Buddy Statement From An Active Duty Commissioned Officer?

[Mark C]

Greetings everybody, I was in the process of getting verification for a stressor incident.

2 years of trying and Navpers does not respond to my request, but I was able to find and get hold of a former member of my unit that was an eyewitness to the incident.

This fellow had stayed in the service and is now a very high ranking officer, still on active duty.

He has written a very good statement verifying the incident, does this settle the issue?

I guess what I'm asking is a sworn statement from an active duty comissioned officer count as verification from a federal source?

Thx in advance...

M

[Josephine]

For me it did take a letter from my treating physician in

service to whom I had not seen or talked to for 40 years.

I also had a buddy letter from a young lady who was with me in boot

camp, corpschool and then at our duty station.

Reading my award letter The BVA Judge gave the young lady

as much weight as my treating physician.

Had I had not had those two letters,

I may have never won my long claim of 40 years.

Edited October 12, 2010 by Josephine

[carlie]

Reading my award letter The BVA Judge gave the young lady

as much weight as my treating physician.

Betty,

Can you post this specific section's from above so I can have a look-see at this ?

Thanks.

[Josephine]

Hi Carlie,

I sent you a PM. I cannot locate the decisions at the BVA.

Do you have a link?

Thanks,

Betty

[Bill (USAF Retired)]

Greetings everybody, I was in the process of getting verification for a stressor incident.

2 years of trying and Navpers does not respond to my request, but I was able to find and get hold of a former member of my unit that was an eyewitness to the incident.

This fellow had stayed in the service and is now a very high ranking officer, still on active duty.

He has written a very good statement verifying the incident, does this settle the issue?

I guess what I'm asking is a sworn statement from an active duty comissioned officer count as verification from a federal source?

Thx in advance...

M

When I evaluated evidence for claims against the Department of the Air Force and Department of the Army, I can tell you that a witness's military rank/grade did not automatically "settle the issue."

The tradition of not questioning an officer's word wasn't the issue ... it was what ALL the evidence said and what conclusion was supported by the preponderance of the evidence. Rank neither

won a losing case nor lost a winning case. That's fair, when you come down to it. You should get the same justice if a former E-1 clerk saw your incident than if GEN (Ret) Powell saw it.

Sorry, I know it's not what you wanted to hear.

Bill

[Josephine]

Betty,

Can you post this specific section's from above so I can have a look-see at this ?

Thanks.

Citation Nr:

Decision Date: 03/04/08 Archive Date: 03/12/08

DOCKET NO. DATE

)

)

On appeal from the

Department of Veterans Affairs Regional Office in

THE ISSUE

Whether new and material evidence has been received to reopen

the claim of entitlement to service connection for an

acquired psychiatric disorder, to include anxiety and

depression.

REPRESENTATION

Appellant represented by:

Veterans Affairs

ATTORNEY FOR THE BOARD

T. Hal Smith, Counsel

INTRODUCTION

The veteran served on active duty from June 1963 to May

19664.

This matter is before the Board of Veterans' Appeals (Board)

on appeal of a February 2004 rating decision of the

Department of Veteran's Affairs (VA) Regional Office (RO) in

Huntington, West Virginia, which denied reopening the

veteran's service connection claim for chronic anxiety with

depression. In an October 2004 statement of the case (SOC)

the RO reopened the claim based upon the receipt of new

service treatment records and denied entitlement to service

connection upon reconsideration. 38 C.F.R. § 3.156©

(2007). In April 2006, the Board remanded the claim for

additional development. The case has now been returned to

the Board for additional appellate consideration.

It is noted that the veteran's initial claim for service

connection for chronic anxiety with nervousness was denied by

the RO in July 1992, and the veteran was notified that month.

As noted above, the RO reopened the claim as indicated in an

October 2004 SOC and reviewed the claim on a de novo basis.

Still, it is pointed out that the Board does not have

jurisdiction to consider a claim that has been previously

adjudicated unless new and material evidence is presented,

and before the Board may reopen such a claim, it must find

that new and material evidence has been presented. See

Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). See also

Winters v. West, 12 Vet. App. 203 (1999). Therefore, under

the circumstances of this case, the issue is as stated on the

title page.

FINDINGS OF FACT

1. In July 1992, the RO notified the veteran that it had

denied his claim for service connection for chronic anxiety

and nervousness. The veteran did not appeal the RO's June

1992 decision and it became final.

2. Evidence associated with the claims file since the RO's

June 1992 decision is so significant that it must be

considered in order to fairly decide the merits of the claim

for service connection for an acquired psychiatric disorder,

to include anxiety and depression.

3. A personality disorder is not a disability for which

service connection can be granted.

4. The evidence is at least in equitable equipoise as to

whether an acquired psychiatric disorder (chronic anxiety)

had its onset during active service and service connection is

warranted.

CONCLUSIONS OF LAW

1. The RO's June 1992 denial is final. 38 U.S.C.A. § 7105

(West 2002 & Supp. 2007).

2. Since the RO's June 1992 decision that denied service

connection for chronic anxiety with nervousness, new and

material evidence to reopen the claim for service connection

for an acquired psychiatric disorder, to include anxiety and

depression, has been received. 38 U.S.C.A. § 5108 (West 2002

& Supp. 2007); 38 C.F.R. § 3.156(a) (as in effect on and

after August 29, 2001).

3. With resolution of all reasonable doubt resolved in the

veteran's favor, an acquired psychiatric disorder (chronic

anxiety), was incurred in service. 38 U.S.C.A. §§ 1112,

1131, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2007);

38 C.F.R. §§ 3.102, 3.303 (2007).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified

in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at

38 C.F.R. § 3.159, amended VA's duties to notify and assist a

claimant in developing the information and evidence necessary

to substantiate a claim.

Considering the record in light of the above-noted legal

authority, and in view of the Board's favorable disposition

of the claim on appeal, the Board finds that all notification

and development action needed to fairly adjudicate the claim

on appeal.

New and Material

Review of the record reflects that the veteran's claim for

chronic anxiety with nervousness was initially denied in June

1992 on the basis that the service treatment records were

negative for treatment of a psychiatric condition, and such

treatment was not indicated until many years thereafter. In

making this determination, the RO considered the claimant's

available service treatment records and post service

treatment records dated from discharge from service through

1992. The veteran was notified of the RO's denial in July

1992. The notice letter provided her with information as to

her procedural and appellate rights. She did not appeal this

decision and it is final. 38 U.S.C.A. § 7105(a) (West 2002 &

Supp. 2007); 38 C.F.R. §§ 20.302, 20.1103 (2007).

However, if new and material evidence is presented or secured

with respect to a claim which has been disallowed, VA shall

reopen the claim and review the former disposition of the

claim. Manio v. Derwinski, 1 Vet. App. 145 (1991). When

determining whether additional evidence is new and material,

VA must determine whether such evidence has been presented

under 38 C.F.R. § 3.156(a) in order to have a finally denied

claim reopened under 38 U.S.C.A. § 5108 (West 2002 & Supp.

2007). Effective from August 29, 2001, the regulations

defining "new and material evidence" were revised and

clarify the types of assistance the VA will provide to a

claimant attempting to reopen a previously denied claim.

38 C.F.R. §§ 3.156(a) and 3.159(b). These specific

provisions are applicable only to claims filed on or after

August 29, 2001. As the veteran filed his claim seeking to

reopen in December 2002, the Board has considered these

provisions.

To reopen a claim which has been previously denied and which

is final, the claimant must present new and material

evidence. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2007).

Under the amended regulations, new evidence means existing

evidence not previously submitted to agency decision makers.

Material evidence means existing evidence that, by itself or

when considered with previously evidence of record, relates

to an unestablished fact necessary to substantiate the claim.

New and material evidence can be neither cumulative nor

redundant of the evidence of record at the time of the last

prior final denial of the claim sought to be reopened, and

must raise a reasonable possibility of substantiating the

claim. 38 C.F.R. § 3.156(a) (2007).

The Board has a jurisdictional responsibility to consider

whether it was proper for a claim to be reopened, regardless

of whether the previous action denying the claim was appealed

to the Board. Jackson v. Principi, 265 F 3d 1366 (Fed. Cir.

2001).

In this case, the evidence received since the RO's June 1992

denial of service connection for chronic anxiety with

nervousness includes some duplicate copies of previously

considered treatment records. Such records were considered

in the previous denial and are not new and material. Also

added to the claims file since the previous 1992 denial were

additional service treatment records not previously of record

and private and VA treatment records which show continued

treatment for psychiatric complaints.

The service treatment records are new in that they reflect

inservice treatment for psychiatric symptoms which were

determined to preclude further military service. These

documents include inservice assessments as to the veteran's

psychiatric complaints. This evidence is considered new in

that it contains information that was not considered at the

time of the 1992 decision, and it is material because it

purports to show treatment for psychiatric disability during

service which was not objectively shown by the evidence

previously.

Similarly, also considered new and material are numerous

private and VA examiners' opinions (as summarized in the

"factual background" portion of this decision below)

regarding the etiology of the veteran's psychiatric

condition. As these medical opinions, for and against the

veteran's claim, were not previously of record, they are also

considered to be new and material. As the appellant has

submitted new and material evidence, her claim is reopened.

Before proceeding with a de novo review of the appellant's

claim for service connection for a psychiatric condition

without returning it to the RO for initial consideration, the

Board must first determine whether or not this would

potentially harm the appellant's claim.

The Board's review of the relevant documents in this case, to

include the October 2004 SOC and supplemental statements of

the case (SSOCs) in December 2005 and December 2007, shows

that the RO considered the claim for service connection on a

de novo basis. Therefore, as the RO has already in effect

considered the claim on a de novo basis, no harm can result

to the appellant if the Board also considers her psychiatric

claim on a de novo basis without returning it to the RO.

Bernard v. Brown, 4 Vet. App. 384, 393 (1993).

Factual Background

In numerous statements of record, the veteran asserts that

her mental illness had its inception during active military

service. She relates her inservice psychiatric complaints,

not to a personality disorder, but to stressors of service to

include numerous instances (associated with training) where

she almost drowned. She also reported that she knew another

soldier named "[redacted]" who she thought might have drowned.

She did not recall her last name and when asked through

correspondence to provide more details as to the approximate

date and location of the alleged drowning, she did not

respond with such.

In support of the veteran's claim, numerous statements were

submitted by family members and others (e.g., her husband,

daughters, and reverend) which attest to the change in her

behavior after discharge from service. Clearly, these

statements infer that she incurred a psychiatric disorder

during service. An October 2004 statement from a fellow

soldier attests to the fact that the veteran was on

medication during service for psychiatric complaints. The

soldier served as a nurse with the veteran and recalled that

they were often mistreated by superiors. She also recalled

that the veteran and "[redacted]" were especially poor swimmers

and that the veteran almost drowned on numerous occasions.

She said that the veteran was finally separated from service

due to her physical and mental problems.

The service treatment records reflect that behavior problems

(e.g., her "attitude" was discussed in February 1964 and in

March 1964 it was noted that she was unhappy in the military)

precipitated psychiatric evaluation. In February 1964,

Librium was prescribed. As a result of exam in March 1964,

it was determined that she had longstanding personality

traits of emotional immaturity, dependence, and instability.

It was determined that this personality disorder precluded

her from rendering further useful military service. In an

April 1964 service document, it was determined that she was

to receive an honorable discharge from the Navy by reason of

unsuitability. On this document it was noted that she was

examined twice during service in regards to her psychiatric

complaints. After the first evaluation, it was thought that

she might be able to resolve some of her personal problems

and mature to the extent where she could expend effort

constructively. However, she returned to her command, vented

her feelings to everyone who would listen to her, and stated

that the psychiatrist refused to listen to her and failed to

help her. It was noted that she refused to listen to her

peers in the performance of her duties. Accordingly, a

second consultation was arranged with a board certified

psychiatrist. He recommended that she be separated from

military service. It was noted on this document that she was

being separated due to her very immature approach to life and

her inability to adjust to a Navy environment. The examiner

indicated that she refused to accept any responsibility

whatsoever. As she could not be relied upon to do the most

menial tasks, it was questionable if she would ever be of any

value to the service.

As noted in the Board's April 2006 remand, the evidence of

record includes both positive and negative evidence as to

service incurrence. A summarization of the evidence follows.

