Citation Nr: 1760248
Decision Date: 12/27/17 Archive Date: 01/02/18

DOCKET NO. 14-24 301A ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana

THE ISSUES

1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric condition to include depression and posttraumatic stress disorder (PTSD) (previously panic disorder rated as psychoneurosis, anxiety and passive aggressive personality).

2. Entitlement to service connection for an acquired psychiatric condition to include depression and PTSD (previously panic disorder rated as psychoneurosis, anxiety and passive aggressive personality).

REPRESENTATION

Appellant represented by: Veterans of Foreign Wars of the United States

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

A. Labi, Associate Counsel

INTRODUCTION

The Veteran served on active duty from January 1952 to October 1954.

This matter comes before the Board of Veterans Appeals (Board) on appeal from a June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana.

In August 2017, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is of record.

This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012).

The issue of entitlement to service connection for an acquired psychiatric condition to include depression and PTSD (previously panic disorder rated as psychoneurosis, anxiety and passive aggressive personality) is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDINGS OF FACT

1. In a February 1955 rating decision, the RO denied the Veteran’s claim of entitlement to service connection for nervousness; the Veteran did not timely initiate an appeal of that decision within one year of notification.

2. The evidence received since the February 1955 rating decision relates to an unestablished fact necessary to substantiate the claim of service connection for an acquired psychiatric condition and raises a reasonable possibility of substantiating that claim.

CONCLUSIONS OF LAW

1. The February 1955 rating decision, which denied service connection for nervousness (now an acquired psychiatric condition) is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017).

2. The criteria for reopening a claim of entitlement to service connection for an acquired psychiatric condition have all been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran contends that his acquired psychiatric condition is related to service and did not exist prior to service.

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). “To establish a right to compensation for a present disability, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service”- the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Prior to the filing of the current claim of entitlement to service connection for an acquired psychiatric condition, the AOJ denied a claim of service connection for nervousness in February 1955. No relevant evidence or notice of disagreement initiating an appeal was received within one year of the notification. Therefore, the February 1955 decision is final. See 38 U.S.C. § 7105(c) (2012); 38 C.F.R. § 3.156(b) (2017). Once a claim is disallowed in a final AOJ decision it generally cannot be reopened and allowed. 38 U.S.C. § 7105(c) (2012). The exception to this rule of not reviewing the merits of a finally denied claim is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.

The regulation that implements 38 U.S.C. § 5108 defines “new and material evidence” as evidence not previously submitted to agency decision makers which is neither cumulative nor redundant of evidence previously of record, and which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2017). Thus, it must first be determined whether the claim may be reopened.

The claim was denied in February 1955 because it had not been established that the Veteran’s condition was incurred in or aggravated by service, finding that service records established that the Veteran’s condition existed prior to service. Essentially, neither the in-service nor nexus elements had been met.

In a July 1971 application, the Veteran applied for benefits for his claimed nervous condition. An October 1971 rating decision determined that permanence of disability for pension purposes had not yet been established. That claim was necessarily also one of entitlement to service connection. The AOJ stated in the notification letter that service connection was not established for the Veteran’s nervous disorder. The unestablished facts remained the same as they were following the 1955 decision.

Received in January 1972 were VA treatment records documenting a VA hospital admission for anxiety reaction with somatic processes. In February 1972, the AOJ issued a confirmed rating decision continuing the October 1971 denial. There is no indication that the Veteran was notified of that confirmed rating decision. As such, the decisions of October 1971 and February 1972 did not become final. See 38 C.F.R. § 3.156(b); Beraud v. McDonald, 766 F.3d 1402 (Fed. Cir. 2014). The last final decision was the one from 1955.

In December 2010, the Veteran filed a claim of entitlement to service connection for depression. In a November 2011 rating decision, the Veteran’s claim for service connection for depression was denied. In May 2012, the Veteran submitted an NOD requesting to reopen his claim for service connection for PTSD. In an August 2013 rating decision, the RO continued the denial of the Veteran’s claim for service connection for panic disorders. In a June 2014 statement of the case (SOC) and in a June 2015 rating decision, denial of the Veteran’s claim was continued. In an August 2016 supplemental statement of the case (SSOC), the Veteran’s claim was reopened and denied.

In a July 2014 VA Form 9, the Veteran stated that he never had nerve trouble until he was in service for 6 months. He stated that he was admitted to the hospital during service. He indicated that VA stated that all of his records were lost in a fire.

In the August 2017 hearing, the Veteran testified that he did not have any trouble while he was in boot camp. However, he testified about an incident in service where fellow soldiers poured “some kind of cough medicine” down his throat and he “about choked to death.” The Veteran stated that the incident scared him so much that after the incident he began thinking about death all of the time. The Veteran testified that on a trip to Indianapolis he described feeling needles from his feet to his head and that he thought he was dying. He testified that he went to Methodist Hospital where he was told he had a bad panic attack. The Veteran testified that he did not have any symptoms or see a mental health professional before service.

New evidence received since the February 1955 decision was final includes VA treatment records, hospitalization records, applications for hospital treatment, a statement of patient’s treatment, a December 2010 claim for depression, military personnel record, multiple statements in support of claim, a July 2013 VA examination, a March 1992 medical treatment record from St. Vincent’s Hospital Stress Center, a November 2013 letter from the Veteran, a Formal Finding regarding PTSD stressors, a February 2016 Mental Disorders Disability Benefits Questionnaire (DBQ), VA Form 646, and testimony from an August 2017 hearing before the Board.

The statements received from the Veteran, the February 2016 DBQ, and the August 2017 testimony all provide new and material evidence related to the basis for denial of the previous final decision. These records discuss the existence of the Veteran’s psychiatric condition and provide opinion as to the nexus element. The Board finds that this is sufficient to reopen the claim.

ORDER

The claim of service connection for an acquired psychiatric condition to include depression and PTSD is reopened.

REMAND

Although the Board regrets the additional delay with regard to the remaining issues, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159.

The Veteran contends that his acquired psychiatric disorder is related to service and did not exist prior to service.

All veterans are 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, except where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111.

This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). Regulation provides expressly that the term “noted” denotes “[o]nly such conditions as are recorded in examination reports,” 38 C.F.R. § 3.304(b), and that “[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions.” Id. at (b)(1).

If a disorder was not “noted” on entering service, the government can only rebut the presumption by a showing by clear and unmistakable evidence both that it existed before service and was not aggravated by service. A lack of aggravation may be shown by establishing that there was no increase in disability during service or that the “increase in disability [was] due to the natural progress of the preexisting condition.” Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). If the government meets its burden then the Veteran is not entitled to service connection for the claimed disability. Id.

Clear and unmistakable evidence means that the evidence ” ‘cannot be misinterpreted and misunderstood, i.e., it is undebatable.’ ” Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009) (citing Vanerson v. West, 12 Vet. App. 254, 258-59 (1999)). The clear-and-unmistakable-evidence standard is an “onerous” one. Laposky v. Brown, 4 Vet. App. 331, 334 (1993) (citing Akins v. Derwinski, 1 Vet. App. 228, 232 (1991)); see also Vanerson, 12 Vet. App. at 263 (Nebeker, C.J., concurring in part and dissenting in part) (“[O]nly an inference that is iron clad and copper riveted can be ‘unmistakable.’ “).

In this case, an acquired psychiatric disorder was not “noted” at service entrance. A January 1952 report of medical examination includes a normal clinical psychiatric evaluation. In multiple statements and during the August 2017 hearing, the Veteran stated that he did not have symptoms of or receive treatment for a psychiatric disorder. Thus, with respect to the claimed psychiatric disorders, the presumption of soundness attaches.

Because a psychiatric disability was not “noted” at service entrance, there must be clear and unmistakable evidence of both a preexisting condition and a lack of in-service aggravation to overcome the presumption of soundness. See Wagner, 370 F.3d at 1097.

STRs indicate no psychiatric concerns noted on the Veteran’s entrance examination on January 2, 1952. STRs indicate that a report of medical examination from September 13, 1954 indicates that “psychiatric” was marked as abnormal in the clinical evaluation. The notes indicate “psychogenic asthenic reaction, chronic, moderately severe, improved on completion of hospitalization, in partial remission. A record dated July 15, 1954 indicates that the Veteran began having his present symptoms in June or July of 1952, after he entered service in January 1952. That record indicates that the Veteran’s symptoms have progressed in intensity and frequency with many contacts with physicians and hospitals since that time.

The STRs include a Medical Bboard report from September 21, 1954, which indicates that “psychogenic asthenic reaction, chronic, moderately severe, improved on completion of hospitalization, in partial remission.” The report notes that the Veteran’s condition was manifested by increasing severity of complaints of fatigue, irritability, nervousness, and anorexia with secondary symptoms of palpitation, sensory changes and persistent thoughts of death. The report notes “stress-minimal, predisposition-moderate, impairment-marked for military duty.” The findings recommended by Board indicate that the Veteran was incapacitated for further military service because of a mental illness and that the degree of disability for military service is total and permanent.

VA treatment notes received in March 1955 indicate a diagnosis of psychoneurotic reaction and anxiety reaction. Subsequent VA treatment records indicate diagnoses and treatment for anxiety, neurosis, depression, and passive-aggressive personality – dependent type. A record received in January 1972 indicates that the Veteran was admitted to the hospital on August 3, 1971 and discharged on October 22, 1971. The January 1972 record indicates that the Veteran has a long history of anxiety and prior to his admission, a recent history of accompanying depression. Records dated September 3, 2010 and December 10, 2010 indicate that the Veteran reported having “nerve” problems since returning from Korea.

Medical records received in July 2014 from St. Vincent’s Hospital Stress Center indicate that the Veteran was admitted on March 6, 1992 and discharged on March 13, 1992. The record indicates that the Veteran has had anxiety of all varieties for the last 30-40 years.

The Veteran underwent an Initial PTSD VA examination in July 2013. The report indicates a diagnosis of panic disorder, without agoraphobia. The Veteran reported that he had been receiving mental health treatment since 1953 and that he had been hospitalized. The examiner stated that “the Veteran reported that he started experiencing panic attacks when he was six months in the service.”

A February 2016 Mental Disorders DBQ indicates that the Veteran was diagnosed with unspecified anxiety disorder and unspecified depressive disorder. The examiner opined that the Veteran was not found to be experiencing a psychological diagnosis that was incurred in, caused by, or aggravated by his military service. The examiner noted that the Veteran’s medical records indicate that the psychiatric conditions with which he was diagnosed in service, existed prior to his service.

The February 2016 examiner stated that the Veteran’s medical records show that he was experiencing significant symptoms of an anxiety disorder prior to his service as a result of conflict with members of his family. The examiner stated that the Veteran’s medical records indicate that his symptoms of anxiety were manifested in a variety of relationships and settings prior to his service. The February 2016 examiner noted that the Veteran reported hospitalization for psychiatric concerns for a period of two months and that he was receiving treatment for symptoms of anxiety, panic, and depression while he was in the service. The examiner stated that the Veteran’s medical records indicate that he was not found to be experiencing symptoms of depression during service, and that he was first diagnosed with depression in 1971. The Veteran examiner noted that the Veteran reported that he was also hospitalized on an inpatient basis for psychiatric concerns at the Indianapolis VAMC for a period of four months. The examiner noted that the Veteran reported that he was last hospitalized for psychiatric concerns at St. Vincent’s Hospital in 1992.

There is no evidence of record indicating psychiatric treatment prior to service of record. The Veteran’s STRs mention his reported history but do not note a treatment or diagnosis for any psychiatric disorder. The Veteran underwent a VA examination in February 2016 in which the examiner opines that the Veteran’s acquired psychiatric disorder preexisted service. However, the examiner does not include a complete rationale for this opinion and does not indicate specific evidence to support the opinion provided. These VA examinations, along with service treatment reports, do not constitute clear and unmistakable evidence that the Veteran’s current psychiatric disorders pre-existed his entrance into service.

After a thorough review of the record, the Board finds that the medical evidence of record is insufficient to decide the claim and that a remand is necessary to provide an examination and obtain a medical opinion.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.)

1. Obtain a clear and legible copy of the Veteran’s July 2014 treatment records from St. Vincent’s Hospital Stress Center. If the records are unavailable and the AOJ determines that further attempts to obtain those records would be futile, such should be noted in the claims file with a formal finding of unavailability.

2. Ensure that the Veteran is scheduled for a VA examination with regard to his acquired psychiatric disorder. The examiner must review the claims file in conjunction with the examination. The examiner must provide medical opinions as to the following:

A. Did the Veteran’s diagnosed acquired psychiatric disorders clearly and unmistakably pre-exist his active duty service?

The examiner is directed to clearly identify the evidence used to make this determination.

i. If so, is there clear and unmistakable evidence that the pre-existing acquired psychiatric disorder did not undergo an increase in the underlying pathology during service? The examiner must provide a thorough explanation to support any opinion rendered.

If there was an increase in the severity of the Veteran’s acquired psychiatric disorder, was such increase clearly and unmistakably due to the natural progress of the disability? The examiner must provide a thorough explanation to support any opinion rendered

ii. If not, is it at least as likely as not (a 50 percent or higher probability) that any psychiatric disability that the Veteran has had at any time since July 1971 is related to the psychiatric condition that he had during his active service.

In addressing such inquiries, the examiner must take into consideration all of the evidence of record, to include the Veteran’s service treatment records and post-service medical records, as well as the Veteran’s statements concerning his experienced symptoms, accepted medical principles, and objective medical findings. All opinions expressed must be accompanied by supporting rationale.

If the examiner cannot provide the above opinions, the examiner is advised that he/she must explain why the requested opinion cannot be provided (i.e., because the limits of medical knowledge had been exhausted or because further information to assist in making the determination is needed, such as additional records and/or diagnostic studies). If the examiner cannot provide the answer because further information is needed to assist in making the determination, all reasonable steps to obtain the missing information must be exhausted before concluding that the answer cannot be provided.

The term “at least as likely as not” does not mean within the realm of possibility, but rather that the evidence both for and against a conclusion is so evenly divided that it is as sound to find in favor of a certain conclusion as it is to find against it.

The examiner must support any opinion rendered with a detailed rationale.

3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran’s claim must be readjudicated based on the entirety of the evidence. If the benefit sought on appeal is not granted in full, the AOJ must issue a supplemental statement of the case, allow an appropriate opportunity to respond, and then return the appeal to the Board, if otherwise in order.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012).

______________________________________________
JAMES G. REINHART
Veterans Law Judge, Board of Veterans’ Appeals

Department of Veterans Affairs

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