Citation Nr: 1601644 Decision Date: 01/14/16 Archive Date: 01/21/16 DOCKET NO. 08-37 008 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for acquired psychiatric disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran served on active duty from October 1962 to May 1963. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a February 2007 rating decision issued by the Detroit, Michigan Regional Office (RO) of the Department of Veterans Affairs. In that decision, the RO denied reopening of a previously denied claim for service connection for acquired psychiatric disability. In an August 2012 decision, the Board granted reopening of the previously denied claim. The Board remanded the reopened issue to the RO for the development of additional evidence. The RO developed additional evidence and returned the claim to the Board. The Board is satisfied that there has been substantial compliance with the remand directives. The Board will proceed with review of the claim. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. No psychiatric disorder was diagnosed before the Veteran enlisted in service, and there is not clear and unmistakable evidence that he had any such disorder before enlistment. 2. Mental illness with anxiety and depression was noted during service and continued after service. CONCLUSION OF LAW Psychiatric disability including generalized anxiety disorder and recurrent major depression was incurred in service. 38 U.S.C.A. §§ 1111, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2015). The Board is granting in this decision the benefit sought on appeal. Therefore, it is not necessary to discuss further VA's duties to assist the Veteran in substantiating the claim. The Veteran contends that his psychiatric disability began during his service, or, if it existed before his service, worsened during his service. Service connection may be established on a direct basis for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. A veteran will be considered to have been in sound condition when examined and accepted for service, except as to disorders noted on entrance into service, or when clear and unmistakable (obvious or manifest) evidence demonstrates that the disability existed prior to service and was not aggravated by service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. §§ 1111, 1137; 38 C.F.R. § 3.304(b). A preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). For veterans with service after December 31, 1946, clear and unmistakable evidence is required to rebut the presumption of aggravation where the preservice disability underwent an increase in disability during service. 38 C.F.R. § 3.306(b). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). The Veteran had medical examination in October 1962 for entrance into service. The examiner checked "normal" for his psychiatric condition. Thus, no psychiatric disorder was noted when he entered service. He is presumed to have been in sound psychiatric condition when he entered service unless clear and unmistakable evidence demonstrates that a psychiatric disability existed prior to service and was not aggravated by service. During service, the Veteran had inpatient treatment for pneumonia in December 1962 and January 1963. In March 1963, he had a mental health evaluation. He reported having had depression over the preceding year. He related that, after high school, he attended a business school. He stated that after friends left to join the service, he felt nervous and depressed. He reported that he saw a psychiatrist for a period of time. He indicated that he quit school and joined the Navy. He related that he felt all right during boot camp. He stated that, when he returned to duty following treatment for pneumonia, he was assigned to a different unit. He reported that he did not feel accepted, and that he felt insecure and depressed. He related having had suicidal ruminations. The evaluating psychiatrist observed that the Veteran had a flat affect and spoke in a monotone, with periods of tearfulness and crying. The psychiatrist found a present picture of a neurotic depression with anxiety, with features of an incipient schizo-affective disorder. The psychiatrist referred the Veteran for further psychiatric treatment. The psychiatrist listed a diagnosis of dissociative reaction, depersonalization. Later in March 1963, the Veteran was admitted for inpatient psychiatric treatment. He related a history of feeling isolated and distant from others, having very few friends, and depending on those friends. He indicated that before entering service he saw a psychiatrist on three or four occasions to address feelings of inadequacy, anxiety, and depression. He stated that he adjusted well during boot camp, but that when he was stationed aboard a ship he felt picked on by others, lonely, anxious, and extremely uncomfortable. He indicated that he went absent without leave and returned home. He stated that he then returned to a service hospital and received psychiatric evaluation. During the inpatient treatment, a treating psychiatrist observed that he was obviously depressed and quite weepy, with hopelessness and recurrent suicidal thoughts. The psychiatrist listed a diagnosis of neurotic depressive reaction, described as not existing prior to enlistment, having onset in the line of duty, and not being due to his own misconduct. The psychiatrist also listed a diagnosis of inadequate personality. In April 1963, the Veteran was transferred to a different Naval Hospital for further treatment and disposition. During that stay, he reported a history of episodes of depression and moodiness during childhood. He was treated with Librium. In May 1963, a board of medical survey reviewed his records. The board listed a diagnosis of inadequate personality. The board found that the disorder existed before his enlistment. The Board recommended that he be discharged from service. In September 1963, private psychiatrist B. I. A., M.D., wrote that he saw the Veteran on three occasions in August 1962. Dr. A. stated that at that time he had symptoms of anxiety and depression that he been present for approximately one month. Dr. A. reported that he next saw him in June 1963, at which time he was extremely depressed and preoccupied. Dr. A. stated that as of September 1963 he was somewhat improved, but continued to be under treatment. From October 1964 to October 1965, the Veteran had inpatient psychiatric treatment at a state university hospital. The treating psychiatrist noted a history of treatment for anxiety and depression during service. It was noted that after discharge from service he worked briefly, but became incapacitated because of anxiety, despondency, and lack of concentration. He also admitted to having conversations with imaginary persons. During treatment, there were periods of slight improvement alternating with acute exacerbations of anxiety and confusion. The psychiatrist listed a diagnosis of schizophrenic reaction, chronic undifferentiated type. Discharge from inpatient treatment was to be followed by outpatient treatment including ongoing medications. In September 2001, private psychiatrist J. S.-S., D.O., evaluated the Veteran. The Veteran reported a nearly life long history of depression, with a three week history of exacerbated depression. He related a history of two psychiatric hospitalizations soon after his service in the Navy, with the second lasting about a year. He related that his present symptoms also included reported panic attacks and some symptoms of compulsivity. He denied hallucinations or paranoid thoughts. Dr. S.-S. provided a diagnosis of recurrent major depression. She prescribed medication and ongoing psychotherapy. Treatment notes from 2001 through 2006 show ongoing supervision of medication. In 2006, F. W. C. wrote that he had known the Veteran all of his life. Mr. C. reported that the Veteran was in a very depressed state when he was discharged from the Navy. Mr. C. stated that only after many years of therapy was the Veteran able to live a fairly normal life. In 2006, private counselor B. L., M.A., L.L.P., wrote that she had been seeing the Veteran in weekly psychotherapy for about five years, to address symptoms including anxiety and isolation, with a diagnosis of generalized anxiety disorder. In 2007, Ms. L. reported that she had performed a comprehensive review of the Veteran's history, including his service discharge report and the records of his inpatient treatment in 1964 and 1965. She expressed the opinion that his anxiety and depressive disorder were "instigated and aggravated by" his military service from October 1952 to May 1963. In the August 2012 remand, the Board instructed that the Veteran receive a VA psychiatric examination, with file review and opinion regarding the likely etiology of current disorders. The Board instructed that the examiner provide opinion regarding each current disorder as to whether the disorder clearly and unmistakably existed prior to entrance into service, and whether the disorder clearly and unmistakably did not worsen beyond a natural progression during or as a result of service. On VA psychiatric examination in March 2014, the examining psychiatrist reported having reviewed the Veteran's claims file. The examiner listed a diagnosis of major depressive disorder. The examiner provided the opinion that the Veteran had problems with anxiety and depression that existed before service. The examiner opined that the Veteran's mental illness had natural progression during service, and that the illness was not caused or permanently aggravated by his service. The examination report shows that the examiner received the Board's instructions to indicate whether the relevant relationships were based on clear and unmistakable evidence. The examiner did not use that terminology is the opinions provided. In August 2014, the Veteran's therapist, Ms. L., indicated that she had also reviewed the Veteran's service treatment records. She noted that the Veteran had not received any psychiatric diagnosis prior to service. She asserted that her treatment over the Veteran over a period of years gave her considerable knowledge of his history and condition. The clear and unmistakable evidence standard at 38 C.F.R. §§ 3.304 and 3.306 establishes high thresholds for rebutting the presumption of sound condition and the presumption of aggravation. As no psychiatric disorder was found when the Veteran was examined for entrance into service, he is presumed to have been in sound psychiatric condition then unless clear and unmistakable evidence demonstrates that a psychiatric disability existed prior to service, and clear and unmistakable evidence demonstrates that a psychiatric disability was not aggravated by service. Here, the Board finds that there is not clear and unmistakable evidence to show the existence of a psychiatric disorder prior to service. While Dr. A. confirmed that the Veteran reported symptoms of anxiety and depression prior to service, there is no indication that any psychiatric disorder was diagnosed before service. Rather, one psychiatrist who treated him in March and April 1963 specifically concluded that the issues found during service had not existed prior to enlistment. During service, the Veteran had mental health evaluation and treatment with a diagnosis of neurotic depressive reaction. Soon after service, he had further mental health treatment and diagnoses. His treating therapist, Ms. L., has supported a connection between his ongoing anxiety and depression disorders and the disorders noted during service. The record supports a finding that current anxiety and depression disorders were incurred in service. ORDER Entitlement to service connection for psychiatric disability including generalized anxiety disorder and recurrent major depression is granted. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs