Citation Nr: 1310482 Decision Date: 03/29/13 Archive Date: 04/09/13 DOCKET NO. 95-05 230 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for a psychiatric disability. 2. Entitlement to service connection for alcohol abuse/dependence. REPRESENTATION Appellant represented by: Kenneth M. Carpenter, Attorney ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran served on active duty from August 29, 1973, to September 25, 1973. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 1994 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In September 2005, the Board denied the Veteran's claim of entitlement to service connection for a psychiatric disability. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a Memorandum Decision dated in January 2008, the Court vacated the Board's September 2005 decision and remanded the matter to the Board for action consistent with the Court's decision. In July 2009, the Board remanded the matter for additional development. The issue of service connection for alcohol abuse/dependence is addressed in the REMAND that follows the ORDER section of the decision. FINDINGS OF FACT 1. PTSD has not been present at any time during the pendency of this claim. 2. The Veteran was not found to have a psychiatric disorder on the examination for entrance onto active duty; chronic dysthymia was present during active duty; the evidence does not clearly and unmistakably establish that the dysthymia did not permanently increase in severity as a result of service. CONCLUSION OF LAW Psychiatric disability, currently diagnosed as dysthymia, was incurred in active duty. 38 U.S.C.A. §§ 1111, 1110(West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board notes that the Veteran has been provided all required notice, to include notice pertaining to the disability-rating and effective-date elements of his claim. In addition, the evidence currently of record is sufficient to substantiate his claim. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012) or 38 C.F.R. § 3.159 (2012). Legal Criteria Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). 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 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 (West 2002); 38 C.F.R. § 3.304(b). Thus, there is a rebuttable presumption of soundness unless a condition is noted at entry. VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003); see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Factual Background When examined in August 1973 in connection with his entry on to active duty, the appellant specifically denied having any history of mental or psychiatric problems, and clinical evaluation revealed normal findings for the psychiatric system. On September 11, 1973, after less than two weeks of active service, the appellant was treated at the emergency room for situational anxiety manifested by nervousness. He reported a history of chronic anxiety in his family and indicated that he had been treated for anxiety during the past two years. He was upset and agitated, explaining that he was currently experiencing much difficulty in dealing with the stresses of military life. Counseling of the appellant by a military physician on September 12 revealed that he had enlisted in order to obtain benefits such as education. It was reported that the appellant had a history of responding to stressful situations by such maladaptive coping mechanisms as alcoholic intake. The Veteran reported that he had been receiving medical attention for anxiety manifested by chest pains and hyperventilation for the previous two years. The Veteran further reported a history of impulsive flights from anxiety-producing situations by such means as reckless driving while intoxicated by alcohol. The Veteran added that although he graduated from high school, he had developed poor social and peer relationships, and he had been referred to a mental comprehensive care center only three weeks prior to enlisting in the military. The Veteran reported that he experienced one serious anxiety attack in the previous week. The physician noted that the Veteran was quite tremulous and exhibited confusion in his thinking process which prevented him from adequately pursuing his military training. The physician believed the Veteran could not function adequately on active duty, and it was concluded that the appellant did not meet the medical fitness standards for induction into the military. The reported diagnosis at this time was of a personality disorder which had existed prior to service, originating approximately during the appellant's childhood, and which had not been aggravated in service. On September 17, 1973, a medical board consisting of three military physicians found the appellant to be medically unfit for enlistment due to a personality disorder which was not incurred in line of duty, had existed prior to service, and had not been aggravated during active service. It was recommended by the medical board that the appellant be medically separated from active service due to this personality disorder. As previously noted, the Veteran was discharged from active service on September 25, 1973, after the medical board's findings and recommendations were approved by military authorities and the Veteran declined, in writing, to appeal those findings and recommendations. In October 1973, the Veteran applied for VA medical treatment for his nerves. This application was rejected, and no medical treatment was provided by VA at that time, nor was a psychiatric diagnosis reported. In April 1974, a psychiatric social worker conducted an initial evaluation of the Veteran in which it was reported that the Veteran had been rather "nervous" for the previous two years (which would include prior to his military service) and that these problems had begun in his junior year when his mother and step-father began having marital difficulties and he moved in with his sister. This was before he met and married his spouse (which occurred prior to service in June 1971). The diagnosis reported was of a schizoid personality disorder. On an initial psychiatric evaluation in September 1976 by C.S. A., M.D., it was reported that the Veteran had admitted having psychiatric problems since he was very young and indicated that a doctor had put him on Valium when he was in high school. After evaluation, the Veteran was diagnosed with severe anxiety neurosis. In October 1976, the appellant was admitted to a VA facility for treatment. He was diagnosed with an unclassified personality disorder and alcohol abuse. Subsequent medical records document treatment for nervous/psychiatric problems, variously diagnosed Records associated with private psychiatric treatment dating from 1989 to 1994 indicate that the Veteran was diagnosed with a schizoaffective disorder. The records indicate that the Veteran "superficially appear[ed] to function satisfactorily when [. . .] under absolutely no stress," but as soon as the Veteran had "minimal stress to handle or minimal responsibility, he [began] experiencing increased symptomatology." The records note that the Veteran dated the onset of his significant difficulty to 1973 when he was in service, though he also reported treatment with Valium and Librium prior to service. The records further note the Veteran's history that he had a breakdown during service, which resulted in his discharge, and his description of ongoing problems since that time. See January 1989 Franz treatment record; August 1993, February 1994 Stephenson letters. In September 1997, a private physician wrote that the Veteran suffered severe anxiety problems after joining the U.S. Amy in 1973 and that he had continued to have similar ongoing problems over the ensuing years. In January 2003, the Veteran was accorded a very thorough and complete psychiatric evaluation by a VA medical expert. This consisted of an interview with the appellant which lasted more than three hours and a review of the extensive historical material contained in the claims files, including the service medical records, which took another three and one-half to four hours. It was the medical opinion of this VA physician that the Veteran had a schizotypal personality disorder and a history of alcohol abuse. The VA medical expert commented that inherently a personality disorder is felt to develop in childhood and adolescence, and that there was considerable evidence of record in this case to indicate that the Veteran's current psychiatric problems initially developed prior to service. In addition, this VA medical expert concluded that although the Veteran experienced a temporary increase in anxiety during his military service, this increase was not permanent in nature. It is therefore unlikely that the Veteran's pre-service personality disorder underwent any aggravation during his very short period of active service. The VA examiner also concluded that the Veteran's personality disorder was not etiologically related to his military service. An October 2004 note by a treating VA psychiatrist reflects a diagnosis of depression and anxiety which are "part of" PTSD. The VA psychiatrist answered "Yes" to the question of whether the current diagnosis was the same condition noted in service; however, the psychiatrist did not address that the condition noted in service was a personality disorder. See October 2004 T.C. record. A November 2005 statement from a treating physician indicates that the Veteran's medical history included, "problems with anxiety and also stress related problems," that "these problems started after [the Veteran's] military service," and that the physician had, "never known [the Veteran] to exhibit evidence of a personality disorder." See Nelson statement. A February 2006 statement from a treating psychiatrist reflects the psychiatrist's determination that the Veteran had PTSD. The psychiatrist noted the Veteran's history of military sexual assault. See February 2006 T.C. report. A May 2009 psychiatric report reflects diagnoses of PTSD due to a "bad experience" in service and a car accident in 2006, dysthymia with anxiety and depression, and paranoid personality disorder. The physician reported that the Veteran's, "psychic symptomatology is consistent with what happened to him in service." See May 2009 E.O. report. An August 2012 VA examination record reflects the Veteran's history of joining the military because he "always wanted to go to the Army" and because he wanted to "retaliate" for the death of a friend in Vietnam. The Veteran reported that his childhood was "good" with "no problems." The examiner noted that the evidence of record was contrary to the Veteran's reported history of no problems in childhood: the examiner explained that the records, "indicated lots of family problems from which [the Veteran] suffered emotional disturbances." The Veteran additionally reported that "everything was good" until the reported sexual trauma. The Veteran explained that a sergeant he admired asked him to go "butt patrolling," and that after they went to what appeared to be an old barracks, he was instructed to place rocks in the sergeant's pant pocket. The Veteran added that the sergeant then ejaculated while the Veteran's hand was in his pocket. The Veteran indicated that later that afternoon, he was unable to perform a training exercise because he was "disgusted, scared, nervous, and crying," and that he was later taken to the hospital for evaluation. The examiner noted that although the Veteran denied any mental health/alcohol problem prior to service, the records indicated a preexisting anxiety disorder and alcohol problem. The examiner indicated that the Veteran joined "military service with a dream/hope, but for whatever reason he could not stay and continue," which was, "another disappointment, adding to the prior emotional disturbance." The examiner determined that the Veteran did not meet the criteria for a diagnosis of PTSD because the reported sexual assault did not meet criteria "A" for such a diagnosis under the DSM-IV-TR. However, the examiner found it was more likely than not that a pre-existing anxiety and depressive disorder was exacerbated by the experiences of military services and the Veteran's failure to continue service. The examiner explained that the military experience causing separation could be the alleged sexual assault or problem dealing with the stress of military, as reported in the service treatment records. The examiner noted that in 1995, the Veteran reported he had a nervous breakdown in service because he was ordered to take gravel out of a sergeant's pocket and was placed on a CQ runner job for 36 hours with no sleep. The examiner noted that there was no report of sexual assault at that time, though there was a history of stress in the military. The examiner added that depression and anxiety chronically bother the Veteran and that although he was diagnosed with a personality disorder at separation, it was "very much likely" that the preexisting anxiety and depression contributed to the Veteran's inability to tolerate stresses of military service. The examiner added that the Veteran seemed to have some problem with alcohol before service, which was exacerbated after discharge. The examiner diagnosed the Veteran with dysthymia and alcohol abuse/dependence. Analysis Service connection is not warranted for PTSD because the preponderance of the evidence shows that the Veteran has not had PTSD at any time during the pendency of the claim. The Board acknowledges that the Veteran has been diagnosed with PTSD, to include based on the reported military sexual trauma. However, the Board finds the diagnoses of PTSD based on military sexual trauma, which are not supported by rationale, are less probative than the 2012 VA examiner's determination that the Veteran does not meet the criteria for PTSD because the VA examiner offered an explanation for his determination, namely that the reported in-service stressor does not fulfill "criteria A" for a diagnosis under the DSM-IV. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Service connection is warranted for dysthymia, however, because the presumption of soundness has not been rebutted. In this regard, the Board notes that the 2012 VA examiner's opinion and other evidence supports a finding that the Veteran's currently diagnosed dysthymia disorder was present in service. Although the evidence shows that the disorder existed prior to the Veteran's entrance onto active duty, the evidence does not clearly and unmistakably establish that the disorder was not aggravated by service. In this regard the Board notes that the Veteran was discharged from service due to his psychiatric impairment. In addition, the 2012 VA examiner opined that the Veteran's psychiatric disorder was exacerbated by service, and other evidence indicates that his acquired psychiatric disorder began during service. Thus, there is no basis for concluding that the dysthymic disorder clearly and unmistakably was not aggravated by service. Accordingly, service connection is in order for the Veteran's dysthymia. ORDER Service connection for psychiatric disability, currently diagnosed as dysthymia, is granted. REMAND Service connection may not be granted for alcohol abuse on the basis of service incurrence or aggravation. 38 U.S.C.A. §§ 105, 1131 (West 2002); 38 C.F.R. § 3.301(a) (2012). However, a Veteran may be service connected for an alcohol abuse disability acquired as secondary to, or as a symptom of, a service-connected disability. Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). In light of the Board's award of service connection for dysthymia, a VA examination with opinion is needed to determine whether the Veteran's alcohol abuse/dependence is related to the service-connected dysthymia. Accordingly, this case is REMANDED to the RO for the following actions: 1. Provide the Veteran and his representative all required notice in response to the claim for secondary service connection for alcohol abuse/dependence. 2. Associate all outstanding VA treatment records with the record. 3. Undertake appropriate development to obtain any other, outstanding records pertinent to the claim. 4. Then, afford the Veteran an examination by a psychiatrist or a psychologist to determine the etiology of his alcohol abuse/dependence. The claims files and any pertinent evidence in Virtual VA that is not contained in the claims files must be made available to and reviewed by the examiner. The examiner should state an opinion as to whether there is a 50 percent or better probability that the alcohol abuse was caused or permanently worsened by the service connected dysthymia. The rationale for all opinions expressed must also be provided. 5. Undertake any other indicated development. 6. Thereafter, adjudicate the issue remaining on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative should be provided a supplemental statement of the case and the requisite opportunity to respond before the case is returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs