Citation Nr: 0207543 Decision Date: 07/10/02 Archive Date: 07/17/02 DOCKET NO. 99-08 945 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an acquired psychiatric disorder, to include a major depressive disorder, based on a period of active honorable military service from December 27, 1963 to February 26, 1968. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The veteran had two periods of military service. He had honorable active military service from December 27, 1963 to February 26, 1968, and other than honorable service from October 8, 1970 to October 11, 1973. Thus, for purposes of this appeal, only the honorable period of service qualifies as active duty service for VA purposes at this time. Accordingly, the issue on appeal in this case is listed on the cover page of this decision. This matter comes before the Board of Veterans' Appeals on appeal from a June 1999 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Houston, Texas, which denied service connection for a psychiatric disorder, to include depression. In April 1999, the veteran filed a notice of disagreement (NOD); and, later that month, the RO furnished the veteran a statement of the case (SOC). In April 1999, a videoconference hearing was held before the undersigned Member of the Board. This case was remanded in July 1999, October 2000, and March 2001, and is once again before the Board for appellate review. The issue of whether the character of the veteran's discharge from his period of service from October 8, 1970 to October 11, 1973 constitutes a bar to VA benefits, for any disability incurred during that period of service, will be addressed in a remand that follows the decision. FINDINGS OF FACT 1. The veteran performed a period of active honorable military service from December 27, 1963 to February 26, 1968. 2. The evidence of record shows that an acquired psychiatric disorder, diagnosed as a major depressive disorder with intermittent psychotic features, was manifested during the veteran's active honorable military service. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the veteran, a major depressive disorder with psychotic features was incurred during a period of active honorable military service from December 27, 1963 to February 26, 1968. 38 U.S.C.A. §§ 1110, 5107 (West 1991 & Supp. 2001); 38 C.F.R. §§ 3.102, 3.303 (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Board observes that recently enacted law and its implementing regulations essentially eliminate the requirement that a claimant submit evidence of a well- grounded claim, and provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. 38 U.S.C.A. §§ 5103A, 5107(a) (West Supp. 2001); 66 Fed. Reg. 45620, 45630-631 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. §§ 3.102, 3.159(c)-(d)). The new law and regulations also include new notification provisions. Specifically, they require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary, that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. 38 U.S.C.A. § 5103 (West Supp. 2001); 66 Fed. Reg. 45620, 45630 (Aug. 29, 2001) (to be codified at 38 C.F.R. § 3.159(b)). The record reflects that the veteran has received the degree of notice which is contemplated by law. Specifically, VA provided the veteran and his representative with the appealed February 1999 rating decision, an April 1999 SOC, and supplemental SOCs in October 1999, January 2000, and December 2000. These documents together list the evidence considered, the legal criteria for establishing service connection for a psychiatric disorder, and the reasons for the determination made regarding the veteran's claim for service connection for a psychiatric disorder, based on his period of active honorable military service. Further, the record also discloses that VA has also met its duty to assist the veteran in obtaining evidence necessary to substantiate his claim. Most notably, the veteran's service medical records, and relevant records of VA and private medical treatment have been associated with the claims file. In May 2000, the veteran presented testimony at a videoconference hearing before the undersigned Member of the Board. In March 2001, the Board remanded the case for the RO to obtain additional evidence related to the veteran's psychiatric claim. In October 2001, the RO provided the veteran with a VA psychiatric examination, which includes a December 2001 addendum prepared by the VA psychiatrist who had examined the veteran in October 2001. The addendum contains an opinion regarding the etiology of the veteran's current psychiatric disorder. The examination report and addendum together provide relevant findings and opinions regarding the veteran's mental health history. Therefore, under these circumstances, VA has satisfied both its duty to notify and assist the veteran in this case and adjudication of this appeal at this juncture poses no risk of prejudice to the veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993). Accordingly, the issue of service connection for an acquired psychiatric disorder, to include a major depressive disorder, is ready for appellate review. II. Service Connection for an Acquired Psychiatric Disorder, to include a Major Depressive Disorder, Based on Active Honorable Military Service from December 1963 to February 1968 In general, service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be established on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. In such instances, however, a grant of service connection is warranted only when "all the evidence, including that pertinent to service, establishes that the disease was incurred during service." 38 C.F.R. § 3.303(d) (2001). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. §5107(b) (as amended); 38 C.F.R. § 3.102. No psychiatric disorder was noted when the veteran was examined in December 1963 for entry into service. Medical records from his 1963 to 1968 period of service reflect that he was seen in June 1966, indicating that he was unhappy in the service and wanted to get out. He reported that he despised the people with whom he worked. The examiner's impression was immature personality with situational maladjustment. Outpatient treatment records reflect that the veteran was seen in November 1966, December 1966, January 1967, and March 1967 for injuries following physical fights. In March 1967, the veteran had a psychiatric consultation after an altercation with a taxi driver. He reported that he had been drinking, and did not remember the incident clearly. He reported that he had been in at least ten fights during his service in Thailand, some while drinking, and others while sober. The examiner found that the veteran's mental status was within normal limits, and that the veteran did not have a mental illness. A March 1967 administrative report indicates that the veteran had been found to have a passive- aggressive personality with antisocial components. In August 1967, the veteran was referred to the neuropsychiatric clinic. He was diagnosed as having an aggressive and impulsive personality disorder, and it was recommended that his duties be changed. No psychiatric disorder was noted on the veteran's January 1968 separation examination. VA outpatient treatment records from September 1995 reflect that the veteran was under treatment for major depression. He received inpatient psychiatric treatment at a VA Medical Center (VAMC) for about three weeks in September and October 1995. He reported a long history of depression and anger dyscontrol. He was noted to have depression, an antisocial personality disorder, and increasing anger dyscontrol. He reported that he had been on psychiatric medication for several months, and that he had been tried on other psychiatric medications in the past. The examiner noted a history of alcohol abuse and cannabis abuse. The diagnosis was depression. In February 1996, the veteran was admitted to a private hospital for psychiatric treatment and psychological testing, after attempting suicide by overdose. He reported that he had been psychiatrically hospitalized in 1973 for alcohol dependency, and in 1995 at a VA hospital. He reported that he had attempted suicide two times in the past. He reported that he had experienced problems during his first period of military service, and that he had sought and received a psychiatric discharge. After psychological testing, examiners provided diagnoses of recurrent major depressive disorder and antisocial personality disorder. The psychiatrist who signed the hospitalization summary provided a diagnosis of major depression with psychotic features. VA medical records show that the veteran received outpatient treatment for depression in 1998 and 1999. Some of the treatment records show a diagnosis of PTSD. In a July 1999 psychological evaluation, the veteran reported that his psychiatric symptoms, such as depression and excessive anger, had been present since he was in service. In his May 2000 videoconference hearing, the veteran reported that he had first experienced depression during service in 1964, when he was stationed in Alaska, and that he had continued to be depressed while he was stationed in Thailand. He reported that he had continued to feel depressed after he was separated from service in 1968, but that he had not received treatment for depression at that time. He reported that he had received mental health treatment, including medication, during his second period of active military service, in 1970 to 1973. He stated that he had continued to feel depressed after his second period of service. He reported that he had been receiving treatment for depression at a VA facility since the mid-1990s. The veteran's wife reported that the veteran had suffered from depression most of the time over the 28 years that she had known him. Both the veteran and his wife reported that the veteran had changed jobs very frequently over the years. On VA psychiatric examination in October 2001, the examiner noted that the veteran's claims file was not available for review. The veteran reported that he believed that he had first seen a psychiatrist in 1967, during his first period of military service. He reported that he did not have any psychiatric treatment after service until 1995. The examiner noted that the veteran had received VA psychiatric inpatient treatment in July 2001, after he took an overdose of medication. The veteran reported that he had gotten into trouble, during his first period of military service, for getting into fights with civilians. He reported that he had been drinking heavily during that period. He reported that he had worked as a truck driver when he was not in service. He indicated that in recent years he had been diagnosed with diabetes, and that he was no longer working. He reported that he was depressed, and that he thought about suicide daily. The examiner noted that the veteran's mood was anxious, angry, and depressed. The examiner's diagnoses were intermittent explosive disorder, pathological ambling, and major depressive disorder with intermittent psychotic features. In December 2001, the psychiatrist who had examined the veteran in October 2001 provided an addendum to the examination report. The psychiatrist reported having received and reviewed the veteran's claims file, including the service medical records from the 1963 to 1968 period of service. The psychiatrist noted the records from 1967 that describe psychiatric evaluations and reports of the veteran fighting. The psychiatrist stated it is my opinion that the veteran's personality disorder was present while [the veteran] was performing his honorable military service from December of 1963 until February of 1968. During that time, the veteran appeared to have symptoms consistent with an intermittent explosive disorder, although the fact that he had admitted drinking heavily confuses this impression. It is my opinion that in response to the consequences of his irresponsible impulsive behavior the veteran has developed symptoms consistent with a major depressive disorder with intermittent psychotic features. The service medical records from the veteran's 1963 to 1968 period of service reflect that he was involved in frequent fights, and that he was referred for psychiatric consultation due to his behavior. The accounts of the veteran and his wife indicate that he continued to have mood and behavioral problems after his first period of service, continuing through the present. While no psychiatric disorder was diagnosed during the veteran's 1963 to 1968 period of service, a VA psychiatrist has opined that his current depression with intermittent psychotic features developed from the behavior manifested during the veteran's 1963 to 1968 period of service. The psychiatrist describes a somewhat indirect link between events during the period of active honorable military service and the current disorder. Nonetheless, the psychiatrist's opinion is sufficient to establish at least a balance of positive and negative evidence regarding the matter of service connection of a psychiatric disorder. Resolving all reasonable doubt in the veteran's favor, as required by 38 U.S.C.A. §5107(b), the Board determines that service connection for an acquired psychiatric disorder, diagnosed as a major depression with psychotic features, is warranted. The appeal is granted. ORDER Service connection for an acquired psychiatric disorder, diagnosed as a major depressive disorder with psychotic features, based on a period of active honorable military service from December 27, 1963 to February 26, 1968, is granted. REMAND In March 1995, the RO issued an administrative decision finding that the character of the veteran's discharge from his period of service from October 8, 1970 to October 11, 1973, constituted a bar to VA benefits for any disabilities determined to have been incurred during that period of service. In an October 2000, the Board noted evidence that the veteran had not received notification of the March 1995 administrative decision, and the Board remanded the case for the RO to re-mail the March 1995 decision to the veteran, which was accomplished by the RO in October 2001. In a notice of disagreement, dated in July 2001, the veteran, by and through his representative, contested the March 1995 administrative decision regarding the character of discharge from the veteran's second period of service. The RO has not issued a statement of the case in response to the veteran's notice of disagreement. In Manlincon v. West, 12 Vet. App. 238, 240-41 (1999), the United States Court of Appeals for Veterans Claims (Court) determined that, in a case in which a veteran expressed disagreement in writing with an RO decision, and the RO failed to issue a statement of the case, the Board should remand the issue to the RO for the issuance of a statement of the case. The remanding of the of issue concerning the character of the veteran's discharge must not be read as an acceptance of jurisdiction over the same by the Board. The Board may only exercise jurisdiction over an issue after a veteran/appellant has filed both a timely notice of disagreement to a determination denying the benefit sought, and a timely substantive appeal. 38 U.S.C.A. § 7105 (West 1991); Roy v. Brown, 5 Vet. App. 554 (1994). The RO should return this matter to the Board only if the veteran perfects his appeal in full accordance with the provisions of 38 U.S.C.A. § 7105. Accordingly, this case is REMANDED for the following action: The RO should furnish the veteran a statement of the case as to the issue of whether the character of the veteran's discharge from his period of service from October 8, 1970 to October 11, 1973, constitutes a bar to VA benefits for any disability incurred during that period of service. The statement of the case should include all relevant law and regulations pertaining to the claim. The veteran must be advised of the time limit in which he may file a substantive appeal. 38 C.F.R. § 20.302(b)(2001). This case should be returned to the Board only if the veteran perfects an appeal of this matter by filing a timely substantive appeal. The veteran has the right to submit additional evidence and argument on the matter that the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 2001) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21- 1, Part IV, paras. 8.44-8.45 and 38.02-38.03. DEBORAH W. SINGLETON Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.