Citation Nr: 0809968 Decision Date: 03/26/08 Archive Date: 04/09/08 DOCKET NO. 05-27 377 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for bipolar disorder, depressed type. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD S. Lipstein, Associate Counsel INTRODUCTION The veteran served on active duty from November 1982 to November 1986. This matter comes to the Board of Veterans' Appeals (Board) from an October 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement was filed in March 2005, a statement of the case was issued in August 2005, and a substantive appeal was received in August 2005. The veteran withdrew a request for a hearing before the Board in January 2008. FINDING OF FACT Bipolar disorder, depressed type, was not manifested during the veteran's active duty service or for many years thereafter, nor is bipolar disorder, depressed type, otherwise causally related to such service. CONCLUSION OF LAW Bipolar disorder, depressed type, was not incurred in or aggravated by the veteran's active duty service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Before addressing the merits of the veteran's claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2007) Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The initial notification in this case was accomplished by way of a letter from the RO to the veteran dated in April 2004. In March 2006, the veteran was provided with notice of the types of evidence necessary to establish a disability rating and the type of evidence necessary to establish an effective date. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Despite initial inadequate notice provided to the veteran, the Board finds no prejudice to him in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the appellant has been prejudiced thereby). In any event, since the Board concludes below that the preponderance of the evidence is against entitlement to service connection, any questions as to the appropriate disability rating and effective dates to be assigned are rendered moot. The RO also provided assistance to the veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. Initially, the evidence does not establish that the veteran suffered "an event, injury or disease in service," with regard to his bipolar disorder, so it is not necessary to obtain a VA medical opinion with regard to etiology. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In other words, absent such evidence, the Board finds that it is unnecessary to require the veteran to report for a VA medical examination or to ask a medical expert to review the record because any examination report or medical opinion could not provide competent evidence of the incurrence of bipolar disorder in service. Moreover, given the absence of any competent evidence of the claimed post-service disability until more than 9 years after service, any current opinion provided at this point would be no more than speculative. See 38 C.F.R. § 3.102 (a finding of service connection may not be based on a resort to speculation or even remote possibility). The evidence of record contains the veteran's service medical records, post-service private medical records, and post- service VA medical records. The veteran identified a private doctor who he claims treated him immediately after his discharge from service. The record shows that the RO has made two attempts to obtain any records, but the addresses furnished by the veteran were either incorrect or the doctor is no longer available. The veteran has been notified of the unsuccessful attempts of obtain such records, but no further information has been supplied by the veteran to allow for any additional attempts. The veteran and his representative have not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and have not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of his appeal. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, No. 05-7157 (Fed. Cir. Apr. 5, 2006). Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the veteran's appeal. Criteria & Analysis 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 the active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. 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). 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). A service Report of Medical Examination for separation purposes dated in October 1986 reflects that the veteran's psychiatric state was clinically evaluated as normal. A service Report of Medical History for separation purposes dated in October 1986 reflects that the veteran checked the 'no' box for 'depression or excessive worry' and 'nervous trouble of any sort.' There are no other service medical records related to the veteran's psychiatric state. Private medical records from NCED Mental Health Center dated in February 2004 reflect that the veteran was diagnosed with bipolar disorder II, depressed type. A letter dated in May 2004 from Angel M. Rodriguez-Chevres, M.D. reflects that Dr. Rodriguez-Chevres began treating the veteran in December 1995 and last saw the veteran in February 2004 regarding his treatment for bipolar disorder, depressed type. Despite the veteran's contentions otherwise, there is no persuasive evidence to support a finding that his bipolar disorder is etiologically related to service or any incident therein. On separation from service, the veteran's psychiatric state was clinically evaluated as normal. The clinically normal finding on separation examination is significant in that it demonstrates that trained military medical personnel were of the opinion that no bipolar disorder was present at that time. The Board views the examination report as competent evidence that there was no bipolar disorder at that time. Also of significance is the fact that at the time of his October 1986 examination, the veteran did not report any complaints related to bipolar disorder and checked the 'no' box for depression or excessive worry and nervous trouble of any sort. This suggests that the veteran himself did not believe that he had any ongoing bipolar disorder at that time. The record does not show pertinent complaints or medical treatment for a number of years after discharge from service. A prolonged period without medical complaint can be considered, along with other factors concerning the claimant's health and medical treatment during and after military service, as evidence of whether a disability was incurred in service or whether an injury, if any, resulted in any chronic or persistent disability which still exists currently. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Thus, the Board finds that the lack of any evidence of continuing psychiatric disability for over 9 years between the period of active duty and the evidence showing treatment for a psychiatric disability is itself evidence which tends to show that no bipolar disorder was incurred as a result of service. While acknowledging the veteran's belief that his bipolar disorder is due to service, it is well established that as a layperson, the veteran is not considered capable of opining as to the etiology of his disability. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Thus, service connection for bipolar disorder is not warranted. This is a case where the preponderance of the evidence is against the claim and the benefit of the doubt rule is inapplicable. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for bipolar disorder, depressed type, is not warranted. The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs