Citation Nr: 0807447 Decision Date: 03/04/08 Archive Date: 03/12/08 DOCKET NO. 04-43 974 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Whether new and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder, to include anxiety and depression. REPRESENTATION Appellant represented by: West Virginia Division of Veterans Affairs ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The veteran served on active duty from June 1963 to May 19664. This matter is before the Board of Veterans' Appeals (Board) on appeal of a February 2004 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which denied reopening the veteran's service connection claim for chronic anxiety with depression. In an October 2004 statement of the case (SOC) the RO reopened the claim based upon the receipt of new service treatment records and denied entitlement to service connection upon reconsideration. 38 C.F.R. § 3.156(c) (2007). In April 2006, the Board remanded the claim for additional development. The case has now been returned to the Board for additional appellate consideration. It is noted that the veteran's initial claim for service connection for chronic anxiety with nervousness was denied by the RO in July 1992, and the veteran was notified that month. As noted above, the RO reopened the claim as indicated in an October 2004 SOC and reviewed the claim on a de novo basis. Still, it is pointed out that the Board does not have jurisdiction to consider a claim that has been previously adjudicated unless new and material evidence is presented, and before the Board may reopen such a claim, it must find that new and material evidence has been presented. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). See also Winters v. West, 12 Vet. App. 203 (1999). Therefore, under the circumstances of this case, the issue is as stated on the title page. FINDINGS OF FACT 1. In July 1992, the RO notified the veteran that it had denied his claim for service connection for chronic anxiety and nervousness. The veteran did not appeal the RO's June 1992 decision and it became final. 2. Evidence associated with the claims file since the RO's June 1992 decision is so significant that it must be considered in order to fairly decide the merits of the claim for service connection for an acquired psychiatric disorder, to include anxiety and depression. 3. A personality disorder is not a disability for which service connection can be granted. 4. The evidence is at least in equitable equipoise as to whether an acquired psychiatric disorder (chronic anxiety) had its onset during active service and service connection is warranted. CONCLUSIONS OF LAW 1. The RO's June 1992 denial is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2007). 2. Since the RO's June 1992 decision that denied service connection for chronic anxiety with nervousness, new and material evidence to reopen the claim for service connection for an acquired psychiatric disorder, to include anxiety and depression, has been received. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2007); 38 C.F.R. § 3.156(a) (as in effect on and after August 29, 2001). 3. With resolution of all reasonable doubt resolved in the veteran's favor, an acquired psychiatric disorder (chronic anxiety), was incurred in service. 38 U.S.C.A. §§ 1112, 1131, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. Considering the record in light of the above-noted legal authority, and in view of the Board's favorable disposition of the claim on appeal, the Board finds that all notification and development action needed to fairly adjudicate the claim on appeal. New and Material Review of the record reflects that the veteran's claim for chronic anxiety with nervousness was initially denied in June 1992 on the basis that the service treatment records were negative for treatment of a psychiatric condition, and such treatment was not indicated until many years thereafter. In making this determination, the RO considered the claimant's available service treatment records and post service treatment records dated from discharge from service through 1992. The veteran was notified of the RO's denial in July 1992. The notice letter provided her with information as to her procedural and appellate rights. She did not appeal this decision and it is final. 38 U.S.C.A. § 7105(a) (West 2002 & Supp. 2007); 38 C.F.R. §§ 20.302, 20.1103 (2007). However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. Manio v. Derwinski, 1 Vet. App. 145 (1991). When determining whether additional evidence is new and material, VA must determine whether such evidence has been presented under 38 C.F.R. § 3.156(a) in order to have a finally denied claim reopened under 38 U.S.C.A. § 5108 (West 2002 & Supp. 2007). Effective from August 29, 2001, the regulations defining "new and material evidence" were revised and clarify the types of assistance the VA will provide to a claimant attempting to reopen a previously denied claim. 38 C.F.R. §§ 3.156(a) and 3.159(b). These specific provisions are applicable only to claims filed on or after August 29, 2001. As the veteran filed his claim seeking to reopen in December 2002, the Board has considered these provisions. To reopen a claim which has been previously denied and which is final, the claimant must present new and material evidence. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2007). Under the amended regulations, new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previously evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2007). The Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the previous action denying the claim was appealed to the Board. Jackson v. Principi, 265 F 3d 1366 (Fed. Cir. 2001). In this case, the evidence received since the RO's June 1992 denial of service connection for chronic anxiety with nervousness includes some duplicate copies of previously considered treatment records. Such records were considered in the previous denial and are not new and material. Also added to the claims file since the previous 1992 denial were additional service treatment records not previously of record and private and VA treatment records which show continued treatment for psychiatric complaints. The service treatment records are new in that they reflect inservice treatment for psychiatric symptoms which were determined to preclude further military service. These documents include inservice assessments as to the veteran's psychiatric complaints. This evidence is considered new in that it contains information that was not considered at the time of the 1992 decision, and it is material because it purports to show treatment for psychiatric disability during service which was not objectively shown by the evidence previously. Similarly, also considered new and material are numerous private and VA examiners' opinions (as summarized in the "factual background" portion of this decision below) regarding the etiology of the veteran's psychiatric condition. As these medical opinions, for and against the veteran's claim, were not previously of record, they are also considered to be new and material. As the appellant has submitted new and material evidence, her claim is reopened. Before proceeding with a de novo review of the appellant's claim for service connection for a psychiatric condition without returning it to the RO for initial consideration, the Board must first determine whether or not this would potentially harm the appellant's claim. The Board's review of the relevant documents in this case, to include the October 2004 SOC and supplemental statements of the case (SSOCs) in December 2005 and December 2007, shows that the RO considered the claim for service connection on a de novo basis. Therefore, as the RO has already in effect considered the claim on a de novo basis, no harm can result to the appellant if the Board also considers her psychiatric claim on a de novo basis without returning it to the RO. Bernard v. Brown, 4 Vet. App. 384, 393 (1993). Factual Background In numerous statements of record, the veteran asserts that her mental illness had its inception during active military service. She relates her inservice psychiatric complaints, not to a personality disorder, but to stressors of service to include numerous instances (associated with training) where she almost drowned. She also reported that she knew another soldier named "[redacted]" who she thought might have drowned. She did not recall her last name and when asked through correspondence to provide more details as to the approximate date and location of the alleged drowning, she did not respond with such. In support of the veteran's claim, numerous statements were submitted by family members and others (e.g., her husband, daughters, and reverend) which attest to the change in her behavior after discharge from service. Clearly, these statements infer that she incurred a psychiatric disorder during service. An October 2004 statement from a fellow soldier attests to the fact that the veteran was on medication during service for psychiatric complaints. The soldier served as a nurse with the veteran and recalled that they were often mistreated by superiors. She also recalled that the veteran and "[redacted]" were especially poor swimmers and that the veteran almost drowned on numerous occasions. She said that the veteran was finally separated from service due to her physical and mental problems. The service treatment records reflect that behavior problems (e.g., her "attitude" was discussed in February 1964 and in March 1964 it was noted that she was unhappy in the military) precipitated psychiatric evaluation. In February 1964, Librium was prescribed. As a result of exam in March 1964, it was determined that she had longstanding personality traits of emotional immaturity, dependence, and instability. It was determined that this personality disorder precluded her from rendering further useful military service. In an April 1964 service document, it was determined that she was to receive an honorable discharge from the Navy by reason of unsuitability. On this document it was noted that she was examined twice during service in regards to her psychiatric complaints. After the first evaluation, it was thought that she might be able to resolve some of her personal problems and mature to the extent where she could expend effort constructively. However, she returned to her command, vented her feelings to everyone who would listen to her, and stated that the psychiatrist refused to listen to her and failed to help her. It was noted that she refused to listen to her peers in the performance of her duties. Accordingly, a second consultation was arranged with a board certified psychiatrist. He recommended that she be separated from military service. It was noted on this document that she was being separated due to her very immature approach to life and her inability to adjust to a Navy environment. The examiner indicated that she refused to accept any responsibility whatsoever. As she could not be relied upon to do the most menial tasks, it was questionable if she would ever be of any value to the service. As noted in the Board's April 2006 remand, the evidence of record includes both positive and negative evidence as to service incurrence. A summarization of the evidence follows. The record clearly reflects that the veteran received extensive medical treatment for a variety of disorders since the late 1960s. In 1967, it was noted that she stayed nervous most of the time and Librium was prescribed for anxiety. In the 1970s, she was depressed and severe anxiety was assessed. Longstanding situational anxiety was noted in the 1980s and 1900s. Her treatment for chronic anxiety has continued to the present day. In correspondence dated in April 2004, the veteran's private internist, M. P. M.D., who has noted in other statements that he is not a psychiatrist, stated his opinion that the veteran's anxiety/depression had their origin during her military service. He added that he had treated the veteran since 1979. Also in support of the opinion that anxiety had its onset during service is the opinion of a VA examiner in October 2004. He reviewed the claims folder and examined the veteran and determined that it seemed likely that she had "some kind of psychiatric difficulty" during service related to inservice stressors as reported in the numerous statements of record. The examiner also noted that the record showed diagnosis of anxiety and the prescription of Librium as early as 1967. This proximity to service discharge reflected inservice psychiatric problems which made it likely that military service resulted in psychiatric conditions. In April 2005, a board of two VA staff psychiatrists reviewed the record and examined the veteran. The report includes the veteran's reported history of inservice abuse by her superiors, to include one episode when she was emotionally abused to the point where she urinated on herself. The examiners felt that the veteran contradicted herself by stating that she was always excitable and nervous and then stating that she had no psychiatric problems prior to military service. It was their opinion that the veteran's symptoms were primarily consistent with a personality disorder, and that it did not appear that she developed a chronic psychiatric disability while on active duty. It was noted that there was no record of ongoing anxiety or nervousness documented during active service. In a May 2005 statement, B. C. C., M.D., who treated the veteran in 1964 during service, recalled that he saw the veteran for headaches (tension vs. muscular) at that time and that he also prescribed a tranquilizer due to her anxiety. He did not recall for certain but thought that he probably started the process for her to be discharged from the service. He also recalled that she baby sat for him and that he certainly would not have allowed such if there was any question as to her suitability. He believed that her story was "credible" in that there was some evidence that he played a role in her discharge from service. In correspondence dated in January 2006, Dr. M. P. disputed the April 2005 opinion as provided the board of two VA psychiatrists' opinion as to the veteran's having a personality disorder. In addendums to their initial April 2005 VA report, the board of two psychiatrists indicated in October 2006 and November 2007 that their opinion had not changed. While they did not examine the veteran again, it was noted that they had reviewed all additional statements submitted since their previous report. In January 2008, a private psychiatric examiner, B. C., M.D., stated that he conducted an "independent review" of the record and examined the veteran that month. His opinion favored the veteran's contention that she incurred an acquired psychiatric disorder (chronic anxiety) during service as a result of inservice stressors. He opined that the record was not convincing that the veteran's inservice problems were a personality disorder. He said that there simply was no data which supported that diagnosis under the criteria provided for in the Diagnostic and Statistical Manual of the American Psychiatric association. No psychological or personality testing was accomplished, and he stated that there was never any showing of an enduring pattern of inner experience and behavior that deviated markedly from the expectations of the individual's culture. It was not shown that her symptoms were inflexible and pervasive across a broad range of personal and social situations or that such was stable and of long duration "(and) is not better accounted for as a manifestations or consequence of another mental disorder." In his opinion the "other mental disorder" for which she had been treated for over 40 years was chronic anxiety. Thus, as no childhood psychiatric difficulties or treatment were shown, her anxiety began during her time in service. Service Connection 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 preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1131 (West 2002 & Supp. 2007); 38 C.F.R. § 3.303 (2007). 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) (2007). Where there is a chronic disease shown as such in service or within the presumptive period under § 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) (2007). This rule does not mean that any manifestations in service will permit service connection. To show 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 as distinguished from merely isolated findings or a diagnosis including the word "chronic". When the disease entity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2007). Continuous service for 90 days or more during a period of war, or peace time service after December 31, 1946, and post- service development of a presumptive disease such as psychosis to a degree of 10 percent within one year from the date of termination of such service, establishes a rebuttable presumption that the disease was incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.307, 3.309 (2007). Personality disorders are not disabilities for which service connection is granted. 38 C.F.R. § 3.303(c) (2007). The Court has held that, in order to prevail on the issue of service connection, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed inservice disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v West, 12 Vet. App. 341, 346 (1999). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Analysis It is the Board's conclusion that the evidence is at least in relative equipoise as to the onset of an acquired psychiatric disorder - chronic anxiety. Thus, service connection is warranted for chronic anxiety. While initial review of the record reflects the diagnosis of a personality disorder during service, there is argument expressed by medical personnel (private and VA) that the claimant's inservice psychiatric problems were actually the first indication of an acquired psychiatric disorder. The Board cannot ignore competent medical evidence or opinion indicating that the veteran had chronic anxiety due to active service. It is also noted that the medical opinions in support of the veteran's claim, physicians' opinions in 2004 (VA) and in 2008 (private), were based on review of the entire record and examination of the veteran. The Board finds that these two opinions which favor a grant of service connection are premised upon an accurate picture of the veteran's history and current condition. The Board further observes that, in Alemany v. Brown, 9 Vet. App. 518 (1996), the Court noted that in light of the benefit of the doubt provisions, an accurate determination of etiology is not a condition precedent to granting service connection; nor is "definite etiology" or "obvious etiology." Moreover, in Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." In Gilbert the Court specifically stated that entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. Under the benefit of the doubt doctrine established by Congress, when the evidence is in relative equipoise, the law dictates that the appellant prevails. Resolving all benefit of the doubt in favor of the veteran, the Board concludes that she is entitled to a grant of service connection for chronic anxiety. ORDER Service connection for chronic anxiety is granted. ____________________________________________ K. J. ALIBRANDO Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs