Citation Nr: 0002256	
Decision Date: 01/28/00    Archive Date: 02/02/00

DOCKET NO.  98-07 367	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, 
Texas


THE ISSUE

Entitlement to service connection for a mental condition also 
claimed as a psychiatric disorder.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

M. Taylor, Associate Counsel


INTRODUCTION

The veteran served in the United States Army from October 
1972 to February 1974.  

This matter is before the Board of Veterans' Appeals (Board) 
on appeal of a rating decision from the Houston, Texas 
Department of Veterans Affairs (VA) Regional Office (RO), 
which denied entitlement to service connection for a mental 
condition.

The RO, in a rating decision dated April 1997, denied the 
veteran's application for service connection for hearing 
problems.  Further, in a rating decision dated July 1997, the 
RO denied the veteran's application for nonservice-connected 
pension, including extra-schedular entitlement to pension 
under 38 C.F.R. § 3.321(b)(2).  The RO accepted the veteran's 
substantive appeal, VA Form 9, received in March 1998, as a 
Notice of Disagreement on the issues of service connection 
for hearing problems and nonservice-connected pension.  
Thereafter, the RO properly issued Statements of the Case 
dated September 1999, and the veteran was notified by letter 
dated September 30, 1999.  The veteran failed to timely 
perfect his appeal and the rating decisions became final as 
to those issues.  38 C.F.R. § 20.302 (1999).  

The Board notes that in his substantive appeal, VA Form 9, 
received in March 1998, the veteran indicated that he desired 
to attend a hearing before a Member of the Board at the RO 
located in Houston, Texas.  The veteran was notified by 
letter dated November 1999, of the time and place of the 
hearing.  However, the veteran failed to appear for the 
hearing and therefore, the hearing request is considered 
withdrawn.  38 C.F.R. § 20.704(b) & (d) (1999).  


FINDING OF FACT

There is no competent evidence linking any current non-
drug/alcohol related psychiatric disorder, if present, to the 
veteran's remote service.  


CONCLUSION OF LAW

The claim of entitlement to service connection for a mental 
condition is not well grounded.  38 U.S.C.A. § 5107 (West 
1991).


REASONS AND BASES FOR FINDING AND CONCLUSION

Factual Background

The veteran served in the United States Army from October 
1972 to February 1974.  The entrance examination report 
indicates that the veteran had no mental abnormalities at the 
time of entry into service.  

Service medical records reflect that in July 1973 the veteran 
complained of feeling nervous and weak and of his heart 
speeding up and slowing down.  He was noted to have a nervous 
stomach.  The veteran was seen in November 1973 for 
complaining of chest pain and that his nerves were bothering 
him.  The impression was no significant problem.  When he was 
seen in December 1973, there was a notation of anxiety 
leading to insomnia.  A few days later he complained of being 
nervous and were to be referred to mental hygiene.  On the 
following day he complained of feeling as if he was going to 
swallow his tongue.  He was noted to appear nervous and to 
heave a nervous tremor.  The separation medical history, 
dated in February 1974, indicates that there were no 
significant defects or diagnoses.  The veteran's mental 
status was noted to be normal.   

The veteran was admitted to the VA Medical Center in Houston, 
Texas for detoxification from December 1996 to January 1997.  
He was noted to have a long history of alcohol abuse and to 
have recently used coccaine.  Also, he reportedly had a 
history of blackouts, tremors, and intermittent "Navy 
hallucinations" with paranoid ideation.  A mental status 
examination upon admission indicated that the veteran was 
polite, verbal and cooperative.  His affect was appropriate 
with euthymic mood and his speech was fluent with normal rate 
and volume.  No psychomotor agitation or retardation, 
delusional thinking, looseness of associations or flight of 
ideas was noted.  The veteran was oriented times three 
without memory or cognitive impairment, and with no suicidal 
or homicidal ideations.  His insight and judgment were fair.  
At discharge, the examiner reported that the veteran was 
fully competent.  The final diagnoses were alcohol 
dependence, history of recent cocaine use, and a history of 
substance-induced psychotic symptoms versus psychosis not 
otherwise specified versus malingering.  The examiner did not 
attribute any condition to active service.  

Criteria

Pursuant to 38 U.S.C.A. § 5107(a), 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 United States Court of Appeals 
for Veterans Claims (Court) has held that "[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."  38 U.S.C.A. § 
5107(a); Carbino v. Gober, 10 Vet. App. 507 (1997); Anderson 
v. Brown, 9 Vet. App. 542, 545 (1996).

The Court has held that 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 
§ [5107(a)]."  
Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990).  

The Court has also held that although a claim need not be 
conclusive, the statute provides that it must be accompanied 
by evidence that justifies a "belief by a fair and impartial 
individual" that the claim is plausible.  Tirpak v. 
Derwinski, 2 Vet. App. 609, 610 (1992).  

The Court has held that "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."  Heuer v. Brown, 7 Vet. App. 
379, 384 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 
(1993) (citing Murphy, at 81).  

The Court has held that a well-grounded claim requires 
competent evidence of current disability (a medical 
diagnosis), of incurrence or aggravation of a disease or 
injury in service (lay or medical evidence), and of a nexus 
between the in-service injury or disease and the current 
disability (medical evidence).  See Epps v. Brown, 126 F.3d. 
1464, 1468 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 
498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). 

Service connection may be established for a disability 
resulting from personal injury suffered or disease contracted 
in the line of duty or for aggravation of a preexisting 
injury suffered or disease contracted in the line of duty.  
38 U.S.C.A. § 1110 (West 1991).  Service connection may not 
be granted for disability which results from the abuse of 
alcohol or drugs.  See 38 C.F.R. § 3.301 (1999).  Disability 
proximately caused by the drinking of a beverage to enjoy its 
intoxicating effects will be considered the result of willful 
misconduct.  See 38 C.F.R. § 3.301(c)(2).  Similarly, the 
progressive and frequent use of drugs to the point of 
addiction will be considered willful misconduct.  38 C.F.R. § 
3.301(c)(3).  

Where a veteran served for at least 90 days during a period 
of war or after December 31, 1946, and a psychosis becomes 
manifest to a degree of 10 percent within one year from the 
date of termination of such service, such diseases shall be 
presumed to have been incurred in service, even though there 
is no evidence of such diseases during the period of service.  
38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991 & Supp. 1999); 38 
C.F.R. §§ 3.307, 3.309 (1999).  

Service connection may be granted for any disease diagnosed 
after discharge, when all the evidence, including that 
pertinent to service, establishes that the disease was 
incurred in service.  38 C.F.R. § 3.303(d) (1999).

Analysis

Section 5107 of Title 38, United States Code unequivocally 
places an initial burden upon the veteran to produce evidence 
that his claim is well grounded; that is, that his claim is 
plausible.  Grivois v. Brown, 6 Vet. App. 136, 139 (1994); 
Grottveit v. Brown, 5 Vet. App. 91, 92 (1993).   

Although the veteran's service medical records reflect some 
relevant complaints and notations of nervousness, anxiety and 
the like, his mental status was found to be normal on the 
separation examination, and the evidence does not establish 
the existence of a psychosis during the initial post-service 
year.  

The initial relevant post-service medical evidence is many 
years after service and does not include a current diagnosis 
of a mental condition for which service connection is 
available.  The medical evidence submitted in support of the 
claim consists of a VA medical hospitalization report, dated 
December 1996, which includes diagnoses of alcohol 
dependence, history of recent cocaine use, and a history of 
substance-induced psychotic symptoms versus psychosis not 
otherwise specified versus malingering.  This evidence shows 
that the veteran's psychotic symptoms may be substance-
induced as a result of alcohol dependence and a history of 
cocaine use or may be on the basis of malingering.  Service 
connection may not be granted for disability which results 
from the abuse of alcohol or drugs.  See 38 C.F.R. § 3.301 
(1999).  To the extent that the examiner rendered a possible 
diagnosis of a psychosis not otherwise specified, the 
examiner did not attribute this to any incident or event of 
active service or otherwise relate it to the veteran's 
service decades earlier.  

In this case, the veteran has not presented or identified 
medical evidence that supports a diagnosis of a qualifying 
psychiatric disorder.  The Court has held that Congress 
specifically limited entitlement to service connected 
benefits to cases where there is a current disability.  "In 
the absence of proof of a present disability, there can be no 
valid claim."  Brammer v. Derwinski, 3 Vet. App. 223, 225 
(1992).  In addition, the veteran has not presented or 
identified competent medical evidence relating any post-
service psychiatric disorder to active service.  

In the present case, the determinant issue is one of medical 
diagnosis and etiology; therefore, competent medical evidence 
must be submitted to make the claim well grounded.  Lay 
assertions of medical causation cannot constitute evidence to 
render a claim well grounded if no cognizable evidence is 
submitted to support a claim.  Grottveit v. Brown, 5 Vet. 
App. 91, 92-93 (1993).  The veteran is not qualified to 
render a medical diagnosis of a mental condition.  

The Board finds that the claim of entitlement to service 
connection for a mental condition is not supported by 
cognizable evidence showing that the claim is plausible or 
capable of substantiation.  Thus, the Board concludes that 
the claim of entitlement to service connection for a mental 
condition is not well grounded.  38 U.S.C.A. § 5107(a) 
(West 1991).  

Pursuant to 38 U.S.C.A. § 5103(a), if VA is placed on notice 
of the possible existence of information that would render 
the claim plausible, and therefore well grounded, VA has the 
duty to advise the veteran of the necessity to obtain the 
information.  McKnight v. Gober, 131 F.3d 1483, 1484-1485 
(Fed. Cir. 1997); Robinette v. Brown, 8 Vet. App. 69, 80 
(1995).  However, such evidence must be identified with some 
degree of specificity; with an indication that the evidence 
exists and that it would well ground the claim.  See Carbino 
v. Gober, 10 Vet. App. 507, 510 (1997).  In this case, the 
veteran has not identified medical evidence that would make 
his claim well grounded.  Therefore, 38 U.S.C.A. § 5103(a) is 
not applicable to the present case. 

As the veteran's claim for service connection for a mental 
condition is not well grounded, the doctrine of reasonable 
doubt has no application to his case.  

The Court has held that if the appellant fails to submit a 
well-grounded claim, VA is under no duty to assist in any 
further development of the claim.  38 U.S.C.A. § 5107(a); 
Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Grottveit v. 
Brown, 5 Vet. App. 91, 93 (1993); 38 C.F.R. § 3.159(a) 
(1999).



The Board views its foregoing discussion as sufficient to 
inform the veteran of the elements necessary to complete his 
application for service connection.  See Graves v. Brown, 8 
Vet. App. 522 (1996); Robinette v. Brown, 8 Vet. App. 69, 77-
78 (1995); McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997); 
Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997).  


ORDER

Service connection for a mental condition/psychiatric 
disorder is denied.



		
	JANE E. SHARP
	Member, Board of Veterans' Appeals



 


{'dataset': 'bva_opinions'}