Citation Nr: 1011306 Decision Date: 03/25/10 Archive Date: 04/07/10 DOCKET NO. 97-32 019A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Simone C. Krembs, Counsel INTRODUCTION The Veteran served on active duty from August to September 1975, from March 1976 to April 1976, and from July 1977 to April 1978. This matter comes before the Board of Veterans' Appeals (Board) from a May 1997 rating decision of a Department of Veteran's Affairs (VA) Regional Office (RO) that denied the Veteran's claim. The Veteran testified before the Board in March 1999, at a hearing that was held in Washington, D.C. The Board remanded the claim for additional development in October 2006. In an October 2006 decision, the Board denied the Veteran's claim. The Veteran appealed the decision denying the claim to the United States Court of Appeals for Veterans Claims (Court). In a March 2008 Order, the Court remanded the claim to the Board for readjudication in accordance with a Joint Motion for Remand. In November 2008, the Board remanded the claim for additional development. FINDING OF FACT The Veteran's acquired psychiatric disorders (depressive disorder, not otherwise specified, and generalized anxiety disorder) were aggravated as a result of his active service from July 1977 to April 1978. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder (depressive disorder, not otherwise specified, and generalized anxiety disorder) have been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance Requirements The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In light of its favorable disposition, the claim is substantiated and the Board need not further discuss whether VA has met its duties pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2009). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of 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 (2009). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Degmetich v. Brown, 104 F. 3d 1328 (1997); Cuevas v. Principi, 3 Vet. App. 542 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection for certain chronic diseases, including psychoses, will be rebuttably presumed if they are manifest to a compensable degree within one year following active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309 (2009). 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. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2009). The Veteran contends that he has a psychiatric disorder that had its clinical onset during his active service. Alternatively, he argues that his psychiatric disorder pre- existed his entry into active service and was aggravated as a result of his service and that he is therefore entitled to service connection. On examination prior to entry into service in February 1975, no evidence of a psychiatric disorder was found. Because the Veteran's entrance examination in this case did not find evidence of a psychiatric disorder, and no other material evidence indicates that the Veteran had a pre-existing psychiatric disorder, the Veteran is entitled to a presumption of soundness for his first period of service under 38 U.S.C.A. §§ 1111, 1137 (West 2002). The Veteran was discharged from his first period of active service in September 1975, after examining physicians determined that he had erroneously enlisted in the Navy. Shortly after his enlistment, the Veteran sought treatment for sore feet. At that time he gave a history of back pain related to pes planus, and indicated that prior to enlistment, he had worn special shoes for that condition. He was placed on light duty, and then returned to full duty, but he continued to complain of pain in his feet. He was ultimately diagnosed with having muscular and fascia strain. On August 27, 1975, the Veteran was evaluated at an orthopedic clinic. After examination, the consultant recommended that the Veteran be separated from the Navy due to his inability to cope with recruit training because of chronic lumbosacral strain. Two days later, the Veteran was admitted to the podiatric ward for painful flat feet. He was treated for 4 days with bed rest and then placed in a medical holding company. Based upon the orthopedist's recommendation, the Veteran's past history, and his own examination, the podiatrist recommended that he appear before a Medical Board with diagnoses of symptomatic pes planus and chronic lumbosacral strain, both of which had existed prior to his entry into service. The Veteran was discharged from the Navy in September 1975. Significantly, he did not complain of psychiatric symptoms, nor was he diagnosed with a psychiatric disorder at any time during this period of service. On examination prior to entry into his second period of service in March 1976, no evidence of a psychiatric disorder was found. In April 1976, however, the Veteran complained of nervousness and a habit of biting the insides of his cheeks for the past 4 years. He stated that he wanted to be discharged from the Marines. The assessment was "nervous condition." Three days later, the Veteran complained of pain in his left arm and left side of his neck. He indicated that he had experienced similar symptoms in the past, and that he had been discharged from the Navy for the same problem. Given the Veteran's report, it was determined that he should be discharged from the Marines for fraudulent enlistment. He was examined and determined to have not incurred any injuries or illnesses during his period of service. Despite the April 1976 complaint of nervousness, the entrance examination for his second period of active service did not find evidence of a psychiatric disorder. The Veteran is, therefore, entitled to a presumption of soundness for his second period of service under 38 U.S.C.A. §§ 1111, 1137. The Veteran underwent examination for enlistment into his third period of active service in March 1977. At the time of the examination, the Veteran reported a history of treatment for depression from 1968 to 1969. He was referred for psychiatric evaluation in July 1977 to determine whether he was qualified for entry into the Army. At the time of the evaluation, the Veteran stated he had been treated for hyperactivity and school adjustment problems at the ages of 6 and 7. He had since finished high school, had a good work record, and did not have any current psychiatric complaints. Mental status examination revealed no indication of an organic or psychiatric process. The impression was childhood depression, by history, and questionable minimal brain dysfunction. He was determined to be qualified for enlistment. Two weeks after his enlistment, the Veteran complained of nervousness and a 13-year history of psychiatric problems. He was referred to a social worker for further evaluation. At the time of the evaluation, the Veteran indicated that his wife had died in childbirth three months ago. He stated that he was currently having difficulty swallowing in the mess hall and that he was nervous. He stated that he felt guilty about his wife's having passed away during childbirth. Mental status examination revealed an alert and cooperative young male who spoke softly and displayed no evidence of a thought disorder. His affect was somber but appropriate. He stated that he felt that he needed medication, and that he felt that he would not "make it" if he did not have medication. He denied experiencing suicidal ideation. The impression was adjustment reaction. He was advised to return for follow up as needed. The Veteran was seen for complaints of nervousness on two occasions thereafter. In February 1978, the Veteran sought emergency medical treatment for loss of appetite, nervousness, and loss of sleep. The provisional diagnosis was situational depression. The Veteran underwent a service department examination in March 1978. At the time of the examination, he indicated that he had frequent trouble sleeping, depression or excessive worry, loss of memory or amnesia, and nervous trouble that had been caused by military unit pressures. He was currently taking Valium for these symptoms. Examination resulted in no psychiatric diagnosis. In April 1978, action to discharge the Veteran from the Army was initiated. The stated reasons for the proposed action included the Veteran's inability to follow established and verbal orders. The reviewing Commander determined that the Veteran's methods of trying to point out his concerns to his superiors were only excuses for not doing what he did not want to do, resulting in judicial punishment on two occasions in March 1978. The Veteran's exaggeration of his past was a cause for others to ridicule and chastise him, which further caused the Veteran to think that others were out to get him. His lack of mental stability was a detriment to a combat unit, where each individual may be required to act rationally in order to save the life of a fellow soldier. His inability to adjust to the military socially or emotionally justified his removal from the Army. It was therefore recommended that he be expeditiously discharged. The Veteran was discharged from service approximately two weeks later. Although the Veteran reported a history of psychiatric treatment at the time of his enlistment into his third period of active service, psychiatric evaluation revealed that he had no current symptoms or a diagnosable disorder and he was determined to be qualified for enlistment. Because a psychiatric disability was not found on the Veteran's examination for entrance into his third period of service, the Veteran is entitled to a presumption of soundness for his third period of service under 38 U.S.C.A. §§ 1111, 1137. However, the Board must consider whether the presumption of soundness is rebutted by clear and unmistakable evidence. The evidence in this regard reflects that in November 1985, the Veteran reported that he had been treated at St. Mary's Mental Health Clinic at the ages of 15 and 16 for feelings of being threatened. The schools were being integrated at that time and he was having difficulty sleeping. He was later involuntarily hospitalized by his parents at Crownsville Hospital between 1969 and 1970. He continued to undergo psychiatric treatment, off and on, since the age of 15 or 16. He stated that he enlisted in the military to prove that he "could take it." Clinical records dated in April 1996 show that the Veteran reported a past history of psychiatric hospitalization, in 1971 and 1992. In June 1996, the Veteran underwent cardiac evaluation at St. Mary's Hospital. At the time of the evaluation, he reported three psychiatric hospitalizations, in 1971, 1992, and 1993. In June 1999, the Veteran was hospitalized for psychiatric treatment. At the time of his admission, he reported that he had developed posttraumatic stress disorder (PTSD) in the 1970s when he was "accosted" by coworkers while training to be a policeman. He stated that his coworkers thought that he was a CIA "snitch." He then joined the military, where he was reportedly harassed by other soldiers because they thought he was a CIA "plant." VA clinical records dated in April 2000 show that he reported having been evaluated by a psychiatrist for the first time at the age of 5. He was unsure of his diagnosis at that time, but stated that he had taken medication as a child. He stated that he had never been hospitalized for psychiatric treatment. On VA examination in March 2004, the Veteran stated that approximately 6 months prior to his enlistment in the military, he had been evaluated by psychiatrists, whom had felt that his mental illness was stable, and that things had resolved. Despite that there are no records in the claims file demonstrating that the Veteran did undergo psychiatric treatment prior to his enlistment into active service, the Veteran has been very consistent in reporting that he received psychiatric treatment as a child and during his teenage years. In addition, although the Veteran was not diagnosed with a psychiatric disorder at the time of his enlistment into active service in the Army, he was not entirely forthcoming at the time of the enlistment examination, as he reported a history of treatment for hyperactivity and school adjustment problems at the ages of 6 and 7, and indicated that he had been fine, and had performed well, ever since. The July 1977 psychiatric evaluation therefore was not based upon an accurate record. The weight of the credible evidence shows that the Veteran had a psychiatric history at the time of his enlistment into the Army. In addition, the fact that the Veteran was not diagnosed with a psychiatric disorder at the time of his enlistment into the Army is of little probative value in determining whether he had a psychiatric disorder at the time of the enlistment, given that the evaluation was not based upon an accurate record. The record thus supports a finding that the evidence clearly and unmistakably shows that the Veteran had a pre-existing psychiatric disorder at the time of his enlistment into active service with the Army. The evidence of record does not, however, clearly and unmistakably show that the pre-existing psychiatric disorder was not aggravated as a result of his active service in the Army. Because the Veteran was found to have no psychiatric abnormalities at the time of his entrance into active service, and was discharged from the Army as a result of his "lack of mental stability," and his failure to adapt to life in the military either socially or emotionally, the Board cannot conclude that a pre-existing psychiatric disorder was not aggravated as a result of his active service with the Army. It is clear that the during his service with the Army, the Veteran sought treatment for psychiatric complaints (anxiety and depression) that were not present at the time of his enlistment. The manifestation of symptoms during his period of service with the Army suggests that any symptoms that were perhaps dormant at the time of his entrance into service were aggravated as a result of his service. The remaining question before the Board, therefore, is whether the Veteran is entitled to service connection for the disorder or disorders that were aggravated as a result of his active service with the Army. Post-service clinical records demonstrate that the Veteran has been diagnosed as having numerous psychiatric disorders, including anxiety, depressive disorder, PTSD, and schizophrenia. His PTSD and schizophrenia diagnoses have been related to his active service. Specifically, in a June 1999 letter, his internal medicine physician related his PTSD to traumatic events in service, and in an August 1999 letter, the Veteran's treating psychologist stated that he felt that his schizophrenia had been aggravated as a result of the Veteran's military service. Both of these diagnoses, however, have been called into question by the August 2002 and March 2004 VA examiners, who argue that neither diagnosis is supported by the evidence of record, as both diagnoses were made without the benefit of a longitudinal review of the Veteran's records. Because no other treating providers have diagnosed either disorder before or since the 1999 diagnoses, and examiners who undertook the longitudinal review of the record have not found either disorder; the evidence is against a finding that the Veteran has current PTSD or schizophrenia. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). At the time of the March 2004 examination, the Veteran was given a provisional diagnosis of generalized anxiety disorder. Subsequent clinical records show continued treatment for anxiety and a depressive disorder. As the Veteran was treated for both anxiety and depression in service, which the Board has concluded were pre-existing disorders that were aggravated as a result of active service, and he has current diagnoses of anxiety and a depressive disorder, the Board concludes that service connection for anxiety and a depressive disorder is warranted. All reasonable doubt has been resolved in favor of the Veteran, as required by law. 38 U.S.C.A. § 5107(b) (2009). ORDER Service connection for an acquired psychiatric disorder (depressive disorder, not otherwise specified, and generalized anxiety disorder) is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs