Citation Nr: 1315467 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 10-45 472 ) 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 (claimed as anxiety disorder with depression and sleep disorder). REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran served on active duty from February 1951 to August 1951. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 Regional Office (RO) in New York, New York rating decision, which denied the claim on appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT There is an approximate balance of positive and negative evidence as to whether the Veteran's current acquired psychiatric disability is related to his military service. CONCLUSION OF LAW Resolving doubt in favor of the Veteran, his acquired psychiatric disability was incurred as a result of his military service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has given consideration to the provisions of the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. A VCAA notice letter was sent to the Veteran regarding his psychiatric claim in August 2009. The Board need not discuss in detail the sufficiency of this VCAA notice letter in light of the fact that the Board is granting the Veteran's claim below. Any potential error on the part of VA in complying with the provisions of the VCAA has essentially been rendered moot by the Board's full grant of the benefit sought on appeal addressed in this decision. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). Accordingly, the Board will proceed to a decision. Legal Criteria In general, service connection may be granted for disability 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. Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2012). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) (non-precedential). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994); Charles v. Principi, 16 Vet. App 370, 374 (2002). Analysis In this case, the Veteran has submitted numerous letters from private psychiatric treatment providers and licensed social workers, all of which reflect that the Veteran has a current psychiatric disorder that is at least as likely as not related to his active duty. A June 2009 letter from R.M.C., L.C.S.W., B.C.D., reflects that the Veteran had received individual psychotherapy on a weekly basis since 2001. The letter reflects that the Veteran had a diagnosis of generalized anxiety disorder, and it was further noted that the Veteran had been in treatment for most of his life. The letter further reflects that the Veteran's experiences with having to live in close proximity to other men while on active duty caused a panic disorder which resulted in an acute depression. The examiner opined that the Veteran's active duty experiences morphed over time into identity confusion, anxiety, and masochism which further evolved into generalized anxiety and a personality disorder. The examiner stated that it was more likely than not that the Veteran's present condition was connected to his active duty service. A November 2009 letter from S.S., M.D., reflects that the Veteran had been under his psychiatric care for many years. Dr. S. commented that the Veteran served on active duty for six months and received a medical/psychiatric discharge. Dr. S. indicated that the Veteran manifested signs and symptoms of chronic severe anxiety disorder, dysthymic disorder, and elements of gender confusion. Dr. S. reviewed letters from the Veteran and communications with the Veteran's regular psychotherapist and essentially remarked that the Veteran should receive benefits for having a service-connected psychiatric disorder. In December 2009, L.R.L., Ph.D., stated that he was one of the many psychotherapists who had treated the Veteran since his discharge from active service. Dr. L. opined that the Veteran's emotional disorder stemmed from traumatic experiences he had while on active duty which involved the generation of irrational fears that he was homosexual. Dr. L. stated that the Veteran was unable to put those fears to rest and subsequently developed compulsive and rigid behavior habits which constricted his ability to function satisfactorily at work or in relationships. Dr. L. said that without having had the experience the Veteran suffered while on active duty, it was likely that his traumatization would never have occurred. Another December 2009 letter from H.O.A., M.S.W., L.C.S.W., reflects that she had given the Veteran psychotherapy for over ten years. She treated the Veteran for intense anxiety, depression, and low self-esteem. She discussed the Veteran's time on active duty and noted that since his time he had required treatment for emotional problems. She opined that the Veteran's emotional problems were more likely than not connected to his active service, and she believed that his experiences had resulted in posttraumatic stress disorder. The Board notes that there is no evidence of record that contradicts any of these pieces of medical evidence. As such, two of the three elements required for a grant of service connection have been met: (1) the existence of a present disability; and (2) a causal relationship between the present disability and the Veteran's service. The Board will now consider the third remaining element: (3) in-service incurrence or aggravation of a disease or injury. On his VA form 9 submitted in November 2010, the Veteran stated that while he was on active duty, he saw a psychiatrist on two occasions. He recalled that subsequently he was seen by a panel of six people. He said that after answering their questions, he was given a medical discharge for psychiatric reasons. He related that subsequent analysts had told him that he suffered from panic while he was on active duty, and that had caused his subsequent problems. He offered to take a lie detector test to substantiate his statement. The Board notes that the claims file contains an August 2009 response from the Personnel Information Exchange System (PIES), which indicated that the Veteran's service records were not available as they were associated with a fire that occurred at the National Personnel Records Center on July, 12, 1973, and may have been destroyed. VA has a heightened duty to assist in these cases. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). Further, a November 2009 response from PIES reflects that the Veteran's service clinical records also appeared to have been lost in the 1973 fire. As such, any treatment records from the Veteran's time on active duty appear to be unavailable. However, a copy of the Veteran's Department of Defense Form 214 (DD-214) is of record. This form reflects that the Veteran was given a general discharge by reason of medical authority, paragraph 2. Although other official documentation appears to have been lost in the 1973 fire, the DD-214 supports the Veteran's contentions that he suffered an in-service psychiatric attack and received a medical discharge. Extending every reasonable doubt to the Veteran, the Board finds that the remaining element of an in-service incurrence of a disease or injury has been met, and thus service connection for an acquired psychiatric disorder is granted. ORDER Entitlement to service connection for an acquired psychiatric disorder is granted. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs