Citation Nr: 0828310 Decision Date: 08/20/08 Archive Date: 08/28/08 DOCKET NO. 04-40 299 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim of service connection for a psychiatric disorder other than post-traumatic stress disorder (PTSD), to include a depressive disorder and bipolar disorder. 2. Entitlement to service connection for a psychiatric disorder other than PTSD, to include a depressive disorder and bipolar disorder. ATTORNEY FOR THE BOARD L.B. Cryan, Counsel INTRODUCTION The veteran had active service from May 1968 to April 1969. This case is before the Board of Veterans' Appeals (Board) on appeal from a May 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho, that, in pertinent part, denied service connection for depressive reaction with history of syncope episode based on a finding that new and material evidence had not been submitted to reopen a previously denied claim. The May 2004 rating decision also denied claims of service connection for PTSD; degenerative joint disease; a skin condition; residual scarring associated with degenerative joint disease, vascular, and endocrine systems; upper respiratory infections; and exposure to hazardous waste/dioxin resulting in diabetes mellitus, endocrine system disruption, visual neuropathy, physical neuropathy, immune system disruption, and GI problems. In October 2005, the veteran withdrew his claim on appeal of entitlement to service connection for PTSD. In a June 2007 decision, the Board denied service connection for diabetes mellitus, an endocrine system disruption, visual neuropathy, physical neuropathy, an immune system disruption, a gastrointestinal (GI) disorder, a skin disorder, a vascular system disorder, degenerative joint disease, residual scarring, and upper respiratory infections. The issue of whether new and material evidence had been received to reopen a previously denied claim of service connection for a psychiatric disorder other than PTSD, to include a depressive disorder and bipolar disorder was remanded back to the RO in June 2007 for additional development and adjudicative action. FINDINGS OF FACT 1. In a June 1969 rating decision, the RO denied service connection for depressive reaction, based on a finding that the veteran's depression/nervousness pre-existed service and was not aggravated therein. A notice of disagreement was not received within the subsequent one-year period. 2. In a rating decision dated March 1972 and an administrative letter dated December 1990, the RO denied the veteran's claims of service connection for a nervous disorder because new and material evidence had not been submitted to reopen previously denied claim(s). Notices of disagreement were not received within the respective subsequent one-year periods. 3. Evidence submitted since the RO's December 1990 decision, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim of service connection for a psychiatric disorder other than PTSD, to include depressive disorder and bipolar disorder, and therefore raises a reasonable possibility of substantiating the claim. 4. The veteran's current psychiatric disorder, variously diagnosed as depressive disorder and bipolar disorder, as likely as not, originated in service. CONCLUSIONS OF LAW 1. New and material evidence has been received since the December RO's December 1990 rating decision which denied service connection for a nervous disorder and the claim of service connection for a psychiatric disorder other than PTSD, to include depressive disorder and bipolar disorder, is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2007); 38 C.F.R. § 3.156 (2007). 2. Resolving all doubt in the veteran's favor, a psychiatric disorder, variously diagnosed as depressive disorder and bipolar disorder, was incurred in service. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.304 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance Given the favorable nature of the Board's decision in this case, there is no prejudice to the appellant, regardless of whether VA has satisfied its duties of notification and assistance. II. New and Material Evidence In a June 1969 decision, the RO denied service connection for depressive reaction. The basis of the denial was that the veteran had pre-existing depression/nervousness that was not shown to have been permanently aggravated during service. A notice of disagreement was not received within the subsequent one-year period, and the June 1969 decision became final. In a March 1972 rating decision and a December 1990 administrative decision letter, the RO explained that the veteran's earlier claim had become final and the submission of new and material evidence was necessary to reopen the claim. A notice of disagreement was not received within the subsequent one-year periods respectively, and the March 1972 and December 1990 decisions became final. Currently, the appellant contends that he had no pre-existing psychiatric disorder, and the hospitalization during service was the first indication that he had a psychiatric disability. Additional evidence has been added to the record, including lay statements, a VA examination, records from the Social Security Administration, and medical opinions from VA and private medical professionals, all of which cast doubt as to whether the veteran did indeed have a pre-existing psychiatric disorder at the time he entered service. Prior unappealed decisions are final. However, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a). When "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence means evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous 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) (2006). In reaching a determination on whether the claim should be reopened, the reason for the prior denial should be considered. In essence, at the time of the initial denial, the RO determined that the veteran had a pre-existing psychiatric disorder that was not aggravated during service. At the time of the last prior denial, the RO determined that new and material evidence had not been submitted to reopen a previously denied claim of service-connected for depressive reaction/nervousness. Since the prior final decision, evidence has been added to the claims file, including non-duplicative statements from friends and relatives, opinions from medical professionals, and examination reports, much of which casts doubt on whether the veteran entered service with a pre-existing psychiatric disorder, and in turn, raises questions as to whether the veteran's current psychiatric disorder(s) began during service. The additional evidence is new and material and reopening the claim is warranted. III. Service Connection The veteran seeks service connection for a psychiatric disorder. 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. §§ 1110, 1131; 38 C.F.R. § 3.303. 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). 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). 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). 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 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 present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). A veteran is presumed in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence that the disability existed prior to service and was not aggravated by service will rebut the presumption of soundness. 38 U.S.C.A. § 1111; VAOPGCPREC 3- 2003. A pre-existing disease will be considered to have been aggravated by active service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. The presumption of soundness is rebutted only where clear and unmistakable evidence shows that the condition existed prior to service and that it was not aggravated by service. See VAOGCPREC 3-2003. The General Counsel concluded that 38 U.S.C.A. § 1111 requires VA to bear the burden of showing the absence of aggravation in order to rebut the presumption of sound condition. See also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). In sum, when no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the" preexisting condition. 38 U.S.C.A. § 1153. If this burden is met, then the veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness under section 1111, the veteran's claim is one for service connection. This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded. Wagner v. Principi, 370 F. 3d 1089, 1096 (Fed. Cir. 2004). 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). 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. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The veteran's pre-induction examination, completed in June 1968, was negative for any complaints, findings, treatment for, or diagnosis of a psychiatric disorder. Service medical records reflect that the veteran was admitted to a naval hospital in January 1969, after ten months of active duty. The diagnosis on admission was depressive reaction, agitated. He presented as well oriented, coherent, tense, and tremulous. He was stuttering and showed some evidence of blocking. History obtained from the veteran at the time of admission was deemed to be reliable, and indicated that the veteran was involved in an automobile accident about 4 months prior to joining the Navy, and had suffered a concussion with ongoing headaches since that time. Over a six month period prior to admission, the veteran had become increasingly more tense, had developed insomnia, and forgetfulness. He had difficulty keeping up with his work in radar school, and was placed on Valium without relief of his symptoms. About one week prior to admission, the veteran fainted after bending over. The veteran's past history was also deemed reliable, and indicated that the veteran denied problems with police authority, graduated from high school, but felt like his parents were always "down on me and didn't like me." The veteran reported that he saw a psychiatrist about six months prior to joining the Navy because of considerable difficulty between him and his parents regarding his intensions to get married, and noted that his parents had prevented him from marrying on four prior occasions. The veteran also reported that he had a hard time adjusting to the Navy, although he had tried hard. The report of hospitalization indicated that the veteran was treated with individual and group psychotherapy and placed on medications, including Thorazine, 400 mg. daily. His agitation and depression reportedly gradually decreased under treatment and medication was reduced. The diagnosis upon discharge, approximately four months after admission, remained depressive reaction, agitated type, with precipitating stress being routine military service and marriage, and predisposition being a previous history of emotional difficulties. In a March 1969 Medical Board memorandum to the Physical Evaluation Board's Senior Member, it was recommended that the veteran was unfit for duty due to his condition/primary diagnosis of depressive reaction, agitated type. Significantly, the report specifically indicated that the origin [of the diagnosis] was not due to the veteran's own misconduct, was incurred in the line of duty, and although it was noted that the diagnosis existed prior to entry, it was considered aggravated by service. The veteran was discharged from service in April 1968 and filed a claim of service connection for a nervous disorder shortly thereafter. The claim was denied because the RO determined that the veteran's psychiatric disorder pre- existed service and was not aggravated during service. In this case, however, there is no evidence that clearly and unmistakably rebuts the presumption of soundness at entry. The induction examination is completely negative for any pre- existing psychiatric condition. Although the veteran explained, during his lengthily in-service hospital admission between January and March 1969, that he had seen a psychiatrist six months prior to entering service, this admission by the veteran by no means provides the requisite clear and unmistakable evidence to rebut the presumption of soundness at entry. Moreover, the veteran explained that his one-time session with a psychiatrist prior to service had to do with his troubled relationship with his parents over his impending marriage. There is no indication that the veteran sought treatment for a mood disorder or other psychiatric condition prior to service. As such, the Medical Board's notation that the veteran's depressive reaction pre-existed service is not supported by the evidence of record, and therefore carries little probative value, and certainly does not provide the requisite clear and unmistakable evidence to rebut the presumption of soundness at entry. To rebut the presumption of sound condition under section 1111 for conditions not noted at entrance to service, 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. VAOPGCPREC 3-03 (July 16, 2003). See also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Because the veteran is presumed sound at entry, the next question is whether the veteran's psychiatric disorder originated during service. At a VA examination in May 2005, the veteran explained that he has had difficulty obtaining and maintaining effective work and social relationships since his discharge from service. He has been married and divorced at least three times, has lost numerous jobs over the years, and has consistently suffered with depression since service. The Axis I impression was major depression, recurrent, and rule out bipolar disorder and PTSD. In a June 2005 addendum to the May 2005 VA examiner, after a review of recent psychological testing, amended his initial Axis I diagnosis to bipolar disorder NOS (not otherwise specified), depressed phase. The examiner listed an Axis II diagnosis of Personality disorder, NOS, with narcissistic and dependent traits. The examiner opined that it was not likely that the claimed depressive/bipolar disorder is due to any in-service events, injury or disease. The examiner further indicated that treatment for a depressive reaction in the service would not cause bipolar disorder, and neither would any of the other stressors that the veteran claimed to have. The examiner made clear that no in-service event, disease, or injury caused the depressive reaction/bipolar disorder; significantly however, the VA examiner never considered whether the veteran's depressive reaction/bipolar disorder began during service. The veteran has submitted numerous lay statements from family members and friends, including his parents and a high school friend, all of whom agree that the veteran was a happy, loving, fun person before entering service, and he enjoyed many hobbies such as fishing and hunting. More importantly, the veteran submitted several memoranda and reports from VA and private medical professionals, including psychiatrists and licensed clinical social workers who have all opined that the veteran, as likely as not, developed his bipolar disorder and/or a major depressive disorder during service. For example, the veteran's Vet Center counselor opined, in a November 2007 memo to the RO, that the veteran's psychiatric symptoms began during active duty, clearly documented in his military medical records, and supported by the fact that neither he nor his relatives or friends reported any identifiable symptoms before military service. A VA staff psychiatrist, Dr. K opined, in November 2007 and March 2008 memorandums, that the veteran had been very likely suffering from a mood disorder that he suffered from during active service. Dr. K stated: This mood disorder clearly was identified when he was on active duty as evidenced by his admission and length of stay at a Navy hospital after the suicide-death of one of his friends and fellow sailors. Regardless of whether or not he was or was not seen when a young child for some possible psychiatric condition, which does not even sound to have been evaluated by a mental health specialist, he did not appear to have any serious mental problems prior to the incident in the Navy. Without actual pre-military documentation of any significance, I do not see how anything subsequent to his enlistment could be considered "Existing Prior to Service." Additional memorandums were prepared in November 2007 and March 2008 by Dr. B, a VA psychologist and co-director of a VAMC's inpatient PTSD treatment program. Dr. B explained that he had also served as an examiner for over 300 VA Compensation & Pension (C&P) examinations since 1998. Dr. B treated the veteran as an inpatient in 2004 for depression and agitation. The diagnosis was bipolar disorder, depressed type. The veteran provided Dr. B with credible accounts of several stressful or traumatic events to which he was exposed during service, which Dr. B considered to be of significant magnitude to produce symptoms of PTSD and depression. Dr. B indicated in his March 2008 memorandum that he had reviewed the veteran's service medical records, and a large amount of VA and civilian medical records. Based on a review of the veteran's records as well as the veteran's description of his military experiences, Dr. B essentially opined that the veteran's long history of psychiatric disorder began during service. Dr. B opined that the 1969 diagnosis of agitated depression, an older psychiatric label, was likely the initial episode of what is known today as bipolar disorder, depressed type. Based on the foregoing, service connection for an acquired psychiatric disorder, to include depressive disorder and bipolar disorder is warranted. The veteran's service medical records clearly establish in-service treatment for depression and there is essentially no evidence to even suggest that such depressive disorder pre-existed service. The one-time treatment by a psychiatrist six months prior to enlistment was never shown to be for any type of psychiatric disorder, and as explained by the veteran in a 1969 report, he was simply having difficulty getting along with his parents at the time. Thus, there is no clear and unmistakable evidence to rebut the presumption of soundness at entry. Although a VA examiner in 2005 opined that the veteran's bipolar disorder was not caused by service, that examiner never addressed whether the veteran's psychiatric disorder began during service. That question was subsequently answered in the affirmative by at least three of the veteran's treating professionals, including a Vet Center Counselor, a VA psychiatrist, and a VA psychologist, all of whom opined, based on sound medical principles, that the veteran's bipolar disorder and/or depressive disorder as likely as not had its onset during service. Accordingly, service connection is warranted. ORDER New and material evidence having been received, the claim of service connection for a psychiatric disorder other than PTSD, to include depressive disorder and bipolar disorder is reopened. Service connection for a psychiatric disorder, to include depressive disorder and bipolar disorder is granted. ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs