Citation Nr: 0004869 Decision Date: 01/11/00 Archive Date: 03/02/00 DOCKET NO. 88-10 806 DATE On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for an acquired psychiatric disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Helinski, Associate Counsel INTRODUCTION The veteran had active military service from November 1977 to July 1987. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a May 1990 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied the benefit sought on appeal. The Board notes that this matter was previously before the Board on two prior occasions, along with a claim for an increased rating for a service-connected lumbosacral strain disability. In a June 1996 BVA decision, the Board granted a 40 percent rating for lumbosacral strain with left sciatica. The RO implemented that decision in a July 1996 rating decision. Although the veteran did not file a new claim for an evaluation in excess of 40 percent for the lumbosacral strain disability, the RO continued to list that claim on Supplemental Statements of the Case, along with the claim for service connection for an acquired psychiatric disorder, which had not yet been finally adjudicated. Furthermore, in the July 1999 Certification of Appeal, the RO included the issue for an increased rating for a back disability. The Board notes that based a June 1999 Report of Contact from the veteran, and a written Informal Hearing Presentation, dated in December 1999, it appears that the veteran may wish to pursue a claim for an increased rating for his lumbosacral strain disability, currently rated as 40 percent disabling. However, as explained above, that issue is not properly before the Board at this time, and is hereby referred to the RO for appropriate action. FINDING OF FACT There negative evidence is in a state of equipoise with the positive evidence on the question of whether a chronic acquired psychiatric disability is related (either by direct incurrence or by aggravation) to the veteran's period of active military service. 2 - CONCLUSION OF LAW A chronic acquired psychiatric disability was incurred in or was aggravated by the veteran's period of active military service. 38 U.S.C.A. 1110, 1131, 5107(b) (West 1991); 38 C.F.R. 3.303, 3.304 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION At the outset, the Board finds that the veteran's service connection claim is well- grounded under 38 U.S.C.A. 5107(a). The record includes medical diagnoses if current disability, competent evidence of incurrence or aggravation during service, and medical evidence of a nexus to service. After reviewing the extensive record, the Board notes that the RO has duly attempted to locate and obtain medical evidence referred to by the veteran. Moreover, the veteran has been afforded special VA psychiatric examinations pursuant to the Board's previous directions. While noting that there remains a lack of clarity as to some items of evidence, including some opinions expressed by VA examiners, the Board believes that the record as it stands allows for equitable review of the veterans' claim and that no useful purpose would be served by further delaying appellate review to clarify such matters. Accordingly, in light of the following decision, the Board finds that no further action is required to meet the duty to assist the veteran. 38 U.S.C.A. 5107(a). The veteran is claiming service connection for an acquired psychiatric disorder, as incurred or aggravated by his military service. The record reveals that the veteran entered military service pursuant to a delayed entry program. Specifically, he underwent a service entrance examination in December 1976, and commenced active duty service almost a year later, in November 1977. His December 1976 service entry examination report is negative for any evidence of a psychiatric disorder. Additionally, on the veteran's Report of Medical History, also dated in December 1976, he indicated that he did not have a history of depression, excessive worry, or nervous trouble of any sort. Nevertheless, in a recent statement from the - 3 - veteran, received in January 1999, he indicated that after his service entrance examination, but prior to commencing active duty service, he had a brief reactive psychosis, for which he was hospitalized for approximately 19 days. He indicated that he was told it was not a permanent condition. A review of the veteran's service medical records reveals that in November 1979, while aboard the U.S.S. Constellation, he was seen with complaints of feeling "closed in." He indicated that he wished to jump overboard and kill himself if he didn't get out. He admitted to being depressed, but denied seeing or hearing things. He stated that he had been hospitalized for a psychiatric disorder in 1977. The final diagnosis listed on the November 1979 report was depression vs. suicidal ideation. A separate service medical record dated in November 1979 indicates that the veteran complained of feeling nervous, closed in, and crowded. He stated that in 1977, he was in a mental hospital for 19 days with a questionable diagnosis of schizophrenia, for which he was treated with Mellaril and Valium. He reported no voices, or no plots against him. He was diagnosed with anxiety, and possible early signs of decompression. In a transcript from a May 1985 Report of Physical Evaluation Board, the veteran confirmed that earlier in service, when he was stationed on a ship for a period of two to three years, he had to undergo a psychological evaluation because he was complaining of feeling "closed in." Other than the foregoing, the veteran's service medical records are unremarkable for any symptoms or complaints relating to a psychiatric disorder. The veteran was honorably discharged from active military service in July 1987. In September 1988, the veteran submitted a statement to the RO that he wished to file a claim for service connection for a psychiatric condition based on severe bouts of depression following his discharge from service. In a subsequent statement from the veteran, received in January 1990, he indicated that around 1980, while he was stationed aboard the U.S.S. Constellation, he suffered severe emotional depression and was hospitalized for one day at the Balboa Naval Hospital. He reiterated that fact in a September 1990 statement to the RO. - 4 - The medical evidence following service separation reveals that in September 1988, the veteran was seen at a VA medical center with complaints of depression. The diagnostic impression was dysthymic disorder. In October 1988, the veteran was admitted to Fairview General Hospital due to bizarre behavior; the diagnosis was brief reactive psychosis. In an October 1988 VA outpatient treatment record, the veteran reported a previous episode of psychotic behavior approximately 14 years ago, for which he was briefly hospitalized in a private hospital in Evergreen Park, Illinois. In May 1989, the veteran was hospitalized at a VA hospital with a diagnosis of brief reactive psychosis, rule out major depression with psychotic features, paranoid schizophrenia, bipolar disorder. The veteran reported hearing voices, and felt he was possessed by the devil. A February 1990 private medical record from Fairview General Hospital contains a diagnosis of atypical psychosis, recovered. A September 1991 private medical record from Southwest General Hospital reveals that the veteran underwent a brief period of hospitalization for a psychotic disorder, not otherwise specified. However, a separate record from that period of treatment indicates that the diagnostic impression based on the criteria in DSM-IIIR ruled out a psychotic disorder. In June 1993, the veteran was admitted to Southwest General Hospital and diagnosed with major depression. A November 1993 VA outpatient record contains a diagnosis of psychosis, not otherwise specified. The examiner indicated that the veteran was not currently psychotic, but intermittently had delusions and hallucinations. In June 1994, the veteran was admitted to a VA hospital with complaints of sleep difficulties and fear of losing his job. He was diagnosed with schizophrenia. In May 1995, the veteran was again admitted to a VA hospital, and he was diagnosed with acute exacerbation of chronic paranoid schizophrenia, and major depressive disorder. Pursuant to directives in the June 1996 BVA remand, in September 1998 the veteran underwent two VA psychiatric examinations. The first examiner indicated that he had reviewed the veteran's entire claims folder, and he diagnosed the veteran with schizoaffective disorder, depressed type. The examiner concluded that 5 - the veteran's symptoms "probably relate to his preexistent psychotic behavior that he had before he went into the service." The examiner noted that the veteran had reported that he was hospitalized for hallucinations in about 1979, but that he could not find any evidence of that happening. He further indicated that if the veteran was in fact admitted to the Balboa hospital during service for a psychiatric disorder (he indicated that he could not find those records), it was probably mild and transient. He stated that considering the veteran's history, his illness was "consistent with the diagnosis of schizoaffective disorder in the service and ... during the active duty there was no aggravation but just a continuation of the chronic illness of a schizoaffective that started probably in 1974-75." Finally, the examiner stated that if the treatment records from the Balboa hospital were located, it would help illustrate the type of symptoms the veteran had that warranted any type of psychiatric intervention, such as whether the veteran was experiencing not only depression but delusions. The second VA examiner also diagnosed the veteran with schizoaffective disorder, depressed type. The diagnosis also included a history of dysthymia, major depression with psychotic features, psychosis, not otherwise specified, brief reactive psychosis, bipolar disorder, and schizophrenia, paranoid. The examiner opined that the veteran's "psychiatric disorder before he went to the service, was a continuation of the psychiatric history during his tour of duty in the U.S. Navy in which his symptomatology has worsened." Based on the evidence, it appears that the veteran had some type of psychiatric symptoms prior to service, although there is unfortunately no contemporaneous evidence showing the exact nature of such symptomatology or whether it was related to an acute episode or a chronic disorder. The record further shows that the veteran experienced psychiatric symptoms in 1979 during service, and service records (while sparse with regard to these symptoms) do show anxiety, depression and/or suicidal ideation. The 1979 reports thus support the veteran's contention regarding psychiatric problems while on board a ship during the early part of his service. While subsequent service records do not reveal any medical treatment for psychiatric problems, the post-service records clearly show regular and continuing medical treatment of a psychiatric nature from late 1988 on. - 6 - At this point the Board acknowledges that under VA laws and regulations, service connection for acquired psychiatric disorders involve determinations as to whether a disorder preexisted service and, if so, whether there was an increase in severity during service, or whether a chronic disability had its inception during service. Various criteria and presumptions apply to such determinations. 38 U.S.C.A. 1110, 1131; 38 C.F.R. 3.303, 3.304. With regard to inception, certain VA laws and regulations also set forth a presumption of service connection if a psychosis is manifested within one year of discharge from service. 38 U.S.C.A. 1101, 1112; 38 C.F.R. 3.307, 3.309. However, after considering the evidence of record, the Board does not believe an in-depth discussion of such laws and regulations is necessary. The evidence of record sets out an unusual fact situation, and the medical evidence of record does not serve to sort out the medical conclusions to be drawn from those facts in a clear and unequivocal manner. The Board recognized the complexities of this case and remanded for clarification. However, the two VA medical opinions which have been obtained as a result of the most recent remand appear to be inconsistent with each other. While one examiner appears to find that the veteran had a preexisting psychiatric disorder which did not increase during service, the other examiner (in a very unclear manner) appears to opine as to aggravation during service. The Board also notes that while service medical records do document treatment aboard ship in 1979, the first VA examiner, although again not clear, appears to have based his opinion, at least in part, on his inability to find any such inservice records of psychiatric treatment. That examiner's ultimate conclusion would thus appear to be called into question to some extent as it appears that it may have been based on an inaccurate factual predicate. At any rate, the fact of preservice psychiatric symptoms, the nature of the psychiatric symptoms noted during service, the fact that psychiatric symptoms were documented within a relatively close period of time after discharge, and the apparent opinion of at least one VA examiner as to aggravation during service, leads the Board to conclude that there is a state of equipoise of the positive evidence and the negative evidence regarding the relationship of the veteran's current - 7 - psychiatric disability to service. This state of equipoise exists regardless of whether the question of service connection is considered on the basis of inception during service or on the basis of aggravation during service of a preexisting disorder. Accordingly, regardless of the basis for considering the veteran's claim, the Board finds that a reasonable doubt exists. By statute, such reasonable doubt must be resolved in the veteran's favor. 38 U.S.C.A. 5107(b). ORDER Entitlement to service connection for an acquired psychiatric disorder is warranted. To that extent, the appeal is granted. ALAN S. PEEVY Member, Board of Veterans' Appeals 8 -