Citation Nr: 9915673 Decision Date: 06/07/99 Archive Date: 06/15/99 DOCKET NO. 98-04 933 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for residuals of a head injury. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Mark E. Goodson, Associate Counsel INTRODUCTION The veteran served on active duty from April 1969 to March 1970. This matter arises from a February 1998 decision by the aforementioned RO that denied the veteran's claim of entitlement to service connection for residuals of a head injury. The Board of Veterans' Appeals (Board) has jurisdiction over this matter by virtue of the veteran's notice of disagreement (NOD) filed in February 1998, a statement of the case (SOC) issued in March 1998, and a letter from the veteran to his Senator, which the Board construes as a substantive appeal, received in April 1998. See 38 U.S.C.A. §§ 7104, 7105 (West 1991 & Supp. 1998); 38 C.F.R. § 20.200 et. seq. (1998). (The March 1998 VA Form 9 ("Appeal to the Board of Veterans' Appeals") was blank and thus inadequate to perfect the veteran's appeal. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.200, 20.202, 20.203 (1998).) Specifically, the Board notes that the letter to the veteran's Senator mentioned the veteran's attempt to obtain service-connected disability for "brain damage" and the VA's denial of his claim. Although the veteran contended in the letter that the putative brain damage is due to in- service meningitis or in-service rheumatic fever, rather than an "injury" as mentioned in the NOD and SOC, the Board construes the letter's contentions liberally, particularly in the circumstances of this case. 38 C.F.R. § 20.202 (1998); EF v. Derwinski, 1 Vet. App. 324 (1991). By the same token, the Board construes the statement regarding meningitis in the substantive appeal as raising the question of entitlement to service connection for meningitis resulting in brain damage. Additionally, the substantive appeal asserts that the veteran's "brain damage" is due to rheumatic fever, which thereby raises the question of entitlement to secondary service connection for brain damage. These matters are referred to the RO for appropriate action. The Board also notes that several letters from the veteran in the file (July 1991, December 1992, April 1998) reflect his concern that the RO might have lost certain documents that he had submitted as evidence, such as the original copy of the Social Security Administration's June 1990 award letter. He has requested the return of these documents, but the RO has not responded. This is referred to the RO for appropriate action. FINDING OF FACT No competent medical evidence has been submitted to show a link, or a nexus, between any current disability and any head injury during service. CONCLUSION OF LAW The veteran's claim of entitlement to service connection for residuals of a head injury is not well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION I. Factual background The veteran's service medical records reflect that on the March 1969 report of medical history, the physician noted that the veteran had not had any prior hospitalizations or psychiatric problems. On the entrance examination of the same date, the veteran's psychiatric condition was normal, as were his head, face, neck, scalp, nose, sinuses, mouth, throat, ears, eardrums, eyes, spine, and neurologic function. Later in April 1969, while serving at the Great Lakes Naval Training Center (NTC), he participated in a medical research project for a live adenovirus study, including a "[h]emagglutinin [a]djuvant [illegible] [v]accine" study. The record of the study noted that the veteran manifested no physical or psychological reactions, although an undated agglutination laboratory report, generated while the veteran was a recruit at the Great Lakes NTC, noted the need for further testing. In June 1969, the veteran was hospitalized with complaints of bilateral frontal headache, retrosternal pleuritic chest pain, and (prior to admission) swelling in his right knee and right ankle, cough, fever, chills, and tea-colored urine which cleared spontaneously. Because of a suspicion of rheumatic fever, the Medical Service placed the veteran at bed rest for several weeks, at the end of which no evidence of rheumatic carditis or chorea was shown. The pertinent diagnosis was acute rheumatic fever, not existing prior to entry into active duty. However, during the course of the veteran's hospitalization, the veteran exhibited "severe" emotional difficulties with staff personnel. The staff psychiatrist's impression was that the veteran exhibited an immature personality "with situation reactions," and recommended an administrative discharge. At the time of discharge in October 1969, Medical Services characterized the veteran as "asymptomatic," and discharged him to duty. Nevertheless, Medical Services also noted that, at discharge, the veteran was taking 25 mg of Thorazine twice daily. The pertinent diagnosis was an immature personality, existing prior to entry into active duty. In November 1969, the veteran presented for treatment after he had been struck on the jaw at the enlisted men's club. Physical examination revealed no bleeding from the mouth or nose. A skull series was ordered by the examining physician, who later noted that