Veteranclaims’s Blog

July 7, 2011

Claim for Service Connection, Inappropiate Description; Hillyard v. Shinseki, 24 Vet.App. 343, 355 (2011)

Filed under: Uncategorized — veteranclaims @ 5:07 pm

Excerpt from decision below:
“The Court has recently clarified that the term “claim for service connection” is not an appropriate description because service connection is only one element of a claim for disability compensation. See Hillyard v. Shinseki, 24 Vet.App. 343, 355 (2011).”
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 08-0766
HENRY M. RAMBERT, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before HAGEL, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
HAGEL, Judge: Henry M. Rambert, who is self-represented, appeals a
February 13, 2008,
Board of Veterans’ Appeals (Board) decision denying his claim for VA
benefits for a psychiatric
disorder. Record (R.) at 1-15. The Court has jurisdiction pursuant to 38 U.
S.C. §§ 7252(a) and
7266(a) to review the February 2008 Board decision. Mr. Rambert did not
request oral argument
or identify issues he believes require a precedential decision of the
Court. Because the Board failed
to provide an adequate statement of reasons or bases for its decision, the
Court will vacate the
February13, 2008, Board decision and remand the matter for further
development, if necessary, and
readjudication consistent with this decision.
I. FACTS
Mr. Rambert served on active duty in the U.S. Army from May 1971 to August
1971 and
from June 1973 to October 1973 and in the Air Force from April 1974 to
April 1975. No psychiatric
disorders were noted in Mr. Rambert’s entrance and separation examinations
for his first two periods
of service or in his entrance examination for his third period of service.
In March 1975, Mr. Rambert was admitted to a mental health clinic for
acute anxiety after
walking in on his wife in bed with his supervisor. Mr. Rambert was
diagnosed with situational

anxiety reaction and an inadequate personality. Shortly thereafter, in
April 1975, a discharge action
was initiated against Mr. Rambert and he was subsequently discharged under
honorable conditions.
In December 1981, Mr. Rambert filed a claim for VA benefits for a
psychiatric condition.
In May1982, a VA regional office denied Mr. Rambert’s claim because it
found that his “psychiatric
disability diagnosed as an adult situational reaction with [an]
emotionally unstable personality is
considered to be a constitutional or developmental abnormality and is not
a ratable disability for
which compensation is payable under the law.” R. at 216. Mr. Rambert did
not appeal that decision
and it became final.
In August 1996, Mr. Rambert requested that VA reopen his previously denied
claim for
benefits for a psychiatric condition. In September 1996, the regional
office denied his request to
reopen because he had not submitted any evidence in support of his claim.
After further
development, including a June 1998 Board remand and a June 1999 regional
office decision
decliningto reopenhisclaim,theBoarddeterminedin October2002thatMr.
Ramberthadsubmitted
new and material evidence sufficient to reopen his claim and remanded it
to the regional office for
adjudication on the merits.
In January 2003, Mr. Rambert underwent a VA psychiatric examination. He
denied any
history of depression prior to military service. The examiner noted that
Mr. Rambert’s medical
records revealed a period of depression in March 1975 due to marital
problems, which subsequently
resolved. Mr. Rambert reported that he remarried in 1992 and that his
current depression and
“expansive mood” returned in 1994 due to marital problems with his second
wife. R. at 2079-80.
The examiner diagnosed Mr. Rambert with depressive disorder, not otherwise
specified, and opined
that Mr. Rambert’s current depression was not a continuation of his
depression during military
service, nor did he experience any psychosis within a year of his
discharge from service. In
November 2003, the examiner noted that there was an error in the January
2003 psychiatric
examination report in that it should have also “indicate[d] that there are
references to antisocial
personality disorder in [Mr. Rambert’s claims file,] as well as references
to other personality
disorders.” R. at 2033.
In the meantime, in June 2003, the Board remanded Mr. Rambert’s claim for
benefits for a
psychiatric disorder for VA to obtain additional medical records. In
September 2004, the Board
2

again remanded his claim because it found that VA failed to satisfy its
duty to assist. In July 2005,
Mr. Rambert testified at a hearing before the Board that his claimed
psychiatric disorder began in
service after finding his wife in bed with his supervisor and that he
received a medical discharge
because of the incident.
In December 2005, the Board requested an expert opinion regarding the
etiology of Mr.
Rambert’s psychiatricdisorders. Accordingly,
apsychiatricspecialistreviewedMr.Rambert’sclaims
file and medical history, which contained numerous psychiatric diagnoses
including depressive
disorder, major depression, bipolar disorder, manic depression, dysphoric
manic episode, adult
situational reaction, adjustment disorder with mixed emotional features,
inadequate personality,
antisocial personality, malingering, schizoid personality disorder,
polysubstance abuse, borderline
intellectual functioning, mild mental retardation, and intermittent
explosive disorder. The specialist
noted that many of Mr. Rambert’s previous diagnoses, including inadequate
personality disorder,
emotionally unstable personality, and adult situational reaction, were no
longer favored in the
psychiatric community and instead diagnosed him with recurrent major
depressive disorder with
psychotic features and a personality disorder, not otherwise specified.
Specifically, the specialist
opined that Mr. Rambert’s psychiatric disorders were not the result of any
in-service incident,
including discovering his wife’s infidelity, but were likely the result of
an abusive and chaotic
childhood that “would have set the stage for a personality disorder as
well as lifelong depression.”
R. at 2170. The specialist also opined that there was no evidence that Mr.
Rambert suffered from
any psychosis within one year of separation from military service and that
any previous diagnoses
for a psychosis, such as schizophrenia, were likely the result of “a
depression severe enough to
produce psychotic symptoms (i.e., major depression with psychotic features
)” that would likely
increase in response to stress. R. at 2169.
In February 2008, the Board issued the decision currently on appeal, which
denied Mr.
Rambert entitlement to VA benefits for a psychiatric disorder.
Specifically, with respect to whether
Mr. Rambert had any preexisting psychiatric condition that was aggravated
by service, the Board
stated:
[Mr. Rambert]’s representative asserts that the presumption of soundness
attaches in
this case. The Board concurs with that assessment. In this case, [Mr.
Rambert]’s
service entryexaminations all show normal psychiatric examinations.
Additionally,
3

there is otherwise no clear and unmistakable evidence that shows that an
acquired
psychiatric disorder was present prior to entry into service for any of
the periods of
[his] active duty.
R. at 12 (citations omitted). The Board then considered whether Mr.
Rambert was entitled to
benefits for a psychiatric disorder based on direct service connection and
determined that his
diagnosed personalitydisorder was not a compensable disabilityunder the
ratings schedule and that,
even if it were, there was no competent evidence of a nexus between his
current psychiatric disorders
and service. The Board also determined that Mr. Rambert was not entitled
to benefits on a
presumptive basis because the psychiatric specialist opined that Mr.
Rambert did not suffer from a
psychosis that manifested itself to a compensable degree within one year
of his separation from
service.
II. ANALYSIS
Mr. Rambert’s sole argument on appeal is that the Board failed to consider
whether he had
a preexisting psychiatric disorder that was aggravated byservice despite
the March 2006 psychiatric
specialist’s opinion that attributed his current psychiatric disorders to
his abusive childhood, rather
than to any incident in service. Appellant’s Brief (Br.) at 3-5. The Court
agrees.
The Court notes that Mr. Rambert’s argument that he had a psychiatric
disorder that
preexisted service and was aggravated therein represents a significant
departure from the arguments
he made before the Board. In fact, Mr. Rambert argued through his
representative at the time–a
member of a veterans service organization–and the Board agreed, that he
had no preexisting
psychiatric disorder and that the presumption of sound condition therefore
applied. However, there
was evidence of record at the time of the Board decision that supports Mr.
Rambert’s current
aggravation argument, and the Board made a finding on the related issue of
whether the presumption
of sound condition applied. Therefore, to the extent that Mr. Rambert is
now raisinga new argument
to the Court in the first instance regarding whether he had a preexisting
psychiatric disorder that was
aggravated in service, the Court will exercise its discretion to consider
it. See Maggitt v. West,
202 F.3d 1370, 1377-78 (Fed. Cir. 2000) (holding that the Court has
jurisdiction to hear arguments
4

presented to it in the first instance, provided that it otherwise has
jurisdiction over the claim and the
Court has discretion to hear or remand arguments presented to it in the
first instance).
A. Diagnosed Psychiatric Disorders
As an initial matter, the Court notes that the Board erred when it
determined that Mr.
Rambert did not have a psychiatric disorder that is compensable under the
ratings schedule.
Although the Board is correct that “a personality disorder is not a
disease or Previous DocumentinjuryNext Hit within the
meaning of the applicable legislation for the payment of compensation
benefits,” the Board failed
to consider whether the psychiatric specialist’s March 2006 diagnosis of
recurrent major depressive
disorder with psychotic features is a psychiatric disorder for which
compensation benefits can be
awarded. R. at 13 (citing 38 C.F.R. § 3.303(c)); see also 38 C.F.R. §§
4.9, 4.127. In fact, the ratings
schedule for mental disorders explicitly contains a diagnostic code for
major depressive disorder.
See 38 C.F.R. § 4.130 (2010), Diagnostic Code 9434. Therefore, the Court
concludes that the Board
erred in its determination that Mr. Rambert does not have a current
disability capable of service
connection.1
B. Aggravation
Under the presumption of sound condition:
[E]very veteran shall be taken to have been in sound condition when
examined,
accepted, and enrolled for service, except as to defects,infirmities, or
disorders noted
at the time of the examination, acceptance, and enrollment, or where clear
and
unmistakable evidence demonstrates that the Previous HitinjuryNext Document or disease existed
before
acceptance and enrollment and was not aggravated by such service.
38 U.S.C. § 1111. Where VA fails to rebut the presumption of sound
condition, “the veteran’s claim
is oneforserviceconnection,”2
andasubsequentawardofdisabilitycompensation cannotbereduced
by the degree of disability existing at the time of the entrance
examination. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). On the other hand, if a preexisting condition is noted upon

The Court notes that the Secretary perpetuates this error throughout his
brief, repeatedly arguing only that a personality disorder is not recognized as a compensable disability under the ratings schedule and ignoring Mr. Rambert’s
diagnosis of major depressive disorder. See Secretary’s Br. at 6-9.
The Court has recently clarified that the term “claim for service
connection” is not an appropriate description because service connection is only one element of a claim for disability compensation. See Hillyard v. Shinseki, 24 Vet.App. 343, 355 (2011).

2
1
5

entry into service, it “will be considered to have been aggravated by
active military, naval, or air
service, where there is an increase in disability during such service,
unless there is a specific finding
that the increase in disability is due to the natural progress of the
disease.” 38 U.S.C. § 1153. In
such a case, “the veteran may bring a claim for service-connected
aggravation of that disorder,” and
“the burden falls on the veteran to establish aggravation.” Wagner, 370 F.
3d at 1096.
Here, the Board determined that the presumption of sound condition applied
because it
determined that Mr. Rambert’s three entrance examinations reflected normal
psychiatric evaluations
and there was no clear and unmistakable evidence of a psychiatric disorder
that preexisted service.
The Board’s determination that the presumption of sound condition applied
foreclosed Mr. Rambert
from pursuing an award of benefits based on a theory of service-connected
aggravation, and the
Board therefore proceeded to adjudicate his claim on the theories of
direct and presumptive service
connection. See Wagner, 370 F.3d at 1096. However, in finding that the
presumption of sound
condition applied because there was no clear and unmistakable evidence of
a psychiatric condition
that preexisted service or aggravation of such a condition in service, the
Board failed to consider the
psychiatric specialist’s March 2006 opinion that tends to suggest
otherwise.
Specifically, the specialist noted that Mr. Rambert had a “violent and
chaotic” childhood and
stated that it “would have set the stage for a personality disorder as
well as lifelong depression.” R.
at 2170 (emphasis added). The specialist also explained that Mr. Rambert’s ”
interpersonal
difficultiesandpsychiatricproblemsareverylikelytheresultofabuseandestrange
respect
to his family of origin” and that his “childhood trauma is likely to blame
for his subsequent
conditions.” R. at 2170, 2171. Although the specialist concluded that Mr.
Rambert’s “personality
disorder [and] long-termpsychiatricproblems did not develop in response to
catching his wife in bed
with another man,” the specialist did not directly opine as to whether his
psychiatric conditions were
aggravated by this incident. R. at 2171 (emphasis added). However, the
specialist did note that this
incident “would have been painful” for Mr. Rambert, that his “psychotic
symptoms primarily and
inconsistentlyoccurin relationto specificstressors,[namely] marital,”
thathis diagnosedpsychiatric
conditions “would be apt to increase the likelihood of psychotic symptoms
emerging in response to
stress,” and that “[i]t is no surprise that [his] marital problems served
to trigger the emotional pain
of his abusive childhood.” R. at 2169, 2170-71.
6

Moreover, the specialist provided a possible explanation for why Mr.
Rambert’s entrance
examinations were negative for any preexisting psychiatric condition,
which the Board failed to
consider. Specifically, the specialist stated:
[D]epression is one of the most under[-]diagnosed and under[-]recognized
psychiatricillnesses. Patients sufferingfromdepressionoften”compensate”
andmay
on the surface function relatively well in social and occupational
circumstances for
brief periods. As stated in the [claims ]file cover letter, the “first two
periods of
active service are negative for psychiatric abnormalities.” In my opinion,
this does
not mean [Mr. Rambert] was not suffering from depression or a personality
disorder,
only that it was not apparent.
R. at 2171.
In rendering its decision, the Board is required to provide a written
statement of the reasons
or bases for its “findings and conclusions[] on all material issues of
fact and law presented on the
record,” which must be adequate to enable a claimant to understand the
precise basis for the Board’s
decision and to facilitate review in this Court. 38 U.S.C. § 7104(d)(1);
Gilbert v. Derwinski,
1 Vet.App. 49, 57 (1990); see also Caluza v. Brown, 7 Vet.App. 498, 506 (
1995), aff’d per curiam,
78 F.3d 604 (Fed. Cir. 1996) (table) (explaining that, to comply with the
reasons-or-bases
requirement, the Board must analyze the credibilityand probative value of
the evidence, account for
the evidence that it finds to be persuasive or unpersuasive, and provide
the reasons for its rejection
of any material evidence favorable to the claimant).
In determining that the presumption of sound condition applied, the Board
was required to
explain why the psychiatric specialist’s March 2006 opinion did not
constitute clear and
unmistakable evidence that Mr. Rambert had a psychiatric condition that
preexisted service and was
not aggravated byservice. However, the Board concluded, without any
discussion of the specialist’s
opinion, that there was “no clear and unmistakable evidence that shows
that an acquired psychiatric
disorder was present prior to entryinto servicefor anyof the periods of [
Mr. Rambert]’s active duty.”
R. at 12. In so doing, the Board did not address the above-referenced
statements made by the
psychiatric specialist that seem to suggest (1) that Mr. Rambert had a
psychiatric condition that
originated in childhood and therefore preexisted service and (2) that his
preexisting psychiatric
condition could have been aggravated by the marital stress of discovering
his wife in bed with his
supervisor. Consequently, because the Board did not consider the
potentially favorable opinion of
7

the psychiatric specialist when it determined that the presumption of
sound condition applied,
therebypreventingMr.Rambertfromseekingbenefits onatheoryofservice-
connectedaggravation,
the Court concludes that the Board’s statement of reasons or bases for its
determination that there
was no clear and unmistakable evidence of a preexisting condition or
aggravation in service is
inadequate. See Caluza, 7 Vet.App. at 506; Gilbert, 1 Vet.App. at 57.
Therefore, remand is
warranted. See id.
Despite the foregoing, the Court does not express an opinion as to whether
Mr. Rambert
actuallyhad a psychiatric disorder that preexisted service or whether such
a disorder was aggravated
byservice. However, if the Board determines that the evidence of record is
inadequate to decide Mr.
Rambert’s claim, VA, consistent with its duty to assist a claimant in
substantiating a claim, must
obtain a medical opinion addressing these issues. See 38 U.S.C. § 5103A(d
); McLendon v.
Nicholson, 20 Vet.App. 79, 86 (2006); 38 C.F.R. § 3.159(c)(4) (2010); see
also 38 U.S.C. § 5109;
38 C.F.R. § 3.328 (2010).
On remand, Mr. Rambert is free to submit additional evidence and argument
in accordance
with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam
order). See Kay v.
Principi, 16 Vet.App. 529, 534 (2002). The Court reminds the Board that “[
a] remand is meant to
entail a critical examination of the justification for the decision.”
Fletcher v. Derwinski, 1 Vet.App.
394, 397 (1991). In addition, the Board shall proceed expeditiously, in
accordance with 38 U.S.C.
§ 7112 (expedited treatment of remanded claims).

III. CONCLUSION
Upon consideration of the foregoing, the February 13, 2008, Board decision
is VACATED
and the matter REMANDED for further development, if necessary, and
readjudication consistent
with this decision.
DATED: July 5, 2011
Copies to:
Henry M. Rambert
VA General Counsel (027)
8

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