BVA9501371 DOCKET NO. 94-02 042 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Frank L. Christian, Counsel INTRODUCTION The veteran served honorably on active duty from January 1980 to February 1981. In February 1984, he reenlisted for three years and was discharged in order to reenlist for the period from December 1986 to December 1989. In May 1988, he was separated from service with an other than honorable discharge. In a September 1992 Administrative Decision, the RO determined that the veteran's service from January 1980 to February 1981 and from February 1984 to January 1987 was under honorable conditions, and that his service from February 1987 to May 1988 was under dishonorable conditions, which constituted a bar to all VA benefits, including health care benefits, for this period pursuant to 38 U.S.C.A. § 3.103(a) (West 1991) and 38 C.F.R. § 3.2(c)(6) (1993). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of May 1993 from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which denied entitlement to service connection for an acquired psychiatric disorder. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that the RO committed error in failing to grant service connection for an acquired psychiatric disorder because it did not take into account or properly weigh the medical and other evidence of record. It is contended that the veteran's acquired psychiatric disorder had its onset during a period of honorable active service and prior to the period of service, extending from February 1987 to May 1988, which was terminated under dishonorable conditions. It is further contended that the veteran initially experienced symptoms of an acquired psychiatric disorder following the violent death of his brother in November 1986. 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 entitlement to service connection for an acquired psychiatric disorder. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the instant appeal has been obtained by the RO. 2. An acquired psychiatric disorder was not manifested or diagnosed during the veteran's periods of honorable active service, and a psychosis was not manifested during the first year following termination of such service. CONCLUSION OF LAW An acquired psychiatric disorder was not incurred in or aggravated by peacetime service, and the service incurrence of psychosis may not be presumed. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim is plausible and thus "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), which mandates a duty to assist the veteran in developing all pertinent evidence. A review of the record shows that the RO has obtained medical and other evidence from all sources identified by the veteran and that he has been afforded a personal hearing on appeal. On appellate review, we see no areas in which further development might be productive. In order to establish service connection for claimed disability, the facts, as shown by evidence, must demonstrate that a particular disease or injury resulting in current disability was incurred during active service or, if preexisting active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131 (West 1991). Service connection may also be granted on a presumptive basis for certain chronic disabilities, including psychosis, when manifested to a compensable degree within the initial post- service year. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1993). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1993). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1993). The Board has carefully reviewed the medical and other evidence in this case. There are no records reflecting the presence of an acquired psychiatric disorder during the veteran's initial period of active service, which was terminated in May 1981 by the issuance of a hardship discharge reportedly based on the illness of his mother. A history and a report of service entrance examination from the veteran's second period of active service, dated in May 1983, disclosed no history or findings of an acquired psychiatric disorder. His service medical records are silent for complaint, treatment, or findings of an acquired psychiatric disorder at any time prior to January 1986. At that time, the veteran was seen for complaints of lack of energy, short-term memory lapses, a slight depression, and persistent fatigue. He denied suicidal ideation or somatic complaints. On interview, the veteran described marital stress, family stress, financial stress, and possible legal problems stemming from military administrative proceedings. Physical examination was unremarkable, and mental status evaluation disclosed only a subjective short-term memory defect, while long-term memory was intact. The interviewer stated that the veteran currently exhibited no severe nervousness or suicidal or homicidal ideation. The clinical assessment, entered by a nonphysician, was depression. The veteran was seen later that same day for complaints of fatigue and depression associated with significant family stress and financial difficulties. His mental status was clear, with no thought or perceptual dysfunction and no homicidal or suicidal ideation. His mood was unhappy. The clinical assessment was marital problems. He was returned to duty with a recommendation for follow-up with supportive counseling. Service medical records dated the following day reflect the veteran's ongoing complaints of fatigue, depression, and financial difficulty. He related that he was in a wage-earner plan, that his sister resided with him and his spouse, and that the spouse and sister argued constantly. On mental status evaluation, he appeared withdrawn, his mood and affect were depressed, and insight and judgment were poor. No thought or perceptual dysfunction was found, and there was no homicidal or suicidal ideation. The clinical assessment was family and financial difficulty resulting in depression. It was recommended that the veteran return to the clinic for follow-up with supportive counseling. The veteran was sent on sick call to investigate his complaints of fatigue, and appropriate laboratory work was completed. Later that same day, the veteran was seen in the mental health clinic. He completed a questionnaire citing a history of inability to relax, sexual problems, inability to make decisions, poor home conditions, depression, shyness with people, memory problems, occasional suicidal ideas, and financial problems. He noted the death of his grandfather in July 1983, prior to service reenlistment. A contemporaneous entry in his service medical records noted that the veteran experienced much stress, fatigue, and depression due to financial and family difficulties. Mental status evaluation was reportedly within normal limits. The clinical assessment was "no psychiatric disorder." A review of the case by the division psychologist indicated that the veteran manifested a depressed affect appropriate to his situation, that there was no evidence of a thought disorder, and that, while there was some suicidal ideation, the veteran was not considered a serious risk. The clinical assessment was adjustment disorder with depressed mood. The veteran subsequently failed to keep an appointment at the mental health clinic. His unit was contacted and the veteran indicated that he did not wish to follow up. The case was reviewed and closed. All of the activity described above took place in January 1986. The veteran's service medical records are silent for any further complaint, treatment, or findings of an acquired psychiatric disorder during the veteran's remaining period of honorable active service. Although the veteran is not entitled to VA disability compensation or other VA benefits based on the period of service commencing in February 1987 and terminating with his discharge in May 1988 under conditions determined to be dishonorable, the Board will briefly review the service medical records during that period for purposes of clarification and discussion. In June 1987, the veteran sought treatment for problems with work, his marriage, his responsibilities, and his relationships with others. He complained of depression, homesickness, and difficulty in dealing with the death of his brother and the poor health of his mother. He indicated a belief that his involvement with the mental health clinic might result in his being granted a compassionate reassignment, and he stated that his request for leave had been denied due to prior disciplinary proceedings. Following a complete workup and mental status evaluation, the clinical assessment was occupational problems, marital problems, and uncomplicated bereavement, as well as an adjustment disorder with depressed mood; rule out mixed personality disorder with dependent and histrionic traits. The case was presented to the supervisory physician, who concurred with a diagnosis of uncomplicated bereavement with issues of loss and dependent and histrionic traits. The veteran was found to be work dysfunctional, resulting in difficulties with alcohol and increased social isolation. A report from the veteran's unit commander noted his impression that the veteran was severely depressed due to the death of his brother and the poor health of his mother, as well as marital problems, with the wife having stated her intention to leave the veteran. It was noted that the veteran had received three Article XV's in June and July 1987 for failure to be present for duty, and that he had failed to attend sessions of a stress reduction program. A report of psychiatric evaluation by the division psychiatrist, dated in July 1987, stated that the veteran had no disease, disorder, or defect which would warrant disposition through psychiatric/medical channels and that, while the veteran met standards for retention, it was considered unlikely that he would develop sufficiently or otherwise become a satisfactory soldier. The diagnosis was mixed personality disorder with dependent and histrionic traits. This diagnosis was said to represent a character or behavior disorder, chronic and resistant to rehabilitation, and interfering with the ability to adequately perform military duties. Such disorders were reportedly considered to be lifelong and deeply ingrained maladaptive patterns of behavior. A letter from a private psychiatrist, dated in October 1987, stated that the veteran was seen earlier that month, and that various psychological tests were administered. It was noted that the veteran's brother had been killed in October 1986 and that it had been particularly difficult for him to accept his brother's death. The veteran related a history of deserting in July 1987 due to despondency and feeling a need for treatment of his depression. He asserted that he had asked for, but not received, adequate psychological and psychiatric treatment from the Army, and had deserted because he was unable to cope with the pressures he was under. The clinical impression was of a moderately depressed and unstable individual who was generally submissive to authority unless agitated. The examiner's professional opinion was that the veteran was suffering from depression and "could reasonably be categorized as having dysthymic depression stemming, in part, from an unresolved grief reaction to the death of his brother, as well as other issues involving life goals and direction." Following termination of the veteran's period of desertion, he requested discharge from service based on the poor health of his wife, his mother, and his grandmother, and cited difficulty in coping with the death of his brother. He subsequently made a suicide attempt/gesture by taking an overdose of Motrin (12-14 tablets), attempting to avoid his return to Fort Hood. The diagnosis was rule out dysthymic disorder; and mixed personality disorder with histrionic features. The veteran was hospitalized for a period of observation in March 1988. The diagnosis was adjustment disorder with mixed disturbance of emotions and conduct; a mixed personality disorder with histrionic and dependent features; and a Motrin overdose, nonlethal, by history. He was stable at the time of hospital discharge and under no medication. The veteran was subsequently separated from service in May 1988 with an other than honorable discharge. In April 1991, he filed a claim for service connection for depression stemming from the death of his brother. A report of VA psychiatric evaluation, conducted in June 1991, cited a social, family, marital, medical, and military history as recounted by the veteran. He stated that he was so unhappy over the death of his brother that he began missing formations and went AWOL. His chief complaint was that when he went out, he forgot where he was. Findings on mental status evaluation were reported in detail. The diagnosis was major depression, recurrent. The examiner indicated that the veteran appeared to be incompetent for VA purposes. A hearing was held in January 1994 in Chicago, Illinois, before a traveling member of the Board. The member advised the veteran that, while he had served on active duty from January 1980 to February 1981 and from February 1984 to May 1988, his service from February 1987 to May 1988 had been terminated by a discharge which was determined to be dishonorable, and that he was barred from benefits from disabilities which arose during that period. The veteran's representative agreed that that statement was correct. The veteran testified, in pertinent part, that his initial period of active service from January 1980 to February 1981 had been terminated honorably with a hardship discharge based on the poor health of his mother, and that he had reenlisted in February 1984. He indicated that he was having depression stemming from financial problems in January 1986, but stated that it was "just only the depression" and that he could handle it prior to his brother's death in November 1986. He testified that in March or May 1987 he complained to his first sergeant that he was losing concentration and motivation, but received no assistance. He stated that he began receiving group counseling through the mental health clinic in May 1987, with little positive result, and that he subsequently began missing formations and received Article XV disciplinary proceedings. He stated that he went AWOL, turning himself in in March 1988. He claimed that when he was informed that he would be returned to his former unit, he attempted suicide by taking an overdose of Motrin. He indicated that following final service separation, he obtained 22 jobs but was unable to work for undisclosed reasons. Following the veteran's testimony, his representative introduced copies of portions of his service medical records and his brother's death certificate, arguing that had the veteran received the necessary help from the Army he might have successfully maintained his military career. Upon inquiry, the veteran agreed that, following his problems with fatigue and depression in January 1986 due to financial and family problems, he got along pretty well until the death of his brother in November 1986; that between January 1986 and the death of his brother he did not experience any nervous symptoms; and that it was after his brother's death that he began to deteriorate. A transcript of the testimony is of record. Benefits under laws administered by the VA are not payable where the former service member was discharged or released under conditions which include by reason of a discharge other than honorable issued as a result of an absence without official leave (AWOL) for a continuous period of at least 180 days. 38 C.F.R. § 3.12(c)(6) (1993). The veteran's service administrative records show, inter alia, that he was charged with absence without official leave for a period from July 29, 1987, to March 8, 1988, a period of 218 days. The medical evidence of record shows that in January 1986, during a period of honorable active service, the veteran complained of marital, family, and financial stress resulting in depression and fatigue. Various clinical assessments were made by nonphysicians, including depression, marital problems, family and financial difficulty resulting in depression, and "no psychiatric disorder." Although the division psychologist subsequently offered a clinical assessment of adjustment disorder with depressed mood, he also noted that the veteran manifested a depressed affect appropriate to his situation, and that there was no evidence of a thought disorder (emphasis added). The Board further notes that the medical record is devoid of any further complaint, treatment, or findings of an acquired psychiatric disorder of any description during the veteran's remaining period of honorable active service. To the same point, the veteran testified at his personal hearing that, while he experienced depression stemming from his financial problems in January 1986, it was "just only the depression" and that he could handle it prior to his brother's death in November 1986 (hearing transcript, page 3). He further agreed that, following his problems with fatigue and depression in January 1986 due to financial and family problems, he got along pretty well until the death of his brother in November 1986; that between January 1986 and the death of his brother he did not experience any nervous symptoms; and that it was after his brother's death that he began to deteriorate (hearing transcript, pages 5-6). This testimony is essentially confirmed by the service medical records, which are devoid of any further complaint, treatment, or findings of an acquired psychiatric disorder of any description during the veteran's remaining period of honorable active service. While the veteran dates the onset of his problems to the death of his brother in November 1986, we are obliged to note that there is no indication of any emotional or behavioral disturbance at that time or at any subsequent time during a period of honorable active service. Further, the veteran himself has testified that he did not approach his first sergeant concerning problems with concentration and motivation until March or May 1987 (hearing transcript, page 3), and the record reflects that he was next seen in the mental health clinic in June 1987, well within the period of service terminated under conditions held to be dishonorable. These facts, based upon the undisputed medical record and the veteran's own testimony, lead to the inescapable conclusion that the subjective complaints voiced by the veteran in January 1986 were representative of an acute and transitory disorder, resolving without residual impairment. 38 C.F.R. § 3.303(b) (1993). We further note that major depression, a psychosis, was not manifest during honorable active service or during the initial post-service year, and was initially shown on VA psychiatric evaluation in June 1991, more than four years following termination of the veteran's last period of honorable active service. We further note that the findings shown during the several interviews conducted during active service in January 1986 were not replicated during the June 1991 VA examination, and that the only similarity in findings consisted of the veteran complaining of depression because the Army "punished him for nothing." As the focus of that depression appears to relate specifically to events which occurred during a period of active service terminated by a discharge under conditions held to be dishonorable, i.e., the veteran's extended period of absence without official leave for a period of 218 days between July 1987 and March 1988 and his subsequent termination of service with an other than honorable discharge, we are unable to find any link between his acute and transitory complaints of depression in January 1986 and the findings of major depression on VA examination in June 1991. Based upon the foregoing, and in the absence of findings of a chronic psychiatric disorder during a period of honorable active service or of a psychosis during the initial post service year, the Board finds that entitlement to service connection for an acquired psychiatric disorder is not warranted. ORDER Service connection for an acquired psychiatric disorder is denied. J. U. JOHNSON Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) 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.