there was no evidence of a fracture. On return to the clinic the following day, physical examination revealed pain on pressure to the ramus at the vertex of the mandible, and swelling over the left ramus. The veteran was unable to open his jaw more than one inch. The impression was a fracture of the left mandible, although below this entry on the service medical records appears the notation that x-rays had revealed no fracture. The examiner prescribed pain medication and heating pads, with instructions for the veteran to return to the clinic in three days if he was not better. Later in November 1969, the veteran was hospitalized with complaints of chest pain and difficulty breathing. It was noted that late in the evening of the day prior to admission, he had approached a Shore Patrol car, complaining of chest pain and difficulty breathing following a long run uphill. He also admitted to having had four beers that evening. On presentation to the emergency room, he was noted to have a "fruity" odor on his breath, and to lapse in and out of consciousness. Physical examination on admission reflected that the pupils were round and regular, but that the light reflex was somewhat diminished. Extraocular motions included some lateral deviation of the eyes during the periods of unconsciousness. Fundoscopic examination of the eyes revealed no evidence of head injury. A heart murmur was heard on admission, but not heard later during his hospitalization. Blood alcohol content was 0.0. The diagnosis was chest pain, with no disease found. In December 1969, the veteran was involved in a motor vehicle accident. He presented for treatment two days later, with complaints of pain in his mandible. He reported that he had been knocked unconscious, but not treated by any medical facilities. Physical examination revealed multiple contusions about the face and nose, as well as contusions of the ribs. X-rays of the skull and mandible were negative. There was no pertinent diagnosis. Later in December 1969, the veteran underwent a neuropsychiatric consultation, with a provisional diagnosis of paranoid traits. The veteran complained of not being able to get along with people aboard his ship, a fact corroborated by February 1970 service personnel records. He reported that since coming into the Navy, he had experienced increasing difficulties. He was noted to have had a Captain's Mast in the past. He was also noted to have started a fire and burned down a small shack next to his family's house while on liberty. Mental status examination revealed mildly depressed affect. The examiner noted that insight and judgment did not "seem to be morbidly" impaired. The diagnostic impression was a character disorder, of the passive-dependent personality type. The examiner recommended administrative discharge pursuant to BuPers Manual 3420180. (The veteran's DD-214 reflects that BuPers Manual 3420180 was the reason and authority for his discharge.) The February 1970 separation examination report does not reflect any psychiatric finding or other pertinent abnormality. An undated clinical record associated with the service medical records, apparently generated a few days after the veteran's service (see April 1970 VA hospitalization summary), reflects that the veteran's mother "brought him back" for a psychologic consultation. The veteran complained of paranoid ideation. He was noted to have a frequent history of interpersonal problems, and to have recently tried to build a fire on the floor of a wooden building to keep warm. There was no diagnosis. A VA hospitalization summary, dated from March to April 1970, reflects that the veteran presented for treatment, complaining that his mother wanted him to be "checked mentally." The physician noted that, during the veteran's hospitalization, he was in "good contact, but at times [was] very fresh on the unit." The hospital treated the veteran with Sinequan. On discharge, the physician noted that the veteran was competent. The hospital released the veteran with a month's supply of that drug, and with instructions to return to the hospital for monthly follow-up treatment. The diagnosis was an immature personality. In August 1970, the RO denied service connection for a nervous disorder on the basis that an immature personality is a constitutional or developmental abnormality, and not a disability under the law. In January 1971, the RO granted service connection for residuals of rheumatic fever, and assigned a noncompensable evaluation therefor. Subsequently dated VA medical records reflect various complaints and treatments for mental disorders. See VA hospitalization summaries dated in May 1984, December 1984, September 1985, and December 1997; VA outpatient records dated May 1983 and February 1985; and VA examination report dated July 1990. Specifically, the veteran complained, at various times, of depression, suicidal thoughts, being able to "read people," hearing voices, attempted suicide, anxiety, vegetative symptoms, alcohol abuse, hopelessness, racing thoughts, sleep disturbance, decreased appetite, paranoid thoughts, decreased energy, weight loss, a sense that others are able to read his mind, anhedonia, and apathy. The diagnoses in these records include, at various times, paranoid schizophrenia, question of psychotic depression, question of schizoaffective disorder, question of schizophrenia, psychotic depression, narcissistic character disorder, dementia associated with chronic alcoholism, rule out major depression with psychotic features, benzodiazepine abuse, history of polysubstance and alcohol abuse, and chronic headaches per patient report. There was no mention of an in-service head injury in any of these records. Other VA medical evidence of record pertains to elbow, back and joint disabilities, without mention of a head injury. In October 1997, the veteran filed his claim for an "increased rating" for "brain syndrome and residuals." (The veteran has not been awarded service connection for "brain syndrome;" the February 1998 rating decision codesheet reflects that only the residuals of rheumatic fever are service-connected.) In the February 1998 rating decision from which this appeal arises, the RO framed the issue for adjudication as entitlement to service connection for residuals of a head injury. The RO denied the claim as not well grounded, and, in the March 1998 SOC, notified the veteran of the basis of that decision. In February 1999, the veteran's Congressional representative submitted, on the veteran's behalf, material which might have been copied from a medical treatise (treatise material). The treatise material did not discuss the topic of head injury. It is, therefore, not pertinent to the issue on appeal. As such, there is no need for a supplemental statement of the case on the issue presented in this appeal. See 38 C.F.R. § 19.31 (1998). II. Analysis Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated by service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(a) (1998). With chronic disease shown as such in service (or within the presumptive period under 38 C.F.R. § 3.307) so as to permit a finding of service connection, 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) (1998). A person who submits a claim for benefits under a law administered by the Secretary of VA (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. 38 U.S.C.A. § 5107(a) (West 1991). The Secretary shall assist "such" a claimant in developing the facts pertaining to the claim. Id. Presently, the issue before the Board is whether the appellant has presented evidence of a well-grounded claim. If not, the appeal must fail, because the Board has no jurisdiction to adjudicate the claim on the merits. Boeck v. Brown, 6 Vet. App. 14, 17 (1993). As explained below, the Board finds that the claim for service connection for residuals of a head injury is not well grounded. 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 proof of 38 U.S.C.A. § 5107 (a). Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Moreover, to be well grounded, 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, 262-263 (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). When the question involved does not lie within the range of common experience or common knowledge, but requires special experience or special knowledge, then the opinions of witnesses skilled in that particular science are required. Questions of medical diagnosis or causation require such expertise. A claimant would not meet this burden merely by presenting lay testimony, because lay persons are not competent to offer medical opinions. Id. at 495. In short, a claim for service connection requires three elements in order to be well grounded. There must be competent evidence of a current disability (a medical diagnosis); incurrence or aggravation of a disease or injury in service (lay or medical evidence); and a nexus between the in service injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (Table). The third element may be established by the use of statutory presumptions. See, e.g., 38 U.S.C.A. § 1112(a) (West 1991) (presumptions relating to certain "chronic diseases"); 38 C.F.R. §§ 3.307, 3.309 (1998). Here, the veteran's claim of entitlement to service connection for residuals of a head injury is not well grounded because there is no medical evidence of a nexus between any of his current disabilities and a head injury during service. Although the veteran is competent to testify as to a head injury that occurred during service, and as to continuity of symptomatology thereafter, he is not shown to have any medical training, expertise, or experience which would render him competent to link any current disability to either the in-service events or any post-service symptomatology. See 38 C.F.R. § 3.303 (a), (b) (1998); Caluza, 7 Vet. App. at 506; Savage v. Gober, 10 Vet. App. 489, 494-95, 497 (1997). Statements by the veteran's brother are not competent etiologic evidence, for the same reason. The representative contends, in her appellate brief, that the Board should determine whether the RO complied with M21-1, Part VI, 2.10(f) (Change 48) (Aug. 5, 1996), prior to denying the service connection claim. She further contends that, if the Board finds that the RO did not comply with this provision, that the Board should remand the claim for "further development," specifically, evidentiary development, including provision of a VA medical examination pursuant to VA's "duty to assist." See 38 U.S.C.A. § 5107(a) (West 1991). M21-1 Part VI, 2.10(f) provides 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. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (Table); accord, Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997), cert. den. sub nom. Epps v. West, 118 S.Ct. 2348 (1998). 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 the 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 provided by 38 U.S.C.A. § 5107(a)); Epps, 126 F.3d at 168; Beausoleil v. Brown, 8 Vet. App. 459, 465 (1996). In contrast to the evidentiary development of "facts" 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 requires VA to 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); cf. 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 United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (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, 5 Vet. App. 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, or that he is aware of evidence which would render his claim well grounded, the RO complied with 38 U.S.C.A. § 5103 and 1.03(a). The representative also contends, in her appellate brief, that the holding of Ledford v. West, 136 F.3d 776 (1998) is unreasonable and erroneous, because it "requires" appellants to foresee and argue preemptively all errors the Board might commit, and because the appellant has no prior notice of the points upon which the Board will rely when deciding an appeal. However, Ledford does not stand for this proposition. In Ledford, The United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the doctrine of exhaustion of administrative remedies requires an appellant to present issues at the administrative (RO and Board) level before the Court and the Federal Circuit will address those issues. Ledford, 136 F.3d at 779-82. In any event, the Court bars the type of litigation by ambush which the representative eschews. See, e.g., Marsh v. West, 11 Vet. App. 468, 471-72 (1998). Here, the March 1998 SOC specifically addressed the veteran's failure to present a well grounded claim, so the representative cannot claim surprise in this regard. Moreover, even when an RO does not specifically address the question of whether a claim is well grounded, but instead proceeds to adjudication on the merits, there is no prejudice to the veteran solely from the omission of the well-grounded-claim analysis. Meyer v. Brown, 9 Vet. App. 425, 432 (1996). That proposition applies even where the RO has failed to provide the claimant with the laws and regulations pertaining to well-grounded claims, and notwithstanding that the Board denies the claim as not well grounded after the RO adjudicates the claim on the merits. Id. The requirement that a claim be well grounded is merely a threshold matter, and its satisfaction does not, by itself, obtain anything for a claimant that he would not receive in a full merits adjudication. Id. Thus, the representative's contention here is inapposite. The representative contends that the Meyer decision, discussed above, ignores the statutory provision that claimants have the initial burden of submitting a well- grounded claim "[e]xcept when otherwise provided by the Secretary [of VA]," 38 U.S.C.A. § 5107(a), because the Secretary has provided such an exception via the promulgation of the aforementioned portions of M21-1. The representative's argument lacks merit because the RO in this case, unlike the RO in Meyer, addressed well groundedness, and because the portions of M21-1 to which the representative refers do not create an exception to 38 U.S.C.A. § 5107, as previously discussed. In the representative's December 1998 statement in lieu of a VA Form 646 (Form 646), the representative emphasized that "a claimant may establish a required nexus" between a current condition and military service if he can "show" that the condition resulted from a personal injury suffered in the line of duty, citing Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). In Godfrey, the Court stated that "[i]f evidence should sufficiently demonstrate a medical relationship between the veteran's in-service [incurrence of aggravation of a disease or injury] and his current disability, it would follow that the veteran incurred an injury in service." Godfrey, 2 Vet. App. at 356 (emphases added). This statement begs the question as to what type of evidence is competent to "show" a nexus between service and a current disability. See 38 C.F.R. § 3.303(a) (1998) (service connection means that the facts "shown" by the evidence establish a particularly injury or disease resulting in disability was incurred coincident with service). In other cases, the Court has made clear that only medical evidence will suffice to address the etiology of medical questions such as the one presented in the instant case. Caluza, 7 Vet. App. at 506; Epps, 126 F.3d at 1468. The representative also contends, in the statement in lieu of a Form 646, that the veteran has manifested headaches as a result of experiencing head trauma in service. However, there is no indication in the record that the representative is competent to opine on a question involving medical etiology. As such, his opinion is of no value in establishing the presence of residuals related to a head injury in service. ORDER Entitlement to service connection for residuals of a head injury is denied. Iris S. Sherman Member, Board of Veterans' Appeals