92 Decision Citation: BVA 92-00082 Y92 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 90-29 828 ) DATE ) ) ) THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nickie Athanason-Dymersky, Associate Counsel INTRODUCTION This matter came before the Board of Veterans' Appeals (hereinafter the Board) on appeal from a rating decision of October 13, 1989, from the Department of Veterans Affairs (hereinafter VA) Wichita, Kansas, Regional Office (hereinafter RO). The appellant had active service from November 1951 until November 1955, and from July 1956 until December 1961. The notice of disagreement was received on November 15, 1989. The statement of the case was issued on December 6, 1989. The substantive appeal was dated December 15, 1989, and apparently was received on January 10, 1990. The RO heard testimony from the appellant on March 27, 1990. The hearing officer issued an opinion on June 11, 1990. The first supplemental statement of the case was issued on June 22, 1990. Another substantive appeal was received on July 16, 1990. The appeal was received on August 15, 1990, and docketed at the Board on August 21, 1990. The appellant's representative submitted an informal hearing presentation on December 3, 1990. The Board remanded this case for further development on February 5, 1991. A second supplemental statement of the case was issued on July 9, 1991. A third supplemental statement of the case was issued on July 29, 1991. The appeal was again received on August 29, 1991, and docketed at the Board on September 5, 1991. The appellant has been represented throughout his appeal by the Veterans of Foreign Wars of the United States. That organization submitted additional written argument to the Board on September 13, 1991. The case is now ready for appellate review. In April 1962, the RO deferred action on a claim for entitlement to service connection for a neuropsychiatric condition until the claimant could be examined by a VA psychiatrist. The RO ordered a VA examination, but he failed to report. In June 1962, the RO notified the claimant that no further action would be taken, as he did not report for the examination. His failure to report resulted in the abandonment of his claim for a psychiatric disability. 38 CFR 3.158(b), 3.329, and 3.655. Subsequently, the appellant filed the instant claim which is considered a new claim, as defined in 38 C.F.R. 3.158(a). CONTENTIONS OF APPELLANT ON APPEAL According to a statement in support of his claim dated December 15, 1989, the appellant claims that when he reenlisted in the Air Force in 1956, he was in excellent mental health. However, due to the undue stress and strain he experienced in service, he developed depression and was given a medical discharge in 1961. DECISION OF THE BOARD For the reasons and bases hereinafter set forth, it is the decision of the Board that the preponderance of the evidence supports the grant of entitlement to service connection for an acquired psychiatric disorder. FINDINGS OF FACT 1. The appellant's service medical records show that he was diagnosed with a chronic depressive reaction in service on November 13, 1961. 2. A VA board of two psychiatrists diagnosed the appellant as suffering from a chronic, recurrent, major depression while he was hospitalized in May 1991. CONCLUSION OF LAW An acquired psychiatric disorder was incurred in service. 38 U.S.C. 1110, 1131, 5107 (formerly 38 U.S.C. 310, 331, 3007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board notes that we have found that the appellant's claim is "well-grounded" within the meaning of 38 U.S.C. 5107(a) (formerly 38 U.S.C. 3007(a)). That is, we find that he has presented a claim which is plausible. We are also satisfied that all relevant facts have been properly developed. No further assistance to the appellant is required to comply with the duty to assist the claimant mandated by 38 U.S.C. 5107(a). After reviewing the evidence in all of the appellant's service medical records from both periods of service (November 1951 until November 1955 and from July 1956 until December 1961), the Board notes that parts of the service medical records are missing--probably because some records were destroyed in the fire at St. Louis, Missouri. On a social and industrial survey of the veteran conducted in 1989 he gave a chronology of apparent military hospitalizations elicited from the appellant himself including several alleged hospitalizations for mental disorders including treatment in 1953 at Ethan Allan Air Force Base in Burlington, Vermont, for a mental disorder and attempted suicide; treatment in 1955 at Presquile Air Force Base in Maine, for depression; in 1957 for treatment at Spangdahlem Air Force Base in Germany, for severe depression; in 1958 at George Air Force Base in California, for severe depression; in 1959 at Travis Air Force Base in California for attempted suicide; and in 1959 at the United States Naval Hospital in San Diego, California, for attempted suicide, mental disorder and schizophrenia. Although these are not documented in the available service medical records in the claims folder, the Board finds that these allegations are consistent with the thrust of his oral testimony given before an RO hearing officer on March 27, 1990, and the evidence which is of record. There are some notations in the appellant's surviving service medical records which show that the appellant suffered from a psychiatric disorder while in service. On June 16, 1960, we find