Citation Nr: 1105123	
Decision Date: 02/08/11    Archive Date: 02/18/11

DOCKET NO.  07-24 321	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, 
Florida


THE ISSUES

1.  Entitlement to service connection for an acquired psychiatric 
disability.

2.  Entitlement to service connection for hypertension, to 
include as due to acquired psychiatric disability.

3.  Entitlement to service connection for rheumatoid arthritis.

4.  Entitlement to service connection for skin disability of the 
scalp.

5.  Entitlement to service connection for fibromyalgia and/or 
chronic fatigue and/or myalgia, on a direct basis and as a 
qualifying chronic disability under 38 C.F.R. § 3.317 (2010).


REPRESENTATION

Veteran represented by:	Disabled American Veterans



ATTORNEY FOR THE BOARD

M.W. Kreindler, Counsel


INTRODUCTION

The Veteran served on active duty from January 1997 to January 
2001.

This matter comes to the Board of Veterans' Appeals (Board) from 
rating decisions of a Department of Veterans Affairs (VA) 
Regional Office (RO).  

A November 2006 rating decision denied entitlement to service 
connection for an acquired psychiatric disability.  A notice of 
disagreement was filed in December 2006, a statement of the case 
was issued in June 2007, and a substantive appeal was received in 
July 2007.  The Veteran requested a Board hearing which was 
scheduled in January 2009; however, he withdrew his request for a 
hearing in a December 2008 submission.

A February 2008 rating decision denied entitlement to service 
connection for hypertension, rheumatoid arthritis, and skin 
disability of the scalp.  A September 2008 rating decision denied 
entitlement to service connection for fibromyalgia.  A notice of 
disagreement was filed in October 2008, a statement of the case 
was issued in November 2008, and a substantive appeal was 
received in January 2009.

The issues of entitlement to service connection for hypertension, 
rheumatoid arthritis, skin disability of the scalp, and 
fibromyalgia are addressed in the REMAND portion of the decision 
below and are REMANDED to the RO via the Appeals Management 
Center (AMC), in Washington, DC.  VA will notify the Veteran if 
any further action is required on his part.




FINDING OF FACT

Resolving all doubt in the Veteran's favor, bipolar disorder had 
its onset during service.


CONCLUSION OF LAW

A bipolar disorder was incurred in service.  38 U.S.C.A. §§ 1110, 
5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2010).


REASONS AND BASES FOR FINDING AND CONCLUSION

Under the Veterans Claims Assistance Act of 2000 (VCAA), codified 
at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; 
see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a 
duty to notify the claimant of any information and evidence 
needed to substantiate and complete a claim, and of what part of 
that evidence is to be provided by the claimant and what part VA 
will attempt to obtain for the claimant.  38 U.S.C.A. § 5103(a); 
38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 
183, 187 (2002).  

The United States Court of Appeals for Veteran Claims' (Court's) 
decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), held, 
in part, that a VCAA notice, as required by 38 U.S.C.A. § 
5103(a), must be provided to a claimant before the initial 
unfavorable agency of original jurisdiction (AOJ) decision on a 
claim for VA benefits.  This decision has since been replaced by 
Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the 
Court continued to recognize that typically a VCAA notice, as 
required by 38 U.S.C.A. § 5103(a), must be provided to a claimant 
before the initial unfavorable agency of original jurisdiction 
(AOJ) decision on a claim for VA benefits.  In light of the 
favorable decision as it relates to the finding that service 
connection is warranted for acquired psychiatric disability, no 
further discussion of VCAA is necessary.  The agency of original 
jurisdiction will take such actions in the course of implementing 
this grant of service connection, and the Veteran may always file 
a timely notice of disagreement if he wishes to appeal from those 
downstream determinations.  See Dingess/Hartman v. Nicholson, 19 
Vet. App. 473 (2006).  

Entitlement to service connection for acquired psychiatric 
disability

Under VA regulations, if VA receives or associates with the 
claims folder relevant official service department records at any 
time after a decision is issued on a claim that had not been 
associated with the claims folder when VA first decided the 
claim, VA must reconsider the claim.  38 C.F.R. § 3.156(c).  This 
regulation comprehends official service department records which 
presumably have been misplaced and have now been located and 
forwarded to VA.  Id.  In essence, the finality of any previous 
decision is vitiated by the association of additional, pertinent 
service department records, and the claim must be reconsidered.  
See id.

In this case, the Veteran's prior claim of service connection for 
major depressive disorder was denied in an August 2003 rating 
decision.  The Veteran filed a notice of disagreement in 
September 2003, a statement of the case was issued in July 2004, 
but he did not file a substantive appeal.  Thus, the rating 
decision became final.  38 U.S.C.A. § 7105.  Rating decisions 
dated in August 2005 and November 2005 determined that new and 
material evidence had not been received to reopen the claim of 
depression and anxiety.  He did not file a notice of 
disagreement, and such rating decisions became final.  38 
U.S.C.A. § 7105.  In March 2006, the Veteran filed a claim to 
reopen, and submitted service treatment records which were 
generated in October and November 2000 and contain reference to 
his mental health.  Such records were not previously considered, 
and are pertinent because they show evaluation and treatment 
pertaining to his mental health during active service.  Given the 
submission of the new service records, the claim must be 
reconsidered without regard to the previous final denials.  38 
C.F.R. § 3.156(c).

Applicable law provides that service connection will be granted 
if it is shown that the veteran suffers from disability resulting 
from an injury suffered or disease contracted in line of duty, or 
for aggravation of a preexisting injury suffered or disease 
contracted in line of duty, in active military, naval, or air 
service.  38 U.S.C.A. § 1110.  That an injury occurred in service 
alone is not enough; there must be chronic disability resulting 
from that injury.  If there is no showing of a resulting chronic 
condition during service, then a showing of continuity of 
symptomatology after service is required to support a finding of 
chronicity.  38 C.F.R. § 3.303(b).  Certain chronic disabilities, 
such as psychoses, are presumed to have been incurred in service 
if manifest to a compensable degree within one year of discharge 
from service.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 
3.309.  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 C.F.R. § 3.303(d).

An examination performed for enlistment purposes in November 1996 
reflects that the Veteran's psychiatric state was clinically 
evaluated as normal.  On a Report of Medical History completed by 
the Veteran for enlistment purposes, he checked the 'No' boxes 
with regard to 'depression or excessive worry,' or nervous 
trouble of any sort.'  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.  Only such conditions as are recorded in 
examination reports are to be considered as noted.  38 U.S.C.A. § 
1111; 38 C.F.R. § 3.304(b).  Thus, the Veteran was presumed sound 
upon entry into service.  See id.  

An October 2000 Report of Medical History reflects that the 
Veteran checked the 'Yes' box for 'depression or excessive 
worry.'  An October 2000 'Report of Medical Assessment' reflects 
that the Veteran checked the 'Yes' box indicating questions or 
concerns about his 'mental health.'  The examiner commented that 
the Veteran's brother had been treated for bipolar disorder.  The 
Veteran was noted to have up and down periods, occasionally 
anxiety attacks, but does not seem to have bipolar disorder.  An 
October 2000 Report of Medical Examination reflects that his 
'psychiatric' state was clinically evaluated as normal.  In 
November 2000, the Veteran underwent a 'Health Risk Appraisal.'  
The examiner noted that the Veteran had considered suicide within 
the past year; had no one to turn to for support; had experienced 
significant depression in the past year; and, had worries that 
had been interfering with his daily life.  The examiner 
encouraged the Veteran to see a counselor for stress 
management/depression management.  He denied current suicidal 
ideations, and verbally agreed to see a counselor if he felt 
suicidal ideations.  A November 2000 Report of Medical History 
reflects that the Veteran checked the 'No' boxes for 'depression 
or excessive worry' and 'nervous trouble of any sort.'  A 
November 2000 Report of Medical Examination reflects that his 
'psychiatric' state was clinically evaluated as normal.

In February 2001, the Veteran sought VA mental health treatment 
in which he complained of feeling depressed for at least 7 years 
and anxious in certain situations.  Upon mental status 
examination, the examiner diagnosed social phobia and depressive 
disorder.  Thereafter, VA treatment records reflect treatment for 
depression, social phobia, and speech therapy.

In October 2006, the Veteran underwent a VA examination.  The 
Veteran reported that he was depressed in service.  He had TAD 
for the last 8 months of service due to mood disorder and 
anxiety.  He stated that he was diagnosed with social anxiety and 
later diagnosed with depression and anxiety.  Upon mental status 
examination, the examiner diagnosed bipolar disorder, and social 
anxiety by history.  The examiner opined that his bipolar 
disorder and social anxiety disorder are less likely as not 
caused by or a result of military service; however, bipolar 
disorder and social anxiety disorder were at least as likely as 
not aggravated by his military service.  The examiner noted a 
family history of psychiatric illness which suggests a genetic 
predisposition.  Review of records from a February 2001 
psychiatry/mental health notes states that the Veteran complained 
of feeling depressed for at least 7 years and anxious in certain 
situations which suggested that that a mood disorder was already 
present at age 17 or so.  The examiner stated that with 
predisposing genetic factors, the existence of a prodromal mood 
disorder (depression with social anxiety) may be aggravated by 
stressors that cause patients to develop a full diagnosable mood 
disorder in the bipolar spectrum.  To what extent it is affected 
by his military experience calls for speculation.

While the October 2006 VA examiner has opined that the Veteran's 
mood disorder - bipolar and depression - likely predated service 
due to genetic predisposition, the Veteran is entitled to the 
presumption of soundness as no psychiatric disorders were noted 
at the time of his entry into service.  See 38 U.S.C.A. § 1111; 
38 C.F.R. § 3.304(b).  To rebut the presumption of sound 
condition under § 1111 for disorders not noted on the entrance or 
enlistment examination, 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 3-2003 (July 16, 2003).  The Board does not find the 
October 2006 VA examiner's opinion of a genetic predisposition to 
constitute clear and unmistakable evidence that an acquired 
psychiatric disability pre-existed service, especially in light 
of the fact that trained medical personnel clinically evaluated 
his psychiatric state as normal on enlistment examination.  Thus, 
the VA examiner's opinion does not constitute clear and 
convincing evidence to rebut the presumption of soundness.

Based on a review of the service treatment records, it is clear 
that the Veteran was experiencing depressive symptoms and anxiety 
during active service, specifically noted on examinations in 
October and November 2000.  While acknowledging that his 
psychiatric state was clinically evaluated as normal on both 
examinations and that a specific psychiatric diagnosis was not 
rendered, the supplemental reports generated in October and 
November 2000 indicated that the Veteran had subjectively 
complained of anxiety, depression, and suicidal ideation.  
Likewise, the November 2000 examiner specifically suggested that 
he seek post-service mental health treatment.  Likewise, shortly 
after separation from service the Veteran sought VA outpatient 
treatment for anxiety and depression.  As opined by the October 
2006 VA examiner, his psychiatric disability was aggravated 
during service.  Based on review of the service treatment 
records, and the post-service treatment records reflecting 
treatment shortly after separation for depression and anxiety, 
and Resolving all doubt in the Veteran's favor, the Board finds 
that the bipolar disorder either had its onset during his period 
of active service.  




ORDER

Service connection for bipolar disorder is granted.


REMAND

Hypertension

A November 2000 examination performed for separation purposes 
reflects that 'Yes' was circled with regard to a personal history 
of hypertension, and his blood pressure reading was 174/94.  His 
blood pressure was rechecked and was 154/86.  In light of the 
elevated systolic pressure reflected on November 2000 
examination, the Veteran should be afforded a VA examination to 
assess the nature and etiology of his claimed hypertension.  
McLendon v. Nicholson, 20 Vet. App. 79 (2006).

Rheumatoid arthritis

The Veteran asserts that he has rheumatoid arthritis due to 
vaccinations and inoculations, and exposure to fumes and 
chemicals during service.  A September 2007 VA treatment record 
reflects that the Veteran has a "weakly positive RF," minimal 
signs of inflammatory arthritis, and thus a CCP antibody would be 
obtained to further rule out rheumatoid arthritis.  At a 
September 2008 VA examination, the Veteran underwent RF testing 
which is used to diagnose rheumatoid arthritis.  The results of 
such testing is unclear, and thus it is not known if the Veteran 
has rheumatoid arthritis.  The Veteran should be afforded a VA 
examination to assess the nature and etiology of his claimed 
rheumatoid arthritis.

Skin disability of the scalp

An October 2000 service treatment record reflects complaints of 
rash on scalp for 4 days.  He reported itching, and that he had 
shaved his head one and a half weeks prior.  On examination, 
there was scaling and scattered papules.  The assessment was 
shaving irritation and seborrheic dermatitis.  In light of the 
complaints and diagnosis rendered during service, the Veteran 
should be afforded a VA examination to assess whether he has a 
chronic skin disability of the scalp.  See id.

Fibromyalgia

The Veteran is claiming entitlement to service connection for 
fibromyalgia and/or a disability manifested by chronic fatigue as 
a qualifying chronic disability under 38 C.F.R. § 3.317.  A 
qualifying chronic disability means a chronic disability 
resulting from an undiagnosed illness or medically unexplained 
chronic multisymptom illnesses that are defined by a cluster of 
signs or symptoms, including chronic fatigue syndrome and 
fibromyalgia.  38 C.F.R. § 3.317(a)(2)(i)(B).  Signs or symptoms 
which may be manifestations of undiagnosed illness or medically 
unexplained chronic multisymptom illness include fatigue and 
muscle pain, for which service connection may be appropriate 
under that regulation.  38 C.F.R. § 3.317(b).

The Veteran served in the Navy and had 2 years, 11 months, and 7 
days of foreign service, and 1 year, 10 months, and 27 days of 
sea service.  He has reported that he served for 5 months in 
Southwest Asia; however, his DD Form 214 does not reflect any 
Southwest Asia or Gulf War service medals.  The Veteran's service 
personnel records should be associated with the claims folder, 
and a determination should be made as to whether the Veteran 
served in the Southwest Asia theater of operations during the 
Persian Gulf War.

A June 2008 VA treatment record reflects an impression of 
polyarthralgias/fatigue, with an unclear etiology; however, there 
was possible evidence of early sacrolitis in conjunction with 
chronic left lower back pain versus early rheumatoid arthritis.

In September 2008, the Veteran underwent a VA examination, and 
myalgia was diagnosed, which is defined as "muscle pain."  The 
VA examiner, however, failed to provide an opinion as to whether 
the myalgia was due to service, and whether it constitutes a 
manifestation of a diagnosed illness or whether it constitutes an 
undiagnosed illness or medically unexplained chronic multisymptom 
illness.  

In light of the diagnoses of polyarthralgias, fatigue, and 
myalgia, the Veteran should be afforded a VA examination to 
determine the nature and etiology of his claimed fibromyalgia, 
chronic fatigue, and myalgia.

In light of these matters being remanded, updated VA treatment 
records from the Tampa VA Medical Center (VAMC) for the period 
August 15, 2008, to the present should be associated with the 
claims folder.  See Bell v. Derwinski, 2 Vet. App. 611 (1992).

Accordingly, the case is REMANDED for the following actions:

1.  Obtain the Veteran's service personnel 
records.  If such efforts prove unsuccessful, 
documentation to that effect should be 
associated with the claims folder.

2.  A determination should be made as to 
whether the Veteran served in the Southwest 
Asia theater of operations during the Persian 
Gulf War, to include the specific dates of 
such service.

3.  Obtain the Veteran's treatment records 
from the Tampa VAMC for the period August 15, 
2008, to the present.

4.  Schedule the Veteran for a VA examination 
with a physician with appropriate expertise 
to determine the nature and etiology of his 
claimed hypertension.  The claims folder 
should be made available to and reviewed by 
the examiner.  Any medically indicated tests 
should be accomplished, and all test and 
clinical findings should be clearly reported.  
After reviewing the claims file and examining 
the Veteran, the examiner should opine as to 
the following:

a)  Please indicate whether the Veteran has 
hypertension; 

b)  Is it at least as likely as not (a 50% or 
higher degree of probability) that 
hypertension had its clinical onset during 
the Veteran's period of service or is 
otherwise related to his period of service;

c)  Is it at least as likely as not (a 50% or 
higher degree of probability) that 
hypertension is proximately due to or 
aggravated by service-connected bipolar 
disorder.

All opinions and conclusions expressed must 
be supported by a complete rationale in a 
report.  The examiner should reconcile any 
opinions with the service treatment records, 
post-service medical evidence, and lay 
statements of the Veteran.

5.  Schedule the Veteran for a VA examination 
with a physician with appropriate expertise 
to determine the nature and etiology of his 
claimed rheumatoid arthritis.  The claims 
folder should be made available to and 
reviewed by the examiner.  Any medically 
indicated tests should be accomplished, and 
all test and clinical findings should be 
clearly reported.  After reviewing the claims 
file and examining the Veteran, the examiner 
should opine as to the following:

a)  Please indicate whether the Veteran has 
rheumatoid arthritis;
	
b)  Is it at least as likely as not (a 50% or 
higher degree of probability) that rheumatoid 
arthritis had its clinical onset during the 
Veteran's period of service or is otherwise 
related to his period of service.

All opinions and conclusions expressed must 
be supported by a complete rationale in a 
report.  The examiner should reconcile any 
opinions with the service treatment records, 
post-service medical evidence, and lay 
statements of the Veteran.

6.  Schedule the Veteran for a VA examination 
with a physician with appropriate expertise 
to determine the nature and etiology of his 
claimed skin disability of the scalp.  The 
claims folder should be made available to and 
reviewed by the examiner.  Any medically 
indicated tests should be accomplished, and 
all test and clinical findings should be 
clearly reported.  After reviewing the claims 
file and examining the Veteran, the examiner 
should opine as to the following:

a)  Please indicate whether the Veteran has a 
skin disability of the scalp;

b)  Is it at least as likely as not (a 50% or 
higher degree of probability) that a skin 
disability of the scalp had its clinical 
onset during the Veteran's period of service 
or is otherwise related to his period of 
service.

All opinions and conclusions expressed must 
be supported by a complete rationale in a 
report.  The examiner should reconcile any 
opinions with the service treatment records, 
post-service medical evidence, and lay 
statements of the Veteran.

7.  Schedule the Veteran for a VA examination 
with a physician with appropriate expertise 
pertaining to his claimed fibromyalgia, 
chronic fatigue, and myalgia.  The claims 
folder, to include a copy of this remand, 
must be made available to and reviewed by the 
examiner(s) in conjunction with the 
examination, and the examination report must 
reflect that the claims folder was reviewed.  
All appropriate testing should be performed. 
The examiner(s) should respond to the 
following:

a)  Does the Veteran have any pertinent signs 
and symptoms of fatigue or muscle pain 
(myalgia), and, if applicable, can any such 
signs and symptoms be attributed to known 
clinical diagnoses;

b)  For any disability manifested by 
fibromyalgia, the examiner should indicate 
whether it is at least as likely as not (a 
50% or higher degree of probability) that any 
such disability had its clinical onset during 
the Veteran's period of service, or is 
otherwise related to such period of service.

c) For any disability manifested by chronic 
fatigue, the examiner should indicate whether 
it is at least as likely as not (a 50% or 
higher degree of probability) that any such 
disability had its clinical onset during the 
Veteran's period of service, or is otherwise 
related to such period of service.

d) For any disability manifested by myalgia, 
the examiner should indicate whether it is at 
least as likely as not (a 50% or higher 
degree of probability) that any such 
disability had its clinical onset during the 
Veteran's period of service, or is otherwise 
related to such period of service.

All opinions and conclusions expressed must 
be supported by a complete rationale in a 
report.  The examiner should reconcile any 
opinions with the service treatment records, 
post-service medical evidence, and lay 
statements of the Veteran.

8.  The RO/AMC should then readjudicate the 
issues of entitlement to service connection 
for hypertension, to include as due to 
service-connected acquired psychiatric 
disability, rheumatoid arthritis, disability 
of the scalp, and fibromyalgia/chronic 
fatigue/myalgia, to include as due to 
undiagnosed illness.  All applicable laws and 
regulations should be considered.  If any of 
the benefits sought on appeal remain denied, 
the Veteran and his representative should be 
provided with a supplemental statement of the 
case.  An appropriate period of time should 
be allowed for response.

The Veteran and his representative have the right to submit 
additional evidence and argument on the matters the Board has 
remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law 
requires that all claims that are remanded by the Board of 
Veterans' Appeals or by the United States Court of Appeals for 
Veterans Claims for additional development or other appropriate 
action must be handled in an expeditious manner.  See 38 U.S.C.A. 
§§ 5109B, 7112 (West Supp. 2009).



______________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs