Citation Nr: 1325473 Decision Date: 08/12/13 Archive Date: 08/16/13 DOCKET NO. 09-28 369 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Kathy A. Lieberman, Attorney at Law ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The Veteran served on active duty from May 1971 to July 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In that decision the RO denied reopening the claim of entitlement to service connection for hysterical neurosis. Later, in October 2009, the RO reopened the claim, but denied the claim on the merits. A December 2011 Board decision determined that new and material evidence had been received to reopen a claim of service connection for an acquired psychiatric disorder but subsequently denied the claim on the merits. The Veteran appealed the December 2011 Board decision to the United States Court of Appeals for Veterans Claims (Court). A February 2013 Joint Motion For Partial Remand requested that the Court vacate that part of the Board's decision that denied entitlement to service connection for an acquired psychiatric disorder on the merits. On March 1, 2013 the Court promulgated an Order that granted the Joint Motion. In July 2013 evidence pertinent to the matter on appeal (a May 2013 opinion from a private psychologist) was received by the Board. The Veteran, through his representative, has waived initial RO consideration of this evidence. FINDING OF FACT The Veteran has an acquired psychiatric disorder that as likely as not had its onset in service or is otherwise etiologically related thereto. CONCLUSION OF LAW Service connection for an acquired psychiatric disorder is warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In light of the favorable decision to grant the Veteran's claim, any deficiency as to VA's duties to notify and assist pursuant to the provisions of the Veterans Claims Assistance Act of 2000 (VCAA) is rendered moot. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). The theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, if a veteran had active and continuous military service for 90 days or more, certain chronic diseases, including psychoses, may be established on a presumptive basis by showing that such disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. 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. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The Veteran's service treatment records include September 1970 and January 1971 pre-induction examinations. In both examinations, the Veteran checked boxes on a form noting a past or current history of "excessive worries" and "nervous disorders." In the diagnosis section of the examination report, the examiners listed findings of "usual worries" and "excessive worries." However, a psychiatric disorder was not noted by clinical evaluation on either the September 1970 or January 1971 service examinations. Subsequent records show that the Veteran was seen for various physical complaints to include low back pain and a variocele of the left hemiscrotum. He was separated from service due to the latter. There were no findings of any psychiatric disorder. The July 1971 Report of Medical Examination for the Medical Board indicated that his psychiatric examination was normal. An August 1971 VA treatment record appears to include a history of dissociative episodes. A psychiatric examination noted that he had loss of interest, somatic complaints, an inadequate affect, depressive ideas, and vague suicidal ideas. The report also notes that he had some auditory and simple hallucinations. The diagnosis was "hysterical neurosis." During a September 1971 VA psychiatric examination the examiner indicated that the Veteran entered the examination room using a cane and obtaining assistance from his father to sit him in a chair. The examiner noted that the Veteran had no perception disorders. Upon leaving the examination, the examiner noted that the Veteran got up from the chair without assistance and walked without any alteration in gait or posture. The diagnosis was hysterical neurosis, conversion type. An October 1971 medical certificate and history notes that the Veteran had multiple complaints, including nightmares, visual and auditory hallucinations, back pain, and chest pain. The diagnostic impression was "mental disorders," "no active psychosis," and "hysterical neurosis." Another October 1971 record noted that the Veteran was discharged after two months of active duty service. He had "turned aggressive with insomnia, with hallucinations, multiplicity of somatic complaints." The diagnosis was hysterical neurosis. A March 2008 VA treatment record noted that the Veteran was admitted for a three-day hospitalization with a diagnosis of major depressive disorder with psychotic features. There was some question as to whether this was a recurrent process. In a May 2013 letter, a private psychologist stated there was no evidence to suggest that the Veteran had an anxiety disorder prior to his service, and that any anxiety that he was experiencing at enlistment was within normal limits and did not support a diagnosis. She also acknowledged that the Veteran never sought any psychiatric treatment in service. However, after reviewing and discussing the various psychiatric diagnoses made in 1971 as well as the diagnosis in 2008, the psychiatric opined that it was likely that the Veteran "entered the prodromal phase of Schizophrenia during or just after his military service." Moreover, and of greater import, she felt that the stress of basic training and/or his military career-ending injury both constituted sufficient stressors to precipitate the Veteran's decompensation. She also indicated that in 1971 a definitive psychiatric diagnosis has not been made, and stated that the Veteran's "1971 symptomatology" had corresponded more closely with a diagnosis of schizophrenia. The private psychologist also noted that the Veteran's recent diagnosis of major depressive disorder with psychotic features was not incompatible with the possibility that the Veteran suffers form schizophrenia or a schizoaffective disorder. After a review of the evidence of record, the Board finds that service connection for major depressive disorder with psychotic features should be granted. Considerable attention is given to the May 2013 private opinion that determined that the Veteran did not have a psychiatric disability prior to his entrance to service. The May 2013 private examiner's conclusion is supported by the record, in that clinical evaluation at the time of the Veteran's entrance to service revealed no psychiatric disability. Further note is taken of the May 2013 private examiner's statement that the Veteran's psychiatric disorder had its onset either during or shortly following the Veteran's active service. The private psychologist explained that it was likely that the stress of basic training "and/or" his military career-ending injury both constituted sufficient stressors to precipitate the Veteran's psychiatric disorder. Thus, while it is true that the Veteran was not treated for a psychiatric disability during service, he was treated for such shortly following service, and the Board views the private psychologist's remarks as satisfying the requirement of an in-service stressor/event. The May 2013 opinion also provides a link between the Veteran's current psychiatric disability and how the stresses of service acted to trigger his decompensation. As for its probative value, May 2013 private opinion contained an extensive and detailed review of the Veteran's medical records. Specific reference was made to multiple clinical findings from the Veteran's VA psychiatric treatment records dated shortly following the Veteran's service. The May 2103 private opinion also provided a historical background of the Veteran's psychiatric symptoms and disability in light of the changes that had occurred to the various editions of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM). By this manner, the May 2013 private psychologist provided a compelling rationale for her opinion that the Veteran's "1971 symptomatology" had corresponded more closely with a diagnosis of schizophrenia. The analysis pertaining to the DSM is the core and foundation of the opinion offered, is uncontradicted, and carries great probative weight in this case. Based on the foregoing, at the very least, the evidence is in equipoise as to whether the Veteran's psychiatric disability is related to his active service. Resolving any doubt in the Veteran's favor, service connection for major depressive disorder with psychotic features is warranted. See 38 U.S.C.A. § 5107, Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for an acquired psychiatric disorder is granted. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs