BVA9507391 DOCKET NO. 92-11 994 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. ATTORNEY FOR THE BOARD C. Chaplin, Associate Counsel INTRODUCTION The veteran had active service from January 1951 until December 1952, from May 1953 to January 1964, and from March 1964 until November 1971, when the veteran retired after 20 years of service. This matter came before the Board of Veterans' Appeals (Board) on appeal from a rating decision of March 1991, from the Seattle, Washington, regional office (RO) which denied service connection for a psychiatric disorder. By a statement submitted in May 1993, the veteran wrote that he never requested a rating for malaria. "[I]t was merely an answer to a question asked by a VA representative and apparently he assumed that I was making a claim for such." Department of Veterans Affairs (VA) Form 21-4138. Accordingly, we consider that the issue of a compensable rating for malaria was withdrawn. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that the RO erred in not granting service connection for an acquired psychiatric disorder. He claims that stress, impromptu reassignments and other prejudicial acts caused him to become a manic-depressive and paranoid schizophrenic. 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 supports a grant of service connection for an acquired psychiatric disorder. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained by the agency of original jurisdiction. 2. The veteran was diagnosed with an anxiety reaction in April 1953 prior to re-entering the service in May 1953. 3. The veteran had periodic elevated mood swings in service. His periods of disturbed behavior were possible manic episodes with symptoms of grandiosity, pressure of speech and activity and agitation . 4. The pre-existing anxiety reaction disorder increased in severity during active duty beyond its natural progression. 5. The veteran has been diagnosed with chronic generalized anxiety disorder and manic bipolar disorder in partial remission. CONCLUSION OF LAW Service connection for an acquired psychiatric disorder on the basis of aggravation during service is warranted. 38 U.S.C.A. §§ 1110, 1112, 1153, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.306, 3.310 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant's claim is "well grounded" within the meaning of 38 U.S.C.A. 5107(a) (West 1991); that is, he has presented a claim that is plausible. Murphy v. Derwinski, 1 Vet.App. 78 (1990). Furthermore, he has not indicated that any probative evidence not already associated with the claims folder is available; therefore the duty to assist him has been satisfied. Id. In March 1990, the veteran filed a claim for service connection for manic depression, indicating the onset in 1954. We note that the veteran had a prior period of active service from January 1951 until December 1952, and by a rating action in May 1953 was denied service connection for anxiety reaction as not incurred during active military service. He re-entered the service in May 1953 and the present claim for service connection for manic depression is based on the period of service beginning in May 1953. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service and not the result of the veteran's own willful misconduct. 38 C.F.R. §§ 3.301, 3.303(b) (1994). By a rating action in March 1991, the RO denied service connection for a psychiatric disorder. The veteran disagreed with the decision and initiated this appeal. The veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b) (1994). History of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. Determinations should not be based on medical judgment alone as distinguished from accepted medical principles, or on history alone without regard to clinical factors pertinent to the basic character, origin and development of such injury or disease. They should be based on thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to accepted medical principles pertaining to the history, manifestations, clinical course, and character of the particular injury or disease or residuals thereof. 38 C.F.R. § 3.304(b) (1) (1994). A preexisting injury or disease will be considered to have been aggravated by active service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 1991); 38 C.F.R. § 3.306(a) (1994). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during wartime service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 U.S.C.A. § 1153 (West 1991); 38 C.F.R. § 3.306(b) (1994). Further, the United States Court of Veterans Appeals (Court) has stated that it is the Secretary's burden to rebut the presumption of in-service aggravation. See Labosky v. Brown, 4 Vet.App. 331, 334 (1993); Akins v. Derwinski, 1 Vet.App. 228, 232 (1991). "[I]n short, a proper application of [38 U.S.C. § 1153 and 38 C.F.R. § 3.306(a), (b)] . . . places an onerous burden on the government to rebut the presumption of service connection" and "in the case of aggravation of a preexisting condition, the government must point to a specific finding that the increase in disability was due to the natural progress[] of the disease." Akins, 1 Vet.App. 228, 232 (1991). The Board remanded the case in March 1993 for further development. The authorization form for release of information completed by the veteran in June 1993 listed Dr. Mermis as a treating physician, (later annotated as the first person who treated him) and dates of treatment were given as December 1952 until March 1953, approximately. The form also indicated that Dr. Mermis was long deceased. Treatment records received from the Sacramento Blood Bank in November 1993 did not reveal any psychiatric treatment. Treatment records received from Dr. Owen Reese were also negative for treatment of a psychiatric disorder. A response was received from MetroHealth Medical Center in Cleveland, Ohio, indicating they were unable to identify the veteran. In response to a request for another name of a hospital, in July 1994, the veteran recalled that in May 1953, he became ill and took a taxi to a city hospital in Cleveland, Ohio, although, he was unable to remember the name of the hospital. He described having symptoms of feeling weak, nauseated, and nervous for an unexplained reason; the emergency room doctor gave him a sedative injection and released him. 38 U.S.C.A. § 1111 (West 1991) and 38 C.F.R. § 3.304(b) (1994) provide that the presumption of soundness shall apply except for disorders "noted" at the time of examination for entry into service. The regulation specifically provides that the recording of a history of a preservice disorder does not constitute a "notation" of the disorder to rebut the presumption of soundness. The presumption of soundness may be rebutted by clear and unmistakable evidence that an injury or disease existed prior to service. The burden of proof is on the Department of Veterans Affairs (VA) to rebut the presumption by producing clear and unmistakable evidence that the veteran's nervous disorder existed prior to service and if the government meets this requirement, that the condition was not aggravated in service. During his first period of service from January 1951 until December 1952, an entry which appears to be October 3 of his first year shows the veteran complained of recurrent fever every day, weight loss, chilly feelings, and multiple somatic complaints. The December 1952 discharge examination evaluated the veteran as normal for neurologic and psychiatric. In January 1953, the veteran sought service connection for residuals of malaria, and for a right wrist condition. He was afforded a VA medical examination in April 1953 at which time he stated that he had been under the care of Dr. Mermis since March 1953 for a nervous condition. He described that after discharge from the Army he had an occasional chill, then one night in March 1953 after reading a book on war heroes he became hysterical and was taken to the Emergency room at St. Elizabeth's hospital where he received an injection. He described having attacks of nervousness during the day and at night. The mental examination revealed that the veteran was moderately tense, with a fine tremor of outstretched fingers and his palms perspired profusely. The diagnosis was anxiety reaction, chronic moderate, manifested by recurring episodes of anxiety tension state (panic). Based on the veteran's statement, he had been having recurring attacks of anxiety tension (panic) since last month. The examiner advised the veteran to "look for work or go to college to relieve a good bit of his inner insecurity." By a rating action in May 1953, service connection for anxiety reaction was denied. The veteran re-entered the service in May 1953. On the re- enlistment report of medical history dated May 20, 1953, the veteran checked "yes" for "nervous trouble of any sort." He also checked "yes" for "dizziness, shortness of breath, palpitation or pounding heart." The physician's comment was "Increased nervous tension due to excitement." The report of medical examination on May 20, 1953, evaluated the veteran as "normal" for neurologic and for psychiatric. Although the veteran referred to "nervous trouble of any sort", since the examiner did not find the disorder on the clinical examination, a psychiatric disorder was not "noted" as defined by the law so as to rebut the presumption of soundness. The presumption of soundness is rebutted, however, by the diagnosis of chronic anxiety reaction given by the VA examiner in April 1953, prior to the veteran's entry into his second period of service.. As we find that the veteran's anxiety disorder preexisted subsequent service, which included wartime service, we must address the question of whether this disorder was aggravated during service. Service medical records reveal an entry for July 1953 when the veteran complained of dizzy spells of 5 to 6 days duration. The examiner noted that the onset was in February 1953 and that he had a history of malaria. The diagnosis was neurosis and questioned malaria. The entry for November 8, 1953, noted a long history of headaches and somatic delusions. The diagnosis was somatization reaction and as to whether or not it was incurred in the line of duty, it was marked "undetermined." On November 13, 1953, he was dizzy, had pain in chest, had chills and was nervous. It was noted as in the line of duty. In February 1954, he had complaints of insomnia and palpitations with a diagnosis of anxiety reaction. The examiner indicated yes for line of duty and a psychiatric consult was recommended. A service medical record dated in March 1954 indicated that the veteran went to the "ETR" about once every two months with complaints of chills in the chest area and feeling that he could not breathe. He had attended the Mental Hygiene Clinic about ten times from June to March. He gave a history of being discharged in December 1952 and after a recurrence of malaria in February 1953, "he had his first attack--'pressure up in my head just spins me around.' " The diagnosis was anxiety neurosis, and the examiner wrote that it was not in the line of duty, but that it existed prior to enlistment. In August 1954, he gave a history of difficulty breathing and point tenderness over sternum for several months. In November 1954 he complained of feeling dizzy and a feeling of pressure in his head. A psychiatric interview noted that the veteran was suffering from chronic anxiety although the cause was not found. In May [1956?] he was diagnosed with anxiety, and treated with Thorazine. The September 1956 entry noted that he was tense, anxious, with a tightness in the chest and palpitations for four years. He was drinking to excess lately. The diagnosis was anxiety, described as in the line of duty. The physician's summary noted that whenever the veteran felt tense and nervous, he had palpitations, pressure in the chest, and shortness of breath. These symptoms occurred when stressful situations arise, otherwise he had no difficulty. In March 1958, the entry noted that the veteran claimed that he had loss of vision for a few seconds. He was described as "very nervous." In May 1958, the entry only was "[n]ervous" and medication was prescribed. The evidence reviewed included a report of final action on proceedings of Board of Officers which indicated that in November 1963 he was admitted to a Evacuation Hospital and given a diagnosis of antisocial character. He was reevaluated in December 1963 and given a diagnosis of schizophrenic reaction, paranoid type and transferred to Walter Reed General Hospital. There it was determined that his actions reflected the purposeful results of his character and behavior disorder of long standing. The diagnosis was chronic antisocial personality which existed prior to service. After eleven years in the military, he was examined as requested by the Unit CO. (The date of the examination is not given.) The veteran described his health as good, with a slight increase of nervousness and insomnia in the last three months. In January 1966, he was very nervous, and was relieved by Librium. In February 1966, he was examined for assignment to Vietnam. The physician's comments on the medical history indicated that symptoms of severe headaches, dizziness, shortness of breath, pain in chest, excessive worry, nightmares and trouble sleeping all occurred two years ago. A consultation sheet dated in July 1967 requested that the veteran be seen in the mental health clinic for numerous somatic complaints, that he felt better while taking Librium. The provisional diagnosis was psycho neurosis; however, the consultation report was not completed. He was seen in November 1970 in cardiology with a provisional diagnosis of angina. The examiner, however, noted that the veteran was "very anxious" and the impression was severe anxiety reaction. At the retirement examination in July 1971, he stated that at times he was very depressed. The examiner noted he was nervous and complained of "beating of head fast." Post-service medical records include a report dated in August, the year is not legible, when he had complaints of feeling of anxiety for which a psychiatrist has been treating him. He indicated that he had stopped taking lithium as he thought that it increased his anxiety. The assessment was anxiety reaction. In February 1981, he had complaints of chest pain, with no relief from medication, and the entry noted that he was seen in psychiatry for the same. The assessment was anxiety. In June 1981, he presented to the emergency room. The notes indicated that he was well known as he had a past medical history of manic depression and he presented intermittently to the emergency room. He usually complained of pain in head and chest. The assessment was an anxiety episode. In December 1983, the veteran had complaints of fear and anxiety. He had blunted affect and facial expression; denied hallucinations. The assessment was a possible mild schizophrenic disorder. The veteran was afforded a psychiatric examination in October 1990. The veteran stated that he was able to handle his manic and depressive attacks. He described confrontations with his superiors, from May 1981 to December 1989, over treatment and lack of recognition. His depressive attacks were thoughts of suicide and retaliation against his superiors. He described his manic attacks as a few minutes of an outburst and screaming at people. He denied visual or auditory hallucinations. The examiner diagnosed manic-depressive illness, in partial remission. The veteran was afforded a VA psychiatric examination by two examiners in January 1994. The veteran stated that three days after he returned from Korea, he was nervous, apprehensive, and felt like he was going to pass out. He took tranquilizers and antidepressants until 1987. He described his health prior to 1987 as "perfect except for manic depression." The mental status examination revealed a somewhat worried-looking individual. Sometimes his hands were fidgeting and motor activity seemed somewhat increased, and at times somewhat agitated. He was cooperative and friendly throughout the interview. Although reluctant to talk about any nervous or emotional symptoms now, he stated that he still had "some minor manic depression tendencies" and "feels apprehensive." His speech was generally relevant and coherent but associations were sometimes loose. Sometimes he was tangential and circumstantial; speech was often under pressure and loud. His affect displayed some anxiety; at times he was a little dramatic or grandiose. He denied feeling depressed, denied suicidal or homicidal ideation, denied hallucinations and delusions. The examiner concluded that the veteran was not psychotic, and was competent. The diagnoses included on Axis I, generalized anxiety disorder, chronic; and bipolar disorder, manic, in partial remission. The severity of psychosocial stressor scale was three. The Global Assessment of Functioning was at present 60-70 and for the past year was 60-70. The report evaluated the veteran as follows: This veteran has a documented long history of anxiety. The oldest note in the C-File is dated 19 February 1954, when he was seen for "insomnia - fear - palpitations." He was diagnosed as "anxiety reaction. Since Phenobarb not much help - using PBZ in trial. Also given psych consult. LOD yes." The veteran was returned to duty. Besides the chronic anxiety, the veteran and his records verify periods of disturbed behavior which were attributed to "antisocial personality." The veteran and his records suggest periods of irrational behavior, irritability, poor judgment and insight, grandiosity, pressure of speech and activity and agitation. These episodes could well have been manic episodes which were severe enough to warrant hospitalization on at least one occasion. The periodic elevated mood swings seemed to come to an end in 1987 when he developed serious physical problems. Currently, the veteran still exhibits symptoms of anxiety as evidenced in the interview by motor tension, disturbance of sleep and dreams and irritability. He exhibited some manic symptoms, some pressure of speech, increase in motor activity, somewhat dramatic behavior, some circumstantial and tangential speech. The veteran is intelligent. His history suggests that during his past periods of manic behavior, he lacked insight and judgment. Even today, he cannot understand why military authorities were so upset by his turbulent behavior and he tends to project the blame on others. The veteran is not psychotic at this time. He is competent. It appears that since the development of his serious physical illness, he has been able to manage his chronic manic tendencies and has not sought psychiatric help or been in any serious trouble due to mental illness. The veteran tended to minimize his emotional problems and did not elaborate on present or past depressive symptoms which may well have been present. C-File records indicate that he has been treated in the past with Lithium, antipsychotic medications of various types, as well as anti anxiety agents. It is our opinion that the evidence supports a finding that the veteran's anxiety disorder, described as moderate, clearly and unmistakably existed prior to his re-entry into service in May 1953, rebutting the presumption of soundness upon entry. In addition, we find that there was an increase in disability during service, with additional symptoms manifested, treatment by prescribed medication and being described as "very nervous" in March 1958, and in January 1966. In November 1970, shortly before leaving service, he was described as "very anxious" and the impression was severe anxiety reaction. The evidence does not show any medical determination that the increase in disability was due to the natural progress of the disease. In addition, the recent VA examination found the record sufficient to support the conclusion that the veteran suffers from a manic disorder, that the disorder began in service and has continued since that time. The examiners concluded that the veteran's periods of disturbed behavior during service with manifestations of grandiosity, pressure of speech and activity and agitation could well have been manic episodes which are related to the veteran's current manic symptoms. The current medical evidence shows diagnoses of generalized anxiety disorder and bipolar disorder, manic, and we as lay people are unable to determine which of these disorders is the primary psychiatric disorder, and the RO may wish to conduct further development on this aspect. Nevertheless, we find that the veteran has an acquired psychiatric disorder, which pre- existed his second period of service and which increased in severity during service beyond its natural progression; this is sufficient to entitle the veteran to a grant of service connection for an acquired psychiatric disorder. ORDER Entitlement to service connection for an acquired psychiatric disorder is granted. BETTINA S. CALLAWAY 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.