Citation Nr: 1327625 Decision Date: 08/28/13 Archive Date: 09/05/13 DOCKET NO. 06-30 988 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include as due to a traumatic brain injury. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty from September 1959 to September 1963, and from April 1965 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. A hearing was held at the RO before a Decision Review Officer (DRO) in May 2007. The Board twice previously remanded this case for further development. FINDING OF FACT The evidence shows that the Veteran's anxiety disorder began in service and has continued ever since service. CONCLUSION OF LAW The criteria are met to establish service connection for an anxiety disorder. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2013), prescribes several requirements as to VA's duty to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits. Implementing regulations were created, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2013). As indicated below the Board is granting the benefits sought on appeal of entitlement to service connection for a psychiatric disorder. Hence, even assuming, without deciding, that any error was committed as to implementation of the VCAA's duty to notify and assist provisions, such error was harmless in its application to adjudication of this matter, and need not be further discussed. See Bernard v. Brown, 4 Vet. App. 384 (1993). See also Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), affirmed, 499 F.3d 1317 (Fed. Cir. 2007). The Veteran contends that he currently suffers from an acquired psychiatric disorder that he incurred in service. Specifically, he contends that he started having problems with depression and anxiety following a motor vehicle accident that occurred while he was serving in Spain in May 1968. Under VA law, service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2013); 38 C.F.R. § 3.303(a) (2013). Service connection may also be granted for a disease diagnosed after discharge, where all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). The elements of a valid claim for direct service connection are as follows: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection is also available for a preexisting condition provided it was aggravated during service beyond its natural progression. 38 U.S.C.A. § 1153 (West 2002 & Supp. 2013); 38 C.F.R. § 3.306 (2013). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during service. In order to rebut the presumption of aggravation, there must be clear and unmistakable evidence that the increase in severity was due to the natural progress of the disability. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Under applicable law, every person employed in the active military, naval, or air service shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment, 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, 1137. VA's Office of General Counsel has issued a precedent opinion holding that in order to rebut the presumption of soundness in 38 U.S.C.A. § 1111, VA must demonstrate by clear and unmistakable evidence both that the disease or injury in question existed prior to service and that it was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. Here, on entrance examination in September 1959, the Veteran denied having any psychiatric problems and psychiatric evaluation was normal. In July 1960, he complained of being nervous and his hands were shaking. There was no diagnosis. On separation examination in August 1963, the Veteran reported mild nervousness ever since coming to Alabama. Psychiatric evaluation was again normal. At his entrance examination prior to his second period of service in April 1965, the Veteran denied any psychiatric problems and psychiatric evaluation was normal. He was treated for nervousness in May 1965, June 1965, and September 1965. In September 1965, he stated that he had reenlisted because he could not hold a steady job in civilian life. He was diagnosed as having anxiety in October 1965. The Veteran was described as highly nervous in November 1967 and complained of intermittent diarrhea for all of his life aggravated by emotional situation. He was involved in an automobile accident in May 1968. In August 1968, he complained of anxiety and was told to try Lithium two times a day. In July 1969, the Veteran was diagnosed as having chronic mild anxiety and referred for a psychiatric consultation. On psychiatric consultation, he reported that he had always had a problem with nervousness and had been a nervous and sickly child. He appeared mildly anxious with some pressure of speech, but did not appear depressed or complain of depression. The diagnosis was anxiety, chronic, mild. The Veteran's subsequent service treatment records in August 1969 and January 1970 also note mild anxiety. Following service, a VA Form 10-7131 dated in May 1971 indicates that the Veteran was under medical care in Puerto Rico in October 1970 for a conversion reaction. VA treatment records from July 1997 through October 1997 show treatment for anxiety. In November 1997, the Veteran was hospitalized with complaints of stress and depression, and expressed suicidal ideation. The diagnosis given was acute major depression. Evaluations provided by the California Department of Social Services, Disability Evaluation Division, from December 1997 also show reports of anxiety and depression. Specifically, the Veteran reported a long history of anxiety, stress, and depression. The examiners diagnosed him with depression, anxiety, and stress. Private physician records also show treatment for depression in December 1997. May 1998 VA treatment records provide a diagnosis of panic disorder and agoraphobia, and August 1998 records note the possible occurrence of panic attacks. In December 1998, a private psychologist diagnosed with Veteran with panic with agoraphobia and depressive features. Subsequently, VA treatment records from December 1998, May 1999, February 1999, January 2002, December 2003, and May 2004 show complaints of and treatment for anxiety and/or depression, as do private treatment records from September 2004, October 2004, and January 2005. In January 2006, the Veteran was provided a VA examination. The examiner noted the Veteran's contention that his anxiety and depression began after his motor vehicle accident in service. The diagnoses given were "history of major depressive disorder" and "anxiety disorder." However, the examiner stated that she could not make a connection between the Veteran's service and his anxiety and/or depression because the Veteran was not clear as to whether or not he had anxiety before or after service. Therefore, the examiner stated that she could not give an etiological opinion without resorting to speculation. On VA examination of September 2010, the diagnosis was major depressive disorder, moderate; and anxiety disorder, not otherwise specified (NOS). In July 2012, pursuant to a Board remand directive, a supplemental opinion was obtained on the subject of etiology, stating at first, that it was less likely than not that the Veteran's major depressive disorder had its clinical onset during service. Regarding the Veteran's anxiety disorder, the opinion was as follows: The Veteran has provided statements (reviewed in claims file) in which he maintains that he was in good mental health prior to his active duty service. Despite this, there are several notations throughout the records in which he was quoted as saying that he had a nervous stomach "for all my life" and was a "sickly nervous child." The fact that the Veteran may have had these experiences of anxiety but did not seek out treatment indicates that such anxiety symptoms were mild in nature. Given the number of [STR] entries (nine found on review) with complaints of anxiety, nervous stomach, diarrhea, and hyperhidrosis between May 1965 and January 1970, as well as the Veteran's subsequent years of mental health treatment for anxiety... It is at least as likely as not that the Veteran's anxiety did exist prior to service, and that it was aggravated by the service beyond the natural progression of the disorder. Because there is no way to objectively measure the level of severity of the Veteran's pre-service anxiety or to predict any future level of impairment, this finding is not undebatable, and the degree of aggravation cannot be fully estimated without resorting to mere speculation. As a psychiatric disorder was not noted on either of the Veteran's entrance examinations, it must be presumed that he was sound upon entry into service. 38 C.F.R. § 3.304. Notably, the July 2012 VA examiner stated that it is at least as likely as not that the Veteran's anxiety existed prior to service. The phrasing of this opinion (i.e., "it is at least as likely as not") may not be found to clearly and unmistakably indicate that the disorder pre-existed service. Consequently, the presumption of soundness has not been rebutted and the Veteran must be considered sound at the time he entered both periods of service for purposes of adjudication of this claim. The Veteran was initially diagnosed as having anxiety during his second period of service in October 1965. Thereafter, in July 1969 he was diagnosed as having chronic mild anxiety. Subsequent service treatment records in August 1969 and January 1970 also note mild anxiety. Shortly after service in May 1971, the Veteran was under medical care in Puerto Rico in October 1970 for a conversion reaction. He is also currently diagnosed as having an anxiety disorder. The July 2012 VA examiner also indicated that the Veteran's anxiety was aggravated by service beyond the natural progression of the disorder. Taken together, this evidence tends to indicate that the Veteran's current anxiety disorder first began in service and has continued up until the present. Accordingly, the criteria for service connection for anxiety disorder are met, and the claim on appeal is therefore granted. ORDER Service connection for an anxiety disorder is granted. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs