Citation Nr: 0811660 Decision Date: 04/09/08 Archive Date: 04/23/08 DOCKET NO. 05-00 911 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York THE ISSUE Entitlement to service connection for bipolar disorder (claimed as manic depressive disorder). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD N. Kroes, Associate Counsel INTRODUCTION The veteran served on active duty from December 1957 to June 1961. This appeal to the Board of Veterans' Appeals (Board) arises from an August 2004 rating decision in which the RO denied the veteran's claim for service connection for bipolar disorder (claimed as manic depressive disorder). In September 2004, the veteran filed a notice of disagreement (NOD). The RO issued a statement of the case (SOC) denying service connection for bipolar disorder in December 2004. The veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in January 2005. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim on appeal have been accomplished. 2. Bipolar disorder was not shown in service or for many years thereafter; and there is no competent evidence or opinion that relates the veteran's bipolar disorder to service. CONCLUSION OF LAW The criteria for service connection for bipolar disorder are not met. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303,3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2007)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). VAs 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in November 2003 and July 2004 pre-rating letters, the RO provided notice to the veteran regarding what information and evidence was needed to substantiate his claim for service connection for manic depressive disorder. These letters also informed the veteran of what information and evidence must be submitted by the veteran, and what information and evidence would be obtained by VA. A July 2004 letter specifically advised the veteran to provide any evidence in his possession that pertains to his claims. The August 2004 RO rating decision reflects the initial adjudication of the claims after issuance of those letters. Hence, the November 2003 and July 2004 letters-which meet all of Pelegrini's content of notice requirements-also meet the VCAA's timing of notice requirement. The Board notes that the veteran has not been provided specific notice regarding the assignment of disability ratings and effective dates; however, on these facts, the lack of such notice is not shown to prejudice the veteran. Because the Board's decision herein denies the claim for service connection, no disability rating or effective date is being, or will be, assigned. Accordingly, there is no possibility of prejudice to the veteran under the notice requirements of Dingess/Hartman. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters on appeal. Pertinent medical evidence associated with the claims file consists of the veteran's VA and private medical records. Also of record are various written statements provided by the veteran, as well as by his representative, on his behalf. The Board recognizes that the record reflects that the veteran started receiving Social Security Administration (SSA) disability benefits in the mid 1980s, and that no SSA records have been obtained. However, a remand for the RO to obtain these records is unnecessary. As all of the competent medical evidence of record which comments upon the onset of the veteran's psychiatric disorder places that time as 1973 or 1974, the outstanding SSA records would not be pertinent to the service connection claim currently on appeal. The Board is aware that, on his claim for disability benefits the veteran indicated that his "manic depressive" began in June 1964, some 3 years after his separation from service. However, other than that statement, the veteran has continually, on numerous occasions, relayed to medical professionals that his first psychiatric treatment was in 1973 or 1974, and a VA psychiatric intake note from December 1999 shows that at that time he reported that his first manic episode was in 1974. Further, there is s no indication or allegation that the SSA records are pertinent to the current claim for service connection for bipolar disorder. Accordingly, on these facts, additional adjudication resources need not be expended to obtain these records. See 38 U.S.C.A. § 5103A(b), (c); Baker v. West, 11 Vet. App. 163, 169 (1998); Grivois v. Brown, 6 Vet. App. 136, 139 (1994); Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992). The Board also notes that the veteran was not afforded a VA examination in connection with this claim. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. Id. In this case (as explained in more detail below), there is no evidence establishing that an event, injury, or disease occurred in service. Moreover, even if the veteran's service itself is considered an event that could contribute to a psychiatric disorder, there is simply no competent evidence suggesting any relationship between the veteran's service and his current psychiatric disorder. The veteran has not stated that his psychiatric disorder began in service. Instead, he has consistently stated that his psychiatric disorder began in 1973 or 1974 (which is reflected by the competent medical evidence of record), but for one statement on his claim for VA benefits which states that "manic depressive" began in June 1964 (which is still 3 years after his separation from service). In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the veteran has been notified and made aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter on appeal, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). . See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2007). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be presumed, for certain chronic diseases, such as psychoses (to include bipolar disorder) which are manifested to a compensable degree (10 percent for psychoses) within a prescribed period after discharge from service (one year for psychoses), although there is no evidence of such disease during the period of service. This presumption is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1110, 1112, 1113, 1137 (West 2002); 38 C.F.R. 3.307, 3.309 (2007). Also, while the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree. 38 C.F.R. § 3.307(c). After a full review of the record, including the medical evidence and statements made by and on the veteran's behalf, the Board finds that service connection for bipolar disorder is not warranted. The service medical records reflect no complaints, findings, or diagnosis of any psychiatric disorder, including bipolar disorder and manic depressive disorder. Therefore, a psychiatric disorder was not shown in service. Further, there is no medical evidence of any psychiatric disorder for many years after service. The first diagnosis of any psychiatric disorder of record was during the veteran's reported first private psychiatric hospitalization in November 1973, over 12 years after separation from service. The Board notes that the passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson v. Gober, 230 F. 3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). The Board also points out that the record is devoid of any medical evidence or opinion to support the veteran's claim that his current bipolar disorder is related to service. As noted, private treatment records show that the veteran was diagnosed with schizophrenia, paranoid type, in November 1973. According to a December 1973 State of New York Department of Mental Hygiene case summation, the veteran was laid off from a computer company three years prior and at the same time he broke off with his girlfriend. He had tried very hard to forget those two painful events, ate only one meal a day and did a lot of jogging. Several weeks prior to his November 1973 hospitalization, he broke his left leg and had to restrict his activities. He started to worry a great deal about the marriage of one of his brothers. Then suddenly, the day before his November 3, 1973 admission he started to hear voices and showed bizarre behavior of entering his neighbor's houses. Since that time the veteran has been hospitalized on multiple occasions and variously diagnosed with psychiatric disorders including schizophrenic disorder and schizophrenia, schizo-affective disorder, and bipolar disorder. The most recent diagnosis of record is bipolar disorder, in remission, noted on a VA Behavioral Health Outpatient Progress Note in August 2004. On numerous occasions, the veteran has relayed to medical professionals that his first psychiatric treatment was in 1973 or 1974 and a VA psychiatric intake note from December 1999 shows that at that time he reported that his first manic episode was in 1974. The only indication in the record that the veteran had any psychiatric disorder prior to 1973 is his statement on his October 2003 claim form for VA benefits that states his "manic depressive" began in June 1964. Even this date is 3 years after his separation from service. The Board notes that, in his original claim for service connection, the veteran stated that he had handled classified materials while in service. In the veteran's NOD, he also stated that he was in the Air Force Security Service during wartime; specifically, during the "Cuban crisis." Of note, the veteran's Department of Defense Form 214 shows that his military occupational specialty was personnel specialist. Regardless, there simply is no medical evidence or opinion currently of record that supports the veteran's claim that his current bipolar disorder is related to service, to include his work with classified materials, and neither he nor his representative has presented or identified existing evidence that would, in fact, support the claim. In addition to the medical evidence, the Board has considered the veteran's and his representative's assertions; however, none of this evidence provides a basis for allowance of the claim. As indicated above, the claim turns on the medical matter of etiology, or medical relationship between current disability and service-a matter within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the veteran and his representative are not shown to be other than laypersons without the appropriate medical training and expertise, neither is competent to render a probative (i.e., persuasive) opinion on a medical matter. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Hence, the lay assertions in this regard have no probative value. Under these circumstances, the Board finds that the claim for service connection for bipolar disorder must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as no competent, probative evidence supports the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for bipolar disorder (claimed as manic depressive disorder) is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs