Jump to content

Ask Your VA Claims Questions | Read Current Posts 
Read VA Disability Claims Articles
Search | View All Forums | Donate | Blogs | New Users | Rules 

  • tbirds-va-claims-struggle (1).png

  • Donate Now and Keep Us Helping You

     

  • 0

Bva/va/amc Regulatons

Rate this question


RSG

Question

Are there any claims that have been won or lost that made reference to mental health prior to enlistment. Case law that points to not being able to use evidence such as that prior to enlistment. I thought that it was presumptive that a person

at enlistment and being accepted for military duty was 100% healthy and able.

Link to comment
Share on other sites

  • Answers 4
  • Created
  • Last Reply

Top Posters For This Question

Top Posters For This Question

4 answers to this question

Recommended Posts

  • HadIt.com Elder
Are there any claims that have been won or lost that made reference to mental health prior to enlistment. Case law that points to not being able to use evidence such as that prior to enlistment. I thought that it was presumptive that a person

at enlistment and being accepted for military duty was 100% healthy and able.

--------------------------------------------------------------------

Ron,

See if this is what you are looking for.

Betty

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(:). 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

Link to comment
Share on other sites

  • HadIt.com Elder

I have seen several that were lost at the BVA level due to medical problems that existed prior to military service. You are considered 100% healthy when you enter military service EXCEPT for the health problems that are listed on your entry exam. The key to winning this type of claim is proving that your military service aggrivated your pre-service condition.

90%, TDIU P&T

Link to comment
Share on other sites

In my case my exams show I was 100% healthy.

Tnx,R

I have seen several that were lost at the BVA level due to medical problems that existed prior to military service. You are considered 100% healthy when you enter military service EXCEPT for the health problems that are listed on your entry exam. The key to winning this type of claim is proving that your military service aggrivated your pre-service condition.
Link to comment
Share on other sites

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!

Register a new account

Sign in

Already have an account? Sign in here.

Sign In Now


  • Tell a friend

    Love HadIt.com’s VA Disability Community Vets helping Vets since 1997? Tell a friend!
  • Recent Achievements

    • LtDave earned a badge
      Week One Done
    • HillTopVet earned a badge
      First Post
    • kidva went up a rank
      Contributor
    • AFguy1999 went up a rank
      Rookie
    • kidva earned a badge
      One Month Later
  • Our picks

    • These decisions have made a big impact on how VA disability claims are handled, giving veterans more chances to get benefits and clearing up important issues.

      Service Connection

      Frost v. Shulkin (2017)
      This case established that for secondary service connection claims, the primary service-connected disability does not need to be service-connected or diagnosed at the time the secondary condition is incurred 1. This allows veterans to potentially receive secondary service connection for conditions that developed before their primary condition was officially service-connected. 

      Saunders v. Wilkie (2018)
      The Federal Circuit ruled that pain alone, without an accompanying diagnosed condition, can constitute a disability for VA compensation purposes if it results in functional impairment 1. This overturned previous precedent that required an underlying pathology for pain to be considered a disability.

      Effective Dates

      Martinez v. McDonough (2023)
      This case dealt with the denial of an earlier effective date for a total disability rating based on individual unemployability (TDIU) 2. It addressed issues around the validity of appeal withdrawals and the consideration of cognitive impairment in such decisions.

      Rating Issues

      Continue Reading on HadIt.com
      • 1 review
    • I met with a VSO today at my VA Hospital who was very knowledgeable and very helpful.  We decided I should submit a few new claims which we did.  He told me that he didn't need copies of my military records that showed my sick call notations related to any of the claims.  He said that the VA now has entire military medical record on file and would find the record(s) in their own file.  It seemed odd to me as my service dates back to  1981 and spans 34 years through my retirement in 2015.  It sure seemed to make more sense for me to give him copies of my military medical record pages that document the injuries as I'd already had them with me.  He didn't want my copies.  Anyone have any information on this.  Much thanks in advance.  
      • 4 replies
    • Caluza Triangle defines what is necessary for service connection
      Caluza Triangle – Caluza vs Brown defined what is necessary for service connection. See COVA– CALUZA V. BROWN–TOTAL RECALL

      This has to be MEDICALLY Documented in your records:

      Current Diagnosis.   (No diagnosis, no Service Connection.)

      In-Service Event or Aggravation.
      Nexus (link- cause and effect- connection) or Doctor’s Statement close to: “The Veteran’s (current diagnosis) is at least as likely due to x Event in military service”
      • 0 reviews
    • Do the sct codes help or hurt my disability rating 
    • VA has gotten away with (mis) interpreting their  ambigious, , vague regulations, then enforcing them willy nilly never in Veterans favor.  

      They justify all this to congress by calling themselves a "pro claimant Veteran friendly organization" who grants the benefit of the doubt to Veterans.  

      This is not true, 

      Proof:  

          About 80-90 percent of Veterans are initially denied by VA, pushing us into a massive backlog of appeals, or worse, sending impoverished Veterans "to the homeless streets" because  when they cant work, they can not keep their home.  I was one of those Veterans who they denied for a bogus reason:  "Its been too long since military service".  This is bogus because its not one of the criteria for service connection, but simply made up by VA.  And, I was a homeless Vet, albeit a short time,  mostly due to the kindness of strangers and friends. 

          Hadit would not be necessary if, indeed, VA gave Veterans the benefit of the doubt, and processed our claims efficiently and paid us promptly.  The VA is broken. 

          A huge percentage (nearly 100 percent) of Veterans who do get 100 percent, do so only after lengthy appeals.  I have answered questions for thousands of Veterans, and can only name ONE person who got their benefits correct on the first Regional Office decision.  All of the rest of us pretty much had lengthy frustrating appeals, mostly having to appeal multiple multiple times like I did. 

          I wish I know how VA gets away with lying to congress about how "VA is a claimant friendly system, where the Veteran is given the benefit of the doubt".   Then how come so many Veterans are homeless, and how come 22 Veterans take their life each day?  Va likes to blame the Veterans, not their system.   
×
×
  • Create New...

Important Information

Guidelines and Terms of Use