BVA9407814 DOCKET NO. 91-45 653 ) DATE ) ) ) THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Michael J. Krautner, Attorney ATTORNEY FOR THE BOARD George E. Guido Jr., Counsel INTRODUCTION The veteran-appellant served in the active military service from December 30, 1966, to February 1968. His overseas service was in Germany. This appeal arises from a September 1990 rating decision of the Baltimore, Maryland, Department of Veterans Affairs (VA) Regional Office (RO), denying the veteran's application to reopen the claim of service connection for an acquired psychiatric disorder on the basis of new and material evidence. In a December 1991 decision, the Board of Veterans' Appeals (Board) found that the evidence was new and material and remanded the matter for further development and readjudication. In a March 1993 rating decision, after a review of all the evidence of record, the RO denied the veteran's claim of service connection for an acquired psychiatric disorder on the merits. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his depression and noncombat-related PTSD are the result of the psychological stressors he experienced in service in Germany in 1967. He refers to lay statements to document the change in his behavior before and after service. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), after review and consideration of all evidence and material of record in the veteran's claims folder, and for the following reasons and bases, the Board decides that the preponderance of the evidence is against the claim of service connection for an acquired psychiatric disorder. FINDINGS OF FACT 1. A chronic acquired psychiatric disorder, including depressive neurosis and PTSD, is not shown in service or currently. 2. Personality disorders are not diseases or injuries within the meaning of applicable legislation, pertaining to service-connected benefits. CONCLUSION OF LAW An acquired psychiatric disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107(b) (West 1991); 38 C.F.R. §§ 3.303, 3.304(f) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION After a review of the veteran's record and his statements, the Board is satisfied that all relevant facts have been properly developed and that no further assistance to the veteran is required to comply with the statutory duty to assist. 38 U.S.C.A. § 5107(a). I. Factual Background The reports of medical history and medical examination on entering service are negative for any complaint, finding or history of a psychiatric disorder. The service medical records disclose that in January 1967 the veteran was worried about his mother. The impression was depressive reaction. An Army hospital summary discloses that in early October 1967 the veteran was admitted to the hospital after he had ingested about 15 aspirin tablets. He stated that he had meant to kill himself because he was fed up with the Army, that his main problem was the military, that he hated being "taught to kill", and that he could not take the routine restrictions and discipline of military life, which he viewed as harassment. History included poor adjustment to the military and complaints of depression, dislike of the Army and financial indebtedness for which he had been seen regularly for two months at a mental hygiene clinic. It was reported that his intention in going to the clinic was to obtain a discharge from the military and that he had stated that he planned to "kill himself" if he had to remain in the service. History prior to service was unremarkable for any psychiatric history or treatment. On mental status examination, the veteran was described as sullen, petulant, tearful, and markedly immature. He spoke frequently about his inability to adjust to military life and he stated that he would continue to try to kill himself if he had to remain in the military. He denied delusions, hallucinations, or feelings of depersonalization. There was no loosening of association. His affect was appropriate to thought content. He was oriented. During the hospitalization, the veteran's commanding officer was contacted. He stated that the veteran had not been a disciplinary problem, but his performance generally had been inadequate. The veteran indicated that he would rather be dead than in the military service. The diagnoses were suicide gesture with aspirin ingestion and immature and impulsive personality manifested by impulsivity, poor judgment, poor performance, manipulativeness and the inability to adjust to military routine. The predisposition was life-long character trait and the precipitating stress was routine military life. He was discharged to duty after four days. About a month later in November 1967, the veteran was hospitalized again after he had taken about 20 Fiorinal pills in a suicide gesture having told others in his unit that he was going to take a number of pills to get a "buzz off." It was reported that on the two days preceding the admission, he had been to the psychiatric clinic where he complained that little had been done to secure his separation from service and he had been told to consult with his CO. According to the veteran he was afraid to do so and he was worried too about the teasing by members of his unit. He stated that others frequently hit and taunted him. He was also concerned about his relationship with his parents and girl friend. On mental status examination the veteran appeared depressed and projected a limp, beaten, hopeless image. He appeared in a state of passive withdrawal from the problems confronting him. His speech was relevant and coherent. There were no loose associations or bizarre thought productions. He denied delusions, hallucinations, or feelings of depersonalization. He was oriented. The past medical history was essentially noncontributory save for occasional headaches. During the first week of hospitalization he remained quite depressed and continued to verbalize suicidal ideation. Beginning in the second week he did not act on the suicidal ideation although he had several opportunities to hurt himself when razor blades and a knife were found in his possession. He continued to verbalize dread of returning to his unit but he gradually relinquished his defeatist attitude and passive withdrawal. The diagnosis was chronic depressive reaction secondary to the inability to adjust to military routine. Predisposition was a passive-dependent personality and the stress was routine military life but it had preexisted service. He was hospitalized for about two months and he was subsequently discharged from the service because of unsuitability. Records of Washington County Mental Health Service disclose that in July 1982 the veteran had been known to the clinic for two weeks after he had called about a suicide attempt. History included psychiatric treatment while in the Army. He was referred to the Finan Center. In October 1987, the veteran sought admission for treatment. On psychiatric evaluation, the diagnoses were recurrent major depression, rule out alcohol abuse dependence, intermittent explosive personality disorder, mixed-personality disorder and avoidant-dependent personality. The diagnoses were the same in February 1988 after individual therapy. On VA psychiatric examination in October 1987, the veteran stated that, while in Germany, he was harassed, that he always was in trouble with his commanding officer and that he tried to commit suicide. After service, he indicated that he had about 60 jobs, mostly truck driving. He complained that he was unable to cope with stress and that he could not take it when he had to meet deadlines or when people told him what to do. The physician reported that the veteran appeared to have very poor adaptability for the stressors of normal life, military or civilian, and that he was easily overwhelmed and reacted with frustration and rage. History included four suicide attempts by overdose since service. The physician was of the opinion that the most likely diagnosis was that of an inadequate personality disorder, although he entertained the thought that the veteran may be suffering from a schizophrenic process, however, he wanted to review the claims folder to have a better idea of the origins of the veteran's difficulties. The diagnosis was inadequate personality disorder. The results of VA psychological testing in January 1988 were: no formal thought disorder and depression on top of an inadequate personality disorder with anxious features. Records of Martinsburg, West Virginia, VA Medical Center disclose that in March 1987 the veteran was admitted for treatment of depression. In September 1988 and in September 1989, he was admitted because of suicidal ideation. The diagnoses included depressive neurosis and borderline personality disorder. He was being followed at the mental health clinic from February 1988 to September 1989. Records of Washington County Hospital, Hagerstown, Maryland, disclose that in March 1983, November 1985 and January 1987, the veteran was admitted for treatment of physical health problems. There was no evidence of psychiatric illness by complaint, finding or history. In September 1989, he was admitted because of suicidal ideation and the diagnosis was major depression. In December 1989, January and March 1990, he was seen for depression along with an overdose of medication. The provisional diagnosis was depression. In an April 1990 statement, a Maryland State trooper said he had been in contact with the veteran on three different occasions in January, March and April [1990] in which the veteran overdosed, and required hospitalization at Washington County Hospital. In a May 1990 statement, a friend of the veteran for five years described him as friendly and helpful without severe mood changes. After service, he described the veteran as more isolated and withdrawn. In a June 1990 statement, the veteran's brother described the veteran as very helpful before he went into the Army and after the Army he was distant, angry, violent, unable to deal with authority, socially isolated and physically abusive of family members. In a 16-page statement, received in June 1990, the veteran described his experiences while stationed in Germany. He stated that during maneuvers he was captured by the aggressor force who twisted and pulled his arms in order to get information from him. In a second incident during maneuvers, he was again attacked, kicked and hit with rubber hoses until he blacked out, but he did not tell anyone about the incident because he was afraid. He related that after a period of emergency leave he returned to his unit, where the company commander said he was going to ride his back until he broke. He then described another incident during night maneuvers when the men who had attacked him previously looked for him again but he escaped in the woods where he heard shots being fired and bullets hitting the trees around him. He indicated that when got back to the barracks he took some pills to put him out of his torment. He said that during the subsequent hospitalization he made up the story about wanting to get out of the military to hide the truth that he was afraid that his company commander or his men were out to get him. Records of the Thomas B. Finan Center disclose that in July 1982 the veteran was voluntarily admitted to the hospital. History included a 3 to 4 month history of recurrent depression associated with marital difficulties. He indicated that he had overdosed on some analgesic in June 1982 for which he was treated. He gave a history of one prior psychiatric admission in service in Germany in 1967. He did not give a history of any other counseling or psychotherapy. After psychological testing, the impression was major depressive disorder overlaying an individual with a borderline personality organization who is prone to social isolation and manipulation. The final diagnoses were to rule out major depression without psychotic features and borderline personality disorder. In September 1990, he was admitted following threats towards an Internal Revenue Service agent and his niece. He was having financial troubles and owed back taxes. According to his mother, his personality had completely changed upon return from military service in 1968. According to his VA outpatient therapist, the veteran suffered from noncombat-related post-traumatic stress disorder as he suffered tremendous guilt and humiliation and physical violence by his peers while he was in the service, including several assaults and being left to die on maneuvers. The diagnoses were major depression, post-traumatic stress disorder and borderline personality disorder. On admission in January 1991, psychiatric history included two hospitalizations for a paranoid psychosis in service, a discharge against medical advice in 1982, six occasions in 1990 for emergency room treatment for suicidal ideations and overdoses and four admissions to Martinsburg VAMC as well as the September 1990 admission to the Finan Center. The admitting diagnoses were major depression, post-traumatic stress disorder, adjustment disorder and undetermined personality disorder. The discharge diagnoses were dysthymia and dependent personality disorder. In a December 1991 remand to the RO, the Board asks that the veteran be scheduled for a VA psychiatric examination and that the examiner review the claims folder and the Army hospital records. On VA examination in May 1992, the physician, having reviewed the military medical records as well as the veteran's claims folder, reported that he had interviewed the veteran at length in [October] 1987 and at that time diagnosed inadequate personality disorder, but he had entertained the possibility that the veteran was psychotic. He indicated that, after the present interview, his impression in 1987 was correct. He did not find the symptoms consistent with PTSD. He did find that the symptoms were very consistent with an extremely, severe personality disorder, approaching some sort of poorly defined chronic psychotic process, for which service connection may be justified, although the veteran was not overtly schizophrenic. History included about 10 hospitalizations for what the physician described as pseudo-suicide attempts. The veteran attributed all of his problems to events in service in Germany, which the physician indicated had become a focal point for all of his miseries since then. Reportedly, the veteran was convinced that his CO was out to get him and he deliberately did not give Army doctors any information or he lied to them in order to get out of the Army. The examiner noted that in the military the veteran was not seen as being psychotic but was diagnosed as having an inadequate personality disorder. He recounted that in [October] 1987 he too had felt that the veteran was extremely inadequate and had a very weak ego and was unable to cope with normal stressors of either military or civilian life. He commented that although the veteran had taken numerous overdoses there was never a question of any real lethal intent that led one to entertain the diagnosis of borderline personality disorder. He stated that he was not sure that the diagnosis of paranoid personality disorder adequately summed up the veteran's psychopathology; nevertheless; he did not see the veteran as psychotic in a schizophrenic or biological sense. He indicated that, in order to settle on a specific diagnosis, an inpatient period of observation and evaluation should be done at the Baltimore VA Medical Center where special expertise was available. The diagnoses were possible chronic delusional psychosis and mixed personality disorder with borderline, inadequate and paranoid features. In December 1992, the veteran was admitted to the Psychiatric Unit of the Baltimore VA Medical Center for a period of observation and evaluation. During the hospitalization, the veteran demonstrated a great deal of anxiety and anger and was reluctant to be in the hospital. Although cooperative, he was very resistant to interviewing. It was felt by the staff working with him that his symptoms were very chronic and long standing and secondary to character pathology. The physician stated that although there may be a mild depression, the diagnosis was mixed personality disorder with borderline and paranoid traits. II. Analysis A. Depression In order for the veteran to be entitled to compensation for an acquired psychiatric disorder to include depression and/or PTSD, it must have been incurred in or aggravated by service. 38 U.S.C.A. § 1110. In determining whether depression was incurred in or aggravated by service, the Board notes that the veteran was twice hospitalized in service. The first diagnosis was immature and impulsive personality. The second diagnosis was chronic depressive reaction secondary to the inability to adjust to military routine. After service, major depression was to be ruled out during a hospitalization in July 1982. Depression was then diagnosed during VA hospitalization in 1987, however, on VA examination several months later the diagnosis was inadequate personality disorder and there was the possibility of the existence of a psychotic process. Thereafter, both VA and non-VA medical records disclose various diagnoses of major depression, depression, depressive neurosis, or dysthymia as well as personality disorders. Due to the various diagnoses, the Board remanded the matter for additional development to include a VA examination. The entire record, including the service medical records, were to be reviewed by the examiner. As a result of that examination the diagnosis was mixed personality disorder with borderline, inadequate, and paranoid features. Depressive disorder was not diagnosed. The examiner also thought that there was the possibility of a chronic delusional psychosis and he recommended further evaluation. That evaluation was done and although mild depression was reported the diagnosis was mixed personality disorder with borderline and paranoid traits. Although there was evidence in service of a period of maladjustment, characterized as chronic depressive reaction, the diagnosis of a chronic depressive disorder has not been substantively confirmed on VA examination or VA hospitalization. The evidence does show that the episode of maladjustment in service subsided and the veteran did not develop other depressive symptoms until almost 12 years after service, however, again, chronic depression has not been clinically confirmed. Overall, the preponderance of the evidence is against the claim of service connection for depression as it is not presently shown. The evidence does overwhelmingly show that the veteran suffers from a personality disorder that was identified in service and since then. Personality disorders are not diseases or injuries within the meaning of applicable legislation, pertaining to service-connected benefits, 38 C.F.R. § 3.303(c). B. PTSD Law In a claim of service connection for PTSD, VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by the service medical records, the official history of each organization in which the veteran served, the veteran's military records and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a); 38 C.F.R. §§ 3.303(a), 3.304. Also in May 1993, a new paragraph (f) was added to 38 C.F.R. § 3.304, dealing with PTSD claims, that required: ...[M]edical evidence establishing a clear diagnosis of the condition, credible supporting evidence that the claimed inservice stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed inservice stressor. If the claimed stressor is related to combat, service department evidence that the veteran engaged in combat, or that the veteran was awarded the Purple Heart, Combat Infantry Badge, or similar combat citation would be accepted, in the absence of evidence from the contrary, as conclusive evidence of the claimed stressor. 38 C.F.R. § 3.304(f) (1993). In Zarycki v. Brown, 6 Vet.App., 91, 97-98 (1993), the United States Court of Veterans Appeals (Court) in enunciating the guidelines for establishing occurrence of stressors in service, cited VA's Manual, M21-1, Part VI, Par. 7.46(f) (September 21, 1992), providing, in pertinent part: If the claimed stressor is not combat related, a history of a stressor as related by the veteran is, in itself, insufficient. Service records must support the assertion that the veteran was subjected to a stressor of sufficient gravity to evoke the symptoms in almost anyone. (Italics added.) The existence of a recognizable stressor or accumulation of stressors must be supported. It is important the stressor be described as to its nature, severity and the date of incurrence. In Doran v. Brown, No. 93-228, slip op. at 7-9 (U. S. Vet. App. Mar. 8, 1994), the Court, interpreting the language of M21-1 "service records must support the assertion that the veteran was subjected to a stressor of sufficient gravity to evoke the symptoms in almost anyone," held that those service records that are available must support, i.e., must not contradict, the veteran's lay testimony concerning his noncombat-related stressors. Although subsection (f) of 38 C.F.R. § 3.304 and the new M21-1 provisions became effective after the veteran filed his claim, VA is required to apply these substantive changes to the extent that they are more liberal than earlier provisions. Karnas v. Derwinski, 1 Vet.App. 308, 313 (1991); see, Swann v. Brown, 5 Vet.App. 229, 232 (1993) and Hayes v. Brown, 5 Vet.App. 60, 66-67 (1993). As there was no regulatory predecessor to subsection (f), the new regulatory provision controls here. As for the new M21-1 provision it retains the requirement for supportive evidence of stressors during service if the claim is not combat related. See Hayes at 66. In other words, depending on whether or not the stressor was related to combat, the evidence necessary to establish the occurrence of a recognizable stressor during service to support the claim of service connection for PTSD will vary. Once the occurrence of a stressful episode is established, it then must be determined whether the claimed stressful event was of sufficient gravity to support a diagnosis of PTSD. In Zarycki, at 98-99, the Court cited the American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, (3rd ed., 1987 rev.) (DSM III-R) as adopted by VA for rating psychiatric conditions such as PTSD. See 38 C.F.R. § 4.125. With reliance on DSM III-R and the provisions of VA Manual M21-1, Part VI, Par. 7.46(b)(1) (September 21, 1992), applying the guidelines set forth in DSM-III-R, the Court held that for the purposes of supporting a diagnosis of PTSD the facts must establish that the veteran was exposed to a sufficient stressor that is defined as "an event that is outside the range of usual human experience and that would be markedly distressing to almost anyone," such as experiencing an immediate threat to one's life. Application of Law to Facts The veteran does not argue and the Board does not find that the alleged stressors were combat related. Rather the record, including the veteran's statement show that the alleged stressors occurred in Germany in 1967. As the alleged stressors were not combat related, the service records must support, i.e., must not contradict, the veteran's statements concerning the noncombat-related stressors. The only stressor identified in service during the two periods of hospitalization was routine military life. While the veteran related that he was taunted and hit by members of his unit, there was no suggestion of a life threatening event or of the events that he later described in his 1990 statement concerning physical attacks, possibly life-threatening, while on maneuvers. For these reasons, the service records do not support the occurrence of a recognizable stressor in service as they contradict the veteran's 1990 statement. Also the veteran has indicated that he did not tell anyone about the assaults because he was afraid, so there would be no record of the events. He also tried to explain that he lied about the reason for wanting to get out of the Army during his hospitalization. In the absence of any corroborative evidence to support the occurrence of a recognizable stressor in service, the Board finds the veteran's 1990 statement, by itself, insufficient to establish occurrence of a recognizable stressor in service. Moreover, although PTSD was diagnosed in September 1990 during hospitalization the Finan Center, PTSD was not confirmed during hospitalization at the same center in January 1991 or on VA examination in May 1992 or on VA hospitalization in December 1992. The VA examiner specifically found that the veteran's symptoms were not consistent with PTSD. As for the diagnosis of PTSD made at the VA outpatient clinic, the Board rejects the fact that a recognizable stressor occurred in service to support a diagnosis of PTSD. Also, this diagnosis was not confirmed on the subsequent, and extensive, VA psychiatric evaluations. For these reasons, the medical evidence does not establish a clear diagnosis of PTSD. Service connection is therefore not warranted as PTSD is not presently shown. As for the benefit-of-the-doubt rule, the rule applies where there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of a matter. If a fair preponderance of the evidence supports a veteran's complaint, the claim will be granted and the rule has no application. Similarly, if a fair preponderance of the evidence is against the veteran's claim, the claim will be denied and the rule has no application. Where the Board makes a finding of fact adverse to a claimant it has necessarily concluded that the fact is established by a fair preponderance of the evidence. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). As for the lay statements concerning the change in the veteran's behavior before and after service, these statements are credible as to their personal observations and are consistent with the medical history of record, which was considered by the VA examiner in May 1992 in arriving at the diagnosis of a personality disorder, which was subsequently confirmed on VA hospitalization. However, it should be emphasized that service-connection cannot be awarded for personality disorders as a matter of law. For the above reasons and bases, the Board concludes that the preponderance of the evidence is against the veteran's claim of service connection for an acquired psychiatric disorder. ORDER Service connection for an acquired psychiatric disorder is denied. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 * (MEMBER TEMPORARILY ABSENT) NANCY I. PHILLIPS SAMUEL W. WARNER *38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of Veterans' Appeals Section, upon direction of the Chairman of the Board, to proceed with the transaction of business without awaiting assignment of an additional member to the Section when the Section is composed of fewer than three Members due to absence of a Member, vacancy on the Board or inability of the Member assigned to the Section to serve on the panel. The Chairman has directed that the Section proceed with the transaction of business, including the issuance of decisions, without awaiting the assignment of a third 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.