Citation Nr: 0320525 Decision Date: 08/18/03 Archive Date: 08/25/03 DOCKET NO. 00-06 045 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for a psychiatric disability. 2. Entitlement to service connection for residuals of bilateral leg injuries. 3. Entitlement to service connection for lung disability. 4. Entitlement to service connection for residuals of a diving injury, to include an air embolism. 5. Entitlement to service connection for residuals of aggressive training injuries. WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Michael Holincheck, Counsel INTRODUCTION The veteran served on active duty from August 1972 to July 1974. He had additional unverified inactive service in the United States Navy Reserve from October 1990 to October 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 1999 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. FINDING OF FACT The veteran has a current diagnosis of chronic adjustment disorder with mixed anxiety and depression that is reasonably attributable to his period of active service. CONCLUSION OF LAW The veteran's chronic adjustment disorder, with anxiety and depression, is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2002). REASONS AND BASES FOR FINDING AND CONCLUSION I. Background The veteran served on active duty in the United States Marine Corps from August 1972 to July 1974. He asserts that he suffers from a psychiatric disability due to the intense military training he received in service as a member of a Marine reconnaissance (recon) unit. A review of his service medical records (SMRs) does reveal that the veteran was medically evaluated for participation in parachute and scuba training. Also, several SMR entries document treatment for injuries related to parachute jumps. A review of his DD 214 reflects that he attended basic airborne and scuba training while in service. His primary military specialty was listed as rifleman. His secondary military specialty was listed as "ReconJumpScuba". The veteran's unit at the time of his release from active duty was the 1st Force Reconnaissance Company, 1st Marine Division. The veteran was separated as a corporal, E-4. The veteran's claim for entitlement to service connection for a psychiatric disability was denied by way of a rating decision dated in October 1999. The veteran submitted a notice of disagreement in November 1999 wherein he asserted that he may have suffered psychic trauma as a result of his intensive military training. The veteran testified at a hearing at the RO in December 1999. He said he had employment problems over the years and that even VA would not employ him on a full-time basis. He related VA's reluctance to employ him to his aggressive military training. The veteran said that he received very intensive training as part of a recon unit in the Marines and then his unit was suddenly disbanded. He was then released from active duty shortly afterwards. He said that he received no transition period from the intense level of training to when he left the service. He felt that there should have been some means of transitioning from his high alert status after his unit was disbanded. He felt that he had encountered a number of problems since that time because of his aggressiveness, an aggressiveness that he said came from his military training. The veteran further testified that he did not receive any treatment in service for psychiatric-related complaints. He did receive counseling in 1991 after a divorce. He said that he had not had any other treatment or evaluation since that time because he could not afford to pay for the medical care. The veteran provided a lengthy statement regarding his level of training and how it made him feel both in and out of service. The veteran also testified at a Travel Board hearing in December 2001. The veteran testified about his training in service and how it instilled an aggressive attitude in him that he felt continued to the present. He said that he wondered if the residuals from that training affected his ability to function as a civilian. The veteran further testified that he had not received any psychiatric treatment. The veteran was afforded a VA psychiatric examination in October 2002. The examiner reported that the veteran felt that some of his problems in finding employment were related to psychological problems that he attributed, in part, to his intense training in service. The veteran related a history of his military training. The examiner reported that the veteran said that this examination was the first time he had ever spoken to a psychiatrist. The examiner said that the central theme of the veteran's current struggles was said to be his problems relating to having a job that would be in keeping with his education and training and his concerns and frustrations that VA had not adequately taken care of him or helped him readjust to civilian life after his intensive training in service. The examiner provided a diagnosis of chronic adjustment disorder with mixed anxiety and depression. He said that the veteran seemed to have had a generalized difficulty adjusting to civilian life following intense training in service and feeling that he had not been able to find a suitable occupation in spite of his good education. The examiner recommended that the veteran undergo neuropsychological testing. The examiner provided an addendum to his report in February 2003. In that addendum the examiner said that, as in his prior report, he felt that the veteran's subsequent adjustment to civilian life would have been affected by his training experiences in the Marines. He said that it was difficult to say as to what extent the veteran's adjustment to civilian life was affected. The veteran was afforded a VA psychological examination, to include testing, in March 2003. The examiner concluded that the veteran was experiencing extremely strong anger that was deep-seated and which the veteran viewed as directly corresponding to his aggressive impulses from his military training. The examiner also said that the veteran's behavior, with respect to this anger might be consistent (pending behavioral history supportive of this) with an intermittent explosive disorder. The examiner said that, affectively, "rageful" anger dominated and subtle indicators of mild depression and anxiety were also present. He said that the affective features were likely to result in periodic episodes of adjustment difficulties, some of an acute nature, and some more chronic. The examiner did not provide an opinion that directly related his findings to the veteran's period of service. The VA psychiatrist provided a second addendum to his report in June 2003. He noted that he had reviewed the results of the March 2003 psychological testing. In short, the examiner opined that the veteran's military training definitely did have an impact on the veteran's life and that the veteran's adjustment to civilian life had been hampered by the intensity of his training in service without adequate follow- up or retraining when his unit was disbanded. II. Analysis The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110, (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2002). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b) (2002). If chronicity is not applicable, service connection may still be established on the basis of 38 C.F.R. §3.303(b) if the condition is noted during service or during an applicable presumptive period, and if competent evidence, either medical or lay, depending on the circumstances, relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997). Service connection may also 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) (2002). Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Pond v. West, 12 Vet. App. 341, 346 (1999); accord Caluza v. Brown, 7 Vet. App. 498 (1995). The evidence of record documents the veteran's parachute and scuba training and assignment to a Marine force reconnaissance unit in service. The veteran also attained the rank of corporal, E-4, in just under two years which supports his statement of being a leading member of his recon unit. The veteran underwent counseling in conjunction with a divorce in 1991. He has not received any psychiatric/psychological evaluation or treatment since that time. The October 2002 VA psychiatric examiner provided a diagnosis of chronic adjustment disorder with mixed anxiety and depression. The examiner also said that the veteran seemed to have had a generalized difficulty in adjusting to civilian life following his intense training in service. The March 2003 VA psychological examination confirmed the veteran's continued feelings of anger that he attributed to his military training. The psychologist said that the affective features of the veteran's problems were likely to result in episodes of adjustment difficulties, some of an acute nature and some of a chronic nature. In June 2003 the VA psychiatrist said that the veteran's military training definitely had an impact on his life and that the veteran's adjustment to civilian life was hampered by the intensity of the military training and the lack of adequate follow-up or retraining when his unit was disbanded. In viewing the evidence in a light most favorable to the veteran, the Board finds that the veteran does indeed suffer from an adjustment disorder that is attributable, at least in part, to his intense military training. Therefore, service connection for adjustment disorder is warranted. ORDER Service connection for chronic adjustment disorder with mixed anxiety and depression is granted. REMAND The Board conducted additional evidentiary development regarding the remaining issues on appeal. This consisted of VA examinations conducted in October 2002. This action was taken pursuant to authority granted by 67 Fed. Reg. 3099, 3104 (Jan. 23, 2002) (codified at 38 C.F.R. § 19.9(a)(2) (2002)). On May 1, 2003, the United States Court of Appeals for the Federal Circuit, in Disabled Am. Veterans v. Sec'y of Veterans Affairs, 327, F.3d 1339 (Fed. Cir. 2003) (DAV), held that 38 C.F.R. § 19.9(a)(2) was invalid because, in conjunction with the amended rule codified at 38 C.F.R. § 20.1304, it allowed the Board to consider additional evidence without having to remand the case to the RO for initial consideration and without having to obtain the appellant's waiver of the right to initial consideration of the evidence by the RO. The veteran has not been apprised of the new evidence obtained in his case. Nor has he been requested to provide a waiver of consideration of the evidence by the Board prior to consideration by the agency of original jurisdiction (AOJ). As a result of the DAV decision, the Board is prohibited from considering the newly developed evidence in the first instance. In addition, the veteran submitted a statement in February 2003 wherein he requested a copy of the VA examinations conducted in October 2002. The Freedom of Information Act (FOIA)/Privacy Act officer at the Board responded to the veteran's request in June 2003. At that time the veteran was informed that he would be provided copies of the requested material once development of his claim was completed. The veteran submitted a second statement in March 2003 wherein he repeated his request for the October 2002 VA examination reports and those done from March 2003. Since development of the claim is now complete, the veteran's request should be addressed. (The Board notes that the appropriate personnel should review the reports for guidance as to their release prior to forwarding them to the veteran.) In developing this case, the RO failed to apprise the veteran of the provisions of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106- 475, 114 Stat. 2096, (codified as amended at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)), which became effective during the pendency of this appeal. This law is applicable to the veteran's claim. VA has also issued final regulations to implement these statutory changes. See Duty to Assist, 66 Fed. Reg. 45,620-32. (Aug. 29, 2001) (codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)). The VCAA, and its implementing regulations, require that VA provide specific notice to claimants regarding information needed to complete an application for benefits as well as specific notice regarding information or evidence required to substantiate a claim. See Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159 to provide adequate notice). VA also has a duty to assist claimants in the development of their claims. The United States Court of Appeals for Veterans Claims (Court) has strictly interpreted the requirements to provide the required notice and the duty to assist in the development of a claim. Finally, in his March 2003 submission the veteran referred to "psych" notes that he said were taken by two VA physicians when the veteran presented evidence on behalf of his father at a hearing. The Board finds that there is no need to attempt to obtain that evidence in light of the favorable disposition of the veteran's claim for service connection for a psychiatric disorder. Further, the veteran's photograph of him in service depicting a severe bruise of the right arm is of record. Finally, the veteran referred to a federal civil court case that involved him and the city of Topeka, Kansas. He said that he wanted the case record as an exhibit. The veteran is free to obtain and submit such evidence if he desires; however, such evidence should be pertinent to the issues remaining on appeal. Accordingly, the veteran's case is REMANDED to the RO for the following action: 1. The RO must review the claims file and ensure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002) are fully complied with and satisfied. See also 38 C.F.R. § 3.159 (2002). The veteran should be specifically told of the information or evidence he should submit, if any, and of the information or evidence that VA will obtain with respect to his claims for service connection. 38 U.S.C.A. § 5103(a) (West 2002). He should also be told of the period for response as set forth in 38 U.S.C.A. § 5103(b) (West 2002), if applicable. 2. The RO should respond to the veteran's request for copies of the October 2002 and March 2003 VA examination reports. (Review of the reports should be undertaken in order to understand examiners' instructions regarding release.) 3. After undertaking any other development deemed appropriate, the RO should readjudicate the issues on appeal. If any benefit sought is not granted, the veteran should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. Thereafter, the case should be returned to the Board for further appellate review, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the RO. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 2002) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). Meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.