Citation Nr: 1219702	
Decision Date: 06/05/12    Archive Date: 06/13/12

DOCKET NO.  97-33 453A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana


THE ISSUE

Entitlement to service connection for an acquired psychiatric disorder, to exclude posttraumatic stress disorder (PTSD), anxiety disorder, depression, dementia, obsessive compulsive disorder, and personality disorder. 


REPRESENTATION

Appellant represented by:	Sean A. Ravin, Esquire


WITNESSES AT HEARING ON APPEAL

Veteran and his sister-in-law


ATTORNEY FOR THE BOARD

H. A. Hoeft, Associate Counsel


INTRODUCTION

The Veteran served on active duty from December 1952 to December 1955.  Service personnel records indicate that he served in Korea from June 1952 to May 1953.  He died in October 2010 and his widow has been substituted as the claimant in this matter to complete the processing of the deceased Veteran's claim. See November 2011 Rating Decision, Substitution of Claim. 

This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 1997 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. 

The appeal was most recently before the Board in April 2008 and December 2009, at which time it was remanded for further development.  The procedural history of this claim has been outlined extensively in previous remands.  

The Veteran testified before the Board in June 1999; he also provided testimony at a Decision Review Officer (DRO) hearing at the RO in December 1997.  Transcripts of the hearings are of record.

The Board notes that the Veteran's current acquired psychiatric disorder has been described differently by different treating physicians; for example the Veteran has been variously diagnosed with: posttraumatic stress disorder (see various VA treatment record and September 2008 VA Examination); anxiety; depression; obsessive compulsive disorder (see October 1998 Ochsner Clinic Letter); anxiety neurosis (see December 1971 Ochsner Clinical Notes); and obsessive compulsive disease and panic attacks (see VA psychological examination, May 1997).  

As an initial matter, the Board considers the Veteran's claim for service connection for an acquired psychiatric disorder as encompassing all psychiatric disorders evident in the record, pursuant to the decision of the United States Court of Appeals for Veterans Claims (Court) in Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that the scope of a mental health disability claim includes any mental health disability that could reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). 

However, in reviewing the Veteran's claim for an acquired psychiatric disorder, the Board excludes the previously denied claim for posttraumatic stress disorder (PTSD), as that claim has been provided a prior final adjudication without appeal (see May 2004 rating decision), and there is no evidence of record that the Veteran has attempted explicitly or implicitly to reopen that decision. See Ephraim v. Brown, 82 F.3d 399, 401-402 (1996) (holding that a claim based on the diagnosis of a new mental disorder states a new claim); see also Boggs v. Peake, 520 F.3d 1330, 1335 (2008).  The Veteran was advised of the May 2004 decision and his appellate rights, but did not perfect his appeal of the decision.  Thus, the decision is final and the Board has recharacterized the issues on appeal accordingly. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2011).  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011).  38 U.S.C.A. § 7107(a)(2) (West 2002).



FINDINGS OF FACT

1. The Veteran died in October 2010 during the pendency of this appeal, and his widow filed a timely request to be substituted as the Appellant in place of the Veteran. 

2. The evidence of record supports a finding that the Veteran's psychiatric disorder, diagnosed as OCD with panic attacks, anxiety, and depression, had its onset during his active duty military service. 


CONCLUSION OF LAW

An acquired psychiatric disorder was incurred in the Veteran's military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f) (2011).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Notice and Assistance

Before addressing the merits of the Veteran's claims on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2011).  In light of the favorable decision herein, the Board finds that any VA deficiency in complying with VCAA is harmless error and that no useful purpose would be served by remanding the appeal to the RO. Cf. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 19 Vet. App. 103 (2005); rev'd on other grounds, 444 F.3d 1328 (Fed Cir. 2006); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991).  Accordingly, appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). 

Substitution 

At the time of his death, the Veteran had a pending appeal of entitlement to service connection for a psychiatric disorder.  Generally, when a Veteran has claims pending at the time of his death, his surviving spouse may be paid periodic monetary benefits, which were due and unpaid, to which he was entitled at the time of his death based on existing ratings or decisions, or other evidence that was on file when he died. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000.

The statute regarding accrued benefits claims was amended on October 10, 2008. Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212 (2008). Section 212 created a new, liberalizing statute, which provides that if a claimant died while a claim or appeal for any benefit under a law administered by VA was pending, a living person who would be eligible to receive accrued benefits due to the claimant may, not later than one year after the date of the death of the claimant, request to be substituted as the claimant for the purposes of processing the claim to completion. See 38 U.S.C.A. § 5121A. 

The new statute allows a person who could be considered an accrued benefits claimant to substitute for a deceased claimant to continue adjudication of the deceased claimant's claim.  The provisions of the new statute apply with respect to the claim of any claimant who dies on or after October 10, 2008. See Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008).  In this case, the Veteran died in October 2010 and the Appellant filed a proper claim for substitution in December 2010 by way of a VA Form 21-534.  Accordingly, the Appellant has been substituted as the claimant for the purposes of all claims that were pending at the date of the Veteran's death. 38 U.S.C.A. § 5121A.  As such, under the new law, the appeal is to be continued as if the original claimant were not deceased. 

Service Connection 

The Appellant seeks service connection for the Veteran's psychiatric disorder.  As noted above, the Veteran's psychiatric disorders have been variously diagnosed throughout the course of this appeal and include anxiety disorder, obsessive compulsive disorder (OCD), depression, and PTSD (the latter having already been finally denied in 2004).  The Appellant contends that these disorders began in-service.  

Applicable Laws and Regulations 

Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§  1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2011).

In order to establish service connection for the claimed disorder, there must be (1) competent and credible evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent and credible evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Davidson v. Shinseki, 581 F.3d 1313   (Fed. Cir. Sept. 14, 2009), Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). 

For certain chronic disorders, to include psychosis, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2011).

For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  When the disease identity is established, there is no requirement of an evidentiary showing of continuity.  Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. See 38 C.F.R. § 3.303(b) (2011).

Facts and Analysis 

The Veteran has a well-documented history of multiple psychiatric diagnoses, to include anxiety disorder, depression, dementia, OCD, and PTSD.  He testified at hearings before the Board and the RO, and submitted numerous lay and "buddy" statements in support of his contention that his current anxiety-related disorder(s) arose during his active duty service in Korea in the 1950's.  

As to element (1) of a service connection claim, that of current disability, the May 1997 VA mental examination diagnosed OCD with panic attacks; an October 1998 private psychological treatment note diagnosed, inter alia, anxiety, depression, and OCD; and a September 2008 VA examination diagnosed dementia, PTSD, and anxiety.  Accordingly, the Board finds that element (1) has been satisfied in that respect.

With respect to element (2), that of in-service disease or injury, the Veteran asserted that he developed psychiatric problems as a result of stressful experiences which occurred during his deployment in Korea.  Specifically, during his appearances before the RO in December 1997 and the Board in June 1999, he testified to his exposure to numerous psychological stresses, to include base confinement; being placed on enemy alert status; and witnessing accidental ammunition explosions on base and seeing wounded soldiers.  The Board briefly notes that personnel records confirm that the Veteran served in Kunsan, Korea, from June 1952 to May 1953 (with a brief TDY to Japan in 1953).  While the Board need not verify a "stressor" here (as needed for PTSD), it does note that the Veteran submitted a "buddy" statement which corroborates the reported ammunitions explosion. See Email from J.F.F., dated July 1999.  Although this "buddy" statement does not necessarily serve to establish in-service injury or disease, it does lend to the Veteran's overall credibility. 

The Veteran has also contended that he began to experience some psychological symptomatology during his period of active duty service.  Indeed, he has consistently reported that he experienced his first panic attack during his deployment to Korea and Japan.  During both hearings, he testified that he thought he was having a heart attack (e.g., rapid heartbeat, chest pains, etc.) while on TDY in Japan in 1953; however, in the process of seeking medical attention, it was discovered that he was in violation of a restriction for leaving base.  He reported that his supervisors presumed he was feigning heart problems to cover up the violation.  He received minimal medical treatment and was sent back to Korea for duty the next day. See RO Hearing, December 1997, pp. 16-18; see also Board Hearing Transcript, June 1999, pp. 17-20.  

The Board notes that service records corroborate the Veteran's statements regarding the claimed panic attack and circumstances surrounding it.  Indeed, an August 1952 STR reflects that the Veteran presented with complaints of "heart trouble" after being apprehended by military police for attempting to leave the base.  Although no psychological diagnoses were rendered at that time, it was noted that the Veteran's heart rate was tachycardic, between 100 and 120 beats per minute.  

Thus, while service treatment records do not specifically show treatment or diagnoses relating to a psychological disorder, the Veteran has consistently asserted that his psychological problems, to include panic attacks, had their onset during his active duty military service.  The Board notes that lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  For example, he is competent to describe the manifestations of his presumed panic attack (i.e., chest pain, shaking, nausea, difficulty breathing, etc.).  The Veteran is thus competent to attest to his in-service symptomatology, and, when considered in conjunction with the corroborating service treatment and personnel records, the Board finds that element (2) has been satisfied here.  

With respect to element (3), that of nexus, the Board notes that record contains two, positive nexus opinions relating the Veteran's psychological disorders to service; in addition, the medical record, on its very face, unquestionably demonstrates continuity of psychological symptomatology since service.  

Indeed, post-service treatment records show that that the Veteran has received near-continuous treatment for anxiety-related symptomatology, dating from the 1950's to the time of his death in 2010. See, generally, Ochsner Clinical Notes and VA Clinical Notes and Examinations.  In this regard, the Veteran testified on several occasions that he was treated by his private physician, Dr. Butker, for recurrent panic attacks and prescribed Valium as early as 1955 (i.e., within the first post-service year).  However, those records were apparently unavailable for review following Dr. Butker's death.  Again, the Board has no reason to doubt the Veteran's statements in this instance and will thus concede that he received psychological treatment as early as 1955.   

Other private treatment records from the Ochsner Clinic, dated from 1971 through 2004, show complaints of nervousness and diagnoses of depression, panic attacks, anxiety, OCD, and anxiety neurosis.  

The Veteran underwent a VA psychological examination in May 1997.  While no nexus opinion was provided at that time, the Veteran clearly described his first panic attack as occurring in Japan while off base one evening.  He reported that he thought he was having a heart attack.  The VA examiner noted that the Veteran described "classic" panic attack symptoms, including chest pain, heavy breathing, and a racing heart.  The pertinent diagnosis was OCS and panic attacks.  

Again, the Veteran has argued that he experienced psychological problems during his military service which persisted since his discharge.  Based on the lay and medical evidence outlined above, the Board has no reason to disbelieve the Veteran's contentions.  While the Board notes that laypersons without medical training are not qualified to render medical opinions regarding matters such as diagnosis, onset, and etiology of disease, which call for specialized medical knowledge, they are allowed to report on observable symptoms. See Jandreau, supra.  Moreover, the Veteran's statements concerning continuity of psychiatric symptomatology, and those of his family, are corroborated by the medical evidence of record, described above.  The Veteran testified that he received psychological treatment in 1955 and private and VA medical records confirm near-continuous psychiatric treatment from 1971 forward.  The Board believes that service connection for a psychological disorder may be granted based on evidence demonstrating a continuity of psychological symptomatology dating from the Veteran's active duty military service to the present day, per the provisions of 38 C.F.R. § 3.303(b). 

However, even assuming, arguendo, that continuity of symptomatology could not be established in this case, the Board additionally notes that the record contains two positive nexus opinions.  

Indeed, in an October 1998 letter from the Ochsner Clinic, the Veteran's therapist provided diagnoses of anxiety, depression, and OCD, and stated that such disorders were related to service.  

Likewise, the September 2008 VA examiner primarily diagnosed dementia and PTSD, but in doing so, also noted that the Veteran suffered from anxiety disorder.  See VA Mental Examination, September 2008, p. 36.  She opined that his anxiety was related to several factors, including dementia, physical health, and military service. (Emphasis added).  

Thus, when viewed as a whole, the evidence, to include service treatment records, post-service records and the Veteran's lay statements, illustrate that the Veteran has suffered from a chronic psychological disorder, variously diagnosed as anxiety disorder, OCD, and depression, since service.  Indeed, the Veteran has credibly reported that he suffered from panic attacks in-service (manifested by rapid heartbeat, chest pain, etc.) and service treatment records confirm that the Veteran complained of heart problems during service; post-service treatment records show continued complaints and treatment for recurrent panic attacks and other psychological symptomatology from 1971 to 2010 (and as early as 1955, given the Veteran's credible assertions regarding such treatment); a May 1997 VA examiner noted that the Veteran's described in-service symptoms of a heart attack were really that of a classic panic attack; and two psychological clinicians have related the Veteran's current psychological disorder to service.  Based on the foregoing, the Board is compelled to conclude that the Veteran's psychiatric disorder, diagnosed as OCD, anxiety disorder, and depression, is related to service.  The benefit sought on appeal is accordingly allowed.


ORDER

Entitlement to service connection for an acquired psychiatric disorder, diagnosed as anxiety disorder, OCD with panic attacks, and depression, is granted. 



____________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs