Citation Nr: 0705754 Decision Date: 02/28/07 Archive Date: 03/05/07 DOCKET NO. 95-34 212 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Louis A. deMier-Le Blanc, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Seales, Associate Counsel INTRODUCTION The veteran served on active duty from September 1961 to January 1962. This matter comes before the Board of Veterans' Appeals (Board) from a November 2005 Board decision. In that decision, the Board determined that new and material evidence had been received sufficient to reopen the veteran's previously denied claim and the claim was remanded for additional development. In February 2006, the Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for an acquired psychiatric disorder. FINDING OF FACT The veteran's acquired psychiatric disorder is related to active service. CONCLUSION OF LAW An acquired psychiatric disorder was incurred in active service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran seeks service connection for an acquired psychiatric disability, which he contends initially manifested in service. In order to establish service connection, three elements must be established. There must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303 (2006); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). A veteran will be 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, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are considered as noted. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). When determining whether a defect, infirmity, or disorder is "noted" at entrance into service, supporting medical evidence is needed. Crowe v Brown, 7 Vet. App. 238 (1994). The Court has held that lay statements by a veteran concerning a preexisting condition are not sufficient to rebut the presumption of soundness. See Gahman v. West, 13 Vet. App. 148, 150 (1999). Moreover, mere transcription of medical history does not transform information into competent medical evidence. LeShore v. Brown, 8 Vet. App. 406 (1995). VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 3-2003; see also Wagner v. Principi, 370 F.3d 109 (Fed. Cir. 2004). Factual Background The veteran reported occasional nervousness prior to induction into service in October 1960. On examination, no psychiatric abnormalities were noted and his complaints of nervousness were not considered disabling. The veteran did not report depression, excessive worry, or nervous trouble of any sort at induction in September 1961 and no psychiatric disorders were noted on examination. In November 1961, the veteran was admitted into the hospital for treatment of an acute upper respiratory infection. Nursing notes indicate that he was observed weeping and staring into space. After his condition stabilized and he was adjudged fit to report to Ft. Sill, OK for training; the veteran developed symptoms of a disabling emotional state, which included staring, weeping, and almost unresponsive behavior. In December 1961, the veteran was transferred to Valley Forge General Hospital for a psychiatric evaluation. He reported that his wife was sick in New York City and that he was afraid to leave her because if she developed pain, no one would assist her. He also reported that his mother had been ill with cancer and that he thought about her constantly. The veteran stated that he had many worries on his mind and was therefore unable to function adequately in the service. He reported that he was not inclined to continue in the service because he felt nervous all the time, had difficulty with his breathing, and was no longer motivated. The examiner diagnosed emotional instability reaction, chronic, moderate, manifested by feelings of inadequacy and inferiority, no motivation for military duty, great deal of dependency needs, temporary depressive episodes. The examiner recommended that the veteran be separated from service. In January 1962 the veteran was administratively separated from service in light of his emotional instability reaction. The veteran submits a June 1993 nexus opinion statement from a private forensic psychiatrist. He reported that he had been married for a year at the time he was inducted into active service, and that this affected him emotionally, as he was not able to tolerate separation from his wife very well. The veteran also reported feeling very upset during basic training and an inability to tolerate certain exercises. The psychiatrist noted that the veteran cried a number of times during the interview, evidencing a significantly depressed mood. The veteran also had difficulty with verbal expression due to forgetfulness and easy distractibility. After review of the veteran's medical records, the psychiatrist concluded the veteran's psychiatric disability was related to the instability reaction noted in service. A February 2006 VA examination diagnosed anxiety disorder, not otherwise specified, with some depressive features. The examiner's opinion was that anxiety disorder was present before service, and was "aggravated by family and personal situations and perceptions." Analysis The veteran underwent review of his psychiatric health at induction into service and no conditions were noted. Thus, no psychiatric conditions were noted at induction into service. Further, his current disability is not shown by clear and unmistakable evidence to have existed prior to service. Although the veteran has reported a history of nervousness throughout his lifetime; his lay statements are not sufficient to rebut the presumption of soundness. The opinion of the 2006 VA examiner does not amount to "clear and unmistakable evidence" that the disorder existed prior to service. Thus, the presumption of soundness at induction into service has not been rebutted The veteran testified in June 1993 and August 2002 that he experienced symptoms of anxiety during basic training. Service medical records document treatment for a psychiatric episode in November 1961. Current medical evidence indicates the veteran is receiving treatment for an anxiety disorder and depression. The veteran has submitted a June 1993 opinion statement which relates his psychiatric disability to service, stating that his condition "was precipitated by his traumatic experience during military service." The record supports such an experience, personal troubles perceived by the veteran as traumatic. Resolving all doubt in favor of the veteran, the Board concludes that the criteria for a grant of service connection for an acquired psychiatric disability have been met. Duty to Notify and Assist Duty to Notify: Regarding VA's duty to inform the veteran of the evidence needed to substantiate his claim, the RO notified him of the information and evidence needed to establish entitlement to service-connection in correspondence dated March 2002 by informing him of the evidence he was required to submit, including any evidence in his possession, and the evidence that the RO would obtain on his behalf. The RO provided the requisite notification regarding disability ratings and effective dates in a March 2006 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Duty to Assist: Because this decision effects a complete grant of the benefit sought on appeal, appellate review of this claim may be conducted without prejudice to the veteran, Bernard v. Brown, 4 Vet. App. 384 (1993), and it is unnecessary to analyze the impact of recent changes to the regulations defining VA's duty to assist. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326. ORDER Entitlement to service connection for an acquired psychiatric disorder is granted. ____________________________________________ J. E. DAY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs