Citation Nr: 1102473 Decision Date: 01/21/11 Archive Date: 01/26/11 DOCKET NO. 08-18 559 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include schizoaffective disorder and bipolar disorder. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran was a member of the Navy Reserves. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The Veteran's claim on appeal was initially characterized as a claim of service connection for a "mental condition." However, while on appeal, the United States Court of Appeals for Veterans Claims (Court) addressed a case involving the scope of filed claims. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court held that a claim is not limited to the diagnosis identified by the Veteran. More precisely, a claim is for a disability that may reasonably be encompassed by several factors including: (1) the claimant's description of the claim; (2) the symptoms the claimant describes; and (3) the information the claimant submits or that [VA] obtains in support of the claim. A review of the claims file shows that the Veteran has been variously diagnosed as having schizoaffective disorder and bipolar disorder. The Board therefore finds that the claim is properly characterized broadly as a claim of service connection for an acquired psychiatric disorder, to include schizoaffective disorder and bipolar disorder. FINDING OF FACT The competent medical evidence shows that the Veteran's service- connected neurological disorder aggravated her bipolar disorder. CONCLUSION OF LAW Bipolar disorder is proximately due to or the result of a service-connected disability. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.310 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered. Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a pre-existing injury in the active military, naval or air service. See 38 U.S.C.A. § 1010; 38 C.F.R. § 3.303(a). The term "active military, naval or air service" is further defined as (1) active duty or a period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and (2) any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. See 38 U.S.C.A. § 101(24). Service connection for a person on inactive duty is permitted only for injuries, not diseases, incurred or aggravated in the line of duty. See Brooks v. Brown, 5 Vet. App. 484, 485 (1993). The mere fact of a training injury is not enough; there must be evidence of a chronic disability resulting from that injury. Further, service connection may also 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 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2010). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006; however, the new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 71 Fed. Reg. 52744- 47 (Sept. 7, 2006). Although the stated intent of the change was merely to implement the requirements of Allen v. Brown, 7 Vet. App. 439 (1995), the new provisions amount to substantive changes to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995. In this case, the Veteran's claim was received in May 2006, prior to the amendment of 38 C.F.R. § 3.310. Consequently, the Board will apply the version of 38 C.F.R. § 3.310, which was in effect at the time the Veteran's claim was received, as it is more favorable to the claimant because it does not require the establishment of a baseline before an award of service connection may be made. In order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) evidence, generally medical, establishing a nexus (i.e., link) between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Here, the Veteran claims that she developed a psychiatric disorder as a result of her service in the military. Specifically, she claims that she began developing schizophrenia in approximately 2001 as a result of anthrax vaccinations. Unfortunately, the Veteran's service treatment records are unavailable. However, it has been determined that the Veteran was a Naval Reserve member who participated in Naval Reserve activities at Jones Island in Milwaukee, Wisconsin. She received an anthrax vaccination series starting in 1998 due to her assignment to a unit with a high level of deployment potential, and she received a full course vaccination over a period of two years. Private treatment records reveal a diagnosis of psychotic disorder, not otherwise specified, to rule out paranoid schizophrenia, as early as November 2000. She continues to receive psychiatric treatment to the present, and her psychiatric disorder has been variously diagnosed as schizoaffective disorder and bipolar disorder. The Veteran also sought entitlement to service connection for a neurological disorder, claimed as secondary to anthrax vaccinations. During the development of that claim, she was afforded a VA peripheral nerves examination in August 2008, at which time she was diagnosed with overall generalized dystonia which involves spasmodic torticollis and total body dystonia. The examiner opined that the fact that the Veteran demonstrated no abnormal saccadic eye movements made the possibility of a random mutation to Huntington's disease improbable. Moreover, he noted that the fact that anthrax vaccinations have been associated with immune responses was well known. As such, he found that there were no other reason for the generalized dystonic syndrome other than a post-immunization process, and opined that the Veteran should be service connected for generalized dystonia and spasmodic torticollis. The Veteran was granted service connection for a neurological disorder secondary to anthrax vaccinations in a September 2008 rating decision. During the development of the Veteran's psychiatric disorder claim, she was afforded a VA mental disorders examination in November 2009, at which time she was diagnosed with bipolar disorder. The examiner noted that the relevant medical literature appeared inconclusive as to a causal link between anthrax vaccinations and psychiatric events, and indicated that the Veteran's background contained multiple and significant risk factors for developing a mental disorder (including the loss of a parent at an early age, excessive responsibilities regarding the care of her siblings, difficult relations with her mother, and sexual and physical abuse as a child). As such, given the multiple factors that would contribute to the Veteran's condition and the limitations that exist in knowledge regarding the impact of the anthrax vaccine on the mental health of recipients, the examiner concluded that she could not opine as to the likelihood that the psychiatric disorder resulted from the anthrax vaccinations without resorting to speculation or making improbable assumptions. Regarding an opinion as to whether the Veteran's service- connected neurological disorder caused or permanently aggravated the current psychiatric disorder, the examiner was unable to respond to the issue because it required an expertise in neurology which was not within the examiner's area of competency. However, in an addendum to the November 2009 VA examination report issued in January 2010, the examiner opined that the service-connected neurological disorder was less likely than not the cause of the Veteran's current bipolar disorder. This conclusion was based on the fact that there were significant risk factors present for the later development of a psychiatric disorder given the nature of the Veteran's childhood upbringing. However, the examiner proceeded to opine that it was as likely as not that the Veteran's service-connected neurological disorder was an ongoing stressful condition that adversely impacted her bipolar disorder, although the examiner was unwilling to address whether or not the aggravation caused by the neurological disorder was permanent. While the Veteran asserted that the anthrax caused her psychiatric condition, she is not medically qualified to prove a matter requiring medical expertise, such as an opinion as to diagnosis or medical causation. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1992). As such, her opinion is insufficient to provide the requisite nexus between her acquired psychiatric disability and the vaccination she received. Several medical opinions were obtained, but the examiners concluded that it was less likely than not that the anthrax vaccination actually caused her acquired psychiatric disability. As such, the medical evidence is against a finding of direct service connection. However, the result is different with regard to the claim of aggravation as the VA examiner specifically concluded that the Veteran's service connected neurologic disability aggravated her acquired psychiatric disability. While it is true that he qualified his opinion by stating that he could not be sure the aggravation was permanent, the fact remains that he found that the aggravation would possibly abate if the underlying condition, for which the Veteran is service connected, abated. However, there is no indication in the record that such a condition has, or will abate. As such, the Board will resolve reasonable doubt in favor of the Veteran, and find that service connection for bipolar disorder is warranted on the basis that it has been aggravated by her service-connected neurological disorder. ORDER Service connection for acquired psychiatric disability on the basis of aggravation is granted. ____________________________________________ MATTHEW W. BLACKWELDER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs