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

[Josephine]

Free,

I clicked on the link posted by T-bird and ask this question of Jim Strickland.

----- Original Message -----

From: "Jim Strickland" <jim912@gmail.com>

To: ""

Sent: Saturday, August 18, 2007 4:23 AM

I had my first C&P was with a PHD Clinical Psychologist with a Diagnosis of

> > Generalized Anxiety not otherwise Specified with Depression with a " More

> > Likely than not this Veterans Anxiety with depression began in service.

> >

> > 5 months later the R. O sent me for another examination by a Board of Two

> > Psychiatrist.

> >

> > Axis 1 Anxiety not otherwise Specified

> > Axis 11 - Personality Disorder not otherwise Specified with borderline,

> > dependent and historian traits.

> > Axis 111 - other illness

> > Axis IV

> > Axis V Gaf 40

> >

> > The veteran has symptoms primary consistent with a Personality Disorder and

> > it appears she did not develop a " Chronic Psychiatric Disorder in service.

> > It is the Board's decision that her Anxiety with Depression did not begin or

> > worsen in service.

> >

> > R. O Decision.

> >

> > We place our weight with the Board of Psychiatrist findings as this was done

> > by a Psychiatrist.

> >

> > Benefits for Anxiety with Depression denied.

> >

> > Is a Psychiatrist more in the know that a PhD Psychologist?

> >

> > Josephine

> >

> Apparently, in the opinion of the person doing the rating, that answer

> is "yes". Others may differ in their opinions and that is why you'll

> now have to appeal your case.

>

> Best,

>

> Jim

> Thanks for writing, thanks for reading VAWatchdog and thank you for

> your service to our country!

>

> http://vawatchdog.org/

>

> Archives of my previous VAWatchdog articles are right here

> http://vawatchdog.org/jim%20strickland.htm

>

> The legal stuff. I'm not offering legal advice. I don't represent you.

> The information provided herein may or may not apply to your

> particular circumstances. If you're in doubt, consult an attorney or

> other representative before you rely on a quick email to make

> decisions.

[Pete53]

Josephine:

I was not aware that VARO Raters were entitled to opinions to make benefits decisions but were supposed to follow the law. At the least you deserved the benefit of the doubt?

Pete

[Josephine]

Pete,

The cards have been stacked against me since I located those long lost Psychiatric Records form the Archives in 2004.

As I told Vaf, When my claims file went to the BVA January 2006 , I sent a 11 page letter of negligence in my claims file since my filing.

I received a letter from the BVA from the Deputy Vice Chairman - March 06, 2006 that I would be advancing.

I called the BVA a couple of days ago and talk to the Deputy Vice Chairman and ask her if I was also to advance at the AMC and she said Absolutely.

I faxed a copy of my letter to the AMC.

She called the AMC and told them to put that Orange Sheet of Paper on my file and to rate it.

She did call me back to tell me that it was done and that I should have an answer in about 3 weeks.

I filed in 1978 for Nervousness and again in 2002. The VA changed this to Anxiety with Depression.

October 7, I received that Statement of the Case stating this is not the DRO"S FINAL DECISION but it was a preliminary decision, but yet he denied me for anxiety with depression and sent me a Form - 9 and wished to tell me that I was going for a C&P for " an Acquired Psychaitric Disorder".

The Form- 9 probably didn't make any sense to the BVA as I couldn't write it too well knowing that I was going for a C&P.

If the Deputy Vice Chairman is correct, I should have an answer shortly. I would rather receive a denial and turn this over to a lawyer than to keep beating my head against a wall.

Thanks,

Josephine

Edited August 18, 2007 by Josephine

[free_spirit_etc]

Josephine -- gonna try it again..

I looked up the complete BVA remand.

It is hard to tell which way it was leaning. It certainly wasn't against you (it wasn't one of those Remand you read that you can see the BVA is ready to deny the claim - but they want to make sure they have all the evidence and the vet was afforded due process before the deny it).

It seemed like the genuinely thought you had a case.

One of the strong points about that was that they thought your Reverand's counseling notes would be important in adjudicating the claim.

Though he isn't a psychologist - most people know dang good and well that minsters DO have some training - and do indeed counsel people.

He won't be able to "diagnose" you - but his testimony can be very credible in that he saw a big change -- (i.e. does NOT look like a personality disorder) and gave a good before and after picture to put it in place (even as a LAY person) A reverand who counsels people is a VERY qualified LAY person to testify.

No - he can't take on the gruesome twosome's diagnosis -- but he can make their diagnosis look VERY NOT credible - because he DID see a BIG change in you at that time - and you discussed the situation with him.

He places it in TIME.

And the BVA could see that

But they probably aslo know dang good and well that ministers counsel people - but would rarely keep RECORDS of the sessions. They should KNOW that.

But even if the AMC denies and picks his testimony apart because he isn't a psychologist -- or didn't keep records... He is a STRONG piece of evidence - and the BVA saw that.

A minister would not HAVE to be trained to diagnose or record your visits to be able to remember how you were before the service and how you were after.

I posted a court case about LAY testimony on another link.

They have to consider it on it's MERITS. Is what he said believable? Yes.

I am concerned that the barely MENTIONED the VA psychologist report at all. I wonder why.

But I don't think they put a LOT of weight on the gruesome twosome's report either. They just mentioned it more.

On your own medical evidence - it seems the biggest thing against you was Dr K -- who had treated you - but not connected the anxiety to the service and had said in her notes that your nerves were fine in the service. And Dr. P gave you a statement to connect to the service - but had never indicated that in the doctor notes.

Don't you love how doctors write 2 or 3 lines in your notes and then 15 years later people act like if the doctor didn't write it down - it didn't happen.

Anyway -- that is one place the Reverand's testimny becomes important.

The more you had to back up what you said - the more credible you beome to them on things that have no backing.

Like you had said you filed a claim in 1978. They questioned that. Did they find that you had? If so - that boosts your credibility.

Did they find out anything about the drowning incident you reported?

If so - that boosts your credibility.

It certaily booosted your credibility that yo did get a statement from a doctor that verified he had treated you for your nerves in the service.

I am concerned that they put quotation marks around the "near drowning" "abuse" etc. --that kind of takes away from what you reported. But it is kind of like saying "alleged"

I think it is in your favor that the gruesome twosome did NOT follow up with another report.

To merely say - That doesn't change our opinion certainly does NOT rise to the level of giving reasons and medical rationale.

The BVA gave them a chance to SEE that you DO have evidence that you were treated for your nerves in the service - and what the reverand said - etc. AND refine their opinion to explain all that away.

They did not do so.

So the fact that they didn't helps your case - because they didn't strengthen theirs.

ANyway -- those are just some thoughts on some impressions I got.

Free

[Josephine]

Free,

Dr. K was such a older Psychiatrist, that I find it strange that he wrote that I said that I was not nervous in service, but two lines down, her writes, she did not like service and took an early discharge and baby sit for officers.

I never told him that I was not nervous in service. I did sent to the AMC. took a little digging, but I was able to locate his license number, as well , as papers by The Virginia Board of Licensee that he was given the chance to turn over his license or they would take it.

He was found to be a danger to his patients. He gave up his license.

I also found itemized bills of payment to him from 1974 and 1975. I had them in a box. Psychotherapy and more Psychotherapy.

The hardest part of this claim is trying to go back 43 years and gather facts and information.

I was lucky to have baby- sit Dr. C and locate him after so many years.

As far as Dr. P. He never writes much of anything down for my visits.

I find the remand to be a little lacking. I have never figured out what they are or are not saying.

The buddy letter that has been there since this mess started in 2004 as never been mentioned by anyone.

I am concerned that the barely MENTIONED the VA psychologist report at all. I wonder why.

This one I have no answers for. I guess if they went with him, they would have to give me benefits.

Like you had said you filed a claim in 1978. They questioned that. Did they find that you had? If so - that boosts your credibility.

Being that Dr. M and the two Psychiatrist both reference my filing date of 1978, I am sure that they must have found it, although I have it myself.

I would like to know where a filing date of 1992 came from? I didn't file then.

I am concerned that they put quotation marks around the "near drowning" "abuse" etc. --that kind of takes away from what you reported. But it is kind of like saying "alleged"

The two psychaitrist stated, " she was discharged by means of Unsuitability and things that I considered indicative of abuse.

Does that mean they at least believed me on this one.

If they look into my record, they will see that I am a Class C Swimmer and that my buddy letter, J gave them her service number and that she took an over dose of my meds in D.C. and was taken out by the M.P's.

She gave them the same story that I did. Abuse Abuse and more Abuse. We both put in for a transfer out of that duty station, I was dishcarged and she left for the new duty station in July. I was discharged in May.

They ask what is in question, " What is the reason for her early discharge"?

Any suggestions on that one.

Thanks,

Josephine

Edited August 18, 2007 by Josephine

[Josephine]

Free or anyone,

You said that you had read the complete remand. I know that I must be the most dumb person around, but to me this makes no sense.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision by the RO of the Department of Veterans Affairs (VA), which denied reopening the veteran's service connection claim for chronic anxiety with depression. In an October 2004 statement of the case the RO reopened the claim based upon the receipt of new service medical records

and denied entitlement to service connection upon reconsideration. See 38 C.F.OR. § 3.156© (2005).

If the DRO did not open the claim for Anxiety with Depression, Why do I have a Statement of the Case with a Denial to which I filled out the Form - 9. I turned that thing in November 24, 2004. I never turned in a Form _ 9 for a Chronic acquired Psychiatric Disorder. I didn't get any reconsideration either. My claim stayed with the DRO for 14 months after I turned in the form - 9. I turned it in before I received either of the two C&P's.

I turned in the New and Material Evidence into Appeals June 1, 2004 and the DRO had this information long before he sent out this Statement of the Case.

October 7, 2004

STATEMENT OF THE CASE

WE have enclosed a Statement of the Case, a summary of the law and evidence concerning your claim. This summary will help you to make the best argument to the BVA on why you think that our decision should be changed.

WHAT YOU NEED TO DO:

To complete your appeal, you must file a formal appeal. We have enclosed a VA From 9, Appeal to the Board of Veterans Appeals, which you may use to complete your appeal. We will gladly explain the form if you have questions.

The benefit you want

The facts in the statement of the Case with which you disagree, and

The errors that you believe we made in applying the law

The Division Review Officer ) DRO) has completed a preliminary review of your file and has determined that, based on the evidence currently of record your claim cannot be granted. THIS IS NOT THE DRO'S FINAL DECISION.

We are sending you this Statement of the Case so that you can better understand your appeal. An examination is being scheduled at the VA Medical Center. The Va Medical Center will notify you about the date and time to report for the examination.

DECISION:

Service connection for chronic anxiety with depression is denied

REASONS AND BASES

The additional service medical records submitted from The National Personnel Records Center and the report form Dr. P dated April 2004, are considered to be both new and material and your claim for service connection for an acquired psychiatric disorder is reopened.

Why didn't the DRO use those records before he denied me for anxiety with depression?

Can you make any sense of this?

You were seen for a psychiatric consultation in March 1964. You complained about being unhappy with the Navy since boot camp. Assessment was emotional immaturity, dependency, and instability which precluded futher military service. Your post treatment records show that you were diagnosed with anxiety in 1979 ( WHAT A JOKE, THEY WERE SITTING THERE WITH MY MEDICAL RECORDS FROM 1965 TO DATE) Dr. P reported that he reviewed your March 1964 psychiatric consultations and expressed an opinion that your current anxiety and depression began in service.

This shall be my last question. I shall let it rest.

Thanks,

Josephine

Edited August 19, 2007 by Josephine