BVA9504581 
DOCKET NO.  91-47 034     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in New York, New
York

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

C. M. Flatley, Counsel

INTRODUCTION

The veteran had active service from February 15, 1943 to May 6,
1943.

In an April 1986 decision, the Board of Veterans' Appeals (Board)
denied entitlement to service connection for a psychiatric
disorder.  In an August 1992 decision, the Board denied the
veteran's request to reopen his claim in this regard, and
determined that the April 1986 decision remained final.  38
U.S.C.A. §§ 5108, 7104(b) (West 1991).  The veteran appealed to
the United States Court of Veterans Appeals (Court).  In October
1993, the Court vacated the Board's August 1992 decision and
remanded the case for further action.  [citation redacted].
Consistent with the Court's decision, the case was remanded to
the regional office (RO) in April 1994 in an attempt to develop
additional evidence.  Evidence received during the pendency of
the remand includes an abstract from the Office of the Surgeon
General (SGO).  Upon review of the RO's November 1994 rating
decision and supplemental statement of the case, the latter of
which includes a discussion of direct service connection, it
appears that, based upon such evidence, the veteran's claim was
reopened by the RO.  38 U.S.C.A. §§ 5108, 7104(b); Colvin v.
Derwinski, 1 Vet.App. 171, 174 (1991), Smith v. Derwinski, 1
Vet.App. 178, 179 (1991); 38 C.F.R. § 3.156(a)(1994).  Upon
review of the record, the Board also concludes that such evidence
is new and material, and when considered in conjunction with the
remainder of the record, suffices to reopen the veteran's claim.
Id.  As the Board's determination in this regard is essentially
identical to the RO's, the Board concludes that no infringement
of the veteran's due process rights has occurred.  See Bernard v.
Brown, 4 Vet.App. 384 (1993).

The Board notes that at the veteran's January 1991 personal
hearing, the representative requested consideration of the
provisions of 38 C.F.R. § 3.105 (1994).  In addition, in a
February 1995 statement, the representative requested
consideration of the issue of clear and unmistakable error in the
RO's 1949 rating decision which severed service connection for a
psychiatric disorder.  These matters are referred to the RO for
appropriate action.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends that his psychiatric disorder had its onset
in service; he specifically asserts that while in service, he
worried about events at home which led to the development of 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 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 an
allowance of service connection for a psychiatric disorder.

FINDINGS OF FACT

1.  All evidence necessary for an equitable disposition of the
veteran's appeal has been obtained.

2.  A diagnosis of psychoneurosis, existing prior to service, was
made while in service; thereafter, generalized anxiety disorder
is not shown to have been diagnosed until many years after
separation from service.

CONCLUSION OF LAW

A psychiatric disorder was not incurred in or aggravated by the
veteran's period of active service.  38 U.S.C.A. §§ 1110, 1153,
5107 (West 1991); 38 C.F.R. § 3.303 (1994).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Review of the record indicates that the veteran has submitted a
well-grounded claim.  38 U.S.C.A. § 5107(a).  The Department of
Veterans Affairs (VA) therefore has a duty to assist the veteran
in the development of facts pertinent to his claim.
38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet.App. 78, 81-82
(1990).  In this regard, we note that the veteran's service
medical records have been obtained and that post-service VA and
non-VA clinical data have been associated with his claims folder.
Upon review of such material, the Board concludes that the
veteran has been adequately assisted in the development of his
case and that the evidence currently of record provides an
adequate basis upon which to address the merits of his claim.

Psychiatric Disorder

Initially, it is noted that the record currently before the Board
consists of a rebuilt claims folder.  The record contains a VA
Form 00-3101 dated in October 1982, in which the RO noted that
the veteran's original folder was missing and requested that the
National Personnel Records Center (NPRC) provide any available
records.  In an October 1982 response, the NPRC wrote that no
medical records were available and that the veteran's records may
have been destroyed in a fire that occurred at that facility in
1973.  The Board recognizes that its obligation to explain its
findings and conclusions and to consider the benefit-of-the-doubt
rule is heightened in such instances.  See O'Hare v. Derwinski, 1
Vet.App. 365 (1991).

The Board notes that the record contains an April 1944 letter
which reflects that the veteran had been awarded "pension" from
July 1943 due to a "nervous condition" which had been incurred in
service.  The record also contains a duplicate of a July 1949
letter, however, which reflects that service connection for the
"nervous condition" had been discontinued.  The basis for the
severance is not recorded and the veteran has been unable to
provide any elucidation in this regard.

Substantively, the record, as noted above, currently includes an
abstract of hospital admission data from the SGO.  The abstract
reflects that the veteran was hospitalized at Fort Devens,
Massachusetts in April 1943, where a diagnosis of psychoneurosis,
type not specified, was made.  Hysteria was recorded as an
associated disease.  It was noted that the veteran's
hospitalization was a new admission and that the disability had
not occurred in the line of duty, but existed prior to service
entry.  The abstract includes reference to a May 1943 disposition
which notes that the veteran would be discharged for disability.

The veteran's representative has emphasized that the
aforementioned abstract was compiled for statistical purposes,
and that not all hospital admissions were included; it is also
argued that the origin of the line of duty determination is not
recorded in the abstract.  In this regard, we note that on VA
examination in 1982, the veteran reported that he had been
hospitalized in service; there was no indication that he had been
hospitalized on more than one occasion.  With respect to the line
of duty determination, the Board stresses that the abstract
represents a synopsis of hospital data recorded at the time, and
is considered reliable in this regard.

In pertinent part, the record also contains a report of a VA
neuropsychiatric examination conducted in November 1982 which
reflects the veteran's report that he was hospitalized in service
and that it was concluded that he was not suitable for military
service.  He noted that he was treated for several years after
service, but was unsure of the facility at which he received
treatment.  The veteran reported a history of difficulty
maintaining steady employment and that he had been in receipt of
Workman's Compensation benefits since 1969 in association with a
back injury.  On examination, the veteran reported that he had
"...always been a highly tense, anxious, restless person..." with
difficulty adjusting to "anything" and consequent difficulty
concentrating or occupying himself with anything meaningful.  It
was also noted that he had been unable to sleep at night as he
never was sufficiently tired and exhausted.  No distortion of
reality was reported.  The veteran's memory, judgment, and
insight into his difficulties was impaired.  The diagnosis was
generalized anxiety disorder.

The record also includes lay statements dated in January 1984 and
June 1985 from acquaintances of the veteran who knew him prior to
service, including from the late 1930's, and reported that a
change in the veteran's personality occurred after the veteran's
discharge from service.  Notably, the veteran reportedly showed
many "neurotic" symptoms, was unable to hold a job, was
excessively argumentative, and was unable to make friends.

A transcript (T.) of the veteran's personal hearing conducted in
November 1985 reflects the veteran's testimony that he never
experienced a nervous disorder prior to service and that he had
been told when he was discharged from service that he had a
nervous disorder.  T. at 2.  He stated that he never received
treatment for a nervous disorder.  T. at 2, 3.  He stated that
while in service, he experienced "heavy colds" and became angry
when forced to perform physical training, on one occasion leading
to an altercation with a Sergeant.  T. at 3.  He stated that he
otherwise "got along fine" with people in service and that when
he returned home, he began arguing with his friends and
ultimately became a "loner."  T. at 3.  The veteran reiterated
that he never received treatment in service or since for a
nervous condition.  T. at 4.  He stated that he had gone to
King's County Hospital after service, but did not recall why he
had gone.  T. at 5.

In a statement received in April 1986, the veteran reported that
he had been struck by a truck at the age of ten or eleven, and
intimated that it may have caused his nervous disorder to
manifest itself in service.  He also stated that his mother had
been sick when he was in service.

Lay statements received in January 1991, including from members
of the veteran's family, reflect familiarity with the veteran pre
and post service, and state that when the veteran was discharged
from service, a change in his personality was apparent.  In
particular, it was noted that the veteran was "calm" before
service, but thereafter, was irritable and unable to hold a job.

At his personal hearing conducted in January 1991, the veteran
testified that he worked full-time prior to service and that no
abnormalities were found on entrance examination.  T. at 3.  He
stated that he noticed no "nervous problems" prior to service"
and that he had never "see[n]" a doctor.  T. at 3.  He stated
that while in service, his mother was ill and was on his mind and
that he was training with heavy colds and was unable to breathe
well.  T. at 3.  He reported that he had received treatment for
colds in service, but, to his knowledge, had not "seen" a
psychiatrist in service.  T. at 3, 4.  He stated that he had been
discharged from service due to disability and that he had been
told that he had a nervous condition.  T. at 4.  The veteran also
stated that he did not receive treatment for his "nervous
problem" after service and that he had difficulty maintaining
employment after service.  T. at 4.  He stated that in
approximately 1945, he was sent to a private hospital, ostensibly
by the VA, "a couple of times" for evaluation.  T. at 5.  The
veteran reported that he did not seek or receive treatment
thereafter, but rather, on the advice of physicians, attempted to
care for himself and did not receive treatment until 1982.  T. at
7, 8, 9.  The veteran recalled no specific incident in service
which could have caused him to become nervous, and stated that he
"got along" with his Sergeant and fellow recruits.  T. at 9.  He
reported that he initially had difficulty sleeping subsequent to
his discharge from service, which continued to the present.  T.
at 10.

Pertinent law and regulations in this case provide that
entitlement to service connection may be allowed for a disability
which is incurred in or aggravated by the veteran's period of
active service.  38 U.S.C.A. §  1110.  Determinations of service
connection are based on a review of the entire evidence of
record.  38 C.F.R. § 3.303.

The Board recognizes that the VA's duty to assist the veteran, as
pointed out by the Court, includes an attempt to obtain records
which may constitute new and material evidence.  In this regard,
it is noted that in a May 1994 letter, the RO, pursuant to action
requested by the Board, requested from the veteran information
regarding any treatment which may impact upon his claim and
requested information as to the nature of his social security
benefits.  In a second letter to the veteran in September 1994,
the RO reiterated its request, and notified the veteran that if
the requested material was not forwarded within 30 days, the RO
would address the merits of his case on the evidence of record.
No response was received from the veteran.

In this regard, we stress that development of a veteran's claim
for benefits is not necessarily unilateral.  As discussed by the
Court, the duty to assist is not always a one-way street, and the
veteran cannot passively wait for help in those circumstances
where he may or should have information that is essential in
obtaining the putative evidence.  Wood v. Derwinski, 1 Vet.App.
190, 193 (1991).  Clearly, every reasonable attempt was made by
the VA in this case to obtain information from the veteran which
may have had an impact on his claim.  As the required information
from the veteran was not forthcoming, the VA was obligated to
address the merits of the veteran's case on the evidence of
record.  In this instance, the Board concludes that such action
was appropriate, and that in light of the circumstances in this
case, any further delay occasioned by attempting to develop the
record is not justified.

The Board also recognizes that although the veteran's service
medical records are unavailable, pertinent in-service data are
not lacking, as the aforementioned SGO abstract establishes that
a diagnosis of psychoneurosis was made in service, associated
with a finding of hysteria.  The SGO abstract is based on
information from hospital admission card data files for periods
including 1942 to 1945.  As such, it is clearly a reliable and
credible source of information and, in essence, represents a
synthesis of pertinent in-service information.  To the extent
that it establishes that the veteran experienced psychiatric
symptomatology in service, the abstract supports the veteran's
assertion.  It also establishes, however, that based on findings
at the time, the psychoneurosis was found to pre-exist the
veteran's period of service and was not incurred in the line of
duty.  As such, the abstract also weighs against his claim.

The remaining evidence of record is conflicting with regard to
the onset of the veteran's psychiatric disorder or the events
which, it is argued, led to its occurrence.  At his VA
examination in 1982, for example, the veteran reported that he
had always been tense and anxious, whereas at his personal
hearing, he noted that he had not experienced psychiatric
symptomatology prior to service.  In addition, the veteran
reported in 1982 that he had been hospitalized in service, and
later stated that he had been considered unsuitable for military
service.  Thereafter, he reported that he had not been treated in
service or since for psychiatric symptomatology, and did not
recall the nature of treatment he received at a private facility
shortly after service.  The record indicates that the veteran
either was unaware or did not recall that a psychiatric
examination was conducted in service.  He has stated, however,
that he had been told that he was being discharged due to a
nervous condition.

The veteran's hearing testimony in 1985 and 1991 differs, stating
on the former occasion that he had become angry at particular
events in service, while later indicating that he had no personal
conflicts in service.  The veteran's consistently reported
history to which he attributes the onset of a psychiatric
disorder is essentially limited to the occurrence of colds and
concern for his mother while in service.  Overall, in light of
his conflicting reports and the vague nature of the veteran's
reported history, the Board does not consider the history as to
the veteran's psychiatric disability generally to be reliable.
Further, although the veteran's allegations as to the nature of
the etiologic relationship between his psychiatric disorder and
service, such as training while ill and concern for his mother,
are without foundation in the record.

The veteran has provided no clear details of psychiatric
symptomatology in service, and is unclear as to his receipt of
psychiatric treatment in service and that reportedly received
shortly thereafter.  The record as a whole indicates that
findings demonstrated on examination in service led to the
conclusion that a psychoneurosis was present which had pre-
existed service and was not aggravated thereby.  Evidence of
treatment claimed by the veteran to have occurred shortly after
service, as noted above, is absent, and the record reflects no
evidence of a psychiatric disorder until many years post-service.
As it stands, therefore, the record fails to substantiate the
veteran's assertion as to the onset of a psychiatric disorder in
service.  Rather, it establishes that any symptomatology which
the veteran may have experienced in service was associated with a
pre-existing disorder, and that no further indication as to the
presence of a psychiatric disorder occurred until many years
after the veteran's separation from service.  To this extent, the
veteran's comments that he had experienced an altercation with a
Sergeant in service and had always been a tense person are
consistent with the record as to the presence of disability prior
to service and an episode in service which led to a diagnosis of
psychoneurosis.

The Board notes that lay statements which consistently note the
veteran's personality change subsequent to service, describing
him, for example, as calm prior to service and irritable
thereafter, are credible with respect to observations made of the
veteran's behavior.  See Espiritu v. Derwinski, 2 Vet.App. 492,
494 (1992).  The observation of the veteran as "neurotic" in this
case, however, is of limited value, as it ostensibly was not made
by a person with specialized knowledge in psychiatry.  Id.  It
must be emphasized, however, that the observations are considered
in conjunction with the remainder of the record, which, as noted
above, includes the veteran's own statement that he had always
been tense and anxious and that he had had a verbal altercation
with a Sergeant in service, as well as hospital admission data,
based on findings at the time, that a psychoneurosis had pre-
existed service.  Further, the lay witnesses' observations as to
a psychiatric disorder after service are not substantiated by the
other evidence of record, including documentation of treatment of
the claimed disorder subsequent to service.  In summary, although
for consideration in the veteran's claim, the lay statements are
generally not consistent with the remaining evidence of record or
lack thereof.

The representative has stressed that the presumption of soundness
is for application.  The applicable provision states that every
veteran shall be taken to have been in sound condition when
examined, accepted, and enrolled for service, except as to
defects, infirmities, or disorders noted at the time of the
examination, acceptance, and enrollment, or where clear and
unmistakable evidence demonstrates that the injury or disease
existed before acceptance and enrollment and was not aggravated
by such service.  38 U.S.C.A. § 1111 (West 1991).  As the
veteran's service medical records are not available in this case,
there is no indication as to the presence of a psychiatric
disorder at service entry.  Significantly, however, the SGO
report based on findings contemporaneous with the veteran's
service, reflects that a psychoneurosis pre-existed service, and
the remaining evidence of record does not overcome such a
conclusion.  Although noted, the relationship claimed by the
veteran between events in service and the onset of a psychiatric
disorder is not substantiated; there is no indication, that such
claimed events could have precipitated the onset of a psychiatric
disorder.  The Board stresses that evidence of a psychiatric
disorder is absent for many decades after the veteran's period of
service.  Clearly, the evidence indicates that any psychiatric
disorder present pre-existed service and was not aggravated
thereby.  The Board is satisfied that the presumption of
soundness has been rebutted in this instance.

In the absence of any indication of a psychiatric disorder for
many years after service, in combination with the remaining
evidence of record, discussed above, the Board concludes that the
lay statements neither outweigh the evidence against the
veteran's claim nor shift the evidence to create a reasonable
balance of positive and negative evidence with respect to the
veteran's claim.  Considered as a whole, the Board concludes that
the evidence of record fails to establish the onset of a
psychiatric disorder in service.  Rather, as noted above, it
establishes only that the veteran may have experienced an episode
of pre-existing psychiatric symptomatology in service, with no
evidence of a psychiatric disorder thereafter until many years
post service and with no clear connection to his period of
service.  Accordingly, the Board has no foundation upon which to
allow the veteran's claim.  We stress that the evidence of record
provides no approximate balance of positive and negative evidence
with respect to the issue at hand; the doctrine of reasonable
doubt, therefore, is not for application in this case.  38
U.S.C.A. § 5107(b).

ORDER

Entitlement to service connection for a psychiatric disorder is
denied.

          J. U. JOHNSON
          Member, Board of Veterans' Appeals

CONTINUED ON NEXT PAGE
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.