Citation Nr: 1321884	
Decision Date: 07/09/13    Archive Date: 07/18/13

DOCKET NO.  09-32 370	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office
in Huntington, West Virginia


THE ISSUE

Entitlement to service connection for an acquired psychiatric disability, to include generalized anxiety disorder (GAD).


REPRESENTATION

Veteran represented by:	Robert Chisholm, Attorney at Law


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

L. J. N. Driever


INTRODUCTION

The Veteran had active duty from July 1976 to August 1977. 

This claim comes before the Board of Veterans' Appeals (Board) on appeal of a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia.   

The Veteran testified in support of this claim during a hearing held at the RO before the undersigned Veterans Law Judge (VLJ) in July 2011.  

In December 2011, the Board denied service connection for an acquired psychiatric disability, to include GAD.  The Board also denied service connection for a back disability, migraine headaches and posttraumatic stress disorder (PTSD).  The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court).  In October 2012, based on a Joint Motion For Partial Vacatur and Remand (joint motion), the Court remanded the claim for service connection for an acquired psychiatric disability, to include GAD, to the Board for action consistent with the terms of the joint motion.  The Court dismissed the appeal on the remaining claims.   

A review of the Virtual VA paperless claims processing system (Virtual VA) reveals no other pertinent documents for consideration in support of this claim.


FINDINGS OF FACT

1.  There is clear and unmistakable evidence that symptoms of the Veteran's GAD preexisted active service.  

2.  The anxiety associated with the Veteran's GAD increased in severity during active service.


CONCLUSION OF LAW

The criteria for entitlement to service connection for an acquired psychiatric disability, to include GAD, are met.  38 U.S.C.A. §§ 1131, 1132, 1153 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

In this decision, the Board will discuss the relevant law that it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R."); and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet.App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet.App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law as well as the controlling decisions of the appellate courts. 


VA's Duties to Notify and Assist

Upon receipt and prior to consideration of most applications for VA benefits, VA is tasked with satisfying certain procedural requirements outlined in the Veterans Claims Assistance Act of 2000 (VCAA) and its implementing regulations. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 

The United States Court of Appeals for Veterans Claims (Court) has mandated that VA ensure strict compliance with the provisions of the VCAA. Quartuccio v. Principi, 16 Vet. App. 183 (2002). 

The VCAA and its implementing regulations provide that VA is to notify a claimant and his representative, if any, of the information and medical or lay evidence not previously provided to the Secretary that is necessary to substantiate a claim. As part of the notice, VA is to specifically inform the claimant and his representative, if any, of which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf. 38 U.S.C.A. 
§ 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012).  

These notice requirements apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of disability; (3) a connection between service and disability; (4) degree of disability; and (5) effective date of disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).  

Ideally, the RO should provide the claimant VCAA prior to its initial unfavorable decision on the claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  If, however, for whatever reason the RO does not, or provides the notice in a timely manner but it is inadequate or incomplete, the RO can effectively cure this error by providing any necessary VCAA notice and then readjudicating the claim in a statement of the case (SOC) or supplemental SOC (SSOC).  In such a case, the intended purpose of the notice is not frustrated, rather preserved, and the claimant is given ample opportunity to participate effectively in the adjudication of the claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The U. S. Supreme Court has made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, instead, must be judged on a case-by-case basis.  As the pleading party attacking the agency's decision, the Veteran has the burden of proof of not only establishing error but also, above and beyond that, of showing how it is unduly prejudicial, meaning outcome determinative of his claim, i.e., more than harmless.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

VA also has a duty to assist a claimant in obtaining evidence necessary to substantiate a claim, including, in certain cases, by offering a medical examination or obtaining a medical opinion, but such assistance is not required if there is no reasonable possibility that it would aid in substantiating the claim.  38 U.S.C.A. 
§§ 5103(a), 5103A; 38 C.F.R. § 3.159(b), (c).

Notice

The RO provided the Veteran VCAA notice on these claims by letters dated May 2007, July 2007, May 2010 and June 2010.  The RO sent two of the letters after initially adjudicating the Veteran's claim.  Those letters are therefore untimely.  The RO cured this timing defect later, however, by readjudicating the claim in a June 2010 SSOC.  Mayfield v. Nicholson, 499 F.3d at 1317.  

These letters satisfy the content requirements noted above. They inform the Veteran of the evidence needed to substantiate his claim and identify the type of evidence that would best do so. They include all necessary information on disability ratings and effective dates in the event service connection is granted. They identify the evidence the RO requested and/or received in support of the Veteran's claims and the evidence it was responsible for securing. They indicate that the RO will make reasonable efforts to assist the Veteran in obtaining all other outstanding evidence provided he identifies its source(s), but that it is the Veteran's responsibility to ensure VA's receipt of this and any other pertinent evidence. 

VA provided the Veteran further notice in July 2011, during his hearing before the undersigned Veterans Law Judge (VLJ).  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that, pursuant to 38 C.F.R. § 3.103(c)(2), the VLJ who chairs a hearing must satisfy two duties, including : (1) fully explaining the issue; and 
(2) suggesting the submission of evidence that may have been overlooked.  Here, the VLJ elicited testimony on the matter of whether the Veteran has an anxiety disorder as a result of his military service.  See transcript at page 9 (July 20, 2011).  Given the granting of the benefit and that a disability rating will be determined by the RO in the first instance, there is no prejudice to the Veteran of proceeding with this decision. 

The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of this claim, and is not prejudiced by any technical notice deficiency along the way, including the previously mentioned untimely notices.  See Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir., 2004).  Neither the Veteran nor his representative asserts that VA failed to comply with VCAA's notice provisions or the requirements set forth in Bryant.  

Assistance

The RO also satisfied its duty to assist the Veteran in the development of this claim by trying to secure and associate with the claims file all documents the Veteran identified as being pertinent to his claim, including service and post-service treatment records and information from the Social Security Administration (SSA).  The RO also afforded the Veteran a VA examination in support of his claim, during which an examiner discussed the etiology of the Veteran's psychiatric disability.  

When VA affords a claimant a VA examination or obtains a VA opinion, it must ensure the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  Unless the claimant challenges the adequacy of the examination or opinion, however, the Board may assume, and need not affirmatively establish, the adequacy of the examination report and the competence of the examiner.  Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that, although the Board is required to consider issues independently raised by the evidence of record, the Board is still entitled to assume the competency of a VA examiner and the adequacy of a VA opinion without demonstrating why the medical examiner's report is competent and sufficiently informed); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged).  Id.  Even when the claimant challenges a VA examination or opinion, the Board may assume the competency of the VA medical examiner, including nurse practitioners, as long as, under 38 C.F.R. § 3.159(a)(1), he or she is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  See Cox v. Nicholson, 20 Vet. App. 563 (2007).

In this case, neither the Veteran nor his representative asserts that there are any other outstanding records that need to be obtained in support of this claim or that the examination report is inadequate. 

Given the development that has occurred, it is difficult to discern what additional guidance VA could have provided the Veteran regarding the evidence needed to substantiate his claim.  See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims.").  See also Reyes v. Brown, 7 Vet. App. 113, 116 (1994) and Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances when a remand would not serve any useful or meaningful purpose or result in any significant benefit to the Veteran and, instead, place even greater burden on VA's already limited resources).

Analysis

The Veteran seeks service connection for a psychiatric disability on either a direct basis, as related to his active service, or an aggravation basis, as preexisting service and worsening during service.  

In his initial application for compensation received in August 1996, he indicated that he had had an anxiety disorder since 1995.  In written statements received in January 2007, June 2010, September 2010 and January 2013 and during his July 2011 hearing, he claimed that he first experienced symptoms of this disorder before and during service, including panic attacks after undergoing an in-service cervical myelogram and spinal tap and anxiety previous to that time.  He testified that he was angry with himself for refusing medical treatment and testing (a myelogram) and that, since discharge, which occurred one month after the procedure, doctors have told him that his anxiety disorder results from service.

His representative pointed out that, on enlistment, the examiner noted no anxiety disorder, but during service, a doctor noted such condition in the record.  The representative also pointed out that, according to a June 17, 2008 rating decision, anxiety was observed during the Veteran's myelogram and that MMPI testing conducted in March 1977 recorded gross elevations in many scales, reflecting mental disorders.

The Veteran has submitted lay statements in support of his claim, including from two sisters and a girlfriend. In whole, they allege that since his discharge, the Veteran has exhibited continuous anxiety, depression, panic attacks and anger outbursts.

Considering these lay statements in conjunction with all other pertinent evidence in the claims file, particularly the comprehensive medical opinion the Veteran recently submitted in support of this claim, and applicable law and regulations, the Board finds that the evidence supports a grant of this claim.  Arguably the medical opinions could be interpreted in a manner allowing the grant on either a direct or aggravation basis; however, given that both opinions appear to agree on the matter of preexistence, the Board has decided the claim favorably on an aggravation basis.  

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C.A. 
§ 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). 

To prevail on the issue of service connection, there must be competent evidence of: (1) a current disability; (2) in-service occurrence or aggravation of a disease or injury; and (3) a nexus between the in-service injury or disease and the current disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).  Once evidence is determined to be competent, its credibility must be evaluated. Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency, a legal concept focusing on whether testimony may be heard and considered, and credibility, a factual determination focusing on the probative value of the evidence); see also Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994) (in rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). 

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises or authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).

A layperson is generally incapable of opining on matters requiring medical knowledge.  Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998).  In certain instances, however, a lay statement may be deemed competent and adequate to support a claim for service connection by substantiating the occurrence of lay-observable events or a disability or symptoms of disability subject to lay observation.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence); Barr v. Nicholson, 21 Vet. App. 303 (2007) (layperson is competent to report disease with unique and readily identifiable features such as varicose veins); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009).

If a chronic disease is shown in service, subsequent manifestations of the same disease, however remote, are to be service connected, unless clearly attributable to intercurrent causes. 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 diagnosis including the word "chronic."  38 C.F.R. § 3.303(b).

When certain chronic diseases are at issue, including psychoses or any other disease enumerated at 38 C.F.R. § 3.309(a), see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), a claimant may establish entitlement to service connection based on a demonstration of continuity of symptomatology.  Evidence of continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned.  38 C.F.R. § 3.303(b).  Continuity of symptomatology may be demonstrated by submitting evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and 
(3) a nexus between the present disability and the post-service symptomatology.  Savage v. Brown, 10 Vet. App. 488, 495-97; see also Hickson v. West, 12 Vet. App. 247, 253 (1999) (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection).

Service connection may be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012).

Service connection may be presumed for certain medical conditions, including psychoses, if it is shown that a veteran served continuously for 90 days or more during a period of war or during peacetime after December 31, 1946, the condition manifested to a degree of 10 percent within one year from the date of discharge, and there is no evidence of record establishing otherwise. 38 U.S.C.A. §§ 1101, 1112(a), 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012).

Post-service medical documents, including VA and private treatment records dated since the Veteran filed his claim, a report of VA mental disorders examination conducted in May 2008, and a February 2013 Psychological Test Report, establish that the Veteran currently has a psychiatric disability, variously diagnosed, most recently as GAD, major depressive disorder, severe without psychotic features, and panic disorder with agoraphobia.  The statements of the Veteran's two sisters and girlfriend confirm that, since discharge, the Veteran has experienced symptoms of his psychiatric disability.  The question thus becomes whether this disability was incurred in or aggravated by service, or preexisted service and worsened during service. 

