Citation Nr: 1010366 Decision Date: 03/18/10 Archive Date: 03/31/10 DOCKET NO. 04-05 725 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Veteran represented by: Virginia A. Girard-Brady, Esq. ATTORNEY FOR THE BOARD L. B. Yantz, Associate Counsel INTRODUCTION The Veteran served on active duty from September 14, 1966 to November 29, 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, which determined that new and material evidence had not been submitted to reopen a claim for service connection for an acquired psychiatric disorder. In a June 2005 decision, the Board also found that new and material evidence had not been submitted to reopen a claim for service connection for an acquired psychiatric disorder. In February 2006, the United States Court of Appeals for Veterans Claims (Court) granted a Joint Motion to remand this case to the Board, instructing the Board to consider the Veteran's claim for service connection "on the merits" rather than as a claim to reopen. In April 2006, pursuant to the Court's Joint Motion to remand, the Board remanded the case for further evidentiary development. In an October 2007 decision, the Board denied entitlement to service connection for an acquired psychiatric disorder on the merits. In a September 2009 memorandum decision, the Court vacated the Board's October 2007 decision and remanded the case for further adjudication. For reasons explained below, the appeal is once again REMANDED to the RO. VA will notify you if further action is required on your part. REMAND Pursuant to the Court's September 2009 memorandum decision, the Board observes that further development is required prior to adjudicating the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder. At the time of a pre-induction physical examination in January 1966, the Veteran stated that, while he had used a variety of drugs, such as LSD, to control his nerves, he had never used anything intravenously, and consequently, had no "tracks." Noted at the time of evaluation was that the Veteran was a construction worker who "didn't like to work." According to the examiner, while the Veteran seemed poorly motivated for military service, there was no evidence of any real incapacity. Also noted was that the Veteran did well "at those things he wanted to do well at." A psychiatric evaluation conducted as part of the Veteran's pre-induction physical examination was within normal limits, and no pertinent diagnosis was noted. In a mental hygiene consultation report dated in October 1966, it was noted that the Veteran had undergone a psychiatric examination the previous month, and that administrative separation was recommended. Reportedly, the Veteran had a disqualifying mental defect sufficient to warrant disposition through medical channels. The pertinent diagnosis was chronic severe emotionally unstable personality, manifested by an inability to adjust to a military environment, immaturity, "nervousness," and other symptoms of chronic anxiety; and labile control of emotional responses to minor environmental stresses resulting in outbursts of temper and weeping, as well as a withdrawal from interpersonal relationships. Interpersonally, the Veteran related in an agitated manner during the course of the psychiatric interview, showing both impaired insight and judgment. The level of the Veteran's stress was undetermined. However, his predisposition was described as "marked," characterized by a lifelong history of adaptation problems, ineffective parental guidance, problems with adjustment to parental and school authority, poor social adaptation with difficulty forming meaningful friendships, marginal academic adaptation, mismanagement of hostility and anxiety feelings in the past, and a history of "nervousness" which was felt to have existed prior to the Veteran's entry into service. The Veteran's impairment for further military duty was described as "marked," with a character structure deeply ingrained and beyond the scope of rehabilitative efforts in a military environment. Noted at the time of evaluation was that the Veteran's diagnosis was that of a character and behavior disorder. On service separation examination in October 1966, the Veteran gave a history of trouble sleeping, nightmares, depression, and nervous trouble, as well as a drug and/or narcotic habit. A physical examination conducted at that time was within normal limits, and no pertinent diagnosis was noted. A Clinical Record Cover Sheet dated in November 1966 was significant for a diagnosis of chronic severe emotionally unstable personality, which existed prior to the Veteran's entry into service. Following his discharge from service, the medical evidence of record reflects that the Veteran began receiving psychiatric treatment in 1983 and has been diagnosed with obsessive compulsive disorder, panic disorder with agoraphobia, depressive disorder, and personality disorder. The Veteran contends that he was humiliated and ridiculed by other soldiers while in service, and he asserts that when he expressed suicidal ideation in service, he was removed from the barracks, hospitalized, medicated, and restrained. The Veteran underwent a VA mental disorders examination by a psychologist in October 2006. On that occasion, he denied having a pre-military psychiatric history, and he reported suffering from panic attacks, depressed mood, and suicidal ideation while in service. He also alleged that he received medication in service for his psychiatric symptoms. The examiner noted that the Veteran's service treatment records do not mention panic attacks, but that they do confirm his memory of being highly anxious. The Veteran acknowledged that his aforementioned symptoms subsided after his discharge from service, and he indicated a period of substantial remission between the time of his discharge from the Army and his purchase of a home in 1982 (when he began psychiatric treatment). It was noted that his symptoms have been present since 1982 on a daily basis without remission. After a thorough evaluation, the examiner diagnosed the Veteran with obsessive compulsive disorder, panic disorder with agoraphobia, and depressive disorder not otherwise specified (representing a continuation of the previously diagnosed recurrent major depressive disorder). The examiner noted that he reviewed the Veteran's claims file. He concluded that there was no evidence that the Veteran's panic attacks or obsessive compulsive disorder symptoms were present either prior to or in service, other than the Veteran's own statements that he began suffering panic attacks after a week of basic training because he felt humiliated by his drill instructor. Likewise, he noted that there were no records of the medications that were allegedly prescribed to the Veteran in service. Given the Veteran's current statements that he began suffering panic attacks, depression, and severe obsessive compulsive symptoms in 1982, the examiner opined that his panic disorder and obsessive compulsive disorder are less likely as not to have had their onset in the service, and they did not exist prior to service based on the Veteran's disavowal of the statements made at his induction physical and the in-service psychiatrist's contemporary evaluation. With regard to chronic anxiety and depression (which allegedly resulted in suicidal ideation), the examiner concluded that such symptoms did not pre-date the Veteran's military service, as the Veteran presently disavowed the statements contained in his service treatment records. The examiner noted that the findings by the military psychiatrist in September 1966 reflected the Veteran's extreme distress at that time. However, in the absence of any psychiatric symptoms or treatment for a period of 16 years after his discharge from service, the examiner concluded that he could not attribute the Veteran's subsequent experience of anxiety, depression, or social withdrawal to his experiences in the military without resorting to speculation. The examiner further concluded that because of the hiatus between the Veteran's reported symptoms in the military and their reappearance 16 years later, his psychiatric symptoms are less likely as not to have been permanently worsened as a result of his military service. The examiner went on to determine that the Veteran's in- service diagnosis of inadequate personality does not correspond to the current psychiatric diagnoses and at least as likely as not reflects an adjustment disorder with mixed anxiety and depression, which remitted after the Veteran's discharge from service. Service connection may be established for a 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 (2009). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). If a disorder was not noted on entering service, the government must show clear and unmistakable evidence of both a preexisting condition and a lack of in-service aggravation to overcome the presumption of soundness. A lack of aggravation may be shown 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 preexisting condition." Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 U.S.C.A. § 1153. A temporary or intermittent flare-up of a preexisting disease does not constitute aggravation. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991); Green v. Derwinski, 1 Vet. App. 320, 323 (1991). In order to support a finding of aggravation, the evidence must establish that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a) (2006); see also Verdon v. Brown, 8 Vet. App. 529 (1996) (if the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service). While the Veteran contends that he experienced a continuity of symptomatology from the time of service until the present, as treatment records as well as the Veteran himself have indicated, there was a 16-year hiatus in psychiatric symptoms and treatment between his discharge from service in 1966 and his onset of psychiatric treatment in 1982. Thus, his current contentions of continuous treatment or symptoms since that time are inconsistent with his own prior statements and the other evidence of record. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed.Cir.2006) (Board can consider bias in lay evidence and conflicting statements of the veteran in weighing credibility). Moreover, while the VA examiner noted that the Veteran's psychiatric symptoms did not exist prior to service, he noted the opinion was based on the Veteran's current disavowal of statements made to the psychiatrist in service. However, review of the service treatment records reveal that on his January 1966 pre-entrance examination, the Veteran answered affirmatively to questions regarding his having difficulty with school studies or teachers, and questions as to whether he had suffered from nervous trouble of any sort or any drug or narcotic habit. Statements made by the Veteran contemporaneous to his service are more credible than his current recollections, rendered approximately 40 years after service, of what he said to physicians in service. In light of the above, the Board has determined that a VA examination by a psychiatrist is necessary to adequately address the claim. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for a VA mental disorders examination by a psychiatrist, to determine the current nature of the Veteran's psychiatric disorders and for an opinion as to whether any currently diagnosed psychiatric disorders are related to service. As regards the requested examination, all pertinent symptomatology and findings should be reported in detail, and all appropriate studies should be performed. Following completion of the examination and review of the claims file, the examining psychiatrist should provide a diagnosis for all psychiatric disorders present, as well as any personality disorders. Thereafter, the examiner should respond to the following questions, to include providing a complete rationale for the conclusions reached. (a) Were the symptoms noted in service the product of the personality disorder diagnosed in service, or do they represent a clinical diagnosis of an anxiety disorder, depressive disorder, psychosis, or any other acquired psychiatric disorder? (b) If the Veteran suffered from an acquired psychiatric disorder in service (other than a personality disorder), did the acquired psychiatric disorder exist prior to the Veteran's service? (c) If the Veteran suffered from an acquired psychiatric disorder (other than a personality disorder) prior to service, was the disorder permanently worsened beyond normal progression (aggravated) by the Veteran's 21/2 months of service? (d) For any psychiatric disorder currently diagnosed (other than a personality disorder), did the disorder more likely, less likely, or at least as likely as not (50 percent probability or greater) have its origin during the veteran's 21/2 months of active military service. (e) If the examiner has determined that an acquired psychiatric disorder preexisted service but was aggravated by service (permanently worsened beyond normal progress by service), then the examiner should opine on whether a current psychiatric disability more likely, less likely, or at least as likely as not (50 percent probability or greater) is related to an acquired psychiatric disability aggravated by service. 2. After the development requested above has been completed to the extent possible, the record should again be reviewed. If the benefit sought on appeal remains denied, then the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2009).