Citation Nr: 1318818	
Decision Date: 06/10/13    Archive Date: 06/21/13

DOCKET NO.  11-23 751A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Huntington, West Virginia


THE ISSUES

1.  Entitlement to service connection for a right eye condition.

2.  Entitlement to service connection for an innocently acquired psychiatric condition, to include an anxiety disorder.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

M. Mills, Associate Counsel





INTRODUCTION

The Veteran served on active duty from March 1951 to June 1951.

These matters initially came to the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the RO in December 2009 and January 2010.

The Board remanded case to the RO in April 2012 for additional development of the record.

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.

In September 2011, the Veteran testified at hearing before a Decision Review Officer (DRO).  A transcript of the hearing is associated with the claims file.

In April 2013, the Veteran was offered an opportunity to appear at a hearing with Board, but did not respond within 30 days from the date of the letter.  He had been informed that if he did not respond, the Board would assume that he did not want a hearing and would proceed accordingly.  

As no response was received, the hearing request is deemed to have been withdrawn.  

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).

The issue of service connection for a right eye disorder is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC.




FINDINGS OF FACT

1.  The Veteran is shown to have exhibited manifestations of an inadequate personality during service; an innocently acquired psychiatric disorder was not clinically identified until many years after service.

2.  The currently demonstrated anxiety disorder is not shown to be due to an event or incident of the Veteran's brief period of active service.


CONCLUSION OF LAW

The Veteran's disability manifested by an anxiety disorder is not due to disease or injury that was incurred in or aggravated by active service, nor may a psychosis be presumed to have been incurred therein; a personality disorder is not a disease or injury with the meaning of applicable legislation.  38 U.S.C.A. §§ 1110, 1112, 5103, 5103A (West 2002); 38 C.F.R. § 3.159, 3.303, 3.304, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1).

A November 2009 VCAA letter informed the Veteran of what evidence was required to substantiate his claim for service connection for a chronic acquired psychiatric disorder to include nervous condition.  This letter also informed the Veteran of his and VA's respective duties for obtaining evidence.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).

The November 2009 VCAA notice letter from VA was provided prior to initial adjudication of the Veteran's claim and explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

With regard to the duty to assist, the claims file contains service treatment records, reports of post-service treatment, and a VA examination report.  See 38 U.S.C.A. § 5103A(a)-(d).

In January 2012, the Veteran, through his representative, requested a videoconference hearing with the Board.  In a November 2012 statement, the Veteran indicated his desire to give his statement in person.  In April 2013, the Board offered the Veteran an opportunity for a hearing; however, the Veteran did not respond.

Additionally, in April 2012, the AMC sent a letter to the Veteran asking him for records referable to his Worker's Compensation claim. No response was received.

Records were requested from the Social Security Administration (SSA), but in January 2013, a negative reply was received.  The SSA indicated that there were no medical records available.

The Veteran underwent a VA examination in July 2012 to obtain medical evidence as to the nature and likely etiology of the claimed disability.   

When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The July 2012 VA examination report provides a detailed description of the Veterans psychiatric disorder.  The examination report is adequate for rating of the Veteran's disability under the applicable rating criteria.

Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim.  

Essentially, all available evidence that could substantiate the claim has been obtained.  There is no indication in the claims file that there are additional available relevant records that have not yet been obtained.


Law and regulation

In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.

Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).

Service connection will also be presumed for certain chronic diseases, including a psychosis, if manifest to a compensable degree within one year after discharge from service.  38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a).

In order to establish entitlement to service connection or service-connected aggravation for a disability, the 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.  Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102.


Analysis

In November 2009, the Veteran claimed service connection for a psychological condition (nerves).  In January 2010, the RO denied the claim of service connection for an anxiety reaction, chronic moderate.  The Veteran disagreed with the decision and subsequently perfected this appeal.  The issue has been recharacterized as stated above.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009).

The Veteran's enlistment examination in February 1951 was negative for pertinent abnormality.  

In a May 1951 psychiatric examination, the Veteran was diagnosed with an emotional instability reaction and an immature personality.  It was noted that the Veteran had been "nervous" since having an infection in his jawbone during his teenage years.  It was further noted that he had frequent episodes of emotional instability and was incapable of performing his duties.  The Veteran was recommended for separation from service.

A May 1951 discharge report noted that "this soldier ha[d] been dealt with individually in an effort to calm his nervousness and correct his violent temper, but to no avail."

In connection with a June 1951 Report of Medical Examination for separation, the Veteran's nervous system was noted to be abnormal.  The Veteran was noted to have an inadequate personality.

A September 1966 statement from Dr. J.B., diagnosed the Veteran with psycho-neurosis mixed anxiety state with a state of depression.

The Veteran underwent a VA psychiatric examination in November 1966.  Following mental status evaluation, the diagnosis was that of anxiety reaction secondary to increasing physical problems and consequent unemployment.

An April 1967 statement from Dr. N.M. showed the Veteran was diagnosed with psychoneurotic conversion reaction.  Dr. N.M. stated that "a direct causal relationship exist[ed] between the accident in the latter part of 1962, the injury to his back, the symptoms and operation that followed and his present condition which [he] diagnosed as psychoneurotic conversation reaction."  

The Veteran underwent another VA psychiatric examination in January 1968.  Following mental status evaluation, the diagnosis was that of anxiety reaction manifested by tension, insomnia and general restlessness.  The examiner stated that precipitating stress would appear to be physical discomfort arising out of the back injury sequelae. 

In a July 1969 VA psychiatric examination, the Veteran was diagnosed with anxiety reaction manifested by tension, uneasiness and also symptoms of depression with feelings of futility.  The examiner noted the precipitating stress would appear to be his 1963 back injury and subsequent physical impairment and its psychological impact on the Veteran.

The Veteran underwent a VA psychiatric examination in July 2012 for this appeal.  The claims folder was reviewed.  The Veteran reported that he "ha[d] a lot of headaches" and "[was] easily upset."  He could not report the onset of anxiety or when he started having trouble with his "nerves."

Following examination, the diagnosis was that of anxiety, not otherwise specified.  The examiner further stated that it was less likely than not that any psychiatric disability had its clinical onset during the Veteran's period of service. 

The examiner reasoned that the only diagnosis contained in service treatment records was that of a personality disorder.  A personality disorder, however, was noted not to be a disease or injury for VA compensation purposes.  38 C.F.R. § 3.303(c) (2012).

The examiner added that the April 1967 and January 1968 psychiatric evaluations attributed the Veteran's psychological symptoms to a back injury that occurred 1962.  He noted that neither evaluation identified any psychiatric symptoms that could be attributed to an in-service injury.  

Finally, the examiner stated that there was no continuum of treatment that would suggest a relationship between the Veteran's current symptoms and his period of service. 

The July 2012 VA examiner's opinion was based on a review of the claims folder as well as examination of the Veteran, and it is considered to be significant probative value.  

The Veteran is competent to discuss his observable psychiatric symptoms such as feelings of depression and anxiety.  Layno v. Brown, 6 Vet. App. 465 (1994).  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007).

However, a question of diagnosis or etiology of a psychiatric condition goes beyond a simple and immediately observable cause-and-effect relationship.  As such, the Veteran's lay assertion are of limited probative value for the purpose of linking the development of any current acquired psychopathology to his period of active service.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 

On this record, the Board finds that the medical evidence establishes that the Veteran had an inadequate personality during service and first manifested findings of acquired psychiatric disease including anxiety many years after service.  

The Board concludes that, as the preponderance of the evidence is against the claim, the doctrine of reasonable doubt is not for application, service connection must be denied.  38 C.F.R. § 3.102.


ORDER

Service connection for an innocently acquired psychiatric condition, to include an anxiety disorder, is denied.


REMAND

In April 2012, the Board remanded the Veteran's other claim in order to afford him a VA examination to determine the nature and likely etiology of any eye disorder.

In July 2012, the Veteran was afforded a VA examination.  The examiner indicated that there were no records of right eye trauma or treatment during service.  The examiner then indicated that, on the February 1951 entrance examination, the Veteran's best corrected vision was 20/30 OD.  He indicated that the Veteran had weaker vision in the right eye prior to entrance.  The VA examiner opined that the decreased central vision in the right eye was due to cataracts and was not caused by or related to the Veteran's military service.

In the current case, the VA examiner's opinion was based on a finding that the Veteran had a pre-existing eye disability.  However, upon review of the evidence of record, on the February 1951 entrance examination, the Veteran's distant vision was noted to be 20/20 in the right eye.  On separation in June 1951, the Veteran had distant vision of 20/50 in the right eye that was corrected to 20/30.

Moreover, a VA examination in July 1969 noted that the Veteran had defective vision in the right eye manifested by a visual acuity of 20/40.  

Thus, the VA examiner's opinion was based on an incomplete or inaccurate factual premise; namely, that the Veteran had a pre-existing right eye disorder.  

Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  In light of this deficiency, a remand is necessary in order to obtain another opinion regarding the etiology of the Veteran's claimed right eye disorder.

Accordingly, this remaining matter is REMANDED to the RO for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

1.  The RO should take all indicated action to obtain an addendum from the VA examiner who provided the July 2012 opinion or a qualified substitute if the examiner is not available.

The examiner should review the claims folder, including the Veteran's service treatment records, lay statements, and the July 2012 VA examination report, in order to offer an opinion as to whether it is at least as likely as not that the Veteran manifested a chronic acquired eye disability during service due to an injury or other event or incident of his period of service.

In offering the opinion, the examiner should consider the Veteran's assertions of experiencing blunt trauma to the right eye during service; the February 1951 entrance examination documenting 20/20 distance vision in the right eye; the June 1951 service examination showing 20/50 distant vision that was corrected to 20/30 in the right eye; and the VA examination showing defective visual in the right eye of 20/40.  A rationale for any opinion offered should be provided.  

2.  After completing all indicated development, the RO should readjudicate the claims remaining on appeal in light of all the evidence of record.  If any benefit sought on appeal remains denied, then the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case (SSOC) and afforded a reasonable opportunity for response. 

Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition.  The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims 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).


_________________________________________________
STEPHEN L. WILKINS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs