Citation Nr: 0937651 Decision Date: 10/02/09 Archive Date: 10/14/09 DOCKET NO. 05-38 504 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran served on active duty from August 1982 to February 1983. This matter comes to the Board of Veterans' Appeals (Board) from an April 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in September 2008. A transcript of this proceeding is of record. This case was previously before the Board in November 2008 at which time the claim was remanded for further development. The Board is satisfied that there has been substantial compliance with the remand directives and the Board may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the issue on appeal was previously phrased as "entitlement to service connection for bipolar disorder (also claimed as depression)." However, the Board notes that the Veteran has been diagnosed with various acquired psychiatric disorders including schizoaffective disorder, bipolar type, dissociative identity disorder, major depressive disorder, and posttraumatic stress disorder (PTSD). Furthermore, the Court of Appeals for Veterans Claims has found that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). As such, the Board has recharacterized the issue on appeal to encompass all of the Veteran's psychiatric diagnoses. In September 2009, the Veteran's representative submitted additional evidence directly to the Board and included a waiver of consideration of that evidence by the RO. 38 C.F.R. § 20.1304 (2008). As such, the Board has considered that evidence in this decision. FINDING OF FACT The presumption of soundness is not rebutted. Affording the Veteran the benefit of the doubt, there is competent evidence that her current psychiatric condition was incurred in service. CONCLUSION OF LAW Service connection for an acquired psychiatric disorder is established. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102 3.303 (2008). REASONS AND BASES FOR FINDING AND CONCLUSION This appeal arises out of the Veteran's assertion that an acquired psychiatric disorder is related to her service with the United States Navy from August 1982 to February 1983. Specifically, the Veteran argues that she suffered from an acquired psychiatric disorder prior to military service and this disorder was aggravated by her military service. Factual Background In an October 1981 Report of Medical History the Veteran reported that she had attempted suicide at the age of 17, prior to service. She also reported depression or excessive worry. A private medical report dated in April 1981 confirmed that the Veteran attempted suicide prior to service and shows a diagnosis of adjustment reaction of adolescence. A September 1981 statement from the private hospital that treated the Veteran after her April 1981 suicide attempt noted that she recovered well and had a good prognosis. An October 1981 psychiatric consult included in the service treatment records noted the Veteran's history concluded that there was no evidence of a psychiatric disorder and the Veteran should be accepted for service. The report of an October 1981 enlistment examination noted the psychiatric consult and included a normal psychiatric evaluation; no pertinent defects or diagnoses were noted. While in service the Veteran continued to experience psychiatric problems. A January 1983 examination noted a diagnosis of immature personality disorder. She was later discharged in February 1983 due to her psychiatric problems. Private treatment records dated from February 1992 to September 2008 show several hospitalizations for psychiatric disorders, characterized as bipolar disorder, schizoaffective disorder, dysthymia, PTSD, and dissociative disorder. In connection with the pending claim the Veteran was afforded a VA psychiatric examination in September 2005. The examiner diagnosed the Veteran with dissociative identity disorder, PTSD, and major depressive disorder. The examiner also opined that the Veteran was mistakenly diagnosed with bipolar disorder, probably because of her dramatic mood swings and varying presentations as a result of the dissociative identity disorder. Furthermore, the examiner opined that because the Veteran had certain childlike aspects to her personality at times, it was likely that the diagnosis of immature personality disorder in service was also related to initial symptoms of dissociative identity disorder and PTSD. Pursuant to the Board's November 2008 remand the Veteran was afforded another VA psychiatric examination in January 2009. This examiner was specifically asked to comment on whether there was clear and unmistakable evidence that the Veteran's acquired psychiatric disorders preexisted her military service and, if so, whether these psychiatric disorders were not aggravated by her military service. This examiner diagnosed the Veteran with schizoaffective disorder, bipolar type, history of dissociative identity disorder, history of major depressive disorder, PTSD, and polysubstance abuse, in full remission. The examiner also noted that the Veteran's schizoaffective disorder, bipolar disorder, PTSD, major depressive disorder, and polysubstance dependence were apparent prior to her time in the United States Navy. The examiner opined that the Veteran's diagnosis of dissociative identity disorder was exacerbated during her time in the United States Navy as evidenced by the Veteran's description of not experiencing certain symptoms prior to her time in military service. For instance, the Veteran described a history of visual hallucinations prior to her military service, however, auditory hallucinations were not present until her time in boot camp. The examiner also opined that the Veteran's schizoaffective disorder, bipolar type, PTSD, and major depressive disorder were not related to the Veteran's military service. However, the examiner further opined that the Veteran's dissociative identity disorder and PTSD were exacerbated or more than likely exacerbated due to the Veteran's military service. The VA examiner offered an addendum to her report in March 2009, noting that it was "unmistakable per the Veteran's report that the schizoaffective disorder, bipolar type and PTSD were apparent prior to her military service and the evidence does display that they were aggravated by her military service. The Veteran's diagnosis of dissociative identity disorder was not clearly apparent prior to her military service and appears to be service-connected as she denied any altered personalities prior to her enlistment." The VA examiner supplemented her report a second time in July 2009. At that time the examiner wrote that the question originally asked of her was whether the Veteran's psychiatric disability was aggravated to a degree beyond the natural progression of the disease. The examiner wrote that the answer to this question was "no." The examiner continued: "[i]n regard to the Veteran's baseline manifestations and increased manifestations of the diagnosed psychiatric disorder, in my original addendum, this examiner stated that the Veteran's schizoaffective disorder, bipolar type and PTSD were apparent prior to her military service and the evidence does suggest that they were aggravated by her military service; however, that is not to say they would not have been aggravated by the natural progression of the disorders or other environmental stressors." Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in, or aggravated by, active peacetime service. 38 U.S.C.A. § 1131. For purposes of service connection pursuant to § 1131, every veteran shall be taken 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 the examination, acceptance and 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. A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C.A. §1153; 38 C.F.R. § 3.306(a). When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry and then the burden falls on the government to rebut the presumption of soundness. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Rebutting the presumption of soundness requires that VA show by clear and unmistakable evidence that (1) the veteran's disability existed prior to service and (2) that the preexisting disability was not aggravated during service. If a pre-existing disability is noted upon entry into service, the veteran cannot bring a claim for service connection for that disability, but the veteran may bring a claim for aggravation of that disability. In that case, section 1153 applies and the burden falls on the veteran to establish aggravation. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). Also, certain chronic diseases, such as psychoses will be presumed to have been incurred in service if manifested to a compensable degree of at least 10 percent within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Generally, service connection requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Analysis On the October 1981 enlistment examination report, the examiner noted "normal" psychiatric evaluation. A psychiatric disorder was not "noted" at the time of the Veteran's examination, acceptance, and enrollment into active military service. Thus, the presumption of soundness attaches and can only be rebutted by clear and unmistakable evidence demonstrating that a psychiatric disorder existed before service and was not aggravated by service. Wagner, supra. The record includes pre-service treatment reports and opinions offered after VA examinations which show that the Veteran's psychiatric condition clearly and unmistakably pre- existed service. The Board finds, however, that the record does not contain clear and unmistakable evidence that the condition was not aggravated by service. The Board remanded the claim to obtain a medical opinion addressing the specific question of aggravation. The final opinion, offered after an examination and in two supplemental opinions, was that the evidence does "suggest" that the pre-existing psychiatric problems were aggravated by service, but that is "not to say they would not have been aggravated" by other stressors. Such language does not meet the standard of clear and unmistakable evidence that the preexisting condition was not aggravated. Thus, the presumption of soundness is not rebutted. The Veteran is presumed to have entered service in sound psychiatric condition. Having found that the Veteran was sound at entrance into service, the Board finds that her current psychiatric problems were incurred in service. The September 2005 VA examiner noted that it was likely that the Veteran's diagnosis of immature personality disorder in service was related to initial symptoms of dissociative identity disorder and PTSD. The January 2009 VA examiner opined that the Veteran's dissociative identity disorder and PTSD preexisted her military service and were aggravated by her service. In a March 2009 addendum the VA examiner opined that the Veteran's schizoaffective disorder, bipolar type and PTSD preexisted military service and were aggravated by her service. The March 2009 addendum also notes that the Veteran's dissociative identity disorder was related to her military service. The September 2005, January 2009, and March 2009 opinions provide a plausible basis to conclude that at least one of the Veteran's current acquired psychiatric disorders was either incurred or aggravated by her military service. With resolution of all reasonable doubt in the Veteran's favor, it is concluded that the evidence supports service connection for an acquired psychiatric disorder. 38 U.S.C.A. § 5107(b). Notice and Assistance VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. ORDER Service connection for an acquired psychiatric disorder is granted. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs