Citation Nr: 0403366 Decision Date: 02/06/04 Archive Date: 02/11/04 DOCKET NO. 00-04 502 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been received to reopen a previously disallowed claim of entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disability, currently diagnosed as bipolar disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Veteran ATTORNEY FOR THE BOARD John J. Crowley, Counsel INTRODUCTION The veteran served on active duty from June 1967 to June 1969, May 1970 to May 1976, and January to March 1991, with periods of active and inactive duty for training. This matter is currently before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). One of the matters the Board must address is which issue or issues are properly before it at this time. Under 38 U.S.C.A. § 7105(a), an appeal to the Board must be initiated by a notice of disagreement (NOD) and completed by a substantive appeal after a statement of the case (SOC) is furnished to the veteran. In essence, the following sequence is required: There must be a decision by the RO, the veteran must express timely disagreement with the decision, VA must respond by explaining the basis for the decision to the veteran, and finally the veteran, after receiving adequate notice of the basis of the decision, must complete the process by stating his argument in a timely-filed substantive appeal. See 38 C.F.R. §§ 20.200, 20.201, 20.202, and 20.203. In March 1999, the RO denied the claim of service connection for a schizotypal personality disorder and bipolar disorder (hereinafter generally referred to as the "acquired psychiatric disability") along with service connection for PTSD. A NOD was received in April 1999. In May 1999, the veteran, in writing, withdrew the claim of service connection for PTSD and for a personality disorder. A SOC regarding the claim of service connection for a bipolar disorder was issued by the RO in January 2000. The veteran filed a timely substantive appeal in February 2000. At this time, the veteran petitions to reopen the claim of service connection for PTSD. In October 2002, the RO continued the denial of service connection for PTSD. This issue was addressed by the RO on a de novo basis. A NOD was received in November 2002 and a SOC was issued by the RO in February 2003. A timely substantive appeal was received in May 2003. FINDINGS OF FACT 1. Entitlement to service connection for PTSD was denied by the RO in March 1999. The veteran withdrew his appeal to this determination in May 1999. 2. Evidence received since the RO's March 1999 decision is not cumulative or redundant and is so significant that it must be considered in order to fairly decide the merits of the claim of entitlement to service connection for PTSD. 3. The most probative competent medical evidence at this time reveals that the veteran does not have PTSD related to the confirmed stressor in service. 4. An acquired psychiatric disability clearly and unmistakably preexisted the veteran's military service. 5. While there is no competent medical evidence that demonstrates that an acquired psychiatric disability was caused by military service, a pre-existing acquired psychiatric disability increased in severity beyond natural progression during the veteran's military service. CONCLUSIONS OF LAW 1. The March 1999 denial of the claim of entitlement to service connection for PTSD is final. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. §§ 20.204 and 20.1103 (2003). 2. Evidence added to the record since March 1999 is new and material; thus, the claim for service connection for PTSD is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (in effect prior to August 29, 2001). 3. Service connection for PTSD is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2003). 4. Resolving any doubt in the veteran's favor, aggravation of a pre-existing acquired psychiatric disability, currently diagnosed as bipolar disorder, by the veteran's military service is found, thereby warranting a grant of service connection. 38 U.S.C.A. §§ 1110, 1111, 1131, 1137, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.306(a) (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist At the outset, the Board notes that, during the pendency of this appeal, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). To implement the provisions of the law, the VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2003). The VCAA and its implementing regulations essentially eliminate the concept of the well-grounded claim. 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.102. They also include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of the VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of the VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The U.S. Court of Appeals for Veterans Claims (Court) in Pelegrini v. Principi, No. 01-944 (U.S. Vet. App. Jan. 13, 2004) indicates that four elements are required for proper VCAA notice: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by the VA; (3) the evidence, if any, to be provided by the claimant; and (4) a request by the VA that the claimant provide any evidence in the claimant's possession that pertains to his claim. The Board points out that the VCAA expressly provides that nothing in the Act "shall be construed to require [VA] to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in section 5108 of this title." 38 U.S.C.A. § 5103A(f). After reviewing the claims folder, the Board finds that there has been substantial compliance with the assistance provisions set forth in the new law and regulation. The record in this case includes multiple examination reports, treatment reports, private medical records, and records from the Social Security Administration (SSA). Significantly, no additional pertinent evidence has been identified by the claimant as relevant to the issue on appeal. Under these circumstances, no further action is necessary to assist the claimant with the claim. Moreover, in an April 2001 letter, a June 2003 supplemental statement of the case, a February 2003 statement of the case, a January 2000 statement of the case, a May 1999 conference with the RO, and at the hearing held before the Board in May 2003, the veteran was effectively furnished notice of the types of evidence necessary to substantiate his claims as well as the types of evidence VA would assist him in obtaining. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). The veteran has been notified of the applicable laws and regulations that set forth the criteria for entitlement to service connection. The discussions in the rating decisions, statements of the case, the supplemental statement of the case, and at the hearing held in May 2003 have informed the veteran of the information and evidence necessary to warrant entitlement to the benefit sought. The Board therefore finds that the notice requirements of the new law and regulation have been substantially met. Any deficiencies constitute no more than harmless error. In this case, the veteran has been provided more than one year to respond to the requests of the VA for information in support of his case. Further, he has either directly or indirectly responded to the many requests for information. Therefore, further delay in the adjudication of this case is not warranted. The RO adjudicated the claim of service connection for PTSD on a de novo basis. It did not consider whether new and material evidence had been submitted to reopen this claim. However, in light of the fact that the Board had decided to reopen this claim, no prejudice to the veteran is found. This issue will be addressed below. In any event, considering the record in light of the duties imposed by the VCAA and its implementing regulations, and in view of the Board's favorable disposition of the petition to grant service connection for an acquired psychiatric disability, the Board finds that all notification and development action needed to fairly adjudicate that claim has been accomplished. II. New and Material Evidence to Reopen the Claim of PTSD As indicated above, in March 1999, the RO denied service connection for PTSD and the veteran withdrew his appeal of this claim in May 1999. The present claim was initiated when the veteran cited new evidence regarding his PTSD claim within his February 2000 substantive appeal (which addressed the issue of service connection for bipolar disorder). In an April 2000 statement, the veteran requests that the claim of service connection for PTSD be "reopened." Under pertinent law and VA regulations, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the veteran. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Title 38 Code of Federal Regulations, Section 3.156(a) provides that "new and material evidence" is evidence not previously submitted which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. [Parenthetically, the Board notes the regulations implementing the VCAA include a revision of 38 C.F.R. § 3.156(a) (2003). Given the date of claim culminating in the instant appeal, the Board will apply the version of 38 C.F.R. § 3.156(a) in effect prior to August 29, 2001; that version appears in the 2001 edition of Title 38 of the Code of Federal Regulations.] In determining whether new and material evidence has been presented, VA must initially decide whether evidence submitted since the prior final denial is, in fact, new. As indicated by the regulation cited above, and by judicial case law, "new" evidence is that which was not of record at the time of the last final disallowance (on any basis) of the claim, and is not "merely cumulative" of other evidence that was then of record. This analysis is undertaken by comparing newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). Here, the final denial pertinent to the claim was the March 1999 RO decision. For purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). In the present claim, the submitted evidence consists of additional medical records, including an April 2000 medical report from "T.D.," L.C.S.W., a licensed clinical social worker, VA examination reports, and an April 2003 report from "R.R.B.," Ed.D., a clinical psychologist. Several of these medical opinions are to the effect that the veteran has PTSD. The Board finds that Dr. B.'s April 2003 statement is new in the sense that it was not previously before the VA and is not duplicative or cumulative of evidence previously considered. The Board also finds that this evidence is "material" for purposes of reopening. The record now includes medical evidence that indicates PTSD. This evidence is so significant that it must be considered to fairly decide the merits of the claim. As new and material evidence has been submitted, the criteria for reopening the claim for service connection for PTSD are met. III. Service Connection for PTSD The second step for the Board in this case is to assess the new and material evidence in the context of the other evidence of record and make new factual determinations. See Masors v. Derwinski, 2 Vet. App. 181, 185 (1992) (quoting Godwin v. Derwinski, 1 Vet. App. 419, 425 (1991), and Jones v. Derwinski, 1 Vet. App. 210, 215 (1991)). A finding of "new and material" evidence does not mean that the case will be allowed, just that the case will be reopened and new evidence considered in the context of all other evidence for a new determination of the issues. Smith v. Derwinski, 1 Vet. App. 178, 179-80 (1991). The Board has considered whether the veteran would be prejudiced by adjudicating this claim on a de novo basis at this time. This issue was addressed by the Court in Sutton v. Brown, 9 Vet. App. 553 (1996). In Sutton, the Court stated, in pertinent part: Although the appellant may have argued the merits of his claim before the Board, reviewed the [independent medical opinion], submitted additional evidence in rebuttal, and stated that he had nothing further to present, the Board was nevertheless required under Bernard [v. Brown, 4 Vet. App. 384 (1993)], to ask the appellant if he objected to Board adjudication in the first instance. [citations omitted]. Alternatively, failing to make that inquiry of the appellant, the [Board] decision should, under Bernard, have explained, as part of its statement of reasons or bases, why there was no prejudice to the appellant from its adjudication of the claim on the merits without first remanding the matter to the RO. Sutton, 9 Vet. App. at 565. Under Bernard, the Board must determine if the appellant has been given both adequate notice of the need to submit evidence or argument and to address that question at a hearing, and whether, if such notice has not been provided, the appellant has been prejudiced thereby. Bernard, 4 Vet. App. at 393. In this case, as the RO adjudicated this case without consideration of whether new and material evidence has been submitted, and the veteran has been provided with pertinent laws and regulations regarding the issue before the Board at this time, the Board finds that the veteran will not be prejudiced by the adjudication of his claim at this time. Service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to this combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. See Moreau v. Brown, 9 Vet. App. 389, 394 (1996). The VA regulation was changed in June 1999 to conform to the Court's determination in Cohen v. Brown, 10 Vet. App. 128 (1997). The record before the Board demonstrates that PTSD has been diagnosed. Notwithstanding, as stated by the Court, "[j]ust because a physician or other health professional accepted the appellant's description of his active service experiences as credible and diagnosed the appellant as suffering from PTSD does not mean the [Board is] required to grant service connection for post-traumatic stress disorder." Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). The starting point for analyzing a claim of service connection for PTSD is a determination whether there is evidence of one or more "stressors." The question of a "stressor" also bears upon credibility determinations, as certain veterans who "engaged in combat with the enemy" gain evidentiary presumptions. 38 C.F.R. § 3.304(d). Under the controlling regulation, there must be credible supporting evidence that the claimed service stressor actually occurred. 38 C.F.R. § 3.304(f). The existence of an event alleged as a "stressor" that results in PTSD, though not the adequacy of the alleged event to cause PTSD, is an adjudicative, not a medical determination. Zarycki v. Brown, 6 Vet. App. 91, 97- 98 (1993). Under the framework established in Zarycki, the Board must make an explicit determination as to whether the veteran engaged in combat with the enemy. In this case, the veteran has conceded that he did not engage in combat with the enemy. The Board has determined that the veteran did not engage in combat with the enemy as defined within 38 U.S.C.A. § 1154(b). As a result, as a matter of law, a medical provider cannot provide supporting evidence that the claimed in-service event actually occurred based on a post-service medical examination. Moreau v. Brown, 9 Vet. App. 389, 395-6 (1996). In addition, the veteran's own testimony will not be sufficient. Id. Other credible supporting evidence from any source must be provided. At the hearing held before the Board in May 2003, and the April 2003 medical report of Dr. B., the veteran has cited only two stressors in service. They include the following: (1) Witnessing the wreckage of a helicopter accident. (2) The veteran's alleged assault during boot camp. Upon analyzing the evidence, the Board finds that the veteran has failed to supply credible evidence of his alleged assault in boot camp. The special provisions of VA Adjudication Procedure Manual M21-1 (M21-1), Part III, regarding personal assault have been considered in reaching this determination. M21-1 notes that: "Personal assault is an event of human design that threatens or inflicts harm. Examples of this are rape, physical assault, domestic battering, robbery, mugging, and stalking." M21-1, Part III, 5.14c. M21-1 identifies alternative sources for developing evidence of personal assault, including private medical records, civilian police reports, reports from crisis intervention centers, testimonial statements from confidants such as family members, roommates, fellow service members, or clergy, and personal diaries or journals. M21-1, Part III, 5.14c(4)(a). See also Patton v. West, 12 Vet. App. 272 (1999). When there is no indication in the military record that a personal assault occurred, alternative evidence, such as behavior changes that occurred at the time of the incident, might still establish that an in-service stressor incident occurred. Examples of behavior changes that might indicate a stressor include: visits to a medical or counseling clinic or dispensary without a specific diagnosis or specific ailment; sudden requests that the veteran's military occupational series or duty assignment be changed without other justification; lay statements indicating increased use or abuse of leave without apparent reason; changes in performance or performance evaluations; lay statements describing episodes of depression, panic attacks or anxiety with no identifiable reasons for the episodes; increased or decreased use of prescription medication; evidence of substance abuse; obsessive behavior such as overeating or undereating; pregnancy tests around the time of the incident (clearly not at issue in the veteran's case); increased interest in tests for HIV or sexually transmitted diseases; unexplained economic or social behavior changes; treatment for physical injuries around the time of the claimed trauma but not reported as a result of the trauma; breakup of a primary relationship. M21-1, Part III, 5.14c(7)(a)-(o). After extensive and careful review of the evidence of record, the Board concludes that there is no credible documented evidence to indicate that the veteran experienced any of the identified behavior changes, or any other unusual behaviors during his active military service. At the hearing, the veteran essentially conceded that there is no way to confirm the second stressor. The Board agrees with this assessment. The Board finds the veteran's first stressor in service to be credible. The veteran's MOS during service of "photo lab specialist" indicates that he may have been asked to take pictures of a helicopter accident, as he has indicated. Other evidence obtained by the RO also supports this finding. In any event, as stated by the Court, corroboration of every detail of a claimed stressor, including the appellant's personal participation, is not required; rather, a veteran only needs to offer independent evidence of a stressful event that is sufficient to imply his or her personal exposure. See Pentecost v. Principi, 16 Vet. App. 124 (2002) (quoting Suozzi v. Brown, 10 Vet. App. 307 (1997)). In this case, the Board finds the veteran's MOS provides such independent evidence. The Board must now make a determination of whether the alleged stressor has caused PTSD. With regard to the veteran's own allegations that the stressor has caused PTSD, the Board must find that the veteran is not competent to make such a medical determination. As stated by the Court, where the determinative issue involves medical causation or medical diagnosis, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The veteran is not competent to provide a medical opinion diagnosing himself with PTSD. See Hyder v. Derwinski, 1 Vet. App. 221, 225 (1991), and Contreras v. Brown, 5 Vet. App. 492 (1993). In evaluating the probative value of competent medical evidence, the Court has stated, in pertinent part: The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicators; . . . Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). As stated by the Court, credibility is a province of the Board. It is not error for the Board to favor the opinion of one competent medical professional over the other when the Board gives an adequate statement of reasons or bases. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board has evaluated the medical evidence in detail. The medical evidence includes diagnoses of PTSD from Dr. B. (a clinical psychologist) in April 2003 and from Dr. D. (a licensed clinical social worker) in April 2000. Based on a review of these medical opinions, and others, the Board must find that the medical determination that the veteran suffers from PTSD due to, or as a result of, service is entitled to very limited probative weight. The medical opinions in question fail to provide a compelling rationale for the conclusion that the veteran suffers from PTSD. Quite fundamentally, the medical opinions do not cite a sound basis for the conclusion that the veteran suffers from PTSD due to service. While the reports are detailed, they provide, at best, a generalized diagnosis based on the veteran's recollection of events. It is the finding of the Board that they fail to adequately indicate specifically how the diagnostic criteria are met with respect to establishing the presence of PTSD based upon events in service. None of these examiners clearly details how the diagnostic criteria for PTSD due to events in service have been satisfied and it appears that none have reviewed the veteran's service records. Accordingly, the Board gives these medical opinions very limited probative weight. It is important to note that the Court has rejected the "treating physician rule" that gives the opinions of treating physicians greater weight in evaluating claims made by veterans. Guerrieri, 4 Vet. App. at 473. As stated by the Court, "[w]hile it is true that the [Board] is not free to ignore the opinion of a treating physician, the [Board] is certainly free to discount the credibility of that physician's statements." Sanden v. Derwinski, 2 Vet. App. 97, 101 (1992). The medical findings of Dr. B. regarding the veteran's alleged traumatic experiences in service are in direct conflict with the veteran's own statements to the VA within an April 1994 medical report, in which he denies "any traumatic experiences in Vietnam or in his military service in general." The April 1994 medical report provides negative evidence against this claim. The Board must find that the medical opinion of June 2002 is entitled to great probative weight. This opinion provides a compelling rationale for the conclusion that the veteran does not suffer from PTSD. The physician provides numerous bases for his conclusion. It is important to note that service connection for PTSD requires medical evidence establishing a diagnosis of PTSD as well as a link, established by medical evidence, between the current symptomatology and the claimed inservice stressor. In this case, the VA physician of June 2002 provides a compelling rationale as to why there is no link between the alleged symptomatology and the claimed inservice stressor. The physician has also provided a compelling rationale for his conclusion. The Board must find that this opinion is entitled to great probative weight. The Board also finds that the service medical records in this case are also entitled to great probative weight. The service medical records make no reference to PTSD or PTSD- related symptoms. The Board also finds that the immediate post-service medical evidence, including the November 1991 medical report of Dr. B., in which PTSD is not indicated, is likewise entitled to great probative weight. This treatment was held prior to the veteran's claim of service connection for PTSD and, significantly, makes no reference to the veteran's active service or to PTSD. The Board has taken into consideration the Court's determination in Cohen, supra. In Cohen, the Court found that the Board had conceded that a "stressor" existed and, more importantly, had not expressly found that this stressor did not cause PTSD. In this case, the Board must concede that one stressor did, in all likelihood, occur during the veteran's active service. However, the Board has found that a highly probative medical opinion has rejected the adequacy of this event as a "stressor" sufficient to produce PTSD. In light of the foregoing, the Board concludes that the preponderance of the evidence is against the veteran's claim for service connection for PTSD. Although the veteran is entitled to the benefit of the doubt when the evidence supporting a grant of his claim and the evidence supporting a denial of his claim are in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). As stated by the Court, where the "preponderance of the evidence" is against the claim, the appellant loses and the benefit of the doubt rule has no application. Id. at 56. "A properly supported and reasoned conclusion that a fair preponderance of the evidence is against the claim necessarily precludes the possibility of the evidence also being in approximate balance." Id. at 58. In this case, for the reasons cited above, the preponderance of the evidence is against the claim. If, in the future, the veteran develops PTSD due to a stressor in service he may resubmit this claim. III. Entitlement to Service Connection for an Acquired Psychiatric Disability As noted above, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. Further, a psychosis will be presumed to have been incurred during service if it is manifested to a compensable degree within one year after the veteran's separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). As stated by the Court, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between the disability and an injury or disease incurred in service." Watson v. Brown, 309, 314 (1993). 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 (West 2002); 38 C.F.R. 3.306(a) (2003). Service connection, however, may not be granted for a personality disorder. 38 C.F.R. §§ 3.303(c), 4.9. See Winn v. Brown, 8 Vet. App. 510, 516 (1996), and cases cited therein. Service connection may also not be granted for alcoholism. 38 U.S.C.A. § 105(a); 38 C.F.R. § 3.301(a). Both of these difficulties are noted within the veteran's medical history. A veteran will be presumed to be in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence that the disability manifested in service preexisted service will rebut the presumption. 38 U.S.C.A. §§ 1111, 1137. In this case, in the June 1969 enlistment evaluation, there is no indication that the veteran suffered from a psychiatric disability. Accordingly, the Board finds that the veteran is entitled to the presumption of soundness. However, in view of the veteran's own testimony and medical evidence obtained after service, much of this evidence provided by the veteran himself, the Board finds clear and unmistakable evidence that a psychiatric disorder preexisted the veteran's active service, thereby rebutting the presumption of soundness. At a hearing held at the RO in April 2000, the veteran indicated mental health treatment from third to seventh or eighth grade (Transcript at page 11). The veteran's school records, submitted by the veteran himself, clearly indicate treatment at a mental health center prior to service. The Board finds that the veteran's pre-existing psychiatric disability was aggravated by his service. This is indicated within the veteran's service medical records, which sporadically reveal treatment for disorders that are not clearly indicated to be associated with a physical disorder. For example, in February 1969, the veteran was treated for "anxiety," among other complaints. The veteran's suicide attempt in 1983, the June 1992 hospitalization, and the February 1993 SSA determination clearly indicate a worsening of the condition. The medical opinion of "V.A.T.," M.D., dated April 2000, while not diagnosing PTSD, does indicate a psychiatric illness that appears to have been aggravated by service. This also appears to be indicated within the June 1999 medical report of "J.V.T.," M.D. This finding is also supported by the November 1991 and January 1993 medical reports of Dr. B. Further, the Board has the VA medical report signed in September 2002, which appears to indicate a "exacerbation" of the pre-existing bipolar disorder. It is also clear that the medical reports of Dr. B. (a clinical psychologist) in April 2003 and from Dr. D. (a licensed clinical social worker) in April 2000 would support the general conclusion that some form of psychiatric disorder is attributable to the veteran's service. While not all evidence supports the conclusion that the veteran's preexisting psychiatric disorder was aggravated by his service, the record is fairly balanced for and against the claim as to whether the psychiatric disability was aggravated by service. In such cases, the veteran is entitled to the benefit of the doubt under 38 U.S.C.A. § 5107. Accordingly, the benefit is granted. How much the pre-existing psychiatric disability has been aggravated by service and to what degree the veteran's problems are associated with a personality disorder or some other difficulty are not at issue before the Board at this time. Such matters must be addressed by the RO in the first instance. ORDER New and material evidence has been submitted to reopen the claim of entitlement to service connection for PTSD. To this extent, this appeal is granted. Entitlement to service connection for PTSD is denied. Entitlement to service connection for an acquired psychiatric disability, currently diagnosed as bipolar disorder, based on aggravation is granted. ____________________________________________ N. R. ROBIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: ? Appeal to the United States Court of Appeals for Veterans Claims (Court) ? File with the Board a motion for reconsideration of this decision ? File with the Board a motion to vacate this decision ? File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: ? Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's web site on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM JUN 2003 (RS) 4597 Page 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003 (RS) 4597 Page 2