Citation Nr: 0401680 Decision Date: 01/16/04 Archive Date: 01/28/04 DOCKET NO. 02-01 062A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a psychiatric disorder as secondary to service-connected right orchiectomy. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. D. Parker, Counsel INTRODUCTION The veteran (also referred to as "appellant" or "claimant") served on active duty from July 1980 to July 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in June 2001 by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which denied service connection for a psychological disorder (depressive disorder and an obsessive-compulsive disorder) as secondary to service- connected right orchiectomy. The veteran entered notice of disagreement with this decision in June 2001; the RO issued a statement of the case in January 2002; and the veteran entered a substantive appeal, on a VA Form 9, which was received in February 2002. The Board notes that the issue of entitlement to an increased rating for status post right testicular torsion with orchiectomy was withdrawn from appellate review in January 2003. Review of the record, however, reveals a matter which must be brought to the RO's attention. In the text of an October 1999 rating decision, the veteran's service-connected disability was noted to be both noncompensable and 10 percent disabling. The disability rating of 10 percent was apparently retained, despite a change in rating criteria. Nevertheless, the rating sheet reflects a noncompensable evaluation, along with entitlement to special monthly compensation due to anatomical loss of a creative organ. The June 2001 rating decision on appeal also reflects a noncompensable evaluation and entitlement to special monthly compensation. The RO should take appropriate action to correct any error in this regard. FINDINGS OF FACT 1. In light of the grant of service connection for an obsessive-compulsive disorder, there is no reasonable possibility that additional assistance would further aid in substantiating the service connection claim. 2. The evidence for and against the veteran's claim is in relative equipoise on the question of whether his currently diagnosed disability of obsessive-compulsive disorder is etiologically related to his service-connected right orchiectomy. CONCLUSION OF LAW With the resolution of reasonable doubt in the veteran's favor, obsessive-compulsive disorder is proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 In light of the grant of benefits sought on appeal, no further evidence is necessary to substantiate the veteran's claim for service connection for a psychiatric disorder as secondary to service-connected right orchiectomy. See 38 U.S.C.A. § 5103(a) (West 2002). In this veteran's case, there is no reasonable possibility that further assistance would aid in substantiating the veteran's claim for VA compensation benefits. See 38 U.S.C.A. § 5103A(a)(1),(2) (West 2002). II. Service Connection for a Psychiatric Disorder The veteran contends that his currently diagnosed obsessive- compulsive disorder is etiologically related to his service- connected right orchiectomy. The veteran notes that he was seen in service for a psychiatric disorder, characterized during service as an "anxiety disorder." He contends that the orchiectomy in service caused his psychiatric disorder manifested in service to develop into a "chronic" disorder. He submitted favorable private medical opinion evidence that relates his currently diagnosed obsessive-compulsive disorder to his in-service orchiectomy. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a) (2003). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b) (2003). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2003). Additionally, service connection may be granted for a disorder found to be proximately due to, or the result of, a service-connected disability, including on the basis of aggravation. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). The Board has reviewed of all the lay and medical evidence of record, whether or not specifically identified in this decision. See Quarles v. Derwinski, 3 Vet. App. 129 (1992). After a review of the evidence, the Board finds that the evidence for and against the veteran's claim is in relative equipoise on the question of whether his currently diagnosed disability of obsessive-compulsive disorder is etiologically related to his service-connected right orchiectomy. The evidence weighing against the veteran's claim for service connection for a psychiatric disorder includes a history of obsessive-compulsive symptoms since age 15, or a 21 year history of obsessive compulsive disorder during private examination in May 1998; in-service diagnoses of psychiatric symptoms as situational anxiety associated with post- operative complaints of pain rather than an acquired psychiatric disorder; a March 1996 VA psychological statement that recent research suggested that obsessive-compulsive disorders had at least a partial biological basis, and that the evidence indicated that the instability and threat of violence during the veteran's childhood and adolescence "contributed in large part to his experience of pervasive anxiety and subjective distress"; portions of a medical article (received in June 2001) to the effect that obsessive- compulsive disorder began from one-third to one-half the time during childhood, and that genes played a role in the development of this disorder; and a June 2001 VA examination report that reflects Axis I diagnoses of obsessive-compulsive disorder and depressive disorder with atypical features, with a psychiatric opinion that it is "not at least as likely as not that [the veteran's] current mental disorder is related to anatomical loss of testes." The VA examiner did not state the bases for this opinion. The evidence weighing in favor of the veteran's claim for service connection for a psychiatric disorder includes the fact that, following an in-service right orchiectomy, the veteran experienced in-service psychiatric symptomatology that included anxiety and unexplained complaints of non- localized inguinal pain; the veteran's testimony at a Physical Evaluation Board hearing in October 1984 that he experienced trouble sleeping at night, anxiety, lack of concentration, worry and fear over loss of a testicle, and felt like he had not recovered emotionally from the operation; a lay statement from the veteran's wife to the effect that the veteran underwent a "personality change" during service that included fear, depression, and anxiety, and he experienced post-service psychiatric symptomatology that included depression and dependence; the veteran's lay statements to the effect that soon after a right orchiectomy he began feeling apprehensive and inadequate; portions of a medical article (received in June 2001) to the effect that obsessive-compulsive disorder tended to be underdiagnosed, involving an average of nine years of treatment before an accurate diagnosis, that it took an average of 17 years to obtain treatment for obsessive-compulsive disorder, and people with obsessive-compulsive disorder may be secretive about their symptoms; and an August 2001 medical etiology opinion by a private consulting psychiatrist, licensed clinical professional counselor, and mental health counselor that the veteran had suffered from increasingly severe anxiety symptoms over a period of years that had gone from generalized anxiety to situational anxiety to panic disorder with agoraphobia, culminating in obsessive-compulsive disorder, and an opinion that the removal of the veteran's right testicle during service "was a significant and triggering event which caused his anxiety to become more acute and develop into a chronic condition." When the favorable evidence is weighed against the unfavorable evidence, the Board finds that the evidence for and against the veteran's claim is in relative equipoise on the question of whether his currently diagnosed disability of obsessive-compulsive disorder is etiologically related to his service-connected right orchiectomy. The evidence of record includes VA psychiatric opinions that weigh in favor of and against the veteran's claim for secondary service connection. For these reasons, and with the resolution of reasonable doubt in the veteran's favor, the Board finds that secondary service connection for obsessive-compulsive disorder is warranted. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310. ORDER Secondary service connection for obsessive-compulsive disorder is granted. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: ? Appeal to the United States Court of Appeals for Veterans Claims (Court) ? File with the Board a motion for reconsideration of this decision ? File with the Board a motion to vacate this decision ? File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: ? Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's web site on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM JUN 2003 (RS) 4597 Page 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003 (RS) 4597 Page 2