The record clearly reflects that the veteran received

extensive medical treatment for a variety of disorders since

the late 1960s. In 1967, it was noted that she stayed

nervous most of the time and Librium was prescribed for

anxiety. In the 1970s, she was depressed and severe anxiety

was assessed. Longstanding situational anxiety was noted in

the 1980s and 1900s. Her treatment for chronic anxiety has

continued to the present day.

In correspondence dated in April 2004, the veteran's private

internist, M. P. M.D., who has noted in other statements that

he is not a psychiatrist, stated his opinion that the

veteran's anxiety/depression had their origin during her

military service. He added that he had treated the veteran

since 1979. Also in support of the opinion that anxiety had

its onset during service is the opinion of a VA examiner in

October 2004. He reviewed the claims folder and examined the

veteran and determined that it seemed likely that she had

"some kind of psychiatric difficulty" during service

related to inservice stressors as reported in the numerous

statements of record. The examiner also noted that the

record showed diagnosis of anxiety and the prescription of

Librium as early as 1967. This proximity to service

discharge reflected inservice psychiatric problems which made

it likely that military service resulted in psychiatric

conditions.

In April 2005, a board of two VA staff psychiatrists reviewed

the record and examined the veteran. The report includes the

veteran's reported history of inservice abuse by her

superiors, to include one episode when she was emotionally

abused to the point where she urinated on herself. The

examiners felt that the veteran contradicted herself by

stating that she was always excitable and nervous and then

stating that she had no psychiatric problems prior to

military service. It was their opinion that the veteran's

symptoms were primarily consistent with a personality

disorder, and that it did not appear that she developed a

chronic psychiatric disability while on active duty. It was

noted that there was no record of ongoing anxiety or

nervousness documented during active service.

In a May 2005 statement, B. C. C., M.D., who treated the

veteran in 1964 during service, recalled that he saw the

veteran for headaches (tension vs. muscular) at that time and

that he also prescribed a tranquilizer due to her anxiety.

He did not recall for certain but thought that he probably

started the process for her to be discharged from the

service. He also recalled that she baby sat for him and that

he certainly would not have allowed such if there was any

question as to her suitability. He believed that her story

was "credible" in that there was some evidence that he

played a role in her discharge from service.

In correspondence dated in January 2006, Dr. M. P. disputed

the April 2005 opinion as provided the board of two VA

psychiatrists' opinion as to the veteran's having a

personality disorder.

In addendums to their initial April 2005 VA report, the board

of two psychiatrists indicated in October 2006 and November

2007 that their opinion had not changed. While they did not

examine the veteran again, it was noted that they had

reviewed all additional statements submitted since their

previous report.

In January 2008, a private psychiatric examiner, B. C., M.D.,

stated that he conducted an "independent review" of the

record and examined the veteran that month. His opinion

favored the veteran's contention that she incurred an

acquired psychiatric disorder (chronic anxiety) during

service as a result of inservice stressors. He opined that

the record was not convincing that the veteran's inservice

problems were a personality disorder. He said that there

simply was no data which supported that diagnosis under the

criteria provided for in the Diagnostic and Statistical

Manual of the American Psychiatric association. No

psychological or personality testing was accomplished, and he

stated that there was never any showing of an enduring

pattern of inner experience and behavior that deviated

markedly from the expectations of the individual's culture.

It was not shown that her symptoms were inflexible and

pervasive across a broad range of personal and social

situations or that such was stable and of long duration

"(and) is not better accounted for as a manifestations or

consequence of another mental disorder." In his opinion the

"other mental disorder" for which she had been treated for

over 40 years was chronic anxiety. Thus, as no childhood

psychiatric difficulties or treatment were shown, her anxiety

began during her time in service.

Service Connection

Service connection may be established for a disability

resulting from personal injury suffered or disease contracted

in the line of duty or for aggravation of preexisting injury

suffered or disease contracted in the line of duty. 38

U.S.C.A. § 1131 (West 2002 & Supp. 2007); 38 C.F.R. § 3.303

(2007).

Service connection may be granted for any disease diagnosed

after discharge, when all the evidence, including that

pertinent to service, establishes that the disease was

incurred in service. 38 C.F.R. § 3.303(d) (2007).

Where there is a chronic disease shown as such in service or

within the presumptive period under § 3.307 so as to permit a

finding of service connection, subsequent manifestations of

the same chronic disease at any later date, however, remote,

are service connected, unless clearly attributable to

intercurrent causes. 38 C.F.R. § 3.303(b) (2007).

This rule does not mean that any manifestations in service

will permit service connection. To show chronic disease in

service there is required a combination of manifestations

sufficient to identify the disease entity, and sufficient

observation to establish chronicity at the time as

distinguished from merely isolated findings or a diagnosis

including the word "chronic". When the disease entity is

established, there is no requirement of evidentiary showing

of continuity. When the fact of chronicity in service is not

adequately supported, then a showing of continuity after

discharge is required to support the claim. 38 C.F.R.

§ 3.303(b) (2007).

Continuous service for 90 days or more during a period of

war, or peace time service after December 31, 1946, and post-

service development of a presumptive disease such as

psychosis to a degree of 10 percent within one year from the

date of termination of such service, establishes a rebuttable

presumption that the disease was incurred in service.

38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2007);

38 C.F.R. §§ 3.307, 3.309 (2007).

Personality disorders are not disabilities for which service

connection is granted. 38 C.F.R. § 3.303© (2007).

The Court has held that, in order to prevail on the issue of

service connection, there must be medical evidence of a (1)

current disability; (2) medical, or in certain circumstances,

lay evidence of inservice incurrence or aggravation of a

disease or injury; and (3) medical evidence of a nexus

between the claimed inservice disease or injury and the

present disease or injury. Hickson v. West, 12 Vet. App.

247, 253 (1999); see also Pond v West, 12 Vet. App. 341, 346

(1999).

The Board must assess the credibility and weight of all the

evidence, including the medical evidence, to determine its

probative value, accounting for evidence which it finds to be

persuasive or unpersuasive, and providing reasons for

rejecting any evidence favorable to the claimant. See Masors

v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2

Vet. App. 614, 618 (1992); Gilbert v. Derwinski, 1 Vet. App.

49 (1990). Equal weight is not accorded to each piece of

evidence contained in the record; every item of evidence does

not have the same probative value.

Analysis

It is the Board's conclusion that the evidence is at least in

relative equipoise as to the onset of an acquired psychiatric

disorder - chronic anxiety. Thus, service connection is

warranted for chronic anxiety.

While initial review of the record reflects the diagnosis of

a personality disorder during service, there is argument

expressed by medical personnel (private and VA) that the

claimant's inservice psychiatric problems were actually the

first indication of an acquired psychiatric disorder. The

Board cannot ignore competent medical evidence or opinion

indicating that the veteran had chronic anxiety due to active

service. It is also noted that the medical opinions in

support of the veteran's claim, physicians' opinions in 2004

(VA) and in 2008 (private), were based on review of the

entire record and examination of the veteran. The Board

finds that these two opinions which favor a grant of service

connection are premised upon an accurate picture of the

veteran's history and current condition.

The Board further observes that, in Alemany v. Brown, 9 Vet.

App. 518 (1996), the Court noted that in light of the benefit

of the doubt provisions, an accurate determination of

etiology is not a condition precedent to granting service

connection; nor is "definite etiology" or "obvious etiology."

Moreover, in Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990),

the Court stated that "a veteran need only demonstrate that

there is an 'approximate balance of positive and negative

evidence' in order to prevail." In Gilbert the Court

specifically stated that entitlement need not be established

beyond a reasonable doubt, by clear and convincing evidence,

or by a fair preponderance of the evidence. Under the

benefit of the doubt doctrine established by Congress, when

the evidence is in relative equipoise, the law dictates that

the appellant prevails. Resolving all benefit of the doubt

in favor of the veteran, the Board concludes that she is

entitled to a grant of service connection for chronic

anxiety.

ORDER

Service connection for chronic anxiety is granted.

____________________________________________

K. J. ALIBRANDO

Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

[Mark C]

I just received word from my VARO in Manila that my benefits would be severed come January.

The statement of an active-duty commissioned officer and a recently retired command master chief mean nothing.