a notation that the appellant was suffering for a month from insomnia, depression, irritability and other disorders described as "pre-psychotic behavior." The doctor placed him on Meprobamate and indicated that the appellant needed a neuropsychiatric consultation. On June 23, 1960, the appellant's insomnia continued so he was admitted for psychiatric observation and was transferred to the United States Naval Hospital in San Diego, California. On October 4, 1961, we have a clinical record cover sheet wherein the appellant was admitted to a military hospital for medical observation for a line-of-duty episode of syncope, but no organic disease was found. A neuropsychiatric report must have been conducted because on October 30, 1961, a notation indicates that this report was sent to his commanding officer. On October 31, 1961, another notation is made regarding the psychiatric consultation saying that there were no recent episodes of anxiety or syncope and that the physician had "written a letter summarizing Dr. Wood's findings & recommending a PCS move." In addition, his prescription for Stelazine was refilled. On November 3, 1961, the doctor mentioned a medical board report regarding psychiatric evaluation and again the appellant's prescription for Stelazine was refilled. (Stelazine is a neuropsychiatric drug.) While still in service, on November 13, 1961, the record reflects that the appellant was diagnosed with a chronic depressive reaction and hospitalized. In the appellant's discharge examination, dated December 7, 1961, the block regarding psychiatric problems (number 42) indicates that there is a "N. P. Consultation" attached. Although the Board failed to find this important document in his service medical records, the mere notation that it existed raises the implication that the disorder was then present. In addition, the appellant alleges in a statement dated December 15, 1989, concurrent with his substantive appeal, that he was treated from January 1961 until the summer of 1967 by a Dr. Nigro at his clinic at 1522 McGee, Kansas City, Missouri, and at the downtown hospital at 14th and Oak, Kansas City, Missouri. (The appellant probably meant that his treatment at a private clinic began in January 1962 because he was still in service in January 1961.) The appellant claims that his treatment records from this private clinic and hospital are unavailable because both institutions were subsequently closed. During his testimony before an RO hearing officer on March 27, 1990, when questioned as to the initial post service treatment that he received for a "nervous condition," the appellant explained that, approximately two weeks after release from the military, he was treated by the aforementioned Dr. Nigro. Although these treatment records are apparently unobtainable, the appellant's recollection of this treatment is so clear that his testimony is given great probative weight. The appellant subsequently sought help for his neuropsychiatric problems at the VA Medical Center, Kansas City, Missouri, starting in the early 1970's, but was usually referred first to their alcohol unit for treatment for his alcohol abuse. He also claims treatment for his psychiatric problems at the K. U. Medical Center and at at least one State hospital. In 1987, he attempted to commit suicide because of his manic depression. In 1988, the appellant was admitted to the psychiatric unit at VA Medical Center, Leavenworth, Kansas, for approximately two months. At his discharge on January 5, 1989, the VA physician's diagnosis was for an "adjustment disorder with mixed emotional features and alcohol dependence, episodic." The appellant was then sent to a domiciliary connected with the VA Medical Center, Leavenworth, Kansas, and on both March 29, 1989, and May 4, 1989, his physician noted a diagnosis of "bipolar affective disorder, psychotic, mixed type." Finally, after a Board remand dated February 5, 1991, and after a one-week period of observation at a VA facility, a board of two psychiatrists made a diagnosis on May 28, 1991, of "major depression, chronic, recurrent." After considering all of the evidence of record, and weighing the positive and negative evidence in the appellant's file, the Board concludes that a fair preponderance of the evidence supports the appellant's claim for service connection for an acquired psychiatric disorder. Thus, service connection is warranted. ORDER Entitlement to service connection for an acquired psychiatric disorder is granted. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 ROBERT D. PHILIPP C. D. ROMO 38 U.S.C. § 7102(a)(2)(A) (1989) (formerly § 4002(a)(2)(A), recodified in 1991) permits a Board of Veterans' Appeals Section, upon direction of the Chairman of the Board, to proceed with the transaction of business without awaiting assignment of an additional Member to the Section when the Section is composed of fewer than three Members due to absence of a Member, vacancy on the Board or inability of the Member assigned to the Section to serve on the panel. The Chairman has directed that the Section proceed with the transaction of business, including the issuance of decisions, without awaiting the assignment of a third Member. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C. 7266 (formerly 38 U.S.C. 4066), 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 (see sec. 402 of the Veterans' Judicial Review Act (Pub. L. 100-687)). 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.