical) evidence of incurrence or aggravation of disease or injury in service; and competent (medical) evidence of a nexus between the in- service injury or disease and the current disability. This third element may be also established by the use of statutory presumptions. 38 C.F.R. §§ 3.307, 3.309 (1998). See Caluza, supra. The veteran’s service medical records, including his February 1970 separation examination, are negative for complaints, diagnoses, or treatment for an acquired psychiatric disorder. VA treatment records, dated from June 1981 to December 1982 and from September 1987 to April 1991, show, in part, that the veteran was diagnosed with schizophrenia in September 1987. They also contain VA therapists’ notes. These records include, among other things, the veteran’s complaints of anxiety, a poor ability to handle stressful situations appropriately, people being out to get him/watching him (i.e., paranoia), auditory hallucinations/hearing voices, difficulty expressing himself, periodic sleep difficulties, problems handling his finances, and problems dealing with authority figures as well as co-workers. They also show that his psychiatric disorder was treated with medication as well as counseling. See VA therapy records dated from September 1987 to April 1991. An August 1991 VA examination report shows that the veteran reported being under a psychiatrist’s care for schizophrenia. Initially, the Board notes that, as to the veteran having a current diagnosis of a psychiatric disorder, VA treatment records only show the veteran being diagnosed with schizophrenia in September 1987 and on an undated “Problem List.” However, even if the Board concedes that the evidence of record shows a current diagnosis of schizophrenia, it does not show an acquired psychiatric disorder during service. Likewise, the record on appeal does not contain a medical opinion that tends to link his current problem to military service. Moreover, the veteran’s written statements to the RO can not provide the requisite medical nexus or proof of an in-service disease because the veteran has not been shown to be competent to provide the opinion evidence necessary to make his claim of service connection well grounded. See Espiritu v. Derwinski, 2 Vet.App. 492 (1992); Moray v. Brown, 5 Vet.App. 211 (1993) (persons without medical expertise are not competent to offer medical opinions.); Grottveit v. Brown, 5 Vet.App. 91 (1993); Owens v. Brown, 7 Vet. App. 429 (1995) (evidence which is simply information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute competent medical evidence). Furthermore, the presumptions contained in 38 C.F.R. §§ 3.307, 3.309 do not aid the veteran in his appeal because there is no evidence of record to show that the veteran was diagnosed with a psychosis until September 1987, 17 years after his separation from service. (Interestingly, the Board notes that a June 1990 VA treatment record shows that the veteran had only been receiving treatment for his psychiatric disorder since 1987, and a September 1990 VA treatment record indicates that the veteran said he was never hospitalized in service.) Moreover, the Board notes that the veteran’s representative has argued, in a December 1998 informal hearing presentation, that the appeal must be remanded for the RO to obtain service medical records which the veteran claimed would show he was diagnosed with schizophrenia while in service. Specifically, the veteran alleged that he was diagnosed and treated for schizophrenia while at the Great Lakes Training Center in June 1968. However, where, as here, the veteran has failed to submit a well-grounded claim, VA has no duty to assist him in developing the facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); Epps v. Gober, 126 F.3d 1464, 1468-69 (Fed. Cir. 1997). It has also been suggested that the Board should determine whether the RO complied with M21-1, Part III, 1.03(a) (Change 50) (Feb. 23, 1996) and M21-1, Part VI, 2.10(f) (Change 48) (Aug. 5, 1996). The provisions of M21-1 Part VI, 2.10(f) provide that “the duty to assist will prevail while development is undertaken.” A careful reading of this provision clearly shows the initiation of this “development” is predicated on the claim being “potentially plausible on a factual basis.” Essentially, “potentially plausible on a factual basis” means the claim is well grounded. Epps, supra. Consequently, development is undertaken pursuant to M21-1 Part VI, 2.10(f) only after the veteran has presented a well-grounded claim. As the veteran has not done so here, M21-1 Part VI, 2.10(f) is not applicable to his case. M21-1 Part III, 1.03(a) provides that “[b]efore a decision is made about a claim being well-grounded, it will be fully developed.” However, only when a claim is well grounded does VA have an obligation to assist the claimant in “developing the facts pertinent to the claim.” Robinette v. Brown, 8 Vet. App. 69, 77-74 (1995) (emphasis added) (referring to evidentiary development required by the duty to assist under 38 U.S.C.A. § 5107(a)); Epps, supra; Beausoleil v. Brown, 8 Vet. App. 459, 465 (1996). In contrast to the evidentiary development referred to in 38 U.S.C.A. § 5107(a), the provisions of M21-1, Part III, 1.03(a) refer to development of the claim. The requirement to fully develop a claim – as compared to development of the evidence underlying the claim – merely demands that VA ensure that the veteran has not filed a defective or incomplete application. See 38 U.S.C.A. § 5103 (West 1991); Robinette, 8 Vet. App. at 78. See 38 C.F.R. §§ 3.1(p), 3.160(a) (1997)(defining a claim as an application for VA benefits); see also M21-1, Part III, 1.01(a) (discussing development of pertinent facts “concerning a well-grounded claim”); M21-1, Part VI, 2.10(f) (discussed, supra); compare M21-1, Part III, 2.01(c) (during initial screening stage of claims processing, the RO shall review all applications and evidence immediately to determine if “a claim” is incomplete and requires “further development”). Indeed, M21-1, Part III, 1.03(a) relies upon Grottveit v. Brown, 5 Vet. App. 91 (1993), in which the Court stated that, “[i]f the claim is not well grounded, the claimant cannot invoke the VA’s duty to assist [under 38 U.S.C.A. § 5107(a)] in the [evidentiary] development of the claim.” Grottveit at 93, citing 38 U.S.C.A. § 5107(a). Therefore, until a veteran has submitted a well-grounded claim, VA is under no duty to assist the veteran in establishing the evidentiary elements of his claim. In other words, the requirement to “fully develop” a claim pursuant to M21-1, Part III, 1.03(a) is not identical to the duty to assist which arises after a well-grounded claim has been submitted; instead, it appears to merely reiterate the duty to inform under 38 U.S.C.A. § 5103. Consequently, ensuring that a claim is “fully developed” under M21-1 Part III, 1.03(a) means that, where the veteran’s application for benefits is incomplete, VA shall notify the veteran of the evidence necessary to complete the application. Id. at 80. As there is no indication in the present case that the veteran’s application is incomplete, the Board finds that the RO complied with 38 U.S.C.A. § 5103 and 1.03(a). (As noted above, the veteran contends that service medical records, if obtained, would show a diagnosis of schizophrenia. The RO has attempted to obtain additional service records, as recently as March 1998, but none beyond what was previously secured has been provided.) ORDER Service connection for an acquired psychiatric disorder is denied. MARK F. HALSEY Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1998), 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 -