Citation Nr: 0943381 Decision Date: 11/13/09 Archive Date: 11/25/09 DOCKET NO. 97-16 521 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an acquired psychiatric disorder variously diagnosed as bipolar disorder, posttraumatic stress disorder (PTSD), and major depression. WITNESSES AT HEARING ON APPEAL Appellant and Appellant's Former and Current Spouses ATTORNEY FOR THE BOARD L.J. Bakke-Shaw, Counsel INTRODUCTION The Veteran served on active duty from December 1985 to December 1989. This appeal arises before the Board of Veterans' Appeals (Board) from a rating decision rendered in December 1996 by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, VA in which service connection for bipolar disorder and PTSD were denied. The claim was previously before the Board, in September 1998, November 2000, and February 2005, when it was remanded for further development. That development has been completed. The Veteran testified twice before the Board. In March 2004, he testified before the undersigned Veterans' Law Judge. Previously, in June 1998, he testified before a Veterans' Law Judge who has since retired. Transcripts of both hearings are associated with the claims file. FINDING OF FACT The Veteran manifests an acquired psychiatric disorder that has been variously diagnosed as bipolar disorder, PTSD, and major depression, that has found to be the etiological result of active service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder to include bipolar disorder, PTSD, and major depression have been met. 38 U.S.C.A. § 1101, 1110, 1112, 1113, 1137, 1154, 5107(b) (West 2002 & Supp. 2007); 38 C.F.R. § 3.303, 3.304(f) (2008). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance In light of the favorable action taken herein, discussion of whether VA has met its duties of notification and assistance is not required, and deciding the appeal at this time is not prejudicial to the veteran. II. Service Connection Service connection may be established for disability resulting from injury or disease incurred in service. 38 U.S.C.A. § 1110. Service connection connotes many factors, but basically, it means that the facts, as shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service. A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease in service. See Pond v. West, 12 Vet. App. 341 (1999); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection for PTSD requires the following: 1) medical evidence of a diagnosis of PTSD in accordance with the criteria of Diagnostic and Statistical Manual of Mental Disorders (4th ed., 1994) (DSM-IV), which is presumed to include both adequacy of the PTSD symptomatology and sufficiency of a claimed in-service stressor; 2) credible supporting evidence that the claimed in-service stressor actually occurred; and 3) medical evidence of a link, or nexus, between the current symptomatology and the claimed in- service stressor. 38 C.F.R. § 3.304(f). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107. A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102. When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran seeks service connection for an acquired psychiatric disorder to include bipolar disorder, PTSD, and major depression. The Veteran identified his stressors in various written statements and in testimony before the Board in 1998 and 2004, including before the undersigned Veteran's Law Judge in March 2004. There are, in essence, two stressors. The first stressor involves his participation in Operation Golden Pheasant. In pertinent part, he reported that he was assigned as a parachutist infantryman and radio operators for 1st/504th, 82nd Airborne, which was mobilized on short notice and deployed to Honduras in March 1988 for Operation Golden Pheasant, near the Nicaraguan border, where he testified and stated his unit encountered combat conditions. Specifically, he reported that he and his team conducted patrols into areas near the border, that he and his team encountered Nicaraguan Sandinista soldiers and were fired upon and that they fired back, killing a member of a death squad, and that he saw dead and wounded in the course of this assignment. He also stated and testified that a helicopter crashed, injuring the Battalion Commander and others on board. The Veteran reported he was to have been a passenger on the aircraft as the Battalion Commander's radio operator, but it took off without him and he was very stressed over this. The Veteran described in statements and sworn testimony that the deployment overall was a stressful experience due to the unknown circumstances the soldiers were facing, the proximity of the operation to the Nicaraguan border, the potential for combat, and the uncertainty of how long they might be deployed. The second stressor involves a motor vehicle accident that occurred in 1989, in which he was seriously injured. A military vehicle in which he was a passenger was struck violently by a civilian tractor-trailer. His injuries required that he be medevac'd. Service medical records show no complaints of or treatment for a psychiatric condition. His reports of medical examination at entrance to and discharge from active service show no psychiatric complaints, defects, diagnoses, or other findings. However, an entry in his service medical treatment records show, in May 1989, that he sustained a head injury with possible concussion following a bicycle accident. Emergency medical treatment records dated in August 1989 show that he was an unrestrained passenger in a deuce and a half which, while travelling 15 miles per hour, was broadsided on the other side by semi-trailer tractor travelling at 55-60 miles per hour. The records show the Veteran sustained no loss of consciousness but had a short amnesiac period during which he pushed the driver out of the vehicle. The Veteran remembered waking up in the hospital and could recall no details regarding the accident. His report of medical examination at discharge reflects a history of vigorous rehabilitation for lumbosacral spine strain and grade I-II lateral collateral ligament strain subsequent to being in a 2-1/2 ton military vehicle which was struck by a tractor trailer in August 1989. The physician reported full range of motion in the back with minimal tenderness over the paravertebral musculature and findings of residual lateral collateral ligament tenderness with slight increased laxity over contralateral side, and left tibial apophysitis. He was found to meet the standard for separation. VA and private medical records reflect that the Veteran has been diagnosed with various acquired psychiatric disorders, to include bipolar disorder in 1994, bipolar disorder and depression in 1996, paranoid schizophrenia and psychosis in 1997, major depressive disorder and PTSD in 2000 including by a private M.D. and VA M.D. and Attending Physician in Psychiatry. Also of record are lay statement proffered by the Veteran's parents, received in February 1997 and August 2000, who attested to the Veteran's disposition as a well-behaved and well-adjusted, optimistic, productive person prior to his entrance into active service and the difference in his demeanor after his return from active service, when he appeared cynical, disdainful, hostile, belligerent, uncooperative, and manifested violent mood swings. His former spouse also submitted a statement in February 1997. She described him as peaceful and family-oriented prior to active service, and attested to his change in his behavior and attitude after his entrance into active service. His ability to deal with conflict peacefully diminished. He began to experience night terrors and tried to commit suicide. In July 1998, the Veteran's former spouse testified under oath that she had known the Veteran prior to his entrance into active service. They were engaged to be married a year prior to his entrance into active service, and married when he was out of jump school. She testified that he became a different person after jump school, that he would disappear for days and became very violent. He had not yet separated from active service the first time he tried to kill himself. In March 2004, the Veteran's current spouse testified that she observed the Veteran to experience night terrors and anxiety, and that he continued to talk about the things he saw and experienced in Central America. VA examination conducted in May 1999 shows diagnoses of PTSD and bipolar disorder in AXIS I and personality disorder in AXIS II. AXIS IV identified military services as a parachutist and later inability to adapt. The examiner opined that symptoms of PTSD were most likely due to the Veteran's 300 plus parachute jumps and his serve in battle areas in Honduras, at which time he saw the enemy being killed. Notations made in AXIS IV of a multi-axial assessment for neuropsychiatric disorders have been construed by the Court to provide competent medical evidence of an etiological link between the diagnosed condition and active service. See Hernandez-Toyens v. West, 11 Vet. App. 379 (1998). VA examination conducted in June 2003 shows diagnoses of PTSD, history of bipolar disorder, and major depressive disorder in AXIS I and personality disorder in AXIS II. The examiner observed that the Veteran had a documented history of being treated for mental illness for several years, and that personality traits noted on the psychological assessments had clouded the clinical picture. The examiner stated that it was his opinion based on a reasonable degree of medical certainty that the Veteran had PTSD and opined that if the incidents the Veteran related to his combat experiences in Central America could be verified, the PTSD symptoms and extreme disturbance in social and occupational functioning and relationships could be explained. Both VA examiners demonstrated knowledge of the Veteran's claims files, to include previous VA and private treatment records and service records. The opinions are therefore probative. Given the foregoing, and the Veteran's testimony before the undersigned Veteran's Law Judge as to his stressors, the Board remanded this claim for development and stressor verification in February 2005. The RO received additional service personnel records and historical information about Operation Golden Pheasant from the Department of the Army, 82nd Airborne Division War Memorial Museum (Museum). The Museum further explained in its response that the information provided was factual in nature and that it was not intended to prove or disprove any type of claim. The Museum explained that it did not maintain a complete record of every Division member, and those it does maintain are only by personal donation of the records by the member or the member's family. Service personnel records establish that the Veteran was assigned to Charlie Company 1st/504th Infantry Battalion, 82nd Airborne Division from June 1986 to May 1988. His military occupational specialty (MOS) during this time period was as a switchboard operator, 31K1P, and he was awarded the Parachutists' Badge in May 1986. In April 1988, the Veteran voluntarily terminated his own Airborne jump status. His status as 31K1P was also withdrawn at this time, and 31K10, combat signaler, was assigned. These records show the Veteran was awarded an Army Commendation Medal for meritorious heroism. The citation is not of record, but a copy of an undated article in what appears to be a military newspaper associated with Fort Bragg submitted by the Veteran shows that the Veteran received the Army Commendation Medal on October 5. The report notes the Veteran's heroic actions were involved in an accident, and describes the motor vehicle accident that occurred in August 1989. Upon impact, the driver of the military vehicle was hurled from the cab. Without hesitation or regard for his own safety, [the Veteran] reacted in time to pull his fellow soldier back into the cab just prior to a follow-on collision. Even though suffering serious injury to his left leg, [the Veteran's] action in a crisis situation undoubtedly saved a soldier's life. Information from the Museum shows that two battalions from the 82nd Airborne Division-the 1/504th and 2/504th Parachute Infantry Regiment (PIR), supported by the 3/319th Field Artillery Regiment (FAR) and Company C, 3/505th PIR-were deployed to Honduras on March 17, 1988 in support of Operation Golden Pheasant. The deployment was considered an emergency deployment readiness exercise (EDRE), which is a no-notice exercise conducted to test the readiness of units to prepare and deploy in a very short time frame. Primary locations of the operation included San Lorenzo, Jamastran, Juticalpa, and Tamar. During the exercise, the 82nd Airborne Division did not encounter any Nicaraguan/Sandinista troops, and did not cross any of Honduras' national borders into another country. Most of the 82nd Airborne Division flew to the Palmerola Air Base/Airport from Fort Bragg and touched down on the tarmac after a 3-4 hour flight. However, the last planes to leave Fort Bragg loaded with paratroopers did parachute onto the Palmerola Airfield as a show of force. The total number of paratroopers dropped into the airfield is estimated at approximately 800. On March 21, 1988, a UH-1 helicopter crashed while traveling to Juticalpa. Onboard were the 504th PIR Commander, his driver, and eight other people, including the pilot and co-pilot. The Commander was heading to Juticalpa with other 82nd Airborne Division officers and noncommissioned officers to observe elements of the Division during training when the helicopter went down. Two individuals were airlifted to the continental US for further treatment. The other individuals were treated in a US hospital at Palmerola Air Force Base. The report from the Museum did not state the extent of the injuries sustained. Contemporaneous newspaper articles, and a transcript of an ABC report that aired on March 19, 1988 (provided by the Museum) describe an unstable time in the Honduran-Nicaraguan history with the 82nd Airborne being deployed to Honduras just as the Sandinistas had begun a major offensive against the Contras, with reports of Sandinista troops in Honduras. A March 18, 1988 article in USA Today reported an attack on a command base by Honduran jet fighters. Two F-5 jets were reported to have fired air-to-ground rockets against Nicaraguan positions in Bocay, near the border. Nicaraguan forces were reported to have fired ground-to-air missiles at the jets, chasing them away. The attack was reported to have been confirmed by the U.S. State Department and by Honduras, but later, Honduras reported that the attack was within their borders, against Sandinistas who had crossed over. The Veteran has also submitted a copy of the journal his former spouse kept when he was gone, and a letter he wrote to her. These documents show underscore the tension, uncertainty, and fearfulness in which the Veteran deployed- both his own and that of his former spouse, and what she observed in other spouses. Internet research on Operation Golden Pheasant reveals the following information for GlobalSecurity.org: In 1988, when the borders of Honduras were threatened, XVIII Airborne Corps launched Operation Golden Pheasant to counter Nicaraguan incursions in to Honduras. Elements of two divisions were dispatched on a no-notice deployment exercise and show of force to ensure the sovereignty of Honduran territory would be respected. And 82d Airborne Division Brigade task force of two battalions conducted a parachute insertion and airland operation into Honduras as part of Operation Golden Pheasant. The deployment was billed as a join[t] training exercise, but the paratroopers deployed ready to fight, causing the Sandinistas to withdraw back across their border. Wikipedia entries concur, adding that the 7th Infantry Division (Light) Quick Reaction Force was deployed on a no- notice basis to facilitate guarding of the local general at a Honduran military base near Palmerola Air Base (now Soto Cano Air Base). The 82nd Airborne arrived several days later, and soldiers of the 27th Infantry Regiment repelled onto the air base, moving within 3 miles of the Nicaraguan border the same day. All units began rigorous training exercises, including live-fire. Both reports observe that the infantry and paratroopers deployed ready to fight, causing the Sandinistas to withdraw back across their border. Information from the Museum takes care not to say that Operation Golden Pheasant was a combat operation. Review of VA regulations reflects that Operation Golden Pheasant did not occur during a recognized period of war. See 38 C.F.R. § 3.2. Notwithstanding, the historical data clearly establishes that the environment into which the 82nd Airborne was deployed in Honduras in March 1988 was far from peaceful or secure. The Veteran testified before the undersigned Veterans' Law Judge in March 2004, and the Judge found him to be highly credible. The Veteran's veracity is corroborated by the record, which shows his report of events has been consistent throughout, including in treatment records and VA examination reports. His lay witnesses further corroborate his report of events. His lay witnesses' statements are consistent with each other, and with the Veteran's report of events. Moreover, they establish continuity of psychiatric symptomatology beginning in service and continuing to the present. The Board recognizes that some of the nomenclature is inconsistent. Service personnel records reflect the Veteran was assigned to the 1/504 Infantry Battalion 82nd Airborne Division. The Museum report identified the unit as the 504th PIR and notes that two battalions from the 504th were deployed. In addition, the Veteran has identified the Battalion Commander by different names, neither of which matches the name provided by the Museum. There are also inconsistencies concerning the motor vehicle accident. The treatment records state that the Veteran pushed the driver out of the cab, whereas the newspaper article reports that the Veteran pulled the driver back into the cab. Notwithstanding, the Board finds these inconsistencies to be minor and of no impairment to the credibility of the Veteran's statements or testimony. In the first instance, the inconsistencies in nomenclature exist in the service records themselves, which cannot be attributed to the Veteran. Moreover the evidence reveals that, regardless of whether the 504th is a battalion or a regiment, it is confirmed by the evidence of record that there was a helicopter crash during Operation Golden Pheasant, and that the Commanding Officer of the 504th was injured. As to any inconsistency that could be construed by the fact that there may be two battalion commanding officers of the 1st and 2nd Battalions of the 504th Regiment, a communicator would have been necessary and it is entirely probable that the Veteran, as a 31K1P, could have been called upon to do so. The Board is not troubled by the Veteran's inability to remember the officer's name. In the second instance, the inconsistency may be attributed to the emergency personnel's misunderstanding. There is no official citation to clarify the matter, and the Veteran has not spoken on the particulars of that part of the event. There is no doubt that the Veteran was awarded the Army Commendation Medal for Meritorious Heroism, and the dates are consistent with the date of the motor vehicle accident. Moreover, the severity of this accident-which is the Veteran's averred stressor-is established by the record. Other than the Museum's declaration that no one in the 82nd Airborne encountered Nicaraguan or Sandinista troops, or crossed the border, there is nothing in the record to refute the Veteran's reported stressors. It is the Museum's statement that its report is not intended to prove or disprove any claim, and that it does not contain a complete record for every Division member. In summary, the helicopter crash in which the 504th PIR Commander was injured has been verified, and so also the motor vehicle accident in 1989. The record shows by lay witness testimony that the Veteran began to experience symptoms of a psychiatric disorder while still on active service, and was diagnosed with a psychiatric disorder as early as 1994. He has manifested psychiatric symptoms continuously from active service to the present. The Board has given due consideration to the accorded time, place, and circumstances of the Veteran's service, both with the 1st/504th Infantry Battalion, 82nd Airborne Division in Honduras in March 1988, and also the severity of, and the Veteran's actions during, the motor vehicle accident in 1989. See 38 U.S.C.A. § 1154(a). There are no findings or opinions against a finding that the Veteran's acquired psychiatric disorder variously diagnosed as bipolar disorder, PTSD, and major depression is the etiological result of active service. In view of the medical opinions in this case, the continuity of symptomatology, the consistency of the Veteran's report of events and that of his lay witnesses, the history of Honduras and Nicaragua at the time the Veteran was deployed with his unit to Honduras in March 1988 and the service rendered by that unit, the 1st/504th Infantry Battalion, 82nd Airborne Division-and hence that of the Veteran, and the circumstances of the 1989 motor vehicle accident, service connection for an acquired psychiatric disorder to include bipolar disorder PTSD, and major depression is warranted. ORDER Service connection for a psychiatric disorder to include bipolar disorder, PTSD, and major depression is granted. ____________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs