BVA9507206 DOCKET NO. 92-17 839 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for an acquired psychiatric condition. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Patrick J. Costello, Associate Counsel INTRODUCTION The veteran had active military service from October 1962 to February 1964. This matter came before the Board of Veterans' Appeals (hereinafter the Board) on appeal from an August 1990 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in Philadelphia, Pennsylvania. In that decision, the RO determined that new and material evidence had not been submitted to reopen the veteran's claim for service connection for a psychiatric disorder. Then in January 1992, a personal hearing was held at the RO. The hearing officer concluded that the veteran had submitted new and material evidence to reopen his claim. A subsequent de novo review of the record by the RO however resulted in a denial of the claim for service connection for a psychiatric disorder. A hearing was held on February 1993, in Washington, D.C., before Jack W. Blasingame, a member of the Board designated by the Chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 1991), and subscriber hereto. A transcript of the hearing was received, and the case was subsequently referred for appellate consideration. Subsequent to the hearing, it was determined that further development of the claim was necessary and it was remanded in April 1993. The case is now ready for appellate review, and a decision on the veteran's claim. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that while he was in service he developed a psychiatric disorder for which he was repeatedly hospitalized, and that the disorder has continued to this day. Additionally, he claims that because of service he suffers from a form of post- traumatic stress disorder (PTSD). He contends that he is precluded by the psychiatric disorders from obtaining and maintaining substantially gainful employment. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the claim for service connection for an acquired psychiatric disorder. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the agency of original jurisdiction. 2. While in service, the veteran was diagnosed as suffering from an "aggressive reaction". He was subsequently discharged from the U.S. Navy with an honorable discharge by reason of unsuitability. 3. The veteran's claim folder is devoid of any treatment for or diagnosis of any psychoses immediately following service. 4. Most recently the veteran has been diagnosed as suffering from a depressive disorder (not otherwise specified), along with a mixed personality disorder. He has not been evaluated as suffering from PTSD. 5. Evidence has not been presented which etiologically link the veteran's military psychiatric condition and the disorders from which he now suffers. CONCLUSION OF LAW The veteran's psychiatric condition was not incurred in or aggravated by active service, and it may not be presumed to have begun in service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION In accordance with 38 U.S.C.A. § 5107 (West 1991), and Murphy v. Derwinski, 1 Vet. App. 78 (1990), the appellant has presented a well-grounded claim. The facts relevant to this appeal have been properly developed and the obligation of the Department of Veterans Affairs (VA) to assist the veteran in the development of his claim has been satisfied. Id. The veteran entered the U.S. Navy in October 1962. After completing his basic training, he was assigned to the ammunition ship U.S.S. Mauna Kea (AE22). Within one year of his assignment, he was hospitalized at the Oakland Naval Yard Hospital. The service medical records do not elaborate on the reasons for his hospitalization. In January 1964, after being in a fight aboard his ship, the veteran was sent to the San Diego Naval Station Hospital (Balboa). While there, he was diagnosed as suffering from an "aggressive reaction". Following a review of his service medical records, he was discharged because of " unsuitability". Nearly twenty years later, the veteran applied for VA compensation and pension benefits for disability stemming from a psychiatric disorder. Upon reviewing the evidence of record, the RO determined that the veteran did have a mental disorder, but held that it was not related to military service. VA Form 21- 6796, Rating Decision, April 29, 1983. It was also noted that during the fifteen years following the veteran's discharge for service he neither sought nor received treatment for any type of mental condition. The veteran attempted to reopen his claim in 1990. Initially, the RO refused to reopen the claim because he had not provided new and material evidence. VA Form 21-6789, Confirmed Rating Decision, August 7, 1990. However, upon presenting oral testimony at the RO, the RO hearing officer reversed the August 1990 decision, and reopened the veteran's claim. RO Hearing Officer's Decision, July 16, 1992. The RO conducted a de novo review and determined that service connection for a psychiatric condition was not warranted. Under 38 U.S.C.A. § 1110 (West 1991), compensation will be provided if it is shown that the veteran suffers from a disease or injury incurred in or aggravated by service. In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1994). Additionally, where there is no evidence that a ratable psychiatric disorder was present in military service, service connection may still be awarded if the case falls under the following criteria. Where a veteran served continuously for 90 days or more during a period of war or during peacetime service after December 31, 1946, and a psychosis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113,1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). The evidence does not show that the veteran manifested a psychosis within one year of his discharge from active duty. He was discharged from service in February 1964 due to a personality disorder. A personality disorder is not a disability for which service connection may be established under VA laws and regulations. See 38 C.F.R. § 3.303(c) (1994). Post-service medical evidence fails to suggest the presence of any type of mental disorder until 1983, when the veteran was diagnosed as suffering from a dysthymic disorder. Since then he has also been diagnosed as suffering from personality and depressive disorders. A ratable psychiatric disorder was not present during verified active service and did not become manifest to a compensable degree within the one year period following separation from active duty. The medical records on file fail to document the diagnosis of a mental illness until 1983, approximately twenty years after service separation. Given the facts of this case and the pertinent medical evidence, we cannot conclude that service connection for the veteran's psychiatric disorder is in order. Moreover, there is no indication that either the 1963 diagnosis or the current diagnoses are in any way related to the veteran's military service. In fact, the pertinent 1963 diagnosis (aggressive reaction) was attributed to his personality and his inability to communicate. The military service was not implicated as a factor. Additionally, the current psychiatric evaluation has not been assessed as clinically related to the veteran's military service, nor has either condition been etiologically linked to one another. In conclusion, without a showing of the presence of a psychosis, either in service, or within the presumptive period, or the showing of an acquired psychiatric disorder that may be related to the veteran's military service, the preponderance of the evidence is against the veteran's claim for service connection for an acquired psychiatric disorder on either a direct or presumptive basis. ORDER Entitlement to service connection for an acquired psychiatric disorder is denied. (CONTINUED ON NEXT PAGE) JACK W. BLASINGAME Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. 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.