Citation Nr: 0811806 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 04-31 909 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for a psychiatric disability, to include bipolar disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Ishizawar, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty from February 1971 to November 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2003 rating decision of the Seattle, Washington Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. A psychiatric disability was not noted when the veteran was examined for enlistment; however, clear and unmistakable evidence shows that schizophrenic reaction, paranoid type, pre-existed the veteran's active service. 2. There is clear and unmistakable evidence that the veteran's pre-existing psychiatric disability did not increase in severity during his active service; his current bipolar disorder is not shown to be related to his service. CONCLUSION OF LAW Service connection for a psychiatric disability, to include bipolar disorder, is not warranted. 38 U.S.C.A. §§ 1110, 1153, 5107 (West 2002); 38 C.F.R. § 3.102, 3.303, 3.304, 3.306 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (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 his possession that pertains to the claim. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The veteran was advised of VA's duties to notify and assist in the development of the claim prior to the initial adjudication of his claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). December 2002 and December 2006 letters explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, the evidence he was responsible for providing, and advised him to submit any evidence or provide any information he had regarding his claim. He has had ample opportunity to respond/ supplement the record, and is not prejudiced by any technical notice deficiency (including in timing) that may have occurred earlier in the process. In compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the December 2006 letter informed the veteran of disability rating and effective date criteria. The claim was readjudicated after all critical notice was issued, and development sought by the Board was completed. See April 2007 Supplemental Statement of the Case. The veteran is not prejudiced by this process, and it is not alleged otherwise. The veteran's service medical records (SMRs) are associated with his claims file, and pertinent treatment records have been secured. The RO did not arrange for a VA examination because an examination is not necessary. Absent any competent (medical) evidence suggesting that the veteran's pre-existing psychiatric disability increased in severity during (was aggravated by) his service or that his current bipolar disorder might be related to his service, a medical nexus opinion is not warranted. See 38 C.F.R. § 3.159(c)(4); Duenas v. Principi, 18 Vet. App. 512, 516 (2004). The veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Accordingly, the Board will address the merits of the claim. B. Factual Background January 1971 treatment records from Western State Hospital show the veteran was hospitalized for psychiatric complaints. Schizophrenic reaction, paranoid type in remission, was diagnosed. The veteran's February 1971 service entrance examination report and report of medical history at the time are silent for complaints, findings, or diagnosis of psychiatric disability. In the associated medical history he specifically denied previous psychiatric hospitalization. His SMRs, including his September 1972 service separation examination report, are also silent for any mention of psychiatric disability. His DD-214 reflects that his occupational specialty in service was motor transport (driving); he progressed to the pay grade of E-4 (specialist 4). Private treatment records from Good Samaritan Mental Health Center show that the veteran sought counseling and mental health treatment on a fairly regular basis from January 1984 to January 1987 and from January 1991 to January 2002. On January 1984 intake evaluation it was noted that the veteran had been referred from Puget Sound Hospital. He reported that his past psychiatric hospitalizations included the January 1971 hospitalization at Western State Hospital and June 1981, September 1983, and January 1984 hospitalizations at Puget Sound Hospital. He denied any prior outpatient treatment. Private treatment records from Harbor View Medical Center show that the veteran was hospitalized in May 1984 for bipolar affective disorder. Private treatment records from Western State Hospital show that the veteran was hospitalized in February 1985, when bipolar disorder, manic, and cannabis abuse were diagnosed. He was hospitalized again between October and November 1985; bipolar disorder, depressed, with psychotic features was diagnosed. Private treatment records from Puget Sound Hospital show that in November 1985 the veteran was hospitalized for bipolar disorder. VA outpatient treatment records from April 2002 to December 2005 show that the veteran has been seeking treatment and follow-up care for his bipolar disorder. In support of his claim, the veteran submitted numerous statements from family members and friends to the effect that in 1973, a few months after his separation from service, he was hospitalized in a mental institution at either Puget Sound Hospital or Western State Hospital. [VA has sought complete treatment records from Western State/Puget Sound. Records received do not include any from 1973.] C. Legal Criteria and Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a claimed disorder, a claimant must submit: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). The veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service except as to defects, infirmities, or disorders noted at the time of examination, acceptance, enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304. A pre-existing injury or disease is considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the "correct standard for rebutting the presumption of soundness under section 1111 requires the government to show by clear and unmistakable evidence that (1) the veteran's disability existed prior to service and (2) that the pre-existing disability was not aggravated during service." The Federal Circuit noted that lack of aggravation could be shown by establishing there was no increase in disability or that any increase in disability was due to the natural progress of the pre-existing condition. See Wagner v. Principi, 370 F.3d 1089, 1096-1097 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). A psychiatric disability was not noted when the veteran was examined for service entrance. Consequently, he is entitled to the legal presumptions afforded by 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304. The record contains clear and unmistakable evidence that a psychiatric disorder pre-existed the veteran's service. January 1971 treatment records from Western State Hospital show the veteran was hospitalized, and that schizophrenic reaction, paranoid type in remission, was diagnosed. This evidence clearly and unmistakably establishes that a psychiatric disability pre-existed the veteran's active service. The veteran's SMRs are silent for any complaints, findings, treatment, or diagnosis of a psychiatric disorder in service. Notably, he served as a driver, and apparently meritoriously, as he was promoted to E-4. As his pre-existing psychiatric did not become symptomatic during service (and there is no evidence any such disability increased in severity during service), he is not entitled to a further presumption that it was aggravated by service. See Wagner, supra, at 1096. Significantly, aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. See 38 C.F.R. § 3.306(b). Whether a disability increased in severity is in large measure a medical question. Not only is there no medical evidence during service showing an increase in severity of the veteran's psychosis, but also there is no competent postservice (medical) evidence suggesting that the veteran's preexisting psychosis increased in severity during, or as a result of his service. [The veteran has submitted a number of statements from family members and friends to the effect that shortly after his separation from his service, he was hospitalized in a mental institution. However, there is no record of such hospitalization. VA has sought complete records from the facilities identified, and the records received include only those preceding service, and beginning in the 1980's. Consequently, those recollections are deemed less than credible.] There is no competent evidence that the veteran's pre- existing schizophrenic reaction increased in severity/was aggravated by his service, or that his current bipolar disorder might be related to his service. The veteran's representative seeks a VA nexus examination. The Board recognizes, that under 38 C.F.R. § 3.159(c)(4)(i), VA has a duty to provide a VA medical examination or obtain a medical opinion once a claimant has established he has a current disability that may have been caused or aggravated by an event, injury, or disease in service. Here, the veteran has not submitted any clinical or textual medical evidence suggesting that his current psychiatric disability may have been caused or aggravated by an etiological factor in service. The only evidence indicating such is his own (and his friends' and relatives') opinions. However, such opinions are not competent evidence, as laypersons lack the medical training/expertise to opine in matters of medical etiology. See Espiritu, 2 Vet. App. at 495. In light of the foregoing, the Board concludes that the preponderance of the evidence is against the veteran's claim. Accordingly, it must be denied. ORDER Service connection for a psychiatric disability, to include bipolar disorder, is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs