Citation Nr: 9819764 Decision Date: 06/26/98 Archive Date: 07/06/98 DOCKET NO. 92-54 320 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Whether new and material evidence has been submitted to reopen the veteran's claim for entitlement to service connection for a psychiatric disorder. REPRESENTATION Appellant represented by: Debbra J. Gottschalk, attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Alice A. Booher, Counsel INTRODUCTION The veteran had active service from August 1966 to October 1967. This appeal to the Board of Veterans' Appeals (the Board) was initially brought from rating action taken by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee. The veteran provided testimony at a hearing held before a Hearing Officer at the RO in December 1991, a transcript of which is of record. The Board denied the veteran's then pending claims relating to service connection for a psychiatric disorder and permanent and total rating for pension purposes in April 1992. The veteran filed an appeal with the United States Court of Veterans Appeals (the Court). On Joint Motion, the Court vacated the Board's 1992 decision and remanded the case on both then pending issues, i.e., the issue shown on the front page and entitlement to nonservice-connected pension benefits. See [citation redacted]. Thereafter, the Board twice remanded the case, in June 1994 and April 1996, for extensive development to include acquisition of private and VA clinical materials, reexamination of the veteran under specific criteria, and written, annotated responses to specific questions by a medical expert in psychiatric disorders, etc. In the interim, a decision by the RO in June 1997 found clear and unmistakable error in a prior RO decision and granted nonservice-connected pension benefits from August 20, 1991. That issue is no longer part of the current appeal. CONTENTIONS OF APPELLANT ON APPEAL In substance, the veteran argues that whether he/she did or did not have gender identity problems prior to service, or any other personality problems for that matter, there were clear reflections in service that as a result of his experiences therein, he/she had developed additional difficulties of a psychiatric nature, and that if these were not separate and acquired by their very nature, they certainly aggravated any pre-existing psychiatric anomalies. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1998), has reviewed and considered all of the evidence and material of record in the veteran's claims files. 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 new and material evidence having been submitted to reopen a claim of entitlement to service connection for a psychiatric disorder. It is the decision of the Board that the evidence supports a grant of entitlement to service connection for a chronic acquired variously diagnosed psychiatric disorder. FINDINGS OF FACT 1. The RO declined to reopen a claim of entitlement to service connection for a psychiatric disorder when it issued a rating decision in November 1991. 2. Evidence associated with the file since the RO's November 1991 rating decision is new and material, probative of the issue at hand, and when viewed in the context of all the evidence of record, both new and old, raises a reasonable possibility of chaining the prior outcome. 3. The veteran's preexisting psychiatric problems including an underlying personality disorder later characterized in part as transsexualism and now diagnosed as gender identity disorder, deteriorated in service, added new dysthymic, anxiety and depressive symptoms, and chronically increased in basic underlying pathology beyond what might be naturally anticipated, all of which was due to and/or a result of service. CONCLUSIONS OF LAW 1. Evidence submitted since the November 1991 rating decision wherein the RO declined to reopen a previously denied claim of service connection for a psychiatric disorder is new and material, and the veteran's claim in that regard has been reopened. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 1991); 38 C.F.R. §§ 3.156, 20.1103 (1997). 2. A chronic acquired variously diagnosed psychiatric disorder was incurred in service, and/or a preexisting psychiatric disability was aggravated by service. 38 U.S.C.A. §§ 1110, 1153, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.306 (1997). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Criteria Service connection may be established for a disability incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110 (West 1991). 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) (1997). The Court has clearly indicated that this is not intended to limit a grant of service connection to those disabilities which were present in service or within a year thereafter, but also contemplates a chronic disability for which there is a credible medical opinion that there is a link between current disability and the in-service injury or disease. See, i.e., Caluza v. Brown, op. cit.. The Court further concluded that “satisfactory” evidence meant “credible” evidence as characterized in Caluza, supra, aff’d, 78 F.3d 604 (Fed.Cir. 1996); see also Collette v. Brown, 82 F.3d 389 (Fed.Cir. 1996). A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993). A preexisting disease or injury will be considered to have been aggravated by military service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service based on all of the evidence. See 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306 (a), (b) (1998). The Court held in Crowe v. Brown, 7 Vet. App. 238 (1994), that, “Even if the veteran's (disability) is properly found to have preexisted service, the presumption of aggravation must also be addressed. When a condition is properly found to have been preexisting (either because it was noted at entry or because preexistence was demonstrated by clear and unmistakable evidence), the presumption of aggravation provides: A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (emphasis added); see also 38 C.F.R. § 3.306(a) (1993). Furthermore, 38 C.F.R. § 3.306(b) provides that, as to veterans of (wartime) service, "[c]lear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation" during service. It is the Secretary's burden to rebut the presumption of in-service aggravation. See Laposky v. Brown, 4 Vet. App. 331, 334 (1993); Akins v. Derwinski, 1 Vet. App. 228, 232 (1991). "[I]n short, a proper application of [38 U.S.C. § 1153 and 38 C.F.R. § 3.306 (a), (b)] . . . places an onerous burden on the government to rebut the presumption of service connection" and "in the case of aggravation of a preexisting condition, the government must point to a specific finding that the increase in disability was due to the natural progress[ ] of the disease". Akins, 1 Vet. App. at 232. The Court has held that evidence of “temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered ‘aggravation in service’, unless the underlying condition, as contrasted to the symptoms, is worsened. See Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The Court has found that a condition that worsened during service and then improved due to in-service treatment to the point that it was no more disabling than it was at induction is analogous to a condition that has flared up temporarily. However, Section 3.306 provides that the ‘ameliorating”, “usual effects” of “medical or surgical treatment” “will not be considered service connected unless the disease or injury is otherwise aggravated by service.” Thus, the Court concludes that the only treatment effects that are not considered service connected are those that improved the condition and lowered the level of disability. If the preexisting disability is more severe after in-service medical treatment, the increase in the level of disability is service connectable. Furthermore, the Court concludes that the question of whether there has been an increase in disability during service must be answered in the affirmative before the presumption of aggravation attaches. Accordingly, the Court holds that where a preexisting disability has been medically or surgically treated during service and the usual effects of the treatment have ameliorated the disability so that it is no more disabling than it was at entry into service, the presumption of aggravation does not attach. See Verdon v. Brown, 8 Vet. App. 529 (1996). It is not necessary that a specific link be shown between inservice activity and the deterioration of the preservice disability in order to prevail. It is enough that the aggravation occurred in service. See Browder v. Derwinski, 1 Vet. App. 204 (1991). In determining whether an injury or disease was incurred in or aggravated in service, the evidence in support of the claim is evaluated based on the places, types and circumstances of service as shown by the service records, the official history of each organization in which the veteran served, the veteran’s service medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(b) (West 1991); 38 C.F.R. §§ 3.303(a), 3.304 (1997). Even where there is a lack of official records to corroborate that an injury or disease was incurred or aggravated during service (including a period of combat), VA is required to accept as sufficient proof of service connection satisfactory lay or other evidence that an injury or disease was incurred or aggravated during such period of service, if the evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. §§ 3.303(a), 3.304 (1997); Collette v. Brown, 82nd F.3d, 389 (Fed.Cir. 1996). The Court has also held that a determination with regard to entitlement to service connection must be made upon a review of the entire evidentiary record including thorough and comprehensive examinations that are representative of the entire clinical picture. Brown v. Brown, 5 Vet. App. 413 (1993). In this, and in other cases, only independent medical evidence may be considered to support Board findings. If the medical evidence of record is insufficient, or, in the opinion of the Board, of doubtful weight or credibility, the Board is always free to supplement the record by seeking an advisory opinion, ordering a medical examination or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions. However, it is not free to substitute its own judgment for that of such an expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Moreover, it remains the duty of the Board as the fact finder to determine credibility of the testimony and other lay evidence. See Culver v. Derwinski, 3 Vet. App. 292, 297 (1992). Lay persons are not competent to render testimony concerning medical causation. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Service connection may be established through competent lay evidence, not medical records alone. Horowitz, op. cit. But a lay witness is not capable of offering evidence requiring medical knowledge. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The Board has the duty to assess the credibility and weight to be given the evidence. Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992) (quoting Wood v. Derwinski, 1 Vet. App. 190, 193 (1991), reconsideration denied per curiam, 1 Vet. App. 406 (1991)). The well groundedness requirement shall not apply with regard to reopening disallowed claims and revising prior final determinations. Jones v. Brown, 7 Vet. App. 134 (1994). Although the specific citations for various regulations have changed over the years, for decades the basic premise has been that the law grants a period of 1 year from the date of the notice of the result of the initial RO determination for the filing of a notice of disagreement; otherwise, that determination becomes final and is not subject to revision on the same factual basis. 38 C.F.R. §§ 3.104(a), 3.160, 20.1103. To reopen a claim following a final RO or Board decision, the appellant must submit new and material evidence. 38 U.S.C.A. § 5108. Under pertinent law and regulations, as interpreted by the Court, the Board may reopen and review a claim which has been previously denied only if new and material evidence has been submitted by or on behalf of the appellant. 38 U.S.C.A. § 5108; Manio v. Derwinski, 1 Vet. App. 140 (1991); 38 C.F.R. § 3.156(a). Evidence is new when it is not merely cumulative of other evidence in the record and is considered material when it is relevant and probative of the issue at hand. To justify a reopening of a claim on the basis of new and material evidence, there must be a reasonable possibility that the new evidence, when considered in the context of all the evidence, bold old and new, would change the outcome. Colvin v. Derwinski, 1 Vet. App. 171 (1991). The evidence is “new” when it is not cumulative of evidence of record, and is not “material” when it cannot possibly change the outcome of the case. Godwin v. Derwinski, 1 Vet. App. 419 (1991). “Material” evidence is evidence which is relevant and probative of the issue at hand and which, furthermore, when reviewed in the context of all the evidence of record, both old and new, would change the outcome of the case. Smith v. Derwinski, 1 Vet. App. 171 (1992). When determining whether the veteran has submitted new and material evidence to reopen a claim, consideration must be given to all the facts since the last final denial of the claim. Evans v. Brown, 9 Vet. App. 273 (1996). In the Evans case, the Court expounded upon the “two-step analysis” which must be conducted under 38 U.S.C.A. § 5108. First, it must be determined whether the evidence presented or secured since the prior final denial of the claim is new and material when “the credibility of the (new) evidence” is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Second, if the evidence is new and material, the Board must reopen the claim and review all the evidence of record to determine the outcome of the claim on the merits. The first step involves the questions: (1) Is the newly presented evidence “new” (not of record at the time of the last final disallowance of the claim and not merely cumulative of other evidence that was then of record? (2) Is it “probative” of the issue at hand? (3) If it is new and material, then, in light of all the evidence of record, is there a reasonable possibility that the outcome of the claim on the merits would be changed? A medical opinion based upon an inaccurate factual premise has no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. The credibility and weight to be attached to these opinions are within the province of the Board as adjudicators. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The veteran's own statements expressing his belief that his disabilities are service-connected are not probative. As a layman, appellant is not qualified to proffer an opinion as to the date of onset of his illness; such testimony would only be probative if it were proffered by a witness qualified as an expert. See Miller v. Derwinski, 2 Vet. App. 578, 580 (1992) which also quoted Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992)) holding that lay persons were not qualified to provide a probative diagnosis on a medical question. Lay hypothesizing, particularly in the absence of any supporting medical authority, serves no constructive purpose. See Hyder v. Derwinski, 1 Vet. App. 221, 225 (1991). The Board may consider only independent medical evidence to support their findings. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Finally, while the provisions of 38 C.F.R. § 3.303(c) usually preclude the grant of service connection for a congenital or developmental anomaly such as personality or related disorder, under certain circumstances, service connection may be granted on the basis of aggravation. See Thompson v. United States, 405 F.2d 1239 (Ct.Cl. 1969); Monroe v. Brown, 4 Vet. App. 513 (1993). There are also important precedential opinions rendered by the VA General Counsel which relate to the current effort to reopen (and allow) the veteran’s claim. In O.G.C. Prec. Op. 82-90, 55 Fed. Reg. 45711 (1990) and VAOPGCPREC 67-90 (O.G.C. Prec. 67-90), 55 Fed. Reg. 43253 (1990), [opinions which are binding upon the Board pursuant to 38 U.S.C.A. § 7104(c)], it was held that under certain circumstances, “(s)ervice connection may be granted for diseases of congenital, developmental or familial origins.” In the latter instance, it was noted, in part, that when a defect or disease is of a congenital nature, there is justification for finding that the disease preexisted service (and thereafter, the issue is whether there was inservice aggravation). See also Monroe v. Brown, 4 Vet. App. 513 (1993). A determination with regard to entitlement to service connection must be made upon a review of the entire evidentiary record including thorough and comprehensive examinations that are representative of the entire clinical picture. Brown v. Brown, 5 Vet. App. 413 (1993). Factual Background The evidence which was of record prior to the November 1991 rating decision wherein the RO declined to reopen the prior denial of entitlement to service connection for a psychiatric disorder will be summarized below. Service medical records reflect that on several occasions, the veteran [who served as a man] was described as having various symptoms for which there were no specific etiologies found. He was also noted to complain of having shaky hands, anxiety and depression. In June 1967, he was referred to the mental hygiene clinic in what was described as a "semi- catatonic" state. A report of mental hygiene consultation in September 1967 indicated that the veteran’s emotional responses within military settings were maladaptive and had taken the form of chronic tension, feelings of depression and mismanagement of his angry feelings. He was said to be unmotivated toward any productive goals and saw being discharged from service as the solution to his immediate problems. The veteran reported a history of several gestures of self-harm related to his discontent; he resented authority and was concerned with his own needs. Counseling sessions had been ineffective in bringing about a change in his responses to stress. His poor impulse control, maladaptive responses to stress, and chronic ineffectiveness as a soldier provided little to work with in terms of rehabilitation and it was not felt that any available rehabilitative measures would be successful in dealing with his difficulties. It was concluded that his difficulties reflected long-standing personality traits, and that he should be given a discharge. The diagnosis was emotionally unstable personality with passive aggressive features. A DA Form 2496 is of record, dated in October 1967, showing that a review of the physical and mental examinations had failed to reveal any defects which would have contributed to the misconduct of the veteran. The nature of the alleged misconduct was not identified on that or other service documents. On a separation examination dated in October 1967, the veteran checked a number of complaints. He stated that he experienced excessive worry, had personal problems and a drug habit, and that he had tried to commit suicide. The examiner's diagnosis was "emotional(ly) unstable". A VA Form 10-7131 dated in 1980 was of record showing that the veteran had been admitted to VA care in Oklahoma City in November 1980 for substance abuse versus schizophrenia. Any associated summary or clinical report was not in the file. On VA Form 21-526, a claim for nervous condition and slashed left wrist, filed in 1980, the veteran stated that he had been seen for his nervous problems in service, and then at the Tulsa Psychiatric Center in 1974-5, at the VA facility in Lexington in February-December 1976, and at the VA facility in Oklahoma City in December 1980. A VA examination was apparently scheduled for 1981; the veteran did not report although there are no documents in the file to show that he was notified thereof. In 1981, additional copies of some service records were received including a certification in September 1967 relating to the veteran’s lack of being a good candidate for rehabilitation and recommending his non-retention in the service based on unsuitability. Also entered into the record were some other documents relating to a special court martial for failure to carry out duties as a soldier, but otherwise not specific as to behavioral or other problems which may have precipitated the action. The veteran submitted another VA Form 21-526 in 1987 in which he sought service connection for nervous condition and transsexualism. He stated that he had been married and divorced twice. In 1988, an inquiry with regard to benefits to which the veteran might be entitled, was received by VA from L. Krenning, M.D., dated in December 1987, to the effect that he had seen the veteran as a patient since July 1987. His diagnosis was transsexualism. The veteran had been undergoing hormonal therapy since November 1987. A copy of the VA response is of record to the effect that VA did not perform transsexual surgery, did not carry out any process or procedure involving genital identity revision, and briefly reflecting the general nature of VA care. In 1991, the veteran submitted a statement that he disagreed with the VA denial of his claim for service connection for a nervous disorder. The VA wrote to him stating that the RO denial had been in 1981, that he a year in which to appeal of which he had been duly informed at the time, and that his filing was untimely. He thereafter submitted a VA Form 21- 4138 in which he asked to reopen the claim. Copies of VA outpatient records were introduced, starting in 1989 when the veteran was evaluated and given psychological profiling, etc. He had been referred to VA for surgical removal of his testicles. One clinical notation indicated that this was possibly against VA regulations and that he should be so informed. A notation in August 1991 was that he had symptoms of dysthymia and a sexual identity disorder. It was noted that his service medical records showed mental hygiene visits in 1967 and care for suicidal gesture and character disorder issues. After discharge, he was said to have gone through a period of amphetamine and alcohol abuse; he continued to take hormones for the unrelenting desire to have a female body. He had told his family about his feelings about 10 years before and was trying to live a lifestyle consistent with feminine orientation. Psychological testing had shown valid profiles for character disorder as well as histrionic, narcissistic, somatoform, dysthymia and drug abuse scales. Diagnoses were transsexualism, heterosexual orientation; dysthymia, early onset, secondary type; polysubstance dependence by history; and passive aggressive, antisocial and histrionic traits. It was felt that he could partake in therapy for the abuse portions of the diagnoses. A psychological evaluation in 1991 indicated that since age 9 the veteran had felt that he should have a female body. He had had emotional conflict ever since. He was noted to have a high pitched voice and was wearing feminine jewelry and clothing. Diagnosis was transsexualism, heterosexual type. Report of psychological profile responses is of record. The veteran stated that while he had had some nervousness as a child, he had had worse problems in service and that since service, he had had increased difficulties. In September 1991, the RO denied the veteran’s claim on the basis that while the evidence submitted was new it was not material and had not reopened the previously denied claim. In October 1991, the veteran filed Notices of Disagreement with that denial. Additional copies of 1991 clinical reports were submitted and in November 1991 the RO affirmed the prior denial. The evidence associated with the claims file since the November 1991 rating decision wherein the RO declined to reopen the previously denied claim of entitlement to service connection for a psychiatric disorder is reported below. The veteran provided testimony at a personal hearing held in December 1991. He described his long-time difficulties which he stated were increased in and by service experiences and stress including such things as being on the shooting range. He stated that he had tried to commit suicide in service because it had gotten so bad. Since service, he said he had had ongoing problems but had not sought specific psychological help until several years later when he was particularly concerned about his problems as would be impacted by his entering a period of incarceration. The Hearing Officer confirmed the prior denial, and the veteran appealed to the Board which also confirmed the denial. As noted above, the Court of course overturned that decision. Subsequently the Board remanded the case on two occasions, since which time the following evidence was introduced into the file. Copies of some of the service records in the file in 1981 were resubmitted. Also of record was a service clinical record from June 1987 when the veteran was described as acting out, holding his head in his hands, speaking in a whisper, and had flat affect. He was said to be acting like a zombie in a Frankenstein movie. He had been to the mental hygiene facility on four occasions and had been given Librium. The working diagnosis was passive aggressive character disorder. Copies of additional (earlier) VA records were also submitted including a notation from October 1980 when the veteran had been seen at the mental hygiene clinic after having been jailed for hitting his second wife, had gotten out and slept overnight in a car and was then charged with trespassing by the car owner, etc. He was initially thought to be showing signs of substance abuse or schizophrenia and was to be evaluated for VA inpatient care. The VA summary hospital report from November-December 1980 was also submitted showing that the veteran had asked for help in keeping from "using drugs". He stated that the drug use was related to his struggle with transsexuality and transvestitism. In the past he had used heavier drugs but since treatment at Lexington and the Tulsa Work Release Program, had limited his drug use to marijuana. He initially attributed his anxiety, depression, abuse of his wife and his pervasive dysphoria to his current gender. However, it was noted that he was also depressed about his situation with his wife and his current legal affairs. Historically, the veteran indicated that at about age 10, he had started dressing in his mother's clothing and wishing that he were a woman. In his teens and in service, he had developed anxiety and depression usually related to stressful events from the environment. He said that he had a solely heterosexual orientation; that a single homosexual relationship had been brief and unsatisfying; that he had married for the second time in December, and said that for the most part his sexual relations were satisfactory, but his wife had miscarried following an accident. The veteran stated that the veteran's wife usually initiated any physical violence, and that this had started soon after her miscarriage. Initial diagnostic impressions were reactive depression, transvestitism, question of true personality disorder and investigation of his being a true transsexual. During hospital care, some of the legal charges against him were dropped. He underwent extensive testing after which it was thought that he had a fetish rather transsexualism. It was suggested accordingly that he undergo therapy and treatment rather than surgery. Final diagnoses at irregular discharge were transvestitism; antisocial personality; and adjustment disorder with depressed mood. After discharge the veteran continued to have anxiety and depression and diagnoses on rehospitalization in December 1980-January 1981 were transvestitism; antisocial personality with depressive traits; adjustment disorder with depressed mood; suicidal threats of a manipulative nature; and cannabis abuse. One entry from November 1987 was that the veteran had been undergoing psychological counseling and hormone shots, and was seeking to complete rehabilitation so that he could find work and get a psychology degree. Additional VA treatment records from 1991-1992 were entered into the file. The veteran’s ongoing treating psychologist made specific notations that he had encouraged him to file for service-connected disability. The psychologist made a specific notation in November 1991 that: a current character disorder is not of primary concern. It is felt that his transsexual issues were exacerbated by his military service and that this is the major focus of his life at the present time....He was encouraged to pursue the argument that his military problems which were dubbed character disorder might well have actually been dysthymic secondary to his transsexualism. In January 1993, the veteran legally changed his/her name as VA clinical records showed she had been encouraged to do by the VA psychologist. On special VA psychiatric examination in May 1995, the examiner noted that the veteran had had no psychiatric difficulty of a particular nature prior to going into service. The stresses in service such as relating to target shooting as a precursor to killing a person, etc., had caused anxiety and developed into a shattered image of himself. The veteran reported that at that time her true thoughts about her own sexual identity had started to come forward. She said that with this came an ambivalence that caused her to be a poor soldier, after which she was discharged from service as being an emotionally unstable personality with passive aggressive features. The examiner recorded that when the veteran had developed the ambivalence described above, she had started to take drugs in order to subdue the feelings she had about herself. She had been hospitalized for depression as well as suicidal ideation and attempts. She said she had told her parents about her decision to seek sexual identity in about 1981 and since 1987 she had taken estrogen toward that end. Psychological testing was undertaken and confirmed tendencies towards depression and restlessness, and agitation especially when there was situational stress. It was felt that this was consistent with the use of substance abuse and occasional poor behavioral control and acting out, along with low frustration tolerance. She gave a lengthy history of ongoing problems. The diagnoses were Axis I, transsexualism and heterosexual orientation; dysthymic disorder; polysubstance abuse by history, in remission. Axis II was passive aggressive, antisocial and histrionic traits. Global Assessment of Functioning (GAF) score was felt to probably be at about 60. The examiner felt that these diagnoses were entirely supportable within a single individual. However, no specific opinion was rendered as to the relationship between service and any alleged increase in symptoms therein or as a result thereof. As requested by the Board's remand, a social and industrial survey was also undertaken, a report of which is of record. The veteran was felt to be a limited support system with virtually no reliable source of income. The RO solicited and to a limited extent received copies of additional private treatment records after service for psychiatric disabilities. The veteran underwent a VA examination in March 1997. In particular, and as requested by the Board in the second post- Court remand, a special extensive psychiatric evaluation was undertaken. The report of such is in the file in toto. In summary, the veteran gave a history of having felt like she should have been a woman when age 9 or 10, but created a male role to play to try to manage. She said that she had had no care for her psychiatric difficulties prior to service. However, in service she became anxious and depressed and had been occasionally suicidal. The examiner noted that with the changes in diagnostic analysis and nomenclature, the term was no longer transsexualism, but rather "gender identity disorder". It was felt that the veteran not only had a gender identify disorder but also a dysthymic disorder [emphasis added]. This was in addition to marijuana dependence with antisocial and histrionic traits. It was noted that passive-aggressive traits were no longer in diagnostic use. In that regard, the examiner noted that this diagnosis related to the inservice diagnosis only as it related to Axis II, not I. Specifically, the examiner found that All diagnosis, dysthymia, personality disorder, anxiety disorder and transsexual disorder were manifest prior to the service and I feel there was an increase in the gender identity disorder during the service. GAF was said to be 60; Axis I diagnoses were gender identify disorder; dysthymic disorder; and marijuana abuse continuous. Axis II diagnosis was antisocial and histrionic personality traits. Analysis The Board has sought to develop the evidence on more than one occasion, and the evidence now in the file appears to be reflective of as good an overall picture as is probably reasonably obtainable. It is certainly adequate for an equitable disposition in this case. Parenthetically, and by way of general discussion, in this case, the Board would note that the circumstances herein are entirely unique and are unlike evidence seen in virtually any other recent pending claim. The first question which the Board must address is whether new and material evidence has been submitted since the prior final November 1991 decision wherein the RO declined to reopen the previously denied claim for service connection for a psychiatric disorder. In this regard, a review of the evidentiary segments above reflects an extensive addition of clinical records from service, post-service from care and evaluations from both before and since the 1991 decision, and extensive psychiatric records from the present to include sophisticated psychiatric and psychological assessments, tests and other evaluations. This alone provides a new factual basis for considering the claim. In addition, the cases rendered by the Court, and most particularly, the two associated General Counsel Opinions were, obviously, promulgated subsequent to the rendering of the RO's 1991 decision. While there is precedent for comparing these opinions with the liberalization of a regulation which requires reopening and addressing the impacted issues de novo [see, i.e., Spencer v. Brown, 4 Vet. App. 283 (1993); Karnas v. Derwinski, 1 Vet,. App. 308 (1991)], they also constitute the functional equivalent of evidence which is both new and material. In either event, the veteran’s claim is reopened with regard to service connection for a psychiatric disorder. 38 U.S.C.A. §§ 5107, 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103. The second issue is whether the veteran has one or more psychiatric disorders which are in any way attributable to service. On the one hand, the veteran’s allegations as to an acquired psychiatric disorder, dysthymia, anxiety or depression, separate and apart from any personality defect, at least in part reflect a primarily new issue, which is substantively unrelated to the claim which led to the RO's 1991 decision. See Spencer v. Brown, op. cit. As to this portion of the pending question, the current claim must be reviewed on a de novo basis without regard to any prior decision or pertinent portion thereof. Spencer, supra at 289; see, also, Karnas v. Derwinski, 1 Vet. App. 308 (1991). There is also the collateral question as to the nature and development of the underlying personality problems of congenital or developmental nature. In this regard, it is noted that the recent psychiatric evaluation distinguished between the personality deficits due to Axis I and those due to Axis II. While this might otherwise take on significant importance, this distinction decreases in significance given the disposition by the Board in this case. In this regard, it is clear that from a relatively early age, the veteran had problems with sexual identity and tried dressing in his mother's clothing. [This may or may not have been appropriately diagnosed at the time as transsexualism or what was later characterized as transvestitism, albeit later studies suggested it may more properly have then been then and now described as a fetish]. In any event, whatever they may be called, the evidence and opinion of record do not show significant related psychiatric problems as such or any crises or complaints requiring treatment prior to service. In service, the veteran experienced the "regular" stresses of service including when target practicing and contemplating the killing of people rather than targets. The evidence of record, both in service records and in evaluations then and since, show that this had some measurable impact on her mental health. She began to act-out and developed rather unacceptable behavioral patterns in response thereto. She attempted at least once to commit suicide. She developed tremors, anxiety, depression and on one occasion, was described as being in a virtual semi-comatose state. In general, her fixation on her newly focused problems rendered her a clearly unsuitable soldier and on that basis, she was discharged from service. Since service, the veteran has a lengthy and convoluted general and psychiatric history. It has clearly been difficult for her and at some point in or after service, she resorted to the use of drugs. Since being in the Lexington and other facilities and programs, this has now apparently abated although she may still use marijuana. Parenthetically, in this regard, the Board would note that certain new regulations and guidelines may preclude the payment of monies for such specific behavior. That is not an issue which must be addressed at this time. Nonetheless, and totally without reference to marijuana use at present, if any, the veteran has an otherwise complex psychiatric profile. Specifically, both the treating VA psychologist opined in 1991, and another VA psychiatric expert opined in 1997 that the veteran either developed a dysthymia which was separate and apart from any pre-existing personality problems in and as a result of service, and/or the pre-existing personality problems in and as a result of service were definitely increased or aggravated in and by service. In either event, the Board is constrained, by Colvin and other cases, from substituting its own judgment given the nature of the definitive expert medical opinions of record. However, the evidence of record supports the finding that service connection is warranted for the veteran's current psychiatric disabilities as having either been incurred in and/or aggravated by service. 38 U.S.C.A. §§ 1110, 1153, 5107; 38 C.F.R. §§ 3.303, 3.306. ORDER The veteran having submitted new and material evidence to reopened a claim of entitlement to service connection for a psychiatric disorder, the appeal is granted. Entitlement to service connection for a chronic acquired variously diagnosed psychiatric disorder is granted. RONALD R. BOSCH Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1998), 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, 102 Stat. 4105, 4122 (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. - 2 -