Emotional Instability Reaction Term

[Josephine]

Emotional Instability Reaction _ code 460 - may not always be a " Personality Disorder"?

[

Citation Nr: 0302710

Decision Date: 02/12/03 Archive Date: 02/19/03

DOCKET NO. 99-19 695 ) DATE

)

)

On appeal from the

Department of Veterans Affairs Regional Office in No. Little

Rock, Arkansas

THE ISSUE

Entitlement to service connection for an anxiety disorder.

REPRESENTATION

Appellant represented by: The American Legion

WITNESSES AT HEARING ON APPEAL

Appellant and spouse

ATTORNEY FOR THE BOARD

J. D. Deane, Associate Counsel

INTRODUCTION

The veteran served on active duty from August 1958 to March

1959.

This case comes before the Board of Veterans' Appeals (Board) from a July 1999 rating decision of the North Little Rock, Arkansas, Regional Office (RO) of the Department of Veterans

Affairs (VA).

The Board remanded the veteran's claim in July 2001 for action consistent with the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C.A. § 5100 et seq. (West Supp. 2001)). In August 2002, the Board further developed

the claim, ordering a VA examination to evaluate the veteran's disability.

The veteran had a personal hearing before the undersigned

Member of the Board in May 2001.

FINDINGS OF FACT

1. All evidence requisite for equitable disposition of the veteran's claim for service connection has been obtained and examined, and all due process concerns as to the development

of the claim have been addressed.

2. The veteran has a current anxiety disorder, which was diagnosed as an emotional instability reaction during his military service.

CONCLUSION OF LAW

An anxiety disorder was incurred in active service. 38 U.S.C.A. §§ 1101, 1110 (West 1991 & Supp. 2002); 38 C.F.R. §§ 3.303 (2002).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Service connection is granted for a disability resulting from an injury suffered or disease contracted while in active duty or for aggravation of a preexisting injury suffered or disease contracted in the line of duty. See 38 U.S.C.A. §§ 1110, 1131 (West 1991 & Supp. 2002); 38 C.F.R. § 3.303

(2002). In general, establishing service connection for a disability requires the existence of a current disability and a relationship or connection between that disability and a disease or injury incurred in service. See 38 U.S.C.A. § 1110 (West 1991 & Supp. 2002); 38 C.F.R. §§ 3.303, 3.304

(2002); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992).

I. Entitlement to Service Connection for Anxiety Disorder

The veteran contends that he currently suffers from an anxiety disorder as a result of his active service, and that service connection for his psychiatric disability is appropriate. After a review of the evidence, the Board finds that the record supports his contention, and that service connection for an anxiety disorder is warranted.

Most of the veteran's service medical records are unavailable. The National Personnel Records Center reported that they did not have such records for the veteran, and that they had probably been accidentally destroyed in a 1973 fire at that facility. However, a January 1959 treatment record

states that the veteran complained of chronic anxiety reaction. Another report from January 1959 noted that the veteran was admitted to the hospital in a lethargic state after ingesting an overdose of pills. The February 1959 Medical Evaluation Board report lists a diagnosis of emotional instability reaction including symptoms of lability of emotions, suicidal gesture, lowered tolerance to frustration, difficulty in accepting authority, and somatizations when under stress.

The veteran has also submitted VA outpatient treatment records, statements from his wife, and his own statements to support his claim. VA outpatient records from 1997 to 1999 show treatment for a major depressive order, insomnia, and a history of substance abuse. In the May 2001 hearing

transcript, the veteran as well as his spouse described his symptoms during and after separation from service.

A December 2002 VA examination report lists a diagnosis of anxiety disorder. The examiner noted in his report that the veteran complained of chronic sleep impairment and anxiety during the examination. The examiner also stated that the veteran was casually groomed and cooperative with an anxious mood as well as exhibited limited insight and adequate judgment. No gross memory impairment, hallucinations or delusions were noted in the December 2002 examination report.

The examiner stated that the veteran had received a diagnosis of emotional instability reaction during service, a term that was no longer part of the diagnostic nomenclature. It was noted that the symptoms reported in service appeared to be the same as symptoms described by the veteran in the

examination report. The examiner opined that there appeared to be a nexus between the emotional instability diagnosed in service and the veteran's present symptomatology.

In brief, the record shows that the veteran's current anxiety disorder is related to his period of active service. The opinion contained in the December 2002 VA examination report establishes a link between the veteran's current anxiety disorder and the symptoms diagnosed as an emotional

instability reaction during his active military service. Service medical records reflect that the veteran suffered from an emotional instability reaction while in service. In the December 2002 VA examination report, the examiner specifically stated that the veteran's current disability is

attributable to his period of active military service. The Board finds that the veteran's claim for service connection of an anxiety order must be granted.

II. VCAA

A change in the law, on November 9, 2000, redefined the obligations of VA with respect to the duty to assist and included an enhanced duty to notify the claimant of the information and evidence necessary to substantiate a claim for VA benefits. See Veterans Claims Assistance Act of 2000

(VCAA), 38 U.S.C.A. §§ 5100 et. seq. (West Supp. 2002). Implementing regulations for VCAA have been published. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2002).

Except for amendments not applicable, the provisions of the regulations merely implement the VCAA and do not provide any rights other than those provided by the VCAA.

As noted above, the Board remanded this appeal to the RO in July 2001 for action consistent with the VCAA. As this decision of the Board is a complete grant of the benefit sought on appeal - i.e., service connection for an anxiety disorder - the Board concludes that sufficient evidence to

decide the claim has been obtained and that any defect in the notice and development requirements of the VCAA that may exist in this instance would not be prejudicial to the

veteran.

ORDER

Service connection for an anxiety disorder is granted.

MARY GALLAGHER

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

Josephine

[Pete53]

Its common for the VA to give Veterans a short shift on qualified professionals as they try to do everything on the cheap. Using the wrong people sucks and usually those hacks knowing the VA mind set try to find ways to deny the Veteran their earned benefits.

Don't give up go for the jugular.

[free_spirit_etc]

And if you miss the jugular - go for the carotid artery.

Actually, though, there was just a discussion in here recently about the psychologist vs. psychiatrist debate.

And basically, it SEEMS for some reason that a psychiatrist is MORE qualified than a psychologist to issue an opinion because for some reason we see them higher up the pecking order.

But if you look it up - the standards of medical practice dictate that it is actually the psychologist who is MOST qualified to do psychological evaluations and psychological testing. And some sources even go so far to say that it is UNETHICAL for a psychiatrist to adminster most psychological tests (as they do not have the training to be QUALIFIED to adminster them or interpret them).

I would also think it would be unethical for a psychiatrist to diagnosis you without doing the testing (which they aren't qualified to do or interpret)that are standards of practice. Especially if they are giving a NEW diagnosis.

In Josephine's case I would have the tendency to want to be sarcastic in my appeal. Something like "The Statement of Case indicates that more weight was given to the psychiatrist as they were a psychiatrist. However, I consider the exam to be inadequate as no psychological testing was done to confirm the NEW and unspecific diagnosis the psychiatrist gave me. I understand that as under the standards of medical practice that a psychiatrist is not trained or qualified to administer such tests or interpret them, that the psychiatrist couldn't actually adminster the tests, as it would have been unethical for her to do so. However, I question that I could be given a NEW diagnosis by someone, without testing to confirm the diagnosis, merely because that person was not qualified to administer or interpret such tests. I further question why the VA would place more weight on the opinion of the psychiatrist, who is not trained or qualified to do psychological evaluations, than the VA psychologist, who IS trained and qualified to do them. In fact, I fail to understand why the VA would even send me for a second C&P with a person who is NOT trained or qualified to do psychological evaluations, when they already had an opinion from from a trained and qualified VA psychologist."

But I think this can also be important in other cases. If they place the weight of probative evidence on a psychiatrist's word OVER a psychologist's - that can be appealed - as a psychologist is MORE trained and qualified to do psychological testing and evaluations and interpret the results.

The psychiatrist opinion should rule with regard to medical issues and medicine prescribed.

The psychologist should rule in regard to psychological and personality testing and evaluations.

They are two distinct branches in the psychological field. Each one has their own area of expertise.

When they step out of their area of expertise - their opinion should certainly not be given more weight just because they are more qualified in a DIFFERENT area.

That would be like saying we took the opinion of the surgeon over the opinion of the radiologist on the x-ray results, because surgeons have more training than radiologists.

Training in WHAT? is the question.

Free

Its common for the VA to give Veterans a short shift on qualified professionals as they try to do everything on the cheap. Using the wrong people sucks and usually those hacks knowing the VA mind set try to find ways to deny the Veteran their earned benefits.

Don't give up go for the jugular.

[Josephine]

This is only bits of pieces of parts of the Statement in Support of Claim that I sent to the AMC and the BVA January 2006.

Remember a paste job from different pages.

Dr. M, PhD Psychologist used the integrity of a physician with his compensation and pension examination of October 18, 2004. Dr. M is trained in the field of mental and behavior features and attitudes of a person and the study and profession concerning behavior and the related functions and processes of both the mind and the body with expertise in memory, emotions, thinking, learning, perception, personality and speech and to focus particularly on how behavior and the mind relate to the social and physical environment and with the understanding, prevention, or solution of problems with the knowledge, techniques and skills to achieve these goals.

A second C&P ordered within 5 months of the first C&P and this not being a clarification examination and the diagnosis being a Personality Disorder, an illness for which the veteran has never been diagnosed or treated for in 42 years of medical records as provided to the VA.

Why did the Regional Office need another C&P Examination by a Board of Two?

CFR 1.14.3 Board of two (or three) examiners

Many claims involve complicated questions of causality, diagnosis, or relationship, or contrary opinions of previous examiners. The VSC or the BVA may request an examination by a board of two (or, rarely, three) examiners to resolve such questions. Two (or three) clinicians should examine the veteran, consider all the evidence, consult with one another, and submit a single report signed by both (or all three) containing joint diagnoses and addressing all of the questions asked. If differences cannot be reconciled, or questions cannot be answered, the report should clearly explain why.

The veteran never received a psychological examination in compliance with C.F.R &4.126.

In making his decision Cxxxx Rxx relied upon the statement of the psychiatrist and failed the veteran by not ordering another C&P examination, as she requested for 8 months, as well as Ms. Mxx at Honorable Admiral Daniel Cooper’s Office, and only states that the veteran may disagree with the VA examination does not mean that the examination report is erroneous or otherwise inadequate for rating purposes.

The decision from the R. O " In making this determination, we have given greater weight to the Board of Psychiatrist's findings since this was done by a Psychiatrist. "

A Title should not be the basis for any decision for benefits for a veteran.

I do not feel that the opinions by the examining Psychiatrist are inherently more persuasive than those of the PHD Psychologist. Dr. M.

Josephine

Edited August 17, 2007 by Josephine

[free_spirit_etc]

Josephine,

What did the remand say? When they BVA remands a claim - they usually say specifically what they want the Ro or AMC to do to further develop the claim. So what did the BVA ask the AMC to do? That is the key to what the BVA needs to know before they could decide your claim.

Free

[Josephine]

Free,

In contrast to Dr. P.'s opinion, and that of a VA psychologist in an October 2004 report, a board of two VA staff psychiatrists found that the veteran's symptoms were primarily consistent with a personality disorder and that it did not appear she developed a chronic psychiatric disability while on active duty. It was noted there was no record of ongoing anxiety or nervousness documented during active service.

Wording of the Two Psychiatrist. ( This is absolutely false) In consultation for symptoms of nervousness, fatique, headaches and irratability. Dis-satisfied with working conditons and living in the barracks. Cannot handle it anymore. Still waiting for transfer to another duty station.

To whom it may concern: Letter by Dr. C. May 12, 2005

_________ Formerly ---- , has requested that I write documenting my care of her during the period of

February and March, 1964, at the U.S ___ She was an enlisted person and I was a general Medical Officer, practicing at that facility. The question she has asked me to address is whether I helped her obtain a discharge from the Navy.

_____________ has provided from her medical records as well as recent letter to me, which is undated. My evaluation of her on 2/20/64 and a follow up visit on 2 / 27/ 64 are available. Two Psychiatric consultations are also available for review. The first performed on 3/12/64 by DR. J and the second performed by Dr. M. Finally the letter by our C.) recommends an Honorable Discharge by reason of unsuitability. My understanding is that the discharge occurred shortly thereafter.

After phone discussion with ____, I did remember her as an enlisted person at the ______ with whom I had worked on occasion. My workup of 2/20/64 concluded that she had tension versus vascular headaches and I added a tranquilizer to her headache medicine for anxiety. The note from 2/ 27/ 64 documents that the lab test were normal and I recognize my personal shorthand in my notes that I often used for a counseling session. After 40 years I do not remember whether I started the process discharge, but suspect I may have been supportive. She had seen a Navy Psychiatrist on 3/12/64 with no indication of further workup or return. Two weeks later she saw another psychiatrist to whom I frequently referred patients who needed special understanding and sensitivity. While there is no documentation that I referred her, the fact that she saw Dr. M scarcely two weeks after with no worsening of condition does suggest to me that I may have sent her for the evaluation relative to discharge.

Both C H and Dr. M comment on ----- immaturity and that she was uncooperative in her duties. After she reminded me and recalled specific instances. I did recall that she baby - sat in our home on multiple occasions with our two children ages 2 and 1. I know that my wife and I would have not allowed her to stay with the children if there had been any question of her suitability. The ___ staff was close knit and I would have likely been made aware of any poor behavior on ______ part.

While my memory does not allow me confident documentation of my role in her discharge there is circumstantial evidence that her story is credible and I hope that you will give her case every consideration..

BCC M.D.

The veteran subsequently submitted additional evidence in support of her claim including correspondence dated in May 2005 from B.C.C., M.D., in essence, recalling his having treated her in February 1964 and prescribing medication for anxiety. In correspondence dated in January 2006, Dr. P. disputed the April 2005 opinion as to the veteran's having a personality disorder.

Finally, submitted was a statement from a pastor, Reverend B.O.B. who reported having counseled the veteran during the period from 1965 to 1978, at which time she relayed some of the events in service on which she bases the development of her psychiatric illness, specifically the "near drowning" incidents, and "abuse" directed at her by physicians. Obtaining a copy of these counseling records would be beneficial in adjudicating the veteran's claim.

Therefore, the Board finds additional development is required

prior to appellate review. Accordingly, this matter is

REMANDED for the following:

1. The veteran must be provided notification (1) of the information and

evidence not of record necessary to substantiate her claim, (2) of the

information and evidence that VA will seek to provide, (3) of the information

and evidence that she is expected to provide, and (4) to request or tell her

to provide any evidence in her possession that pertains to the claim. These notice requirements are to be applied to all elements of the claim.

VCAA Notice was not Complete

2. Appropriate efforts should be taken to obtain the veteran's complete service personnel records, as well as any other service medical records which have not been forwarded to VA. Those records, along with the additional records

submitted by the veteran directly to the Board, should be incorporated into the

claims file.

I sent the AMC my complete Personnel Records in May 2006, July 2006 and then in December the AMC received notice that the Personnel Records were lost in the Archives. A telephone operator told me of this. I sent them another copy and this time for the third time they were logged into the record.

3. It should be ascertained through appropriate procedures whether or not the

veteran filed a claim for service connection for psychiatric disability in

1978 or thereabouts. If so, any records compiled in association with such claim should be incorporated into the claims folder.

I sent to the AMC all the info that I had on the 1978 filing date. They already knew this as Dr. M . the Psychologist and The two Psychiatrist made mention of a filing date of 1978

4. In the event the veteran provides sufficient identifying information, it

should be ascertained whether a trainee died as a result of drowning, at the time the veteran was in training, and the circumstances surrounding such incident.

Letter to AMC

You have requested of me any knowledge that I have to " Doris" and the drowning that took place while I was in boot camp at Bainbridge, Md. at the near end of boot camp, which would have been approximately May 1963.

As painful as it is to me, I shall do my best to explain to you what I remember of " Doris" in boot camp, we always called each other by their first name and her last name I do not remember and I am not sure that I ever knew.

Doris and I were the only two, in our company, that was fearful of the water and had no ideal of how to swim.

Doris and I were never offered swimming lessons.

At the beginning of swimming classes, she and I were in the water with all the other girls who could swim. There were about 30 of us girls and we were lost in the pool, because the others had passed their test, so easily, and were busy playing with their beach ball and having a ball in the water.

Had they offered to give us a swimming lesson, thing could have been easier for all of us, but they did not.

It was nearing the end of boot camp and we still had not passed the swimming classes.

Doris and I were taken out of class to pass the test at any means possible.

I am not sure which of the two of us was the most fearful of the deep water.

The instructors were of the opinion that one would swim before they drown.

I remember being placed into the deep water and being required to swim the length of the Olympic pool and back.

I could never accomplish this. I could fight my way out of the deep water, but each time when I would start back and would enter the deep water, I would panic and go down into the water and come back up and go back down again until I swallowed so much water that I strangled with water coming out my nose and coughing.

After several times of doing this one of the instructors placed a stick our for me to grab to and help me out of the water.

This did not stop, when I calmed down, I had to do it again and again.

Finally they gave up on me and told me to try to float down the pool and screaming at me all the time. I can hear the instructor hollering at me " Breathe", " Breathe". Why do you have your stomach out"? Breathe".

I remember seeing the instructors going in to get Doris. She was lying on the right side of the pool lifeless and a group of instructors were around Doris screaming and hollering trying to do resuscitation on her.

I was ordered to leave and I never saw Doris again.

5. After any necessary authorization has been received, Reverend B.O.B. should be asked to provide copies of his counseling records pertaining to the veteran, covering the period from 1965 to 1978.

April 22, 2006

To the Board of Veterans Appeals

I appreciate your consideration of my dedication as Pastor of the xxxxxx Church, located in xxxxx until my retirement.

I have had the privilege to write two letters to you concerning the spiritual relationship I shared with xxxxx .

xxxx was an active member of the church and an inspiration to all that met her before service.

Upon her return from military service in the United States Navy in 1964, she attended church a few times.

During my visits to members of my congregation, I would stop by and visit with xxxx and talk to her and offer her guidance and support revealing to her the truths in the Word of God.

She confined in me the events of striving to pass the required swimming classes and the physical abuse she endured in service, which she felt was the reason for her discontentment with with life and her feelings of nervousness and depression.

I counseled xxxxx as a Pastor and not as a paid per visit Counselor and thus kept not written records of these visits.

I have been a friend to all church members and have kept in contact with each as much as possible.

As per the request of The Veterans Affairs, I have dated my visits with xxxx as closely to date as possible.

I believe that a person's future is more important than ones past and must be considered above the present, for without a future the past and the present become unimportant.

Regards,

Reverend

6. Dr. P. should be contacted and asked to provide the basis for his diagnosis of the veteran, and whether he has any medical training or expertise in treating

or evaluating psychiatric disability.

April 28, 2006

To whom it may concern:

The above is currently undergoing an appeal process with The board of Veterans Affairs.

This letter is written as an addendum to previously written letters dated April 5, 2004, in regards to her current appeal with the Department of Veterans Affairs.

The basis for my previous noted diagnosis of this veteran was based on knowledge of personal interactions, history taking and physical examinations going back to 1979. I am aware of the fact by reviewing all the military records of the veteran that the patient was treated with Librium and Caffergot while in the military service. 1964, presumptively for treatment of anxiety and depression and associated headaches, by Dr. BCC, followed by two psychiatric consultations thus leading to her early discharge.

The veteran has been on anti-anxiety medication from 1967 to date thus make it plausible that I am correct. I have maintained all of the veteran's civilian records from 1965 to date and all of her military records to date.

As I have previously stated, It is my considered medical opinion that her subsequent problems with anxiety/depression have been of a significant magnitude to adversely affect her overall health and result in disability. It is also my considered medical opinion that those problems had their origin during the time of her military service.

I have no specific training in Psychiatry, but I have the usual level of expertise that would be expected in an internist, board certified, in 1976 and actively practicing internal medicine since that time.

I graduated from the University of Florida Medical School in 1973, was board certified in internal medicine in 1976 and have remained in active practice since that time.

Sincerely,

J.M. P

7. After the above development has been completed, the veteran's claims file

should returned to the board of VA psychiatrists who participated in the

April 2005 examination for clarification of the provided opinion. They should be requested to review the record and reconcile their opinion as to etiology in light of the evidence added since their examination of the veteran, including the May 2005 statement of Dr. B C. C and the January 2006 statement of Dr. M P.

The AMC sent the claims folder back to the two Psychiatrist in October 2006, no Personnel Records and they sent back -

Reply - Does not Alter our Conclusion.

The two Psychiatrists did not follow the Remand of April 10, 2006 per 38CFR 19.8 & 19.9 and others rulings that are applicable.

The two psychiatrists did not explain the etiology or the rationale of their conclusion per the request of the remand by the BVA.

If neither of these examiners is available, the RO should consider whether

the veteran should be scheduled for an additional examination by a board of two VA psychiatrists for an opinion as to whether there is at least a 50 percent

probability or greater that an acquired psychiatric disorder was incurred in or

aggravated by active service. All indicated tests and studies are to be

performed. Prior to the examination, the claims folder must be made available for review of the case. A notation to the effect that this record review took place should be included in the report. Opinions should be provided based on the results of examination, a review of the medical evidence of record, and sound medical principles. All examination findings, along with the complete

rationale for all opinions expressed, should be set forth in the examination

report.

8. The veteran must be given adequate notice of the date and place of any

requested examination, if such is deemed necessary. A copy of all notifications,

including the address where the notice was sent must be associated with the

claims folder. The veteran is to be advised that failure to report for a

scheduled VA examination without good cause shown may have adverse effects on

her claim.

No new examination was ever scheduled.

9. After completion of the above and any

additional development deemed necessary,

the issue on appeal should be reviewed.

If any benefit sought remains denied, the

veteran and her representative should be

furnished a supplemental statement of the

case and be afforded the opportunity to

respond. Thereafter, the case should be

returned to the Board for appellate

review.

The appellant has the right to submit additional evidence and

argument on the matter or matters 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 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).

_________________________________________________

N. R. ROBIN

Veterans Law Judge, Board of Veterans' Appeals

Edited August 17, 2007 by Josephine

[free_spirit_etc]

Well dang it - I thought I posted a long reply