Citation Nr: 1327066 Decision Date: 08/23/13 Archive Date: 08/29/13 DOCKET NO. 04-26 118 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include depression, anxiety disorder, and nervous disorder. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law WITNESSES AT HEARING ON APPEAL Veteran and a Vet Center psychiatrist ATTORNEY FOR THE BOARD S. Lipstein INTRODUCTION The Veteran had active service from March 1970 to January 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2003 rating decision of the Department of Veterans Affairs Regional Office (RO) in Indianapolis, Indiana. This matter was previously before the Board in March 2007, at which time a remand was ordered so as to afford the Veteran the hearing he had requested. In May 2009, the Veteran testified before the undersigned Veterans Law Judge at the RO in Chicago, Illinois. A written transcript of this hearing has been prepared and incorporated into the evidence of record. In August 2009, the Board reopened the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder. This issue was again remanded for further evidentiary development. In November 2011, the Board granted service connection for PTSD. The Veteran timely appealed to the Court of Appeals for Veterans Claims (Court). In June 2012, pursuant to a Joint Motion for Partial Remand ("Joint Motion"), the Court remanded the Board's November 2011 decision only to the extent that it failed to adjudicate service connection for acquired psychiatric disorders other than PTSD. See, for example, Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that claims for service connection for PTSD also encompass claims for service connection for all psychiatric disabilities afflicting a Veteran based on a review of the medical evidence). The issues of entitlement to a total disability rating based on individual unemployability (TDIU) and service connection for alcoholism, as secondary to an acquired psychiatric disorder, have been raised by the record. These issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. An acquired psychiatric disorder, diagnosed as depression, anxiety disorder, and nervous disorder, is etiologically related to military service. 2. An acquired psychiatric disorder, diagnosed as schizophrenia or separate and distinct disabilities such as a panic disorder or impulse control disorder are not etiologically related to military service; nor did schizophrenia manifest to a compensable degree within a year after service. 3. A borderline personality disorder is not a disability within the meaning of VA regulation. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an acquired psychiatric disorder, claimed as depression, anxiety disorder, and nervous disorder are met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 2. The criteria for entitlement to service connection for an acquired psychiatric disorder, claimed as schizophrenia or separate and distinct disabilities such as a panic disorder or impulse control disorder borderline personality disorder are not met. 38 U.S.C.A. §§ 1110, 1111, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.384 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist VA has a 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In the present case, the Board is granting in full the benefit sought on appeal with regard to the issue of service connection for an acquired psychiatric disorder, claimed as depression, anxiety disorder, and nervous disorder. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Relevant Laws and Regulations Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Where a Veteran served continuously for ninety (90) days or more during a period of war, and a psychosis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1112(a), 1113, 1137 (West 2002);38 C.F.R. § 3.307, 3.309. Schizophrenia is considered a psychosis for VA purposes. 38 C.F.R. § 3.384 (2012). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection, there must be: (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. See generally, Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), 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. 54). Facts and Analysis The Veteran's March 1970 enlistment examination indicates that a psychiatric evaluation performed at the time of enlistment was normal. The Veteran also denied having, or ever having had, depression, excessive worry, nervous trouble of any sort, or any drug or narcotic habit in his report of medical history associated with this examination. The service records contain a September 1970 disciplinary record in which it is noted that the Veteran was drunk and disorderly in the barracks and broke several windows. According to a June 1971 in-service treatment record, the Veteran made a number of scratches on his left arm while drunk. The Veteran was noted to be sober the following day. At this time, he indicated that he did not scratch himself in an attempt to kill himself, but rather, he wanted to "prove that he was a man." A September 1971 treatment record also notes that the Veteran had cut himself with razor blades on two occasions due to depression. He was noted to be suffering from loss of appetite and general weakness and he was prescribed Ritalin. A record from the Indiana Police Department reflects numerous charges and arrests from March 1972 through May 1981 for offenses ranging from public intoxication to carrying a dangerous weapon. Post-service treatment records demonstrate that the Veteran continued to seek treatment for psychiatric symptomatology following his separation from active duty. According to a December 1977 private treatment record, the Veteran was suicidal. A January 1978 record notes a diagnosis of depression-neurotic. An opinion as to the etiology of this condition was not offered, but it is noted that the Veteran was admitted for an acute psychotic episode. An October 1979 private physical examination notes that the Veteran suffered from recurrent alcoholism and a chronic anxiety reaction with suicidal tendencies. A July 1981 private physical examination indicates that the Veteran had been hospitalized on numerous occasions for psychiatric reasons. The 1981 report reflects that in January 1973, he was admitted to St. Catherine hospital for severe depression. The 1981 report reflects that he was admitted to St. Catherine Hospital for schizophrenia, simple type, in May 1973. He was later admitted for an acute psychotic episode with depression and neurotic features in December 1977. He was again admitted for a depressive episode in September 1979 and in November 1981 for suicidal depression. Subsequent VA treatment records demonstrate that the Veteran continued to seek psychiatric treatment. A December 1991 VA record notes that the Veteran suffered from anxiety attacks and a June 1993 record diagnosed the Veteran with an anxiety disorder. During treatment in May 1993, the Veteran reported being abused as a child and suffering sexual abuse while in the service. A January 1994 VA treatment record notes a diagnosis of a panic disorder and a March 1994 VA examination of record assigned diagnoses of alcohol abuse (by history), impulse control disorder (by history), and a generalized anxiety disorder. The Veteran testified at a RO hearing in January 1995. During his hearing, he referenced a number of in-service events that he believed were responsible for his psychiatric symptomatology. One such event was when the Veteran was robbed at gunpoint and forced to remove all of his clothing except for his "shorts." The Veteran reported that he was very humiliated by this incident and by how it was handled by his fellow servicemen. He also described an incident in which he became drunk and was subsequently molested by another serviceman. The Veteran reported that he was threatened not to tell anyone about this incident. VA treatment records dated in March 1999 reflect that the Veteran had a history of panic disorder and was assessed with depression. A September 2000 VA outpatient treatment record notes a diagnosis of anxiety not otherwise specified, rule out PTSD, and rule out somatoform disorder. In December 2000, it was noted that anxiety was one of the Veteran's medical problems. In September 2008, the Veteran was evaluated by a VA psychologist. The Veteran was diagnosed with chronic PTSD and anxiety, an auditory-verbal learning disability, and phonemic dyslexia and acalculia. It was noted that the Veteran definitely did not suffer from mental retardation. The Veteran also testified at a hearing before the undersigned Veterans Law Judge in May 2009. The Veteran again described an incident in which he was robbed at gunpoint. He indicated that he was forced to take off all of his clothes but that he was left with his "shorts." The Veteran reported that his Company Commander and fellow soldiers were laughing at him and making fun of him for this incident the following day. The Veteran also described the incident involving another soldier where he was sexually assaulted and sodomized. The Veteran was afforded a VA psychiatric examination in July 2010. The examiner diagnosed the Veteran with chronic PTSD, a depressive disorder not otherwise specified, and borderline intellectual functioning. The examiner also stated that the Veteran received treatment for anxiety and cutting behavior during service. The examiner noted that these symptoms and behaviors were present prior to service, during service and have continued since service. The examiner concluded that there is a relationship between his treatment during service and his present symptoms, but there is also evidence that these symptoms existed prior to service. The examiner concluded that the Veteran's depression is comorbid to PTSD and multiple traumas. The examiner also noted that the Veteran has borderline personality traits, including parasuicidal behavior (cutting). A January 2013 letter reflects that a VA psychiatrist diagnosed the Veteran with major depression since service. The VA psychiatrist opined that it is as likely as not that the Veteran's mental illnesses developed in response to traumas experienced in the army. After a careful review of the claims folder, the Board finds that the pertinent evidence of record indicates that it is at least as likely as not that the Veteran's acquired psychiatric disorder, to include depression, anxiety disorder, and nervous disorder, is related to service. As noted above, acquired psychiatric disorders, diagnosed as depression, anxiety disorder, and nervous disorder, are of record. Additionally, the record demonstrates that the Veteran sustained in-service psychiatric episodes and other traumas. As such, the crux of this case rests upon the inquiry of whether the Veteran's acquired psychiatric disorders are related to his in-service events and experiences. The Board finds that the record shows that the Veteran's acquired psychiatric disorders, diagnosed as depression, anxiety disorder, and nervous disorder, are related to service. The July 2010 VA examiner stated that the Veteran received treatment for anxiety during service, continued to have symptoms of anxiety, and that there is a relationship between his treatment during service and his present symptoms. Moreover, a VA psychiatrist in January 2013 opined that the Veteran's major depression developed in response to traumas experienced in the army. The Board is cognizant of the fact that the July 2010 VA examiner did not find that the Veteran met the DSM-IV criteria for diagnoses of anxiety disorder and nervous disorder. Nonetheless, also of record are several medical reports that confirm diagnoses of anxiety disorder and neurotic features. The Board acknowledges that several examiners indicated that the Veteran's disorders existed prior to service and continued therefrom. However, as noted above, service entrance examination was normal and even if so, all doubt in this regard is accorded to the Veteran as no distinctions have been set forth with regard to his pre, during, and post service psychiatric disabilities. The Board notes that the Veteran was diagnosed with schizophrenia, simple type, in May 1973, panic disorder in January 1994, and impulse control disorder in March 1994. However, there is no indication that schizophrenia, manifested to a compensable degree with a year of separation from service, or that his schizophrenia, panic disorder, or impulse control disorder are related to his in-service experiences. In light of the above, service connection cannot be granted for schizophrenia, or separate and distinct disabilities diagnosed as a panic disorder or impulse control disorder. Additionally, the Veteran has been diagnosed with borderline personality disorder. Personality disorders are not diseases or injuries subject to service connection; thus, no consideration in this regard is warranted. 38 C.F.R. § 3.303. Given the Veteran's service treatment reports, the post service evidence of record, to include the medical opinions contained within, the Board finds that an acquired psychiatric disorder, diagnoses of depression, anxiety disorder, and nervous disorder is related to service. Thus, service connection is warranted. The appeal is granted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for an acquired psychiatric disorder, to include depression, anxiety disorder, and nervous disorder is granted. Service connection for schizophrenia, or separate and distinct disabilities diagnosed as a panic disorder, impulse control disorder or borderline personality disorder is denied. ______________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs