Citation Nr: 1015877 Decision Date: 04/29/10 Archive Date: 05/06/10 DOCKET NO. 03-30 157 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUES 1. Whether vacatur of the March 4, 2010 decision of the Board of Veterans' Appeals denying service connection for an innocently acquired psychiatric disorder is warranted. 2. Entitlement to service connection for an innocently acquired psychiatric disorder. REPRESENTATION Appellant represented by: Joseph R. Moore, Esq. ATTORNEY FOR THE BOARD S. Bush, Counsel INTRODUCTION The Veteran had active military service from August 14 to September 18, 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2003 RO rating decision. The Board remanded the case to the RO for further development in June 2004. In September 2006 the Board issued a decision denying service connection for the claimed psychiatric disorder. The Veteran thereupon submitted an appeal to the U.S. Court of Appeals for Veterans Claims (Court). The Court issued an Order in July 2008 granting a Joint Motion of the Parties to vacate the Board's decision and to remand the case back to the Board for further development action. In September 2008, the Board remanded the case to the RO via the Appeals Management Center (AMC) in Washington, DC for actions in compliance with the Court's Order. The case was subsequently returned to the Board, and on March 4, 2010, a decision which denied the claim was rendered. The Board's action hereinbelow vacates its March 2010 decision. The Board's de novo review of the claim is set forth hereinbelow. FINDINGS OF FACT 1. On March 4, 2010, the Board issued a decision that denied service connection inter alia for an innocently acquired psychiatric disorder. 2. Some of the evidence pertinent to the appeal of the claim of service connection for an innocently acquired psychiatric disorder was submitted prior to the Board's March 4, 2010 decision, but was not addressed in reaching that decision. 3. All notification and development action needed to fairly adjudicate the issue herein decided has been accomplished. 4. The record contains clear and unmistakable evidence that the Veteran's bipolar disorder existed prior to his period of active service. 5. The record does not contain clear and unmistakable evidence that the Veteran's bipolar disorder was not aggravated by his period of active military service. CONCLUSIONS OF LAW 1. The criteria for vacating the Board's decision of March 4, 2010 are met. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.904 (2009). 2. The presumption of soundness at entry for the Veteran's period of active service is not rebutted as to the claimed bipolar disorder. 38 U.S.C.A. §§ 1111, 1132 (West 2002); 38 C.F.R. § 3.304 (2009). 3. The Veteran's disability manifested by a bipolar disorder is due to disease or injury that was aggravated by his period of active service. 38 U.S.C.A. §§ 1110, 1153 (West 2002); 38 C.F.R. §§ 3.303, 3.306 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VACATUR The Board may vacate an appellate decision when the Veteran has been denied due process. See 38 U.S.C.A. § 7104 (West 2007); 38 C.F.R. § 20.904 (2009). In December 2009, the Board received from the Veteran's attorney evidence in the form of a private medical opinion dated in December 2009. However, the records themselves were not associated with the claims file at the time of the Board's review in March 2010 and thus were not considered by the Board in making its decision. The Board's failure to consider the evidence submitted by a veteran may be considered a violation of due process. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998) and Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (records generated by VA facilities that may have an impact on the adjudication of a claim are considered to be in the constructive possession of VA adjudicators during consideration of a claim, regardless of whether those records are physically on file). Accordingly, the Board hereby vacates its decision of March 4, 2010. A new decision is being rendered hereinbelow on this matter as though that Board decision had never been issued. II. ANALYSIS As an initial matter, the Board notes that 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) redefined VA's duty to assist claimants in the development of a claim. The VA regulations for the implementation of VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). However, in light of the favorable action taken hereinbelow, the Board finds that further discussion of VCAA compliance is not necessary at this time. A veteran is presumed to have been sound upon entry into active service, except as to conditions noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). In July 2003, the VA General Counsel issued a precedent opinion holding that, to rebut the presumption of sound condition under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence that both the disease and injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-03 (July 16, 2003). The Veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. Id. In its decisions, the Board is bound to follow the precedential decisions of the General Counsel. 38 U.S.C.A. § 7104(c). Similarly, in Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004), the Federal Circuit Court found that, when no preexisting condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry, and the burden then shifts to VA to rebut the presumption of soundness. The Federal Circuit Court held in Wagner that the correct standard for rebutting the presumption of soundness under 38 U.S.C.A. § 1111 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. By "clear and unmistakable evidence" is meant that which cannot be misunderstood or misinterpreted; it is that which is undebatable. Vanerson v. West, 12 Vet. App. 254 (1999). The Veteran in essence asserts his pre-existing bipolar disorder was aggravated by his brief period of active service. In this case, the Veteran's May 1997 enlistment examination was pertinently negative as to any psychiatric disease. Additionally, the Veteran specifically denied any depression or excessive worry and nervous trouble of any sort on his report of medical history. However, a mental status evaluation completed 22 days after entry into service noted a diagnosis of bipolar disorder "by history." Moreover, there is compelling evidence indicating that the Veteran's innocently acquired psychiatric disorder pre- existed military service. Of record are private counseling reports dated from 1992, when the Veteran was 13, until just prior to his entry into active service in 1997, reflecting treatment for various behavioral problems, including alcohol abuse. His counselor, L.A.S., Ph.D., wrote letters in 1992, 1993 and 1994 noting that the Veteran presented with "some depression," was physically aggressive with his mother and had a fascination with knives. In an August 1998 statement, L.A.S. indicated that the Veteran had been diagnosed at various times with attention deficit disorder, substance abuse disorder, bipolar disorder, adjustment disorder with depressed mood and antisocial personality disorder. Though this letter was dated after the Veteran's military service, L.A.S. also emphasized his last treatment of the Veteran was in December 1997. Furthermore, there are numerous medical opinions of record which indicate the Veteran's innocently acquired psychiatric disorder pre-dated service. In May 2004 P.H., BSW, described the Veteran's reported history of psychological problems dating back to adolescence and the fact that he had these problems at the time he enlisted in military service. The June 2004 VA examiner noted a history of 27 hospitalizations for "nerves, bipolar disorder, and substance abuse," 3 to 5 of which were before the Veteran entered service. Of particular significance is the August 2005 VHA opinion and that of the August 2009 VA examiner. After reviewing the Veterans' claims folder, including his pre-service counseling records, the IME opined: [T[here [was] certainly sufficient information for me to arrive at my own opinion which, quite frankly, [was] that this young man had a longstanding history of psychiatric disorder dating either to the end of the first decade or the beginning of the second decade of his life. The August 2009 VA examiner also determined that the Veteran's psychiatric problems pre-dated service: The veteran received mental health treatment as far back as approximately age 12 or his early teen years. He was seeing a psychologist and psychiatrist well before his time in the military and had been diagnosed with problems back then to include bipolar disorder and polysubstance dependence. The veteran has reported that he was told to lie on his Army admission papers by the recruiter . . . There is ample evidence to indicate that the veteran had both bipolar disorder and significant substance abuse problems even prior to his time in the military. This examiner also acknowledged three psychiatric hospitalizations prior to the Veteran's entry into active service. In December 2009 M.L.C., M.D., noted he had reviewed the Veteran's psychiatric history dating back to age 12, and that "[t]here [was] no question the veteran had psychiatric illness prior to his induction into the United States Army." Finally, the Veteran himself has asserted that his psychiatric problems pre-existed service, and he is certainly competent to report symptoms. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). He has indicated he was instructed to lie on his entrance examination. On his application for SSA disability benefits, the Veteran indicated that he first began to experience psychiatric symptomatology in 1990. Furthermore, his mother has provided a statement which indicates she spoke with the Veteran's enlisting officer about his "past history of mental problems and hi[s] being bipolar." Based on the above-cited evidence, it is "undebatable" that the Veteran's innocently acquired psychiatric disorder pre- existed his enlistment. Thus, there is clear and unmistakable evidence that the disability existed prior to service. See 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2009). With respect to aggravation, the Veteran's service medical records indicate no progression in his psychiatric problems. The September 1997 mental status evaluation just prior to discharge noted normal behavior, full alertness and orientation, unremarkable affect, a clear thinking process, normal thought content and good memory. Further, the remainder of the Veteran's service treatment records shows no documented treatment for any psychiatric symptoms. Four medical opinions are of record concerning the etiology of the Veteran's current innocently acquired psychiatric disorder. Against the claim are the opinions of the August 2005 VHA and the August 2009 VA examiner. The VHA examiner, who reviewed the Veteran's claims folder "page by page," opined that: It [was] my clinical opinion that this young man had a long history of psychiatric illness, was unfit for military service, should never have been permitted to enlist in the military, and [the examiner did] not believe his short tenure in the military had any effect on his chronic psychiatric problems in any way. The August 2009 VA examiner, who also thoroughly reviewed the Veteran's claims folder, opined that there was: no compelling evidence to indicate that [the Veteran's] bipolar or substance abuse problems were exacerbated by his only one month of military service. The veteran's condition was severe enough prior to military service to require three inpatient hospitalizations and it continued to be severe enough after military service to require numerous other inpatient admission and ongoing treatment. In the Veteran's favor is the May 2004 opinion of P.H., who opined that the Veteran's current psychiatric disorder "occurred as a direct result of his military experiences while serving briefly in the US Army. The nature of his experiences [was] well documented and verified. It [was] not necessary to readdress the matter here." P.H. then went on to describe the Veteran's current symptoms, including the Veteran's report that his Army experiences exacerbated his psychiatric problems. Also in the Veteran's favor is the December 2009 opinion of C.L.M., who after a review of the medical evidence of record, including the opinions of the August 2005 VHA and the August 2009 VA examiner, concluded: There were several statements made by examiners suggesting that one month of military service could not exacerbate a patient's psychiatric illness. This [was] of course completely erroneous, clinically illogical, and not consistent with an understanding of the potential for dramatic events to trigger psychiatric disease. For example, it [was] well known in the literature surrounding PTSD that one dramatic event [could] begin an entire disease process. That event could occur in a split-second of a motor vehicle accident, violent crime, or any number of circumstances. A simple death of a loved one [could] trigger a complicated grief reaction leading to major depression. Given this veteran['s] severe psychiatric disease, abstinence from pharmacological management, and transition to a military life why would it be unusual to think that an entire month of trauma, the stress of basic training, and being in an alien environment with profound psychiatric disease would not exacerbate his clinical condition? . . . . [There] [was] also little question that this veteran's clinical condition became severely worse during his one month of active duty service. He became violent, despondent, hopeless, helpless, and essentially had a re-exacerbation of symptoms that had existed early on in his psychiatric illness . . . the symptoms became profoundly worse during his active duty service, and then steadily progressed to complete and utter psychiatric disability through the present day. Accordingly, as there is competent evidence both for and against aggravation, the Board has reached the conclusion that the record, viewed as a whole, does not show by clear and unmistakable evidence that the Veteran's bipolar disorder was not aggravated during service. See Vanerson, supra. Thus, on this record, service connection must be granted. ORDER Service connection for bipolar disorder is granted. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge Board of Veterans' Appeals Department of Veterans Affairs