Citation Nr: 0811076 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 04-00 689 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee ISSUE Entitlement to service connection for psychiatric disability, to include post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The appellant and his family ATTORNEY FOR THE BOARD P. Childers, Associate Counsel INTRODUCTION The veteran had active military service from May 1963 to March 1966, including confirmed service in Korea from March 1965 to May 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which found that no new and material evidence had been submitted to reopen the veteran's claim for service connection for PTSD. In June 2004 the veteran appeared and testified at an RO hearing in Nashville, Tennessee. The transcript of that hearing is included in the record. In a decision issued in November 2006 the Board reopened the veteran's claim for service connection for an acquired psychiatric disorder, including PTSD, and then remanded the matter for further development. FINDINGS OF FACT 1. The veteran reports a period of obsessive compulsive behavior during his pre- pubescence, but the record contains no mention of any psychiatric disorder during the veteran's enlistment examination, and service medical records (SMRs) contain no evidence of any complaints, diagnosis, or treatment for a psychiatric disorder during active military service. 2. The presumption of soundness is not rebutted by clear and unmistakable evidence. 3. The record contains competent lay evidence of anxiety symptomatology immediately upon the veteran's separation from service, and competent medical evidence from VA and private physicians that unanimously links the veteran's generalized anxiety disorder to service. CONCLUSION OF LAW Generalized anxiety disorder, including agoraphobia, panic disorder, and obsessive compulsive neurosis was incurred during active military service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants service connection for generalized anxiety disorder, including agoraphobia, panic disorder, and obsessive compulsive neurosis, which represents a complete grant of the benefit sought on appeal. Thus, no discussion of VA's duties to notify and assist is required. The veteran seeks service connection for a psychiatric disorder. According to the veteran, he is unable to go anywhere by himself unless his wife and children are with him. He says that he cannot walk around a block by himself because he is afraid that he "won't make it back," and adds that he will not go very far even accompanied. He also reports that he has a very hard time touching things; that he is unable to "leave them alone." He explains that he has to touch things four times, and elaborates that this compulsion extends to his interpersonal relationships, such as an inability to kiss his daughter without having to do so four times on each cheek. He maintains that his psychiatric disorder not only restricts him to his home but hampers his ability to care for himself. In determining whether the veteran has an acquired psychiatric disorder that is related to service, the Board will first address whether the presumption of soundness attaches in this instance and, if so, whether it has been rebutted by clear and unmistakable evidence. Every veteran shall be taken to have been in sound condition when examined, accepted and enrolled into service, except as to defects, infirmities or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. 1111; 38 C.F.R. § 3.304(b); see also VAOPGCPREC 3-03 and Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). The presumption of soundness attaches only where there has been an induction examination that did not detect or note the disability that the veteran later complains about. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulations expressly provide that the term "noted" signifies "[o]nly such conditions as are recorded in examination reports." 38 C.F.R. § 3.304(b). A "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id., at (b)(1). When no pre-existing condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both pre-existing and not aggravated by service. See VAOPGCPREC 3-03. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the" pre-existing condition. 38 U.S.C. § 1153. If this burden is met, then the veteran is not entitled to service- connected benefits. However, if the government fails to rebut the presumption of soundness under 38 U.S.C.A. § 1111, the veteran's claim is one for service connection. Enlistment examination done in May 1963 noted no neurologic or psychiatric abnormality. Since no psychiatric problem was "noted" during the veteran's entry examination, the presumption of soundness attaches and VA bears the burden of meeting the two prong test. 38 C.F.R. § 3.304(b); see Bagby, 1 Vet. App. 227. During his May 2007 C&P examination the veteran recalled having had some ritualistic behavior involving his toileting during his 4th through 5th school year; however, there is no evidence of any obsessive compulsive symptomatology thereafter. In fact, according to the May 2007 examiner, the veteran's symptoms "went into remission and reoccurred in young adulthood (when vet was in [country]) which more than likely were exacerbated by the stress and anxiety he experienced in Korea." The record contains no evidence to the contrary. Based on the evidence of record the Board is unable to find by clear and unmistakable evidence that the veteran had a pre-existing psychiatric disorder that was not aggravated by service. The presumption of soundness thus applies. 38 C.F.R. § 3.304(b). The Board will therefore consider whether service connection for an acquired psychiatric disorder is warranted. Service connection will be granted if it is shown that the veteran suffers from a disability contracted in the line of duty while in active military service. 38 C.F.R. §§ 3.303, 3.304. 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). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The veteran reports that he began having panic attacks about four weeks prior to the end of his tour in Korea/separation from service but said that he did not seek treatment because he did not know what was wrong with him; he thought it was "just stress related to his tour." He reports that he served on the demilitarized zone during his tour of duty in Korea. He reports that he was subjected to "the constant voice of a [ethnicity] woman blaring [e]very night over the loudspeaker telling the American soldiers to come over to their side as their country [did] not love them." He reports that shots were fired once a week and, and says that he had to guard the prisoners that were captured. He also reports that he was sexually assaulted by his sergeant in 1964 at the veteran's age of 17, and says that he never told anyone about the incident because he was too ashamed. He reports that his sergeant threatened him to keep quiet. Letters from the veteran's mother and sister dated in 1976 inform of symptoms since the veteran's first day post- service. According to the veteran's sister, The very morning [the veteran] got home from service he called me from our grandmothers home, he called me and said "Im home["] and then he started crying and he cried for a very long time and I will never forget how he cried. He told me later than when he put on civilian clothes and went down town that day he was so afraid and [lonely]. . . . She added that the veteran was afraid to go anywhere, "even to the store" by himself, and said that he told her that "if he could get some release from his fears and insecurity it would be like being released from prison." The veteran's DD Form 214 confirms a military occupational specialty of Infantry Indirect Fire Crewman. As stated before, May 1963 enlistment examination noted no neurologic or psychiatric abnormality. SMRs also show no record of any diagnosis of or treatment for psychiatric complaints during service, but partial service department records reveal that the veteran was disciplined for going awol (absent without leave) in 1964. Private medical records dating from 1976 to 1997 describe the veteran's inability to "leave his home without his wife and children or a companion to go anywhere in the community." An October 1976 private medical report reflects that the veteran began receiving care from that provider in August 1976; the psychologist indicated that the veteran began developing a number of compulsions and fear since his discharge from service. Medical record dated in June 1979 advises of treatment since September 1971. Diagnoses included phobic neurosis, severe, and obsessive compulsive neurosis. VA compensation and pension (C&P) examinations done in January 1977 and January 1979 also returned a diagnosis of obsessive compulsive neurosis. Evaluations done by Social Security in 1983 yielded diagnoses of "severe agoraphobia and compulsions to perform behavior rituals." VA medical records dating from October 1997 to November 2006 show treatment, including medication, for obsessive compulsive disorder & generalized anxiety disorder. Although the record lacks medical evidence of a psychiatric disorder during service and for ten years thereafter, the Board finds the lay evidence from the veteran and his witnesses, along with the veteran's claim of a sexual assault and his absence without leave in 1964, to be highly probative evidence in support of the veteran's claim. See 38 C.F.R. § 3.303(a); see also Jandreau v. Nicholson, 492 F. 3d 1372 (2007) (Lay evidence can be competent and sufficient to establish a diagnosis of a condition when . . . lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). C&P examinations done in July and August 1998 each yielded an axis I diagnosis of "anxiety disorder, not otherwise specified, with features of obsessive compulsive disorder and panic disorder with agoraphobia, partially treated." According to the examiner, "it does appear that symptoms had started at least within the year after [the veteran's] discharge and certainly may have been occurring during his military service." In May 2007 the veteran was accorded another C&P examination. During the examination he reported that he was afraid to leave his home by himself, and was afraid "to stay alone even in his house." Axis I diagnosis was "panic disorder with agoraphobia, severe - with phobic symptoms - service related." C&P examination done in September 2007 yielded axis diagnoses of "panic disorder, with agoraphobia - combat related," and "obsessive compulsive disorder - combat related." The examiner commented that the veteran's diagnoses since the 1970's have to do with anxiety, and explained that "both panic disorder and OCD [obsessive compulsive disorder] come under the umbrella of anxiety disorders." The Board finds this evidence, which is based on a complete review of all of the evidence of record, and which is consistent with earlier opinions that the veteran has an anxiety disorder that is related to service, to be persuasive. Accordingly, in light of competent lay evidence of an anxiety disorder since service, and competent medical evidence from both VA and private treating physicians that attribute this disorder to service, the Board finds that service connection for generalized anxiety disorder, including agoraphobia, panic disorder, and obsessive compulsive neurosis is warranted. 38 C.F.R. § 3.303; Jandreau, 492 F. 3d 1372. ORDER Service connection for a generalized anxiety disorder, including agoraphobia, panic disorder, and obsessive compulsive neurosis, is granted. ____________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs