BVA9505928 DOCKET NO. 92-05 062 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Francisco, California THE ISSUE Entitlement to service connection for a psychiatric disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Keyes, Associate Counsel INTRODUCTION The veteran served on active duty from January to May 1943, from August 1945 to January 1949, from December 1949 to December 1952, and from September 1955 to October 1957. This matter comes before the Board of Veterans' Appeals (Board) from a February 1991 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Francisco, California, which denied the veteran's petition to reopen his claim for service connection for a psychiatric disorder. In March 1993, the Board reopened the claim and remanded the case for further development. Subsequent to that development, the RO denied service connection for a psychiatric disorder in January 1994. Statements on file reflect that the veteran appears to be seeking higher disability payments and an earlier effective date for his current benefits. However, since the only issue properly before the Board is the one listed on the cover page, the other claims are referred to the RO for clarification and/or action deemed appropriate. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the RO committed error in denying his claim for service connection for a psychiatric disorder. 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 evidence warrants entitlement to service connection for an acquired psychiatric disorder. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal. 2. A psychiatric disorder did not exist prior to service. 3. Moderate chronic anxiety reaction, manifested by, among other things, transient periods of mild depression was shown in service and the veteran was discharged from service due to this psychiatric disorder. 4. Following service, the veteran had been diagnosed to have psychoneurotic disorders, including depression and anxiety, as well as a personality disorder. 5. The veteran is currently shown to be suffering from a dysthymic disorder, which can not be disassociated from the psychiatric disorder identified in service. CONCLUSION OF LAW A chronic acquired psychiatric disorder was incurred during active service. 38 U.S.C.A. §§ 1110, 1131, 1132, 5107(b) (West 1991); 38 C.F.R. §§ 3.303(a), (b), 3.304(b) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim was reopened by the Board in March 1993 on the grounds that the basis for reviewing the veteran's entitlement to service connection had changed in a way that might prove beneficial to the veteran since the last final decision on the merits of this claim. Cf. Jensen v. Brown, 19 F.3d 1413, 1415 (Fed.Cir. 1994), citing Corpuz v. Brown, 4 Vet.App. 110, 113 (1993) (misapplication of, or complete failure to apply, an evidentiary regulation may be a form of new and material evidence sufficient to reopen a claim). Specifically, the Board noted that a July 1990 precedent opinion of the VA general counsel held that service connection may be granted for diseases (but not defects) of congenital, developmental or familial origin if the evidence as a whole shows that the manifestations of the disease in service constituted "aggravation" of the disease within the meaning of applicable VA regulations. O.G.C. Prec. op. 82-90 (July 18, 1990); 38 C.F.R. § 3.303(c), 3.306 (1994). With regard to congenital or developmental defects, the opinion stated that, although service connection may not be granted for a defect, service connection may be granted for a disability which is shown by the evidence to have resulted from a defect which was subject to a superimposed disease or injury during service. O.G.C. Prec. op. 82-90 (July 18, 1990). Having been reopened, the veteran's claim is found to be well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). See Robinette v. Brown, No. 93-985, slip op. at 10 (U.S. Vet.App. Sept. 12, 1994) (evidentiary threshold for a well grounded claim is lower than threshold for reopening finally denied claim with new and material evidence). The RO has properly developed all relevant facts. No further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a) (West 1991). As noted in the introduction to this decision, the veteran had four periods of military service. During the last period of service, in June 1956, he was diagnosed with "[a]gressive reaction, chronic, moderate." The doctor noted that the veteran's condition was a "character disorder of a chronic nature" and that it existed prior to service. After a period of hospitalization, the veteran was returned to duty. In March 1957, the veteran was again admitted to the hospital for a psychiatric disorder. Psychological evaluations were requested for "possible indications of paranoid personality or psychosis versus impulsive acting out psychopathic personality." Following psychological testing, the psychologist's impression was "a character and behavior disorder subject to transient psychotic episodes." The psychologist noted that the veteran "can stabilize his psychotic components much of the time, but that under stress[ful] condition[s] the paranoid schizophrenic element bursts forth." The veteran remained hospitalized for several months, and in May 1957, a psychiatrist recommended that a medical evaluation board review the case "for the purpose of eventually presenting him before [a physical evaluation board] due to anxiety reaction with paranoid features." In August 1957, a medical evaluation board diagnosed "anxiety reaction, chronic, moderate, manifested by a constant anxiety tension state with restlessness and irritability, paranoid tendencies and marked hostility accompanied by feelings of inferiority and guilt with transient periods of mild depression; stress, moderate; predisposition, moderate; impairment, marked for further military service, moderate for social and industrial adaptation." The medical evaluation board concluded that the disorder was incurred in the line of duty. A physical evaluation board concurred in the diagnosis and findings of the medical evaluation board, including the finding that the disorder was incurred in the line of duty. The physical evaluation board also noted that the disability "may be permanent." On the form on which the physical evaluation board noted its findings, it also noted the VA diagnostic code numbers to which the veteran's disorder corresponded in the VA Schedule for Rating Disabilities. The diagnostic code numbers were 9105 and 9101, which at that time were the diagnostic codes for anxiety state and neurasthenia which were listed among the psychoneuroses. VA Schedule for Rating Disabilities (1956). Medical evidence in the claims file for the decades following service shows numerous instances of treatment and periods of hospitalization, mostly at VA facilities including Department of Veterans Affairs Medical Centers, for variously diagnosed psychiatric disorders. Among the diagnoses rendered in the 1960s were the following: in February 1961, a history of depressive reaction and suicidal attempt; manic-depressive reaction, manic type; depressive reaction, treated, unchanged; in March 1961, depressive reaction, chronic, mild to moderate, manifested by vague feelings of persecution, tension, hostility, suspiciousness, and negativistic behavior, with a past history of having attempted suicide; depressive reaction, chronic, mild to moderate, manifested by depression, vague feelings of persecution, tension, hostility, negativism and a history of poor interpersonal relationships; from October 1961 to January 1962, schizophrenic reaction, paranoid type, impairment slight; from December 1966 to January 1967, schizophrenic reaction, schizo-affective type, manifested by irritability, suspiciousness, withdrawal with poor inter-personal relationship, marked hostility, as well as poor control, aggressive impulses directed toward others and towards self, impairment severe. In the 1970s and 1980s, the veteran was diagnosed with depressive reaction, severe, and depressive neurosis in 1974; in April 1974, cyclothymic personality disorder; in October 1975, acute anxiety reaction with depression; in July 1981, a personality disorder and depressed mood; in November 1988, a history of personality disorder and possible mild adjustment reaction with depressed mood and no evidence of psychosis. Because the veteran manifested psychiatric symptoms which had been variously diagnosed both in service and in the decades following service, the Board remanded this case for clarification of the diagnoses of veteran's current psychiatric disorder. In accordance with the Board's remand instructions the veteran was afforded two VA psychiatric examinations in June 1993. The veteran was also afforded another VA psychiatric examination in August 1994 in connection with a claim for nonservice-connection pension benefits, and that examination report is also presently in the claims file. The diagnoses were rendered in accordance with the "multiaxial evaluation" recommended in the Diagnostic and Statistical Manual for Mental Disorders (3rd ed. rev., 1987) (DSM-III-R). The multiaxial evaluation requires that each case be assessed on several "axes," each of which refers to a different class of information. Axis I is for clinical syndromes and "V codes" (codes for conditions not attributable to a mental disorder that are a focus of attention or treatment), and Axis II is for developmental disorders and personality disorders. Quick Reference to the DSM-III-R 18, 27-28 (1987). The VA examiners in June 1993 both concluded that no diagnosis was warranted under Axis I. Under Axis II, Dr. Geiser diagnosed personality disorder not otherwise specified, and Dr. Harichandran diagnosed probable paranoid personality disorder. Both examiners reviewed the medical evidence in the claims file, including the service medical records and medical reports rendered after discharge. With regard to the veteran's current disability and the disability shown in service, Dr. Geiser noted, "I do not find any schizophrenia or manic depressive illness. It appears that the problems the veteran had in the service were also related to his characterologic or personality disorder problems. I believe this has been a continuing pattern throughout his early adulthood to the present. . . . I believe the diagnosis of the character disorder in the service is the correct diagnosis and the anxiety reaction I do not find currently to be an accurate diagnosis. The situation following the service, I believe[,] was a continuation of his character disorder problems . . . ." Similar to the VA examiners in 1993, Dr. Meek, on VA mental status examination in August 1994, rendered an Axis II diagnosis of personality disorder not otherwise specified with narcissistic and antisocial features. However, unlike the 1993 examiners, Dr. Meek did render a diagnoses on Axis I of dysthymic disorder, primary type, late onset, and alcohol dependence, in remission by patient history. With regard to the dysthymic disorder, Dr. Meek noted that the disorder was not felt to be service-connected. He observed, "[The veteran's] current depressive symptoms do not appear to be related to his military service, which concluded in 1957. By his history, he was discharged at the time with an anxiety disorder. However, he does not meet criteria for generalized anxiety disorder and/or panic at the present time. The veteran's situation is complicated by what would appear to be a personality disorder with both narcissistic and antisocial features." For service connection to be granted, the law requires that there be a current disability and that the disability result from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1994). The law presumes a veteran to be in sound condition when enrolled for service except as to defects, infirmities, or disorders noted at the time of enrollment. 38 U.S.C.A. § 1111 (West 1991); 38 C.F.R. § 3.303(b) (1994). Clear and unmistakable evidence that the disability manifested in service existed prior to service will rebut the presumption of soundness. 38 U.S.C.A. § 1111 (West 1991); 38 C.F.R. § 3.304(b) (1994). In this case, the service medical records reflect no complaints or findings of a psychiatric disorder until 1956 which was during the last period of service from October 1955 to October 1957. A December 1952 examination report of an examination conducted for discharge from the veteran's third period of active duty reflected normal psychiatric findings. No psychiatric abnormalities were found on an April 1953 examination, conducted for reserve duty. A report of an October 1954 examination, the purpose of which was "application for entrance to active duty," reflected that the veteran's psychiatric evaluation was normal. A report of an October 1955 examination, conducted about three weeks after the veteran's entrance into active duty, also reflected no complaints or findings of a psychiatric disorder. In June 1956, the examiner who diagnosed the veteran with a behavior disorder, determined that that disorder existed prior to service. The Board finds that the June 1956 examiner's opinion alone that a behavior disorder existed prior to service does not constitute the clear and unmistakable evidence needed to rebut the presumption of soundness shown by normal psychiatric findings on the veteran's October 1955 service entrance examination report. This is especially true in this case where there is an abundance of medical evidence prior to the veteran's fourth and last period of service, and none of the medical evidence from the other periods of service, beginning with the first period in January 1943, reflects a psychiatric disorder. In addition, the Board notes that the doctors who diagnosed anxiety reaction in 1957 agreed that that disorder did not exist prior to service. Accordingly, the Board finds that the psychiatric disorder diagnosed in service did not exist prior to service but rather had its onset in service. It is significant to note that during service the veteran was found to have a psychoneurotic disorder diagnosed as a moderate chronic anxiety reaction manifested by, among other things, transient periods of mild depression. This diagnosis was rendered during a period of hospitalization in which the psychiatrists had the opportunity of seeing and examining the veteran for a period of time. The Board concludes that the medical evidence in this case is at least in equipoise as to the question of whether an acquired psychiatric disorder was present in service. 38 U.S.C.A. § 5107(b) (West 1991). The evidence, including the 1993 VA examination reports, reflects that the veteran suffers from a severe personality disorder which is considered a defect for which service-connected compensation benefits may not be granted. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(c) (1994). However, there is also medical evidence of a psychoneurotic disorder, characterized by anxiety and depression, which was first diagnosed in service and which was at that time described as chronic and possibly permanent. The many diagnoses of depression and anxiety consistently rendered during the decades after service support the finding of chronicity. 38 C.F.R. § 3.303(b) (1994). Moreover, although the 1993 VA examiners concluded that the veteran suffered from a personality disorder, a mild depression, dysthymic disorder, was again diagnosed in 1994. Dr. Meek determined the dysthymic disorder to be of "late onset" and not related to the veteran's service which ended in 1957, but when that determination is viewed in the context of the continuity of symptoms and the numerous diagnoses of depression and anxiety over the years, including during service, the Board finds that the medical evidence in this case is at least in equipoise as to whether the veteran currently has a psychoneurotic disorder, characterized by depression and anxiety, which had its onset in service. 38 U.S.C.A. § 5107(b) (West 1991). Therefore, the Board concludes that service connection for the veteran's psychoneurotic disorder, recently diagnosed as dysthymic disorder, is warranted in this case. ORDER Service connection for an acquired psychiatric disorder is granted. JOAQUIN AGUAYO-PERELES 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.