Citation Nr: 1603461 Decision Date: 02/02/16 Archive Date: 02/11/16 DOCKET NO. 09-03 451 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include schizo-affective disorder, neurotic depression, and depressive disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and the Veteran ATTORNEY FOR THE BOARD W. H. Donnelly, Counsel INTRODUCTION The Veteran served on active duty with the United States Army from June 1966 to October 1966. He died in December 2012; the appellant is his surviving spouse, who has been properly substituted as the claimant under 38 U.S.C.A. § 5121A. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision by the Huntington, West Virginia, Regional Office (RO) of the United States Department of Veterans Affairs. The Roanoke, Virginia, RO, maintains jurisdiction over the claim, based on the appellant's residence. The appeal has been repeatedly remanded to the Agency of Original Jurisdiction (AOJ), most recently in October 2014, for additional development. Following the October 2014 remand, the Board sought an independent medical opinion pursuant to 38 C.F.R. § 20.901. The appellant was properly notified and afforded an opportunity to respond. The claim is now ready for adjudication. The Veteran's file has been scanned, and converted from a hybrid paper and electronic file to a purely electronic file. The Board has reviewed the records and documents maintained in Virtual VA (VVA) and the Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence. FINDINGS OF FACT 1. The Veteran is presumed sound at the time of entry onto active duty. 2. A currently diagnosed acquired psychiatric disorder at least as likely as not was first manifested on active duty. CONCLUSION OF LAW The criteria for service connection of an acquired psychiatric disorder are met. 38 U.S.C.A. §§ 1110, 1111, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Board is granting in full the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. Analysis The appellant pursues the Veteran's contention that the personality disorder diagnosed during service and which led to his administrative discharge for unsuitability was misdiagnosed, and was in fact the first manifestation of an acquired psychiatric disability. 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. 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); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain competent evidence of: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). At the Veteran's examination for entry onto active duty, he reported that he would "get nervous" due to teacher attitudes and had not done well in school However, no psychiatric disorder, either acquired or personality, was noted at the time. The Veteran is therefore presumed sound upon entry onto active duty, unless that presumption is rebutted by clear and unmistakable evidence both that the condition pre-existed service and the condition was not aggravated therein. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). In response to a May 2015 Board request seeking an independent medical opinion, a VA psychiatrist reviewed the claims file, to include prior medical opinions on the matter, and responded to a series of questions regarding the presumption of soundness and the Appellant's claims. She opined first that the evidence did not clearly and unmistakably show that either an acquired psychiatric disorder or a personality disorder existed prior to service. The notation on entry showed only a possible tendency to anxiety, and could not support a diagnosis, and while the nature of a personality disorder made it likely that such did pre-exist, such was not definite. Further, the in-service treatment for anxiety and an inability to adapt to military life was not clearly and unmistakably a natural progression of any condition; the stress of military life may have triggered a predisposition to anxiety. Accordingly, the presumption of soundness is not rebutted, and the Veteran must be considered sound at entry. This means that the psychiatric treatment for anxiety and other psychiatric symptoms in service represents an in-service disease or injury, meeting the first element of a claim for direct service connection. Post-service records demonstrate that the Veteran was, at various times, diagnosed with a variety of psychiatric disorders, including schizophrenia, schizoaffective disorder, anxiety, depression, dysthymic disorder, panic disorder, adjustment disorder, bipolar disorder, and a personality disorder. The May 2015 VA reviewer did not definitively identify the "correct" label to be applied to the post-service condition(s), but did indicate that the variation in diagnoses was to be expected when the Veteran was not consistently presenting the same symptoms each time he was seen. She did, however, endorse the finding that during his lifetime, the Veteran was properly diagnosed with an acquired psychiatric disorder. This meets the second element of a claim for service connection. With regard to the final element, that of a nexus between the in-service disease and current disability, the May 2015 VA reviewer opined that given the Veteran's presentation in service and after, it was more likely than not that the conditions diagnosed after service were present in the military, co-morbid with a personality disorder. The acquired psychiatric disorders may have evolved over the years, and multiple conditions may be present, but her opinion is clear that at least some portion of the claimed post-service psychiatric disorders had their onset during active duty. Accordingly, service connection for an acquired psychiatric disorder is warranted. ORDER Service connection for an acquired psychiatric disorder is granted. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs