Citation Nr: 0007057 Decision Date: 03/15/00 Archive Date: 03/23/00 DOCKET NO. 93-13 595 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Appellant; spouse ATTORNEY FOR THE BOARD C. Allen, Associate Counsel INTRODUCTION The veteran served on active duty from September 1971 to September 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 1991 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Houston, Texas, which, in pertinent part, denied claims for service connection for a psychiatric disorder and disorders of the right knee, right shoulder, and chest. However, those claims were finally addressed in a September 1998 Board decision and are not before the Board at this time. See 38 C.F.R. § 20.1100 (1999). This claim was previously before the Board in March 1995 and, again, in September 1998, at which time it remanded the case back to the RO for additional evidentiary development. That development has been completed and, thus, this case is ready for appellate review. FINDINGS OF FACTS 1. The veteran currently has an acquired psychiatric disorder, variously diagnosed as schizophrenia, schizoaffective disorder, major depressive disorder, PTSD, and others. 2. The veteran was treated for tension and mild anxiety reaction in service. 3. The preponderance of the evidence is against a relationship, or nexus, between the veteran's current psychiatric disorder and his service, including an inservice anxiety reaction. CONCLUSION OF LAW An acquired psychiatric disorder was not incurred in or related to the veteran's service nor did a psychosis manifest to a compensable degree within one year after service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107(b) (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Laws & Regulations In determining whether the veteran is entitled to service connection, the Board must first determine whether a claim is well grounded under 38 U.S.C.A. § 5107(a) (West 1991). A well-grounded claim for service connection is "a plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The claim does not need to be conclusive, but it must be accompanied by supportive evidence to meet the initial burden put on the veteran by § 5107(a). Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Here, the veteran has submitted evidence of a current psychiatric disorder and a plausible relationship between that disorder and service. This is sufficient to establish a well-grounded claim. Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). Once a claim is determined to be well-grounded, the veteran is entitled to assistance with the development of evidence in support of his claim. 38 U.S.C.A. § 5107(a) (West 1991). In this regard, the Board notes that the RO obtained the veteran's service medical records, provided the veteran with three VA compensation and pension examinations, and attempted to obtain all the evidence which he indicated may be available. This case was remanded on two separate occasions for the purpose of ensuring that VA fully developed the record. Overall, the Board finds that the veteran has not alleged that any other records of probative value that may be obtained, and which have not already been associated with his claims folder, are available. Thus, all relevant facts have been properly developed and no further assistance to the veteran is required to comply with the duty to assist, as mandated by 38 U.S.C.A. § 5107(a). The law provides that service connection may be granted for a disability resulting from an injury or disease incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 101(16), 1110 (West 1991); 38 C.F.R. § 3.303 (1999). Direct service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (1999). Psychoses are presumed to have been incurred in service if manifested to a compensable degree within one year after separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5107 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999); see Hensley v. Brown, 5 Vet. App. 155 (1993). In deciding claims for VA benefits, "when there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant." 38 U.S.C.A. § 5107(b) (West 1991). II. Evidence Service medical records note no psychiatric problems at the time of the veteran's entry into service, according to an August 1971 induction medical examination report. His psychiatric status was reported as normal. Outpatient records show that he was seen for chest pain in February 1972. Assessment was that the complaints were probably related to tension. A June 1972 outpatient note indicates that the veteran had complaints of nervousness under pressure; he got the "shakes." Impression was mild anxiety reaction. Another June 1972 record indicates that he thought he was being persecuted. He apparently indicated that he might attempt suicide. The examiner did not think he was psychotic, but that he was just manifesting a hostile- aggressive personality. No further treatment for any psychiatric problems is shown in the service medical records. The veteran's September 1973 separation medical examination report is negative for any psychiatric problems; his status was normal. Subsequent to service, private medical records from 1975 show that the veteran was treated for a skull contusion, incurred during an on-the-job fall. A June 1982 private physician's letter from Harold Rockaway, MD, states that the veteran had been under his treatment since June 1978. Medical history indicated that he had emotional problems since the 1975 on-the-job accident, diagnosed as classical traumatic neurosis with developing depressive illness. Treatment consisted of electroconvulsive therapy. He was depressed and anxious in 1978. He had gradually improved but had had a recurrence of symptoms due to judicial, marital, and financial problems. Dr. Rockaway opined that all of his problems stemmed from the original accident. A November 1982 letter from Dr. Rockaway reflects that the veteran had been provided prescription medication for tension since 1980. Letters from Dr. Rockaway, dated in December 1986 and January 1987, are identical and state that the veteran continued to be anxious, depressed, unable to sleep, irritable, and occasionally irrational. They indicate that the veteran was not employable. An April 1987 VA neuropsychiatric examination report reflects, as medical history provided by the veteran, that he was seen for nervousness and tension during service, and that he was first seen for his present illness in 1975 after an on-the-job head injury. After mental status examination, the clinical assessment was that he had had considerable psychiatric difficulties since his on-the-job injury. He had anxiety and depression, complicated by financial difficulties. Diagnostic impression was adjustment disorder with mixed emotional features of depression and anxiety. A September 1987 private physician's letter from Oscar Hernandez, MD, indicates that the veteran had a delusional disorder with persecutory and somatic features. The underlying cause was deemed to be a mood disorder with psychotic features. An attached psychiatric examination report indicates complaints of depression, agitation, nervousness, headaches, and other symptoms. Diagnosis was major depressive disorder, recurrent, with psychotic features; and borderline personality disorder features, probably secondary to the major depressive disorder. Impression was that the disability was endogenous with a hereditary pattern, and was not related to his 1975 on-the- job injury. A June 1989 letter from Dr. Rockaway reflects that the veteran had a post traumatic stress disorder due to his on- the-job accident. He was anxious and depressed. A May 1990 letter from Dr. Rockaway indicates that the veteran continued to be treated for major depressive disorder and borderline personality disorder. The veteran testified at a personal hearing at the RO in September 1991 that he was sent to the Republic of Vietnam for "missions" on three occasions under order of President Nixon, and that, while there, he shot a Communist woman who was sent to kill him. He also stated that he got nervous during the administering of shots in service. He asserted that he was suicidal during active duty and underwent shock treatment at that time. A September 1991 letter from Dr. Rockaway reiterates the facts and conclusion of his several other prior letters. VA outpatient records dated from April 1990 to November 1992 show recurrent treatment for psychiatric problems. They include medical notes from April 1990, indicating that the veteran had schizophrenia and post traumatic stress syndrome, and that his traumatic neurosis was due to the industrial accident. An October 1992 note shows a diagnosis of anxiety disorder, not otherwise specified, and paranoid personality trait. A January 1993 VA mental disorders examination report shows subjective complaints of anxiety, sleeping difficulties, auditory hallucinations, nightmares, depression, and feelings of prosecution. After mental status examination, assessment was major depression with mood-congruent psychotic features, in partial remission, on medication. A May 1997 VA examination report shows that review of the veteran's service medical records was accomplished, noting that he was diagnosed with anxiety reaction in June 1972. Mental status examination revealed an anxious mood, ideas of reference, hallucinations of a mood-congruent type, and paranoid delusions. Impression was major depressive disorder, severe, chronic, with mood-congruent psychotic features. Comments indicate that the onset of this disability was 1978, according to documentation, and that the disability was not a later development of the psychiatric condition noted in service. In December 1997, records associated with the veteran's Social Security Administration (SSA) disability benefits file were received. They include SSA occupational surveys and VA and private medical records from 1975 and from 1986 to 1988, many of which are duplicates of evidence described. The 1975 records relate to the veteran's on-the-job head injury. The remaining records document his treatment for psychiatric problems from 1986 to 1988. A December 1998 VA mental disorders examination report reflects that the veteran's claims file was reviewed. It states that he was an unreliable historian. Mental status examination revealed an euthymic mood, inconsistently coherent thought processes, complaints of auditory hallucinations, tangentiality, and impaired insight and judgment. Diagnosis was schizoaffective disorder and personality disorder, not otherwise specified. The examiner remarked that the veteran's current psychiatric disorder first became apparent in 1978, based on the evidence of record, and that it was not related to the anxiety he expressed in service. There was nothing to connect the two problems, given that the veteran served for almost a year after his anxiety episode with no problems and was apparently free of psychiatric symptoms after service until the 1975 industrial accident. His debilitating symptoms of depression and psychosis had been exhibited only since 1978. VA outpatient medical records were received at the RO in August 1999. They are dated from January 1985 to August 1999. They show treatment for a host of medical problems, including his psychiatric disorder. The records show recent diagnosis of post traumatic stress disorder (PTSD), as well as schizophrenia. III. Analysis Initially, the Board finds that the veteran currently has significant psychiatric problems. These have been variously diagnosed as schizophrenia, schizoaffective disorder, major depressive disorder, PTSD, and others. The Board also finds that the veteran was treated for emotional problems in service. Service medical records show that he was seen on one occasion for chest pains due to tension and for nervousness under pressure. It was noted that he indicated that he might attempt suicide. Impression was a mild anxiety reaction. Other than service medical records reflect some psychiatric symptomatology, the evidence supporting the veteran's claim consists essentially of his own lay statements. At various times during this appeal, he has asserted that his psychiatric problems began in service. The evidence against the veteran's claim consists of private and VA medical records. Of great significant are the private treatment records from Dr. Rockaway because he was the veteran's private physician for more than 10 years. Letters written by Dr. Rockaway specifically state that the veteran's psychiatric problems began in 1975, after his on-the-job head injury, and that they stemmed from that incident. This conclusion is supported by the 3 VA examination reports. The 1987 report states that the veteran's psychiatric problems had been present since his on-the-job injury. The May 1997 and December 1998 reports, which were performed after specific request by the Board, both conclude that the veteran's psychiatric problems began after his on-the-job head injury. They note that the veteran was seen for an anxiety reaction in service, but that his current disability was not related to that event. The December 1998 report further states that the veteran served for approximately a year after his anxiety reaction, with no complaints noted in the service medical records. It also states that, according to the claims file, the veteran was not treated for any psychiatric problems after service until his 1975 work accident. It was not until 1978, when his symptoms became debilitating. The only medical evidence indicating that the veteran's current psychiatric problems were not related to the 1975 work accident is a September 1987 letter from Dr. Hernandez. However, that letter does not provide an opinion as to the cause or the date of onset of his current psychiatric disorder. It suggests a hereditary component. To the extent that the veteran has a personality disorder, it is developmental in origin and is not the proper subject of a grant of service connection. Developmental defects, such as personality disorders which are characterized by developmental defects or pathological trends in the personality structure manifested by a lifelong pattern of action or behavior, are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303(c) (1999). Overall, the Board must conclude that the preponderance of the evidence is against the veteran's claim. Virtually all of the medical evidence states that the veteran's current acquired psychiatric disorder stems from his post-service head injury. These opinions come from VA mental disorder specialists and from the veteran's own private treating physician. The 2 recent VA opinions specifically conclude that his inservice anxiety reaction was not related to his current disability. This evidence is in preponderance and is much more probative than the veteran's lay statements. It is noteworthy that none of the veteran's psychiatric problems were initially noted within 1 year after his discharge from service. Thus, the provisions pertaining to presumptive service connection for psychoses are not applicable. See 38 C.F.R. §§ 3.307, 3.309 (1999). The veteran separated from service in 1973; he was seen for a head injury in 1975, and was first seen for psychiatric problems after service in 1978. Accordingly, the Board concludes that entitlement to service connection for an acquired psychiatric disorder has not been established by the evidence of record. After careful review of all the evidence of record, the Board finds that the preponderance of such evidence is against the veteran's claim. ORDER Entitlement to service connection for an acquired psychiatric disorder is denied. JOHN FUSSELL Acting Member, Board of Veterans' Appeals