The Veteran's earlier-dated assertions in this regard are probative as they were expressed for the purpose of receiving proper care or in pursuit of SSA disability benefits and with no clear agenda in mind.  The Veteran appears to be a poor historian, however. In an August 1997 private intake assessment; a  January 1998 written statement; a September 2003 Disability Assessment, and consistently during the course of this appeal, the Veteran reported symptoms of his disability manifesting prior to service (when he was a teenager and/or in high school) and a diagnosis of and treatment for the disability in 1995. However, during other times in his life, including on entrance into the service and prior to filing this claim, he reported a history that contradicts this timeline.  

During his entrance examination conducted in July 1976, he denied depression, excessive worry and nervous trouble of any sort.  In addition, in service, he underwent psychiatric testing, during which he mentioned no pre-service mental health symptoms, only pre-service problems with school (expelled in the ninth grade) and multiple substances.  Similarly, during a May 1982 admission to a private hospital, he reported having difficulty in and being expelled from school in the ninth grade, but failed to mention any mental health symptoms.  In March 1994, while pursuing a claim for SSA disability benefits, he reported that his anxiety problems began two years earlier.  On multiple occasions in 1995 during VA outpatient and inpatient visits, the Veteran reported a two year history of anxiety and once denied a history of psychiatric problems.  In May 1996, during a VA outpatient visit, he reported angst and palpitations in 1985.  In 2010, during private outpatient visits, he reported that he had had anxiety since his in-service procedures.

In addition, the Veteran claims that the myelogram he underwent in 1977 during service caused him to develop panic attacks.  In May 2008, he told a VA examiner that, due to the effects of this procedure, he subsequently avoided other invasive diagnostic procedures.  The record shows, however, that he willingly underwent the same procedure again in 1982.   

As discussed above, the Veteran is competent to report lay-observable facts in support of his claim.  But in this case, given his questionable credibility given his demonstrated poor historical recall, the Board decides this claim based on his earlier-dated assertions and all other competent evidence of record, including the two medical opinions of record.  Neither of these opinions is based on the medical histories the Veteran reported during the course of this appeal.  The first - the VA examiner's May 2008 opinion - disregards that history as profoundly skewed and inconsistent and the second - the private psychologist's February 2013 opinion - is based primarily on the medical evidence of record and also the earlier-dated assertions.   

Preexistence

A veteran who served during peacetime is presumed to have been in sound condition when examined, accepted and enrolled in service, except for defects noted at the time of entrance, 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). 

According to 38 C.F.R. § 3.304(b) (2012), the term "noted" denotes only such conditions that are recorded in examination reports.  A history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception.  38 C.F.R. § 3.304(b)(1); Crowe v. Brown, 7 Vet. App. 238 (1994). 

If a preexisting disability is noted upon entry into service, the veteran may not bring a claim for service connection for that disability on a direct basis, but may bring that claim on an aggravation basis.  In such a case, the provisions of 38 C.F.R. § 1153 apply and the veteran has the burden of establishing such aggravation.  See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994).

To rebut the presumption of soundness, 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.  See VAOPGCPREC 3-2003 (July 16, 2003); see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004) (holding that VA, rather than the claimant, bears the burden of proving that a disability preexisted service and was not aggravated therein); 70 Fed. Reg. 23,027, 23,029 (May 4, 2005) (applies to claims pending on or filed after May 4, 2005).

The Veteran in this case had active service from July 1976 to August 1977.  No psychiatric disability or symptoms of a psychiatric disability were noted on entrance examination.  The Veteran denied depression, excessive worry and nervous trouble or excessive worry and the examiner noted a normal clinical psychiatric evaluation. 

This notwithstanding, there is clear and unmistakable evidence of record, including a VA examiner's May 2008 opinion, a private psychologist's February 2013 opinion and medical histories the Veteran reported prior to filing his claim, demonstrating that symptoms of the Veteran's current psychiatric disability initially manifested prior to, or which preexisted, his active service.  The Veteran is thus not presumed to have been in sound condition with regard to his mental health when examined, accepted and enrolled into his period of active service.  

More specifically, according to the VA examiner/psychiatrist, the record supports a finding that the Veteran was having problems with anxiety prior to joining the military and that these problems were sufficiently severe as to require specialized treatment approximately 15 years later, after discharge.  The VA examiner based this opinion on an interview with the Veteran and a review of his claims file, including a personal statement dated in January 1998 and a page of an assessment thought to be dated in 2000 (actually dated in 2003), which indicate that the Veteran's generalized anxiety manifested in high school or at 18 years of age. 

In a comprehensive report the psychologist notes that, although the Veteran did not meet the criteria for an actual anxiety disorder during adolescence, he had periods of anxiety at that time and during service and that anxiety that ultimately developed into generalized anxiety disorder.  The examiner based this opinion on a review of the Veteran's claims file, including the 1998 information the VA examiner cited, and telephone interviews.

Aggravation 

A preexisting disease will be considered to have been aggravated by military service when there is an increase in disability during such service, unless there is a specific finding that the increase is due to the natural progress of the disease.  38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(a) (2012).  Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered aggravation unless the underlying condition, as contrasted to symptoms, is worsened.  Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991). 

Clear and unmistakable evidence is required to rebut the presumption of aggravation when the pre-service disability underwent an increase in severity during service.  38 C.F.R. § 3.306(b) (2012).  A claimant is not required to show that the disease or injury increased in severity during service before VA's duty under this rebuttal standard attaches.  Cotant v. Principi, 17 Vet. App. 116 (2003).  

The evidence conflicts on this matter.  The service treatment records include mental health findings, but, alone without medical interpretation, do not establish a worsening of the Veteran's preexisting anxiety, now known to be due to GAD.  The VA examiner has offered an unfavorable opinion while the private psychologist has offered a favorable opinion.  The Veteran's assertions, made during the course of this appeal, represent the only other evidence that speaks to the matter of in-service aggravation and, for the reasons previously discussed, those assertions are not probative.  

According to the service treatment records, in May 1977, the Veteran underwent a cervical myelogram and spinal tap.  In June and July 1977, he complained of back pain at the site of a spinal tap and numbness in the left leg.  Medical professionals diagnosed arachnoiditis, a type of inflammation, and although no organic pathology for the complaints could be found, offered the Veteran an orthopedic profile, which he refused to accept.  On discussion with a surgeon, it was agreed that the pain was super intentional in nature and that there was no documented basis for another profile.  The Veteran's service department referred the Veteran for MMPI testing.  

Prior to testing, the Veteran reported that he had been expelled from school at age 15 (ninth grade), before service, had used alcohol, marijuana, cocaine, LSD, barbiturates and amphetamines excessively, and had joined the Army as an escape.  The results of testing were grossly atypical.  The examiner thus found that, apparently, the Veteran was using his somatic complaints as an escape.  He referred the Veteran to psychiatry.  

On referral, a psychologist noted that the Veteran repeated questions, was very concrete, lacked abstract abilities, had below average intelligence, and poor insight and judgment.  The psychologist reviewed the MMPI results and indicated that they confirmed a sociopathic personality disorder, depression, functional complaints, very concrete thinking, and a lack of abstracting abilities.  He further indicated that the Veteran's numerous functional complaints appeared to have secondary gain as the Veteran wanted to use them as a justification for discharge.  These findings ultimately led to a general discharge under honorable conditions.  

According to the VA examiner, there is no evidence other than the Veteran's profoundly skewed and inconsistent reports that his anxiety increased during, was exacerbated in, or caused by, his military service.  The VA examiner opined that is more likely than not that his chronic heavy alcohol and other sedative abuse exacerbated his anxiety problems or represent the obvious factor leading to an intensification of his anxiety.  

The VA examiner explained that, although as the Veteran alleges, he might have become very anxious during service when he underwent the cervical myelogram, there is absolutely no basis for finding that it caused him the myriad difficulties he ascribes to the procedure.  He based this conclusion on a review of the claims file and the following findings: (1) While on active duty, the Veteran had a clear agenda prompting him to exaggerate pathology (wanted to be discharged); (2) At the time of the VA examination, he also had a clear agenda prompting him to exaggerate pathology (wanted VA benefits); (3) Given this agenda, the actual intensity of his 
in-service symptoms cannot be reliably determined; (4) Prior to the mid-1990s, with the exception of one dysthymic disorder diagnosis, doctors primarily diagnosed the Veteran with substance abuse disorders and an antisocial personality disorder; 
(5) The Veteran used a variety of drugs and alcohol prior to active duty and became a very regular, heavy drinker after his military career, necessitating inpatient treatment in the early and late 1980s and in 1993; and (6) By the 1990s the Veteran unmistakably exhibited anxiety problems.  In offering this opinion he discussed in detail the Veteran's March 1977 MMPI, called it "of dubious validity", and acknowledged the in-service diagnoses of an antisocial personality disorder and depression, but noted that the latter was based largely on the MMPI.  

The examiner also discussed a 1994 psychological assessment and testing that revealed an IQ of 77, MMPI T scores greater than 70 on 7 out of 10 scales and an F score of 113, again judged to be invalid, and includes diagnoses of alcohol and sedative dependence, dysthymia, borderline intellectual functioning and antisocial personality disorder.  As well, he discussed a 1997 psychological assessment, which includes diagnoses of generalized anxiety disorder and panic disorder with agoraphobia and shows that the Veteran had an IQ of 76, a memory quotient of 66 and reading comprehension of less than 1 percent.     

According to the private psychologist, the Veteran's anxiety symptoms were exacerbated after his induction into the service in part due to his cognitive limitations, i.e., borderline intellectual functioning, which made it difficult for him to understand and adjust to military life.  The private psychologist indicated that, given this fact, it is likely that the Veteran found the myelogram to be a traumatic event.  He concluded that it is at least as likely as not that the Veteran's GAD is due to his military service.  He further concluded that it is not possible to separate the various symptoms of his other psychiatric disabilities as they overlap.

In offering this opinion, the psychologist conducted an extensive review of the claims file, discussed every pertinent document of record and all pertinent testing results, obtained a case history from the Veteran, conducted a mental status examination, and provided numerous findings to support his conclusion.  

More specifically, he explained that, between 1966 and 1971, the Department of Defense (DOD) established a program to admit cognitively impaired individuals into the service to meet enlistment quotas.  As a result, 350,000 individuals who would not have otherwise qualified (unable to satisfy physical or emotional requirements of military service) were drafted.  DOD encoded the serial numbers of these individuals with a specific identification and as time went on evidence showed that these soldiers had difficulty conforming to the stressors of military life and experienced impaired readjustment to civilian life.  

The psychologist noted that, during World War II, soldiers with low IQs were also shown to have difficulties conforming to military life as, as a result, Congress banned individuals who scored in the lowest 10 percent of the population (the equivalent to an IQ of less than 80) from enlistment.  Despite this congressional mandate, DOD later established a classified program called Project 100,000, which involved accepting "Category IV" recruits.  These recruits were not able to meet the entrance standard on the Armed Forces Qualification Test.

The psychologist indicated that the Veteran was admitted to the military following the termination of this classified program, but it is clear that he fell within the parameters for individuals who should not be approved for enlistment due to cognitive impairment, i.e. IQ in the 70s.  He discussed the Veteran's status prior to service.  He noted that the Veteran had adjustment problems during adolescence, which likely met the criteria for a diagnosis of oppositional defiant disorder, but not a conduct disorder.  He further noted that the Veteran began abusing alcohol and drugs to deal with these emotional stressors.   

The psychologist explained that it is clear that the Veteran was cognitively impaired and functionally illiterate when he enlisted and that is hard to believe that he was able to complete the Armed Forces Qualification Test successfully without assistance.  He referred to a November 1997 assessment of the Veteran's reading skills, which scored him at the 2nd grade level, a level considered functionally illiterate.  He also referred to the in-service MMPI, noted that at least a 5th grade reading level is necessary to adequately comprehend the statements in the MMPI, and, as a result, found the results invalid.  

The psychologist pointed out that the Veteran was initially productive in service, completing basic and advanced individual training and securing a promotion.  The psychologist also pointed out that, following his myelogram, the Veteran began to express functional complaints.  

The psychologist indicated that the Veteran did not and does not have a sociopathic or antisocial personality disorder, which, incidentally, is not an official diagnosis in the Diagnostic and Statistical Manual.  He explained that such a disorder is made only if there is evidence of a conduct disorder in childhood or adolescence and also evidence of an enduring pattern of marked deviation in behavior NOT DUE TO the physiological effects of substances.  The psychologist pointed out that the Veteran's pre-service and post-service issues, including arrests and incarceration, were all substance-abuse related.    

The psychologist referred to the VA examiner's May 2008 opinion, refuted it on the basis that the examiner relied upon the invalid MMPI in offering the opinion and reiterating a diagnosis of antisocial personality disorder, and characterized his opinion as particularly unwarranted.  He concludes that the Veteran actually has GAD, major depressive disorder, severe without psychotic features, and borderline intellectual functioning.  He pointed out the fact that information upon which SSA relied in awarding the Veteran disability benefits, effective from 1997, includes no diagnosis of a personality disorder.  

Under Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993), the Board must assess the credibility and weight to be attached to medical opinions.  An assessment or opinion by a health care provider is never conclusive and is not entitled to absolute deference.  Rather, the Board must consider the weight to be placed on an opinion depending upon the reasoning employed to support the conclusion and the extent to which the physician reviewed prior clinical records and other evidence.  Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). 

The VA examiner's May 2008 opinion is probative, as it is based on a review of the claims file and supported by rationale.  With regard to the question of aggravation, however, it is also based on the results of the in-service MMPI, which the private psychologist found invalid, and a diagnosis of a personality disorder, which the psychologist opined does not exist.  In addition, it does not contemplate all of the pertinent post-service evidence, which illuminates the true nature of the Veteran's psychiatric disability and cognitive deficiencies, or discuss the role the Veteran's cognitive deficiencies played in any in-service worsening of his anxiety.  

The Board places greater evidentiary weight on the private psychologist's opinion as it is based on a more comprehensive review of the claims file, including  pertinent records, and substantiated by extremely organized and thoughtful rationale and information regarding the effect of cognitive deficiencies.  The psychologist does not relate the Veteran's GAD or any other psychiatric disability to the in-service cervical myelogram, which would cause the Board to pause, but rather, to the Veteran's cognitive deficiencies.  He merely indicates that, given these deficiencies, it is easy to understand how the Veteran reacted to the in-service testing.  In addition, the psychologist acknowledged the Veteran's pre-service history of alcohol and drug abuse, which the VA examiner opined exacerbated the preservice anxiety, but related the abuse to the stressors the Veteran experienced prior to service, arguably part of his psychiatric disability, and did not identify it as the cause of the worsening anxiety.  

Given the Veteran's cognitive deficiencies, which existed prior to service, the VA examiner's and private psychologist's agreement that anxiety also preexisted service, the fact that the Veteran developed an inability to cope and began to unravel during service such that he was referred for a psychiatric evaluation, the fact that his MMPI results appeared skewed and the private psychologist's explanation of why such was the case, the psychologist's opinion that the Veteran's cognitive deficiencies exacerbated the preexisting anxiety, and the VA examiner's and private psychologist's indirect findings that the anxiety eventually developed into the currently diagnosed GAD, the Board finds that symptoms of the Veteran's GAD preexisted service and worsened in severity during service.  In light of this finding, the Board concludes that the criteria for service connection for a psychiatric disability, however diagnosed (symptoms cannot be distinguished), including as GAD, are met. 

The RO will assign an appropriate disability rating based on appropriate VA rating protocols. Ferenc v. Nicholson, 20 Vet. App. 58 (2006) (discussing the distinction in the terms "compensation," "rating," and "service connection" as although related, each having a distinct meaning as specified by Congress). 



ORDER

Service connection for an acquired psychiatric disability, to include GAD, is granted.


____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs