BVA9503293 DOCKET NO. 92-24 054 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Entitlement to service connection for a neuropsychiatric disorder, to include Tourette's Syndrome. REPRESENTATION Appellant represented by: Maine Division of Veterans Services WITNESSES AT HEARINGS ON APPEAL Appellant and a Department of Veterans Affairs nurse ATTORNEY FOR THE BOARD R. J. Rolfsen, Jr., Counsel INTRODUCTION The veteran served on active duty in the U.S. Navy from March 1970 to December 1971 in the U.S. Navy. His report of separation reflects that the reason for his separation was reduction in authorized strength, and that he had served aboard the U.S.S. Kilauea (AE-26), an ammunition ship. This appeal stems from a February 1992 decision of the Togus, Maine, Department of Veterans Affairs (VA) Regional Office (RO). The Board of Veterans' Appeals (Board) remanded the case in August 1993 for evidentiary development. The veteran has referred to claims for service connection for residuals of back, neck, skull and teeth injuries. These issues have not been certified or developed for appeal, are not properly before the Board, and are hereby referred to the RO for appropriate consideration. Also, it is unclear whether the veteran is requesting service connection for post-traumatic stress disorder, hypertension or asthma. If so, he should so notify the RO. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his neuropsychiatric disorder, to include Tourette's Syndrome, is causally related to service. He maintains that he was tied down on one occasion and that he was subjected to stress and harassment during service. 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 files. 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 a grant of service connection for Tourette's Syndrome, but that the evidence supports a grant of service connection for an acquired psychiatric disorder. FINDINGS OF FACT 1. All relevant evidence necessary for the disposition of the veteran's appeal has been obtained. 2. Tourette's Syndrome pre-existed service and did not increase in severity during service. 3. An acquired psychiatric disorder, variously classified, originated during the veteran's active service. CONCLUSIONS OF LAW 1. Tourette's Syndrome clearly and unmistakably preexisted service and the presumption of soundness on induction is rebutted. 38 U.S.C.A. §§ 1111, 5107 (West 1991). 2. The preexisting Tourette's Syndrome was not aggravated by service. 38 U.S.C.A. §§ 1110, 1153, 5107 (West 1991); 38 C.F.R. § 3.306 (1993). 3. An acquired psychiatric disorder, variously classified as an anxiety disorder and as a depressive disorder, was incurred in service. 38 U.S.C.A. §§ 1110, 5107. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board finds that the veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107. The Board is also satisfied that all relevant evidence has been properly developed. The Board has remanded the case and additional evidence has been obtained. Under these circumstances, there is no further duty to assist the veteran in order to comply with the duty to assist him as mandated by 38 U.S.C.A. § 5107. The March 1970 service entrance examination was negative for reference to any pertinent abnormalities. An entry dated the night of January 2, 1971, reflects that the veteran had been brought to his ship by the Shore Patrol. Reportedly, the veteran had been injured when he had fallen between a boat and the pier. He had refused to go to the dispensary and, thus, had been brought back to the ship. The clinical entry, made by the ship's medical corpsman, notes further that the veteran was heavily intoxicated and combative towards all near him. He was placed in restraints and sedated. The diagnosis was acute alcohol intoxication. A clinical record by the ship's corpsman, dated January 4, 1971, indicates that the veteran was being referred to a Naval Hospital for admission. This referral was accompanied by a letter by the corpsman addressed to the hospital psychiatric department. The events of the night of January 2, 1971, were noted. It was further noted that the veteran reportedly had family problems on his mind all the time. The veteran referred to having had problems for the previous 13-14 years and stated he had had nervous problems prior to service. He stated that the long hours of work aboard ship made him nervous. The corpsman noted that the veteran's superiors stated he did not like taking orders and that he had trouble working. The veteran related that he was a "loner" when on liberty. The corpsman expressed doubt as to whether the veteran belonged on the ship, as it was an ammunition ship, and requested that he be evaluated. The service medical records do not contain any records of evaluation by the Naval Hospital. Efforts to obtain such have been without avail. The veteran has explained that he was not admitted to the hospital due to an administrative error. A July 1971 entry reflects that the veteran had been drinking at the enlisted men's club and had been beaten up by several men. Neurological findings were normal. The December 1971 separation examination was negative for reference to any pertinent abnormalities and neurological and psychiatric evaluations were normal. In March 1975, the veteran submitted a claim for service connection for various disorders including a nervous condition. In development of the veteran's claim, the RO obtained copies of private medical records which reflect that the veteran had been seen in April 1994. The diagnoses included nervousness. Records in the claims folder are to the effect that the veteran failed to report for a scheduled VA examination in May 1975. A June 1975 VA letter to the veteran states that no further action could be taken on his claim due to his failure to report for examination. Records received in development of the veteran's January 1990 claim for pension benefits include 1990 VA hospital summaries. While the veteran was hospitalized on these occasions for cardiovascular problems, the hospital diagnoses included chronic anxiety. In December 1991, the veteran submitted an application for service connection for a nervous condition. He stated that he had suffered a nervous breakdown in service and was currently receiving treatment at a VA mental health clinic. In an undated letter, apparently submitted in 1991, the veteran stated that his Tourette's Syndrome had been worse than ever since his recent cardiac surgery. He reported that he twitched and made more noises than ever, and that he had a hard time in hospitals and was nervous when he was around doctors. VA mental health clinic entries include a November 1991 entry by a nurse therapist noting that the veteran stated that his Tourette's Syndrome had gotten worse while he was in the Navy. Along with his July 1992 substantive appeal, the veteran submitted an undated statement by him and a statement written by his sister. In his statement, the veteran related that the Tourette's Syndrome had been manifested in childhood, that he had been picked on because of this, and that it had been treated with Valium. As he anticipated being drafted, he had enlisted in the Navy. While on active duty, he experienced much embarrassment as others ridiculed him because of the Tourette's Syndrome manifestations. He wanted to be alone and would cry. He used alcohol to alleviate the pain but was more nervous when he was sober. In her statement, the veteran's sister reported that the veteran had suffered ridicule because of his Tourette's Syndrome, including by their father. She further reported that after the veteran got off active duty, there was a big change in him. He began to twitch more and drink to excess, and his temper was worse. In October 1992, the veteran and his nurse therapist testified at a hearing conducted at the RO. The veteran related that prior to service, he had always been able to retreat to some place to be by himself. In the Navy, this was not possible on his ship. His reported disinclination to follow orders was due to his reluctance to perform certain duties on days that his Tourette's Syndrome was worse, as he felt he was incapable. As an example of such incapacity, he reported that he drove his fork lift into the side of the ship and damaged a missile as a result of a twitch. This resulted in further harassment. The nurse therapist testified that it was her opinion that the veteran's experiences in the military had been the main cause of his nervousness, including a fear of being physically restrained. She stated that while the veteran's primary diagnosis was Tourette's Syndrome, other diagnoses included anxiety neurosis with a history of drug and alcohol abuse. In testimony at a March 1993 hearing held before the undersigned member of the Board, the veteran testified that the Tourette's Syndrome had first been diagnosed in 1989. Prior to service, the symptomatology of this disorder had been similar to but not as severe as what he currently had. Biting had started while he was in service. He currently was afraid of hospitals. Records developed pursuant to an August 1993 remand decision included copies of school records. An entry in his grade school records notes that the veteran was nervous and had poor attendance. Copies of the veteran's military administrative records reflect that he had no marks below 3.0 and that he was recommended for reenlistment but did not desire to reenlist. A summary of VA hospitalization during December 1993 and January 1994 lists diagnoses including depressive disorder. Under the law, service connection is warranted for disabilities resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C.A. § 1110. A veteran who served in a period of war is presumed in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence that the disability manifested in service existed before service will rebut the presumption. 38 U.S.C.A. § 1111. Also, a preexisting injury 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 that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153. 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 manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306. Finally, 38 U.S.C.A. § 5107 provides in pertinent part that when, after consideration of all evidence and material of record, 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 such matter shall be given to the claimant. The veteran has conceded that his Tourette's Syndrome pre-existed service. Thus, the only issue to be decided with regard to this specific disorder is whether it was aggravated by service. After reviewing all the evidence of record, the Board concludes that service connection of the Tourette's Syndrome is not warranted. The veteran has conceded that this disorder existed and was manifest from the time of his childhood. While he and his sister have reported that the manifestations of the disorder were more severe after his release from active service, the contemporaneous military administrative and medical records do not corroborate this. The service medical records are devoid of any notation of pertinent symptomatology, and the administrative records reflect that the veteran's service was assessed as worthy of a recommendation for reenlistment. With regard to the question of service connection of an acquired psychiatric disorder, however, the Board finds that an approximate balance of positive and negative evidence exists as to whether the veteran's acquired psychiatric disorder was incurred in service. While nervousness was noted during the veteran's early school years, no acquired psychiatric disorder was found at the time of evaluation for entry into service. Nervous problems were clearly noted in January 1971 to the point that the veteran was referred for psychiatric evaluation. Although the immediate post-service evidence is sparse, medical records reflect that nervousness was diagnosed in April 1974. In assessing the import of this evidence, the Board finds quite persuasive the veteran's description of his Navy experiences. The manifestations of Tourette's Syndrome undoubtedly resulted in significant ridicule from shipmates who did not understand. This likely caused the veteran much embarrassment compounded by the fact that there was no place on the warship for him to retreat in solitude. The nurse therapist's testimony is also found to be consistent with a favorable determination with regard to service connection of an acquired psychiatric disorder. ORDER Entitlement to service connection for Tourette's Syndrome is denied. Entitlement to service connection for an acquired psychiatric disorder, variously diagnosed as an anxiety disorder and as a depressive disorder, is granted. JAMES R. ANTHONY 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.