Citation Nr: 1104111 Decision Date: 02/01/11 Archive Date: 02/14/11 DOCKET NO. 05-16 272 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for an acquired psychiatric disorder (other than PTSD), to include bipolar disorder, major affective disorder, borderline personality disorder, and schizophrenia. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Katie K. Molter, Associate Counsel INTRODUCTION The Veteran had active duty military service in the United States Navy from August 1964 to July 1967, during the Vietnam Era. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran testified in October 2008 at a Travel Board hearing at the RO before the undersigned Veterans Law Judge. A transcript of that hearing has been reviewed and associated with the claims file. This was claim was previously before the Board in April 2009. At that time, the Board reopened the Veteran's claim for an acquired psychiatric disorder (other than PTSD), to include bipolar disorder, major affective disorder, borderline personality disorder, and schizophrenia and remanded the claim back to the RO for further development. As a final preliminary matter, the Board notes that, during the pendency of the appeal, the Veteran filed a claim for entitlement to service connection for posttraumatic stress disorder (PTSD) in October 2008. The Veteran was sent VCAA notice on that issue in October 2008. The Board acknowledged the Veteran's claim for service connection for PTSD at his April 2009 hearing and referred it to the RO for development. From a review of the claims file, it appears that no further action has been taken on the Veteran's claim for entitlement to service connection for PTSD and, as such, the Board refers that issue to the RO for appropriate action. FINDINGS OF FACT 1. The Veteran's bi-polar disorder was not noted on the service entrance examination. 2. Clear and unmistakable evidence demonstrates that the Veteran's bi-polar disorder existed prior to active duty service. 3. The evidence is not clear and unmistakable that the Veteran's preexisting bi-polar disorder did not permanently increase in severity during service. CONCLUSION OF LAW Resolving all doubt in the Veteran's favor, preexisting bi-polar disorder was aggravated in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). VA's notice requirements apply to all five elements of a service- connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Given the favorable disposition of the claim for service connection for an acquired psychiatric disorder (other than PTSD), to include bipolar disorder, major affective disorder, borderline personality disorder, and schizophrenia, the Board finds that all notification and development actions needed to fairly adjudicate this claim have been accomplished. II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). A veteran is presumed 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 injury or disease existed before acceptance and enrollment and clear and unmistakable evidence demonstrates that the preexisting disorder was not aggravated. 38 U.S.C.A. § 1111. 38 C.F.R. § 3.304(b) states likewise, but also states "[o]nly such conditions as are recorded in examination reports are to be considered as noted." A preexisting injury or disease will be considered to have been aggravated by active 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.A. § 1153; 38 C.F.R. § 3.306(a). Clear and unmistakable (obvious or manifest) evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306(b). The Veteran contends, in essence, that he is entitled to service connection for an acquired psychiatric disorder because his preexisting acquired psychiatric (bi-polar disorder) worsened in service. In this case, the Board finds that the Veteran's acquired psychiatric disorder was not "noted" on the service entrance examination for the Veteran's period of active duty service. In Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004), the Federal Circuit Court held that, when no preexisting condition is noted upon entry into service, a veteran is presumed to have been sound upon entry, and then the burden falls on the government to rebut the presumption of soundness. The Federal Circuit Court held, in Wagner, that the correct standard for rebutting the presumption of soundness under 38 U.S.C.A. § 1111 (West 2002) requires that VA show by clear and unmistakable evidence that (1) the veteran's disability existed prior to service and (2) that the preexisting disability was not aggravated during service. The Federal Circuit Court has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). After a review of the evidence, the Board finds that there is clear and unmistakable (obvious and manifest) evidence that the Veteran's acquired psychiatric disorder (bi-polar disorder) pre- existed service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304. A June 2009 VA examination report shows that the Veteran reported having signs of mania in his teens. The examiner found that the Veteran's bi-polar disorder had its onset in his teens and there was a 50 percent or greater probability that his psychiatric disorder had its onset prior to the Veteran joining the military service. In addition, the Veteran reported that the first signs of mania started in his adolescence. (See Written Social History by R.T. dated in March 1996). The Board further finds that the there is no clear and unmistakable evidence that the Veteran's preexisting acquired psychiatric disorder, identified as bipolar disorder, did not permanently increase in severity during service. In this regard, the Veteran testified at his October 2008 Board hearing that there were two incidents in his military service that increased the severity of his condition. One of the incidents occurred aboard the USS Shangri-La in the Caribbean when the Veteran felt he failed to warn or properly train a friend who ended up going overboard. The other incident was when the Veteran's father passed away in 1967. The Veteran indicated that he wandered around the Navy base aimlessly not knowing what to do for hours when he found out his father passed away. He was seen by a physician who treated him and gave him sleeping medication. (See undated VA form 21-4142). In addition, the Veteran generally alleged that his inability to sleep during his military service aggravated his preexisting bi-polar disorder. The Veteran's lay testimony is corroborated by the evidence of record. Service treatment records reflect that the Veteran underwent a neuropsychiatric evaluation in November 1966. The record notes that the Veteran's neuropathic traits of childhood include bedwetting until age 6, nail biting, restlessness, and frequent fights. The Veteran was diagnosed with an immature personality. Service treatment records also reflect that the Veteran was having some personal problems in mid-1967. A May 1967 service treatment record notes that the Veteran reported that his "nerves were shot" and that he could not sleep and was unduly nervous. The record also reflects that the Veteran asked to see a psychiatrist. It was also noted that the Veteran was prescribed valium and lithium with results. The physician reported that he "did not see need for a psychiatrist evaluation." The June 2009 VA examiner documented that the Veteran stated that his inability to sleep while in the military aggravated his bi- polar disorder. The Veteran also acknowledged excessive alcohol use during his military service. The examiner stated that the Veteran's psychiatric disorder permanently worsened during his military service though the examiner could not state whether such worsening was due to the natural progression of the disorder without resorting to mere speculation. The examiner explained that the above mentioned opinions were derived from the examiner's clinical experience and expertise, a review of the Veteran's records, an extensive clinical interview of the Veteran and the current examination. The examiner further stated that the Veteran meets the DSM-IV criteria for bi-polar. He has been hospitalized and is currently being treated for bi-polar disorder. Early signs of mania (bi-polar disorder) were noticed by the Veteran in his early teens. His alcohol abuse was in part a self-medicating mechanism and eventually became a clinical disorder itself as evidence by his inpatient hospitalizations at the Salisbury VA medical center for substance abuse. The examiner further opined that his review of the records does not indicate that the Veteran was taking psychiatric medications during his military service though he already had the disorder and he was also abusing alcohol during that time. Hence, determining the nature of the worsening of his condition cannot be done without resorting to mere speculation. The Board notes that the VA examiner wrote that, without resorting to speculation, he could not state whether or not military service aggravated the Veteran's bi-polar disorder or if this was the natural progression of the disease process. This is not an opinion, but a statement that an opinion cannot be rendered; therefore, it cannot be weighed against the claim as if it were negative evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In light of the VA examiner's notations that Veteran's bi-polar disorder, which preexisted service, worsened during his military service and various VA and private treatment records and the June 2009 VA examination showing the presence of an acquired psychiatric disorder, identified as bi-polar disorder, the Board cannot conclude that there was clear and unmistakable evidence that the Veteran's preexisting bi-polar disorder was not aggravated beyond the natural progression during the Veteran's period of service. See Joyce v. Nicholson, 19 Vet. App. 36, 48- 53 (2005). As the standard is clear and unmistakable evidence to rebut the presumption of sound condition at service entrance, the rule of resolving reasonable doubt in the Veteran's favor is not applicable in this case. As a result, the Board finds that the Veteran's preexisting bi-polar disorder was aggravated by service, and the grant of service connection for an acquired psychiatric disorder, identified as bi-polar disorder, is warranted. ORDER Entitlement to service connection for an acquired psychiatric disorder, identified as bi-polar disorder, is granted. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs