BVA9501675 DOCKET NO. 90-49 649 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD R. D. Turano, Counsel INTRODUCTION The veteran served on active duty from November 1972 to September 1974. In a decision by the Army Discharge Review Board dated in April 1988, the character of the veteran's discharge from service was upgraded to be under honorable conditions. This matter came before the Board of Veterans Appeals (Board) from a December 1988 decision by the Regional Office (RO). A notice of disagreement was received in January 1989. The statement of the case was issued in March 1989. A substantive appeal was received in July 1989. A personal hearing was held at the RO in October 1989. The hearing officer rendered a decision in October 1989. At this time the veteran was represented by the Vietnam Veterans of America, but this representation was terminated in January 1991. The veteran thereafter was represented by the American Legion. A personal hearing was again held at the RO in May 1990. The case was remanded by the Board in May 1991, November 1991 and March 1994. The Board recognizes that the case, following the rating decision in May 1994 and the issuance of a supplemental statement of the case, was not presented to the local office of the American Legion for review. However, given the favorable action on the veteran's claim as set forth below, the Board finds that such failure is harmless and such action unnecessary in the present case. CONTENTIONS OF APPELLANT ON APPEAL It is asserted by and on behalf of the veteran that service connection is warranted for a psychiatric disability since this disorder developed as a result of military service. The veteran states that he was treated for psychotic paranoid reactions during service but did not seek treatment after service, until recently, due to a fear and distrust for treatment stemming from his disorder. He contends that the use of drugs and alcohol was caused by his psychiatric disability and that he did not pursue a claim for compensation benefits until recently when he was granted an upgraded discharge. He asserts that he sought this upgrade due to feelings of helplessness and hopelessness. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that entitlement to service connection for an acquired psychiatric disorder is warranted. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. Service medical records show that the veteran was treated due to a psychotic paranoid state and poly drug abuse in February 1974. 3. The veteran has an acquired psychiatric disorder currently characterized as an organic personality disorder which is reasonably attributed to alcohol and drug abuse. 4. The Veteran's Application For Compensation or Pension was received in July 1988. 5. The veteran's organic personality disorder secondary to alcohol and drug abuse is reasonably related to the acquired psychiatric disorder and drug abuse demonstrated in service. CONCLUSION OF LAW An acquired psychiatric disorder secondary to alcohol and drug abuse was incurred during the veteran's military service. 38 U.S.C.A.§§ 1110, 5107 (West 1991); 38 C.F.R.§ 3.303 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board finds, initially, that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a); that is, we find that the claim presented is plausible. Additionally, the Board is satisfied that all relevant facts have been properly developed . The veteran previously indicated that he had been treated at the "Veterans" hospital in Miami but requests made in December 1991 and February 1992 were returned as no records were located. Therefore, the Board finds that no further assistance is required to comply with the duty to assist mandated by 38 U.S.C.A.§ 5107(a). In the present claim the veteran asserts that he developed a psychiatric disability during service. Service records indicate that the veteran received an undesirable discharge in September 1974. The character of his discharge was upgraded to honorable on April 12, 1988 by the Army Discharge Review Board. A review of the veteran's service medical records reveals that on a Report of Medical History at the time of the veteran's entry into service, he reported having had nervous trouble. Medical records indicate that in December 1973 the veteran was evaluated due to paranoid feelings. The diagnosis was acute paranoid ideation. Records from Brooke Army Medical Center in February 1974 included diagnoses of psychotic paranoid state, acute, severe, improved and polydrug abuse. At the time of the veteran's discharge from service he again reported having had nervous trouble, however, psychiatric evaluation at that time was normal. The Veteran's Application For Compensation or Pension was received in July 1988. He reported receiving medical treatment for a nervous condition during service and beginning in 1987. In a medical history given when he was examined by the VA in November 1988 he reported abusing alcohol since he was 14 years of age. He failed, at this time, to reveal that he had a past history of polydrug abuse or that he had been in a serious accident in which he sustained a severe head injury. He stated in his substantive appeal received in July 1989, that his abuse of drugs was a symptom of his psychiatric disorder. He later testified in a personal hearing in October 1989 that his psychiatric disorder caused him to have a fear and distrust of treatment. Additionally, he asserted that peer pressure was the reason for his drug use. At the May 1990 hearing he testified that his use of drugs and alcohol, while stationed in Germany, caused his psychiatric problems. Given the inaccuracies and inconsistencies by the veteran and his failure to provide pertinent information, the Board finds that the probative value of the veteran's testimony is minimal and we must look to the remaining objective evidence upon which to base our decision. Records indicate that the veteran was hospitalized at the Fair Oaks Hospital at Boca/Delray from July 1987 to August 1987 due to depression and alcohol abuse. The diagnoses included organic personality disorder. On examination by the VA in November 1988, the diagnosis was schizophrenia, paranoid type, probably beginning to develop while he was in the service. However, when questioned about this assessment the examiner, in October 1992, stated that the history of excessive alcohol and drug abuse had not been revealed at the time of the examination, nor had the fact that the veteran sustained a severe head injury six months earlier. The examiner reported that the original diagnosis was based on a reported case of psychotic paranoia on the request form and a statement by the veteran that he heard voices in the past; believed that people were talking behind his back; and assertions that he was under constant surveillance. After reviewing the entire record the examiner set forth a formal diagnosis of organic mental disorder due to poly-substance dependence. Clearly, the original diagnosis was based on inaccurate information, or the withholding of pertinent information by the veteran when reporting his medical history. Pursuant to requests made by the Board, the veteran's records were reviewed by a Board of Psychiatrists in order to render a diagnosis in this case. In a report dated in July 1993, the examiners concluded that the pertinent diagnoses were organic personality disorder, alcohol dependence and poly drug abuse. While VA regulations provide that service connection may not be awarded for a personality disorder, see 38 C.F.R.§§ 3.303(c), 4.9, (1993), organic personality disorder may be differentiated from the personality disorders mentioned in the regulations. As noted in the preliminary order by the Board in March 1994, organic personality disorders fall within the definition of Organic Mental Disorders which are defined as "mental disturbances resulting from transient or permanent dysfunction of brain tissue that is attributable to specific organic factors, such as aging, drugs and toxins..." see R.J. Campbell, M.D., Psychiatric Dictionary 501,(Sixth Edition 1989). The VA Manual M21-1, Part VI, as well as the VA Schedule for Rating Disabilities, 38 C.F.R.§ 4.132 (1993), recognize disability ratings for Organic Mental Disorders in accordance with The American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 97 (3d. ed. 1987). These disabilities are separate and distinct from a personality disorder referred to in 38 C.F.R.§§ 3.303, 4.9 because of the organic etiology. It is clear from the medical evidence of record that the physicians that have examined the veteran have found that his psychiatric impairment is characterized as an organic mental disorder and may be etiologically related to his use of alcohol and possibly drugs. In a rating decision dated in December 1988, the RO determined that alcohol and drug use were the result of the veteran's own willful misconduct. The legal criteria preclude the granting of service connection for disabilities deemed to be the result of wilful misconduct. In the present case, the veteran's application for compensation was received in July 1988 and as such, his claim is not affected by the changes implemented as a result of Public Law 101-508, which precludes a grant of service connection for secondary disabilities resulting from the abuse of alcohol or drugs. While the potential to determine the time period in which his alcohol or drug abuse may have impacted on his psychiatric functioning is limited, the resulting development of an organic mental disorder as a result of such abuse is essentially incontrovertable. The nervous trouble reported by the veteran on his induction examination remains unspecified and records are insufficient to determine whether psychiatric impairment existed prior to service. Under the circumstances presented in this case, the Board finds that the veteran had psychiatric manifestations in service, which at that time were diagnosed as psychotic paranoid state with poly drug abuse. Consistently since his hospitalization at Fair Oaks Hospital begining in July 1987, he has been diagnosed with an organic mental disorder which can reasonably be attributed to his alcohol and substance abuse. As such, and after resolving all reasonable doubt in favor of the veteran, the Board finds that the veteran has an acquired psychiatric disorder which can reasonably be related to service. His poly substance abuse was first medically demonstrated during service and it is apparent from the medical evidence that his current psychiatric impairment, deemed to be an organic personality disorder is attributed to longstanding alcohol and drug abuse. Accordingly, entitlement to service connection for an acquired psychiatric disorder is warranted. 38 U.S.C.A.§§ 1110, 5107 (West 1991); 38 C.F.R.§ 3.303 (1993). ORDER Entitlement to service connection for an acquired psychiatric disorder is granted. G.H. SHUFELT Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), 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. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). 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.