93 Decision Citation: BVA 93-18050 Y93 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 92-12 707 ) DATE ) ) ) THE ISSUE Whether the rating decision of June 1948 which severed service connection for a psychoneurosis was clearly and unmistakably erroneous. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. P. Gallagher, Counse INTRODUCTION The appellant had active service from November 1944 to June 1945 and from February 1951 until April 1955. He also had a period of service from January 1956 to July 1957 for which he received a discharge under other than honorable conditions. This case comes before the Board of Veterans' Appeals (Board) as a result of determinations by the Department of Veterans Affairs (VA), Lincoln, Nebraska, and Denver, Colorado, Regional Offices (RO). In July 1945, the Lincoln, Nebraska, RO granted the appellant service connection for a psychoneurosis, hysteria. A rating decision in April 1948 proposed severing service connection for the psychoneurosis and the appellant was advised of the proposal to sever service connection. A rating decision in June 1948 severed service connection for the psychoneurosis, conversion hysteria. The appellant was advised of the severance in July 1948 and he did not file a timely appeal. A rating decision by the Denver, Colorado, (RO) in August 1991 found no error in the prior severance of service connection in the rating decision of June 1948. A notice of disagreement was received in August 1991. A statement of the case was issued in January 1992. The substantive appeal was received in February 1992. This case was received and docketed at the Board in July 1992. The appellant has been represented during this appeal by the Disabled American Veterans and that organization submitted additional written argument in November 1992. The case is now ready for our review. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in substance, that the rating decision in June 1948 which severed service connection for a neurosis was based on difference of opinion rather than on clear and unmistakable error. It is contended that the rating decision did not provide an adequate basis to sever service connection. It is stressed that the board of three psychiatrists did not examine the appellant as is required and that the hospital staff did not have access to the service medical records or the appellant's claims folder and it is contended the service medical records established the diagnosis of a psychoneurosis. It is contended that the regulations at that time established a progression of psychosis and psychoneurosis to various stages and that service connection was not to be broken arbitrarily because the condition had entered another phase or because a diagnosis had been changed. Reference is made to decisions of the United States Court of Veterans Appeals (the Court). It is maintained that current doctrine controlling rebuttals of presumption require that clear and convincing or clear and unmistakable evidence is necessary. Hunt v. Derwinski, 1 Vet.App. 292 and Akins v. Derwinski, 1 Vet.App. 228. Also, it is maintained that failure to consider a regulation in the claimant's favor constitutes error and the severance is set aside per Payne v. Derwinski, 1 Vet.App. 450. Also, reference is made to Bentley v. Derwinski, 1 Vet.App. 28 (1990), concerning the full application of due process. It is stressed that a clear and unmistakable error, as required by law to sever service connection, did not exist at the time of the rating determination in June 1948. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of all evidence and material of record in the veteran's claims file and for the following reasons and bases, it is the decision of the Board that the rating decision of June 1948 which severed service connection for a psychoneurosis was not clearly and unmistakably erroneous. FINDINGS OF FACT 1. The rating decision of June 1948 which severed service connection for a psychoneurosis was not timely appealed. 2. The final rating decision of June 1948 which severed service connection for a psychoneurosis was supported by the evidence of record. CONCLUSION OF LAW The RO's rating decision of June 1948 which severed service connection for a psychoneurosis was not clearly and unmistakably erroneous. 38 U.S.C.A. §§ 1110, 7105 (West 1991); (Veterans Regulation No. 2(a), pt. II, par. III; Department of Veterans Affairs Regulations 1008 and 1009; effective January 25, 1936, to December 31, 1957). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, we have found the veteran's claim to be well grounded and that all relevant facts have been properly developed. The service medical records disclose that the appellant was hospitalized in February 1945 after he had passed out. He disclosed that in November 1943 he had sustained a fracture of four cervical vertebrae while playing football. He reported that he had been preparing to negotiate an infiltration course and noticed a dull aching sensation in the midposterior cervical region. The next thing he knew he awoke in the hospital. He also reported that he had had occasional syncope episodes since the neck injury. During hospitalization he was referred to a psychiatrist. The appellant reported that he had a history of repeated trauma to the neck and that he had always been cautious and worried that he might hurt his neck again. There appeared to be no other psychogenic determinant. The psychiatrist reported that judging from the history the appellant did have an acute hysterical attack at the time of admission. The diagnosis was: No neuropsychiatric disease. The appellant was seen several days later during hospitalization by another psychiatrist. He stated that the football injury was apparently a point of fixation. The appellant was now complaining of neck pain. The psychiatrist diagnosed a chronic post-traumatic neurosis (history of football injury in November 1943) with hypochondriacal fixation on old injury, attacks of syncope, insomnia, terror dreams (nightmares). He believed that the appellant should be reprofiled and assigned to a noncombat duty. The appellant was readmitted to a hospital in June 1945 in a state of confusion and amnesia. He stated that he was playing football in 1944 and when he awoke he found himself in the hospital and in the Army. He remembered nothing concerning his basic training nor previous experience in service and he did not remember being in the hospital on two occasions previously nor did he remember or know where he was at the present time, except that he was in the hospital. It was reported that his memory was good prior to his induction into service but since then he was in a complete state of amnesia. The clinical impression following examination was psychoneurosis, hysteria, chronic, recurrent, manifested by amnesia. A few days later his memory returned but he still did not know what happened while on bivouac. The examiner recommended that he be discharged from service and the diagnosis was psychoneurosis, hysteria, chronic, severe, cause undetermined, manifested by frequent attacks of syncope, amnesia, hypochondriacal fixation upon neck injury when playing football in high school. A Board of Medical Officers found that the disability existed prior to service and was not aggravated therein. The appellant had a period of VA hospitalization from June to July 1947. He was admitted for treatment of a shrapnel wound to the left thigh. Because his chief complaint was mainly due to his neuropsychiatric condition, he was referred to the psychiatric department. He maintained that in January 1945 he was hit by a machine gun fired by a fellow soldier who had a nervous breakdown. He contended that he was hit by nine bullets and claimed that seven of the bullets had to be removed from his buttocks. He stated that he was able to get along all right until December 1945 when he was hospitalized with a complaint of numbness of his left thigh and a feeling of swelling of the thigh which were the same symptoms that he currently experienced. It was reported that, on reviewing his record of the previous hospitalization, there was no mention of these complaints but that he was admitted because of muscular contusion of the right hip which he suffered when his leg was caught between a hayrack and an automobile while he was on a hayrack ride party. During a psychiatric examination he exhibited a moderate degree of tension. He perspired profusely. He stated that he had always been rather bashful and self-conscious. The neurological evaluation was within normal limits. It was believed that the appellant's complaints were functional and represented a conversion phenomena. The psychiatric discharge diagnosis was psychoneurosis, conversion hysteria. The appellant had a period of VA hospitalization from August to September 1947. He was admitted because of depression and suicidal threats. Statements recorded for clinical purposes indicated that his family had always been very strict with him and would not permit him to lead an independent existence. He was not allowed to go out with other students in high school but was forced to stay home and do his work and play around the house. His parents were reportedly extremely strict with him. Because of this close observation, he was unable to make decisions for himself and was very dependent upon other people. Following his return from service, he decided to get married. His parents were against it and the main reason he was married was to show them he could decide things for himself. However, his spouse was also a very sheltered individual and the marriage failed. He also indicated that his parents opposed his going to school and put him to work on a farm. However, when his parents found out that he had befriended a young woman, they again brought him home. At this time, the feeling of frustration and his inability to get from beneath his parents' domination were so great that he resorted to this period of depression and talked of suicide although at the present time he stated that he had no definite plans and it was not a premeditated threat. It was reported that a complete and informative social service study, dated in September 1947, was of record which presented the veteran as being primarily a problem in behavior disorder, manifested by emotional immaturity and dependency. At the time of the appellant's admission to the neuropsychiatric service in August 1947, he was somewhat depressed and was placed under special supervision. When seen the following morning, he showed no definite evidence of any genuine depression and it was felt that it was rather superficial and merely consisted of his emotional immaturity and his desire for sympathy. He entered into a long harangue about his inability to make a social and economic adjustment which he attributed to his parents. He blamed them for his present plight and expressed a strong dislike and at times even a hateful attitude towards them. His rationalization was rather puerile and definitely influenced by his emotional immaturity. He denied any active suicidal trends and the interview did not bring out any material which would lead one to believe that he was suicidal. He was granted full ward privileges but he then showed behavior consistent with a definitely immature and irresponsible youth. He showed no concern whatever for ward regulations and would leave the ward at will and be gone for hours. He showed a definite lack of concern not only about himself but about his future. During frequent interviews he was found to be untruthful and evasive and made statements which were always in his favor in order to gain his end. He was frequently seen by the social service department who attempted to make some definite, satisfactory disposition and set up as favorable extramural adjustment, particularly in relationship with his wife. During hospitalization he had a brief acute hysterical episode. At the time of discharge, it was felt that the appellant's outlook was rather dubious and that he was an immature, dependent adolescent individual who had shown himself to be irresponsible and incapable of assuming any obligations commensurate with his age. The pertinent diagnosis was psychoneurosis, conversion hysteria. The appellant was hospitalized at a VA hospital from November to December 1947. When first seen by the examiner, he stated that he was convinced his trouble was intuitional rather than physical. He indicated his left thigh seemed as if it were paralyzed and he described a rather bizarre sensation which came from his right hip. He indicated that he was separated from his spouse and that she did not believe in school, particularly since he was married and had responsibilities. At this time his spouse was living with her folks. It was reported that he had been married in July 1945 and during this time had lived approximately a year together. He explained that his parents were very strict and that they attempted to dominate him and restrict any independent action or thought. It was reported from a mental standpoint that there were no signs of mental psychosis. There were little signs of anxiety but an undercurrent of restlessness and tension was noted. He was generally of euphoric mood and engaged in the usual attention-gaining mechanisms of the adolescents. It was reported that his basic problem arose from his inability to make decisions and to handle responsibilities. It was believed the veteran was very immature with marked inadequacy and inferiority feelings. His attempts at mastering these symptoms with acts of adulthood and masculinity only served to create more anxiety. He had an extremely superficial degree of insight into his condition. He attended a few group therapy sessions and felt that his problems were suddenly vanishing. He felt that it was more important for him to return to school and expressed a desire to leave the hospital. Although he was told that further hospitalization was indicated, he decided to leave the hospital immediately and he went on AWOL status in early December 1947. The diagnosis was anxiety reaction. The appellant had another period of VA hospitalization from December 1947 to February 1948. In regard to his personal history, his mother described a head injury at 10 years of age while playing horseshoes and reported that he was nervous and excitable since that time. The appellant denied this. It was also reported that he was subject to fainting spells prior to service although he also denied this. It was reported that he suffered a fracture to the third cervical vertebra while playing football at the age of 15. The appellant stated that after he entered service he was wounded in training by machinegun bullets; three in the right leg and six in the left buttock. It was reported that the case file showed that he was discharged for a psychoneurosis, post-traumatic, chronic. The examiner reviewed the appellant's service medical records including his hospitalizations for his psychiatric problems. The appellant described a chaotic post war record in which he was enrolled in two colleges including the University of Nebraska and had several different jobs. He also reported that, after the hospitalization in December 1947, he was picked up for impersonating an Army officer and brought to this hospital. The examiner reported that a review of the case file gave a broader picture of the development of the appellant's personality. This revealed a borderline family that required assistance and that the appellant had been considered nervous and excitable by his mother since he was 10 years of age and that he suffered a neck fracture and brain concussion at the age of 15. It was reported that he had two children, the second of which he denied was his. He had quit the University of Nebraska without notifying the authorities to enter the VA hospital because of a contused right hip. He did not return and blamed his parents for not letting him although it was brought out later that he was unable to do college work. It was reported that a social service investigation during the fall of 1947, with information mostly from the veteran, noted that he was emotionally immature. His ideas and behavior were adolescent and he gave unreliable information and had no desire to tell the truth. He blamed his parents for quitting the University of Nebraska although records finally obtained disclosed that he was expelled because of failing grades. He played up his marital discord as a prominent cause for his maladjustment. He alleged that his wife had become pregnant by another man but his parents said this was not true and that it was his child. The examiner stated there was innumerable evidence in this report of contradiction, emotional maladjustments and immaturity. On admission to this period of hospitalization, there was no evidence of psychosis and it was considered that he had an anxiety reaction by the admitting officer. On psychiatric examination during hospitalization, his attitude was one of nonchalance. His general conduct seemed to be an exaggerated interest and a desire to please the examiner. He described spells in which he was unable to bear weight on his left leg because of marked weakness and pain. He denied that he was ever markedly depressed or had suicidal ideas. He admitted that he did have a temper. He stated he did not like to fight and had never had a fight. The examiner reported that the appellant was quite egotistical and satisfied with himself at this time. Irritability was not demonstrable. When describing something exciting, his emotions raised to the occasion so that he mentally acted out the situation. His story changed from time to time and was always at variance with the records. He told these stories with a poker face and, when questioned closely about his experiences, he rationalized this, usually blaming someone who told him something that had happened to him or stated that he had forgotten the details. When it was suggested that the AGO would be contacted concerning his alleged wounding by machinegun bullets, he blushed somewhat and said he might be wrong about it and that he only knew what he had been told at the hospital. He could not explain why he told the other hospital doctors that his wounds were caused by shrapnel or why the injuries were not mentioned on his discharge or Army separation reports. When viewed in long sessions, his emotional makeup was somewhat juvenile. His ethical sense was blunted and he had an inadequate responsibility sense. Mental activity was slightly overproductive although his production was coherent and relevant and there were no definite flight of ideas. Content of thought did not reveal delusions or hallucinations. Some of his expressions were somewhat fanciful, maybe fantastical or wishful thinking. His sensorium was clear. He was well oriented and had a good memory. He was capable of paying good attention. His attention and recall were good except when they did not suit his purpose. Insight was defective into his own personality makeup. His judgment was poor. He had a proper conception of his ward mates in this hospital. His plans for the future were nebulous and revealed his dependency for others for guidance. It was the examiner's opinion that the appellant was not psychotic. In summary, the examiner stated that the appellant's story changed from time to time and contradicted the records throughout. Since discharge, his adjustment had not been good although he thought it had. He blamed others for his maladjustment and made false statements regarding his schooling. The examiner stated the appellant's story about his life was unreliable. It was evident that he preferred to act things out rather than perform them in reality or face reality and that many of his statements were either exaggerations or described events that never happened except in his own wishes. He showed no remorse for his past conduct or failures and was content to blame others. He was quite satisfied with himself. Otherwise, he was juvenile in his emotional makeup, his actions and plans for the future. His ethical sense was blunted. He had an inadequate sense of responsibility and hesitated to accept any responsibility. Mental activity was possibly slightly exaggerated or overactive. His thought content revealed no delusions or hallucinations. His sensorium was clear and his memory was good. His attention was satisfactory. Fabrication was evident but was considered purposeful. Insight was defective regarding his personality but he knew that he had done wrong and that he told conflicting stories. He felt that it was only too bad that he was caught and so little understood. He could not blame himself at all. His judgment was poor. The examiner reported that since admission there had been no sign of any neurasthenia, anxiety or conversion hysterical feature and none were suspected. The suggested psychiatric diagnosis was: Encephalopathy, traumatic, chronic, associated with fracture of the third cervical vertebra in 1943 and brain concussion, manifested by nonpsychotic reaction, immaturity reaction and emotional instability, passive dependency reaction and pathological mendacity. It was reported that he could be classified simply as an immaturity reaction. Also it was reported that conversion hysteria was not found. In March 1948, a board of three VA psychiatrists reviewed the neuropsychiatrist study conducted at the above VA hospitalization in February 1948. The medical board reported that this study indicated that the case file had been reviewed and that a social service survey had been conducted. All facts recorded in the record and those borne out by the period of VA hospitalization from December 1947 to February 1948 were considered. The medical board found that since discharge the appellant's marital adjustment had failed and he had failed in two attempts at college and in his social adjustment. The record clearly indicated there had been a long period of maladjustment and that the veteran's statements were unreliable. He was egotistical, self- centered, quick-tempered, and a very dependent person. He lacked persistence of effort, rationalized his failures and utilized mechanisms of projection. His thinking and judgment were based on his emotions. His moral and ethical senses seemed based primarily on the pleasure principle. The Board found that during the recent hospitalization there was no evidence of neurasthenia, anxiety or conversion mechanisms. His immaturity reaction, behavior, dependency reaction and emotional instability were clearly brought out after careful consideration by the medical staff. It was the unanimous opinion of the medical board that the diagnosis of emotional instability reaction formulated by the medical staff was correct and that the former diagnosis of psychoneurosis, conversion hysteria, was in error. In evaluating the above evidence in association with the contentions advanced, the Board has referred to VA Regulation 1009, which was then in effect, as well as the Federal regulations, 38 C.F.R. § 3.9 (revision of rating board decisions). These regulations provided that a rating board may reverse or amend a decision by the same or any other rating board where such reversal or amendment is obviously warranted by clear and unmistakable error shown by the evidence in file at the time the prior decision was rendered. Under 38 C.F.R. § 3.9(d), the authority to sever service connection upon the basis of clear and unmistakable error (the burden of proof being upon the Government) was vested in the regional offices and centers. Service connection was not to be severed in any case on the change of diagnosis in the absence of the certification hereinafter provided. Accordingly, in reports of examination submitted for rating purposes, where a change in diagnosis of a service-connected disability was made, the examining physician or physicians, or the proper medical authority, would be required to certify, in the light of all accumulated medical evidence, that the prior diagnosis on which service connection was predicated was not correct. This certification would be accompanied by a summary of the facts, findings and reasons supporting the conclusion reached. Where this certification was made, the case would be carefully considered by the rating agency and in the event it was determined in consideration of all the accumulated evidence that service connection should not be continued, a decision to that effect would be rendered, citing this section as authority. If, in the light of all the accumulated evidence, it was determined that service connection may not be maintained, it would be severed. In this case, the Board stresses, that the appellant did not timely appeal the rating decision which severed service connection. Because this rating decision became final, the burden of proof in this case is no longer on the Government. The standard to be applied is whether the severance of service connection for the psychoneurosis was clearly and unmistakably erroneous as in any other final rating decision which was not timely appealed. To determine a definition of "clear and unmistakable error," the Board has referred to the decision of the Court in Russell v. Principi, 3 Vet.App. 310 (1992). In that decision, clear and unmistakable error was defined as existing only where it appears "undebatably" that either the correct facts as they were known at the time are not before the adjudicator or the statutory or regulatory provisions extant at that time were incorrectly applied. The record discloses the RO severed service connection on the basis of the report of the period of VA hospitalization from December 1947 to February 1948 and on the report of a certification board dated in March 1948. Initially, we stress, that although contended otherwise, during the period of hospitalization from December 1947 to February 1948 the appellant's service medical records were thoroughly reviewed as was his post service history. After a thorough review of the evidence, the medical staff determined that the appellant did not suffer from any neurosis including conversion hysteria, but rather that the appellant had a personality disorder which could be classified as an immaturity reaction. This was manifested by pathological mendacity. We find that this diagnosis is clearly established by the clinical record. Subsequently, the board of three psychiatrists after reviewing this detailed report, which included a review of the case file and a social service survey determined by unanimous opinion that the diagnosis of emotional instability reaction was correct and that the former diagnosis of psychoneurosis, conversion hysteria, was in error. The Board finds that this met the provisions of 38 C.F.R. § 3.9(d) as provided, "the examining physician or physicians, or other proper medical authority, will be required to certify, in light of all the accumulated medical evidence, that the prior diagnosis on which service connection was predicated, was not correct." The Board has considered the contention to the effect that the board of three psychiatrists did not actually examine the appellant. We note, as indicated above, that the applicable regulation did not require that certification be made by examining physicians but was broad enough to include other proper medical authority. In addition, we stress that, in a situation with a detailed clinical record available, there is no requirement that the certification board examine the appellant. For example, when the VA seeks an opinion of an independent medical expert, the expert merely reviews the clinical file and expresses an opinion and does not examine the appellant personally. Therefore, applying the principles of the Russell decision, we do not find that it was "undebatable" that either the correct facts were not before the adjudicator or the statutory or regulatory provisions extant at that time were incorrectly applied. The Board has also referred to the numerous Court decisions referred to in the contentions. We note that the Hunt decision mandates that clear and convincing evidence must be present to rebut the presumption of aggravation but find that this decision is not applicable to the current case. In addition, the Akins decision deals with aggravation of a preexisting condition in service. The Payne decision stresses the Board is not free to ignore its regulations. We stress, in this case, the Board has applied the applicable regulation concerning severance which was then in existence at the time of the 1948 rating decision. In the Bentley decision, the Court held that failure to observe the requirements of a regulation prejudicial to a veteran constitutes, as a matter of law, clear and unmistakable error and in that case the Government's failure to properly apply regulations prejudiced the substantive rights of the veteran and constituted clear and unmistakable error in the rating decision. We find, as indicated above, that in this decision the Board has applied the proper regulations and that the substantive rights of the appellant were not prejudiced. After a review of the evidence of record in association with the contentions advanced, the Board finds that the rating decision by the RO in June 1948 which severed service connection for a neurosis was not clearly and unmistakably erroneous. Rather, we find that this rating decision was well supported by the evidence of record which included detailed clinical findings during an extensive period of hospitalization as well as a certification by a board of three psychiatrists who had reviewed the record. Therefore, the appellant's claim must be denied. ORDER The rating decision in June 1948 which severed service connection for a psychoneurosis was not clearly and unmistakably erroneous. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 * (MEMBER TEMPORARILY ABSENT) H. STERLING, M.D. HOLLY E. MOEHLMANN (CONTINUED ON NEXT PAGE) *38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of Veterans' Appeals Se direction of the Chairman of the Board, to proceed with the transaction of busin assignment of an additional member to the Section when the Section is composed o Members due to absence of a Member, vacancy on the Board or inability of the Mem the Section to serve on the panel. The Chairman has directed that the Section p transaction of business, including the issuance of decisions, without awaiting t Member. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.