Citation Nr: 1120918 Decision Date: 05/31/11 Archive Date: 06/06/11 DOCKET NO. 09-33 348 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for situational phobia (claustrophobia). REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The Veteran had active service from November 1966 to November 1967. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. FINDING OF FACT Claustrophobia was initially clinically demonstrated in active service. CONCLUSION OF LAW Claustrophobia was incurred in active service. 38 U.S.C.A. §§ 1110, 1111, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION In light of the favorable decision to grant the Veteran's claim, any deficiency as to VA's duties to notify and assist, pursuant to the provisions of the Veterans Claims Assistance Act of 2000 (VCAA), is rendered moot. In the same manner, the Board observes that evidence pertinent to the matter on appeal was received by the Board in December 2010. While the Veteran has not waived initial RO consideration of this evidence, in light of the Board's granting of the Veteran's claim, a remand for the purpose of allowing the RO to first consider this evidence would serve no useful purpose. Service connection is warranted if it is shown that a veteran has a disability resulting from an injury incurred or a disease contracted in active service, or for aggravation of a preexisting injury or disease in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. If there is no evidence of a chronic condition during service, or during an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim. 38 C.F.R. § 3.303(b). Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. See Savage v. Gober, 10 Vet. App. 488, 495-498 (1997). In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). The Veteran asserts that he had claustrophobia prior to service and that his claustrophobia was aggravated by his period of active service. A July 1966 pre-induction service examination report indicates that the Veteran's psychiatric system was clinically evaluated as normal. The Veteran specifically indicated that he had had claustrophobia all his life on the corresponding Medical History Report. A September 1967 service treatment record noted that the Veteran had symptoms of claustrophobia. June 1970 VA treatment records reveal that the Veteran complained of a fear of closed places and of being confined. The impression was phobic neurosis. A November 2007 VA mental disorders examiner stated that it was "only as likely as not" that the Veteran's preexisting claustrophobia had been aggravated by his military service. VA law provides that a veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C.A. § 1111. The presumption of soundness attaches only where there has been an induction examination during which the disability about which the veteran later complains was not detected. The regulations provide expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," and that "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions." 38 C.F.R. § 3.304(b). The law further provides that, if a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service incurrence for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder. In that case, the provisions of 38 U.S.C.A § 1153 and 38 C.F.R. § 3.306 apply, and the burden falls on the veteran to establish aggravation. Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If a presumption of aggravation under section 1153 arises, due to an increase in a disability in service, the burden shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease." 38 U.S.C. § 1153; 38 C.F.R. § 3.306; Jensen, 19 F.3d at 1417; Wagner v. Principi, 370 F. 3d 1089, 1096 (Fed. Cir. 2004). Claustrophobia was not clinically noted (per Crowe v. Brown, 7 Vet. App. 238 (1994)) at the time of his examination for entrance to service. Although the Veteran indicated that he had a history of such disability at the time of his entrance to service, as noted above, the regulations provide expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," and that "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions." 38 C.F.R. § 3.304(b). Additionally, although a November 2007 VA examiner has described the Veteran's claustrophobia as preexisting the Veteran's service, such record does not constitute clear and unmistakable evidence that the Veteran had claustrophobia prior to his period of active service, as such opinion was not based on objective supporting clinical evidence. In this regard, it is noted that the Veteran's "PULHES" neuropsychiatric profile (S) was recorded as "1" upon entrance. Although the November 2007 VA examiner stated that a pre-existing claustrophobia was in fact aggravated by service, in the absence of clear and unmistakable evidence that the Veteran had claustrophobia prior to his period of active service, such opinion has no probative value. In view of the foregoing, the Board finds that the record does not contain clear and unmistakable evidence that the Veteran had a preexisting claustrophobia disability prior to service that was not aggravated by service. 38 U.S.C.A. § 1111. As such, the presumption of soundness on induction is not rebutted, and the Veteran's claim for service connection must be considered on a direct incurrence basis. The Veteran's service medical records do reveal that a September 1967 service psychiatrist noted that the Veteran had claustrophobia symptoms, and he was designated as "2" on the October 1967 service separation (unsuitability) examination. Lending further credence to the Veteran's claim are June 1970 VA records indicating that the Veteran was seeking treatment for his claustrophobia shortly following service. As claustrophobia was initially clinically demonstrated in service, and has been shown to have continued since service, the Board finds that the evidence of record supports a grant of service connection for claustrophobia on the basis of direct incurrence. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for situational phobia (claustrophobia), on the basis of direct incurrence, is granted. ____________________________________________ U.R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs