Citation Nr: 1016396 Decision Date: 05/03/10 Archive Date: 05/13/10 DOCKET NO. 06-03 616 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for a bipolar disorder, claimed as a nervous condition. 2. Whether the appellant meets the basic eligibility requirements for nonservice-connected pension benefits. REPRESENTATION Appellant represented by: Appellant's son WITNESSES AT HEARING ON APPEAL Appellant, spouse, and son ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran had active service from February 24, 1943, to March 13, 1943. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating determination for the Department of Veterans Affairs (VA) Regional Office (RO) located in Cleveland, Ohio. Thereafter, the Huntington, West Virginia, RO assumed jurisdiction. In May 2007, the Board remanded this matter for further development. In July 2008, the appellant appeared at a videoconference at the RO before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Following the July 2008 hearing, the Board again remanded this matter in October 2008 for further development. The matter was again remanded by the Board in August 2009 for additional development. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's inservice diagnosed constitutional psychopathic state, inadequate personality, now classified at least as likely as not bipolar disorder under current medical terminology, did not clearly and unmistakably exist prior to active service and is of service origin. 2. The Veteran meets the necessary prerequisites for eligibility requirements for nonservice-connected pension benefits. CONCLUSIONS OF LAW 1. The presumption of soundness at entrance into service for a psychopathic state, inadequate personality, is not rebutted. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2009). 2. Bipolar disorder was incurred in service. 38 U.S.C.A. §§ 1110, 1153 (West 2002); 38 C.F.R. §§ 3.303, 3.306(a) (2009). 3. The Veteran meets the eligibility requirements for the receipt of nonservice-connected pension benefits. 38 U.S.C.A. §§ 101, 1521 (West 2002); 38 C.F.R. §§ 3.1, 3.2, 3.3, 3.6, 3.314, 3.340, 4.16, 4.17, 4.18 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Bipolar/Nervous Disorder Service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 494-95 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see generally Hickson v. West, 12 Vet. App. 247, 253 (1999) (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). Lay persons are not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson; see Grover v. West, 12 Vet. App. 109, 112 (1999); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet); Espiritu, 2 Vet. App. at 494- 95 (lay person may provide eyewitness account of medical symptoms). The Board may not reject the credibility of the veteran's lay testimony simply because it is not corroborated by contemporaneous medical records. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). If a chronic disease is identified in service, manifestations of the same disease at any time, no matter how remote, after service will be service connected. 38 C.F.R. § 3.303(b). Every veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment, and was not aggravated by such service. 38 U.S.C.A. § 1111. In order to rebut the presumption of sound condition under 38 U.S.C. § 1111, the government must show by clear and unmistakable evidence both that the disease or injury existed prior to service, and that the disease or injury was not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). To satisfy the second requirement for rebutting the presumption of soundness, the government must rebut a statutory presumption of aggravation by showing, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). The clear and unmistakable evidentiary standard applies to the burden to rebut the presumption, but this standard does not require the absence of conflicting evidence. Kent v. Principi, 389 F.3d 1380, 1383 (Fed. Cir. 2004). The provisions of 38 U.S.C.A. § 1153 provide criteria for determining when a pre-existing disability has been aggravated. Under the statute: A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, not just the symptoms, has worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). VA's implementing regulation provides that: (a) General. A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. (b) Wartime service; peacetime service after December 31, 1946. Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. (1) The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, including postoperative scars, absent or poorly functioning parts or organs, will not be considered service connected unless the disease or injury is otherwise aggravated by service. (2) Due regard will be given the places, types, and circumstances of service and particular consideration will be accorded combat duty and other hardships of service. The development of symptomatic manifestations of a preexisting disease or injury during or proximately following action with the enemy or following a status as a prisoner of war will establish aggravation of a disability. 38 C.F.R. § 3.306(b). The service treatment records reveal that at the time of induction, normal psychiatric and nervous system findings were reported. On March 10, 1943, the appellant was seen referred for psychiatric examination for suspected mental deficiency. It was noted that he had completed seven grades at the age of 15 and quit because he "just got tired of going". Since quitting school, he had worked at very menial jobs of short duration. He was noted to have severe headaches and once for nose bleeds lasting two days for no apparent reason. Psychometric examination revealed an I.Q. of 76. There was a possible history of brain hemorrhage and also a glandular disorder. His reading ability was noted to be poor and he was of very limited intelligence. The examiner noted that the appellant was easy going and calm. He was noted to have very peculiar behavior, emotional instability, and crying spells. The examiner stated that he was rather silly and showed an inappropriate emotional response. It was the Board's impression that the appellant had a constitutional psychopathic state, inadequate personality. Thereafter, a release from active duty physical examination was performed in accordance with the approved recommendation of the Aptitude Board. In the History of the Illness or Injury section of the report, it was noted that the appellant had had the usual childhood illnesses and that no illness, injury, or disability was incurred during the present tour of duty. A diagnosis of constitutional psychopathic state, inadequate personality, was rendered. It was indicated that the appellant stated that this existed prior to enlistment and recall to active duty. He was noted to be physically qualified for release from active duty in the USNR in accordance with an approved special order discharge. The appellant was subsequently discharged due to unsuitability and was given a special order discharge. Treatment records received in conjunction with the claim reveal that the appellant was hospitalized in August 1979 at the Huntington State Hospital because he declared himself "Jesus Christ" and was hostile and somewhat confused. It was noted that this was the first time that he had been hospitalized at this facility. A diagnosis of schizophrenia, chronic undifferentiated type, was rendered. The appellant was discharged in September 1979 and his condition was noted to be improved. The appellant was again admitted to Huntington State Hospital in January 1987 with an Axis I diagnosis of bipolar disorder, manic with psychotic features, being rendered at that time. In a September 1988 hospitalization discharge report, a diagnosis of bipolar affective disorder was rendered. A diagnosis of bipolar affective disorder with psychotic features was noted in a November 1989 hospitalization discharge report for a period of hospitalization from April 1989 to November 1989. Diagnoses of bipolar disorder were again rendered at the time of January 1991, October 1991, March 1993, January 1994, July 1994, January 1995, August 1995, May 1997, and July 1998 hospitalizations at Huntington State Hospital. Treatment records obtained from Mildred Mitchell-Bateman Hospital reveal that a discharge diagnosis of bipolar disorder, manic, with paranoid features, was rendered following a period of hospitalization from February to March 2000. Following a period of hospitalization from September 2000 to January 2001, a diagnosis of bipolar disorder, with psychotic features, was rendered. A diagnosis of bipolar disorder, most recent episode manic, severe with psychotic features, was rendered at the time of an April 2001 hospitalization. An October 2002 psychological evaluation performed at Mitchell-Bateman Hospital resulted in an Axis I diagnosis of bipolar disorder, mixed. In his December 2005 substantive appeal, the appellant indicated that he was healthy, both mentally and physically, upon his entrance into service. This was evidenced by his induction physical. It was his contention that his mental disorder was either caused or aggravated by his military service. In a December 2005 letter, T. Savory, M.D., indicated that he was the appellant's private physician while he was a patient at Mitchell-Bateman Hospital. He stated that without specific consent he could not reveal specific information about the hospitalization. He noted that the appellant's need for hospitalization on a recurrent basis over several years likely resulted from (in part) life incidents occurring as a young man. He indicated that the appellant's service experiences may have contributed to his problems. In a December 2005 discharge summary report covering the time period from April 2001 to December 2005 at Mitchell-Bateman Hospital, Dr. Savory rendered a discharge Axis I diagnosis of bipolar disorder, manic with mood congruent psychosis. In a January 2006 VA aid and attendance note, it was indicated that the appellant had schizophrenia. At the time of his July 2008 hearing, the appellant indicated that he entered the service physically and mentally sound, was involved in some sort of physical altercation which led to his disability, his discharge, and his now current disability. The appellant's son, speaking on behalf of his father, indicated that he had been told by the appellant that he had been given an order in service and refused to do it. There was a subsequent physical altercation which possibly caused a brain hemorrhage and glandular disorder which in turn caused his bipolar/schizophrenia disorder to develop. In a September 2008 letter, a VA physician indicated that the appellant was in the care of the Ann Arbor VA Mental Health Intensive Community Management Program for bipolar disorder, a severe and persistent mental illness, and recent onset of dementia. He noted that the appellant's symptoms had been reasonably stable; however, he was severely disabled by his illness and not able to work. He indicated that the appellant had only been able to hold menial jobs of short duration, providing evidence that bipolar disorder had been present for much of his life. He noted that when the appellant was admitted to the service he was given a clean bill of health. Yet, he was only able to serve 17 days, and, at discharge, he was noted to have very peculiar behavior, emotional instability, and crying spells. Moreover, a psychological evaluation resulted in a psychopathic state and inadequate personality. He indicated that at the time of the appellant's service, criteria for conditions such as bipolar disorder were not as precise as they were now. In retrospect, these symptoms may have fit the current criteria for this condition. He observed that the appellant had had multiple psychiatric hospitalizations for bipolar disorder and schizophrenia, which has been historically confused with bipolar disorder, since that time. He stated that current thinking about the causation for bipolar disorder and many other psychiatric differences held that different individuals were born with a predisposition of the illness which was then activated by severe life stress. He stated that given that the appellant was admitted to service without a mental illness and left the service with mental disabilities, it was reasonable to conclude that the appellant's time in the service activated his innate predisposition to develop a mental illness. In its October 2008 remand, the Board requested that the appellant be scheduled for a VA psychiatric examination. The claims file had to be reviewed by the examiner. The examiner was requested to provide the following opinions: (a) What was the likelihood (i.e., 50 percent probability or greater) that the diagnosis that was assigned by the Aptitude Board during service was proper? (b) What was the likelihood (i.e., 50 percent probability or greater) that the psychiatric disorder recorded during service pre-existed the appellant's period of service, as found by the Aptitude Board? (c) If the in-service disorder pre-existed service, to what degree did it increase in disability during service? (d) What was the likelihood (i.e., 50 percent probability or greater) that the psychiatric manifestations recorded during service were related to the appellant's current psychiatric disorder, i.e., that the symptoms noted during service were manifestations of the current psychiatric disorder? Each of the examiner's opinions was to be supported by adequate rationale. The appellant was afforded the requested examination in December 2008. The claims folder was available. The appellant was noted to have been raised by his mother. His father left and never came back when he was in the 8th grade. He quit school and went to work in the coal mines. He stated that he quit school to support his family and indicated that he was a fair student. He reported that he did not use alcohol or other substances. His son noted that he had been a nondrinker and nonsmoker since the age of 12. The appellant's son indicated that after the beating in service, he wasn't ok to serve. His son reported that the appellant suffered from frequent nose bleeds. It was noted that the appellant only served 17 days. He was an apprentice seaman. He did not have any combat experience. His son reported that the appellant refused orders from a superior officer and was beaten up and discharged with possible brain hemorrhage and glandular disorder. The appellant's son stated his father divorced because every time he checked himself into the hospital his mother would have no money. The appellant lived with his son in Jackson. He had never attempted suicide and had no history of violence. The appellant was noted to have had more than one hospitalization for his psychiatric problems. He was taking anti-psychotic medications. The effectiveness of the therapy was reported as fair. The appellant was noted to require constant supervision. Since October 2008 he could not be left alone. Following examination, Axis I diagnoses of cognitive disorder, NOS; dementia due to multiple etiologies (vascular, neurodegenerative, subdural hematoma); and bipolar disorder, were rendered. The examiner noted that the case appeared to involve multiple acute and chronic morbidities, both psychiatric and medical, and was clearly presenting with significant dementia, superimposed. Per his son, the appellant was only in the military for 17 days and during that time he was physically beaten by superior officers which eventuated in him being discharged. The son asserted that the injuries his father suffered at that time resulted in him developing a severe psychiatric disturbance and thus his current disability was service-connected. The examiner stated that strictly speaking it was unlikely that schizophrenia (more recently diagnosed as bipolar disorder) would result from the traumatic experience described by the son but some variation of a stress disorder would seem to be a reasonable formulation but one impossible to prove. As to questions a, b, c, and d, above, the examiner stated that he could not resolve these issues without resort to speculation. He again noted the son's report of the appellant being beaten in service and stated that it would be unusual for the psychiatric history as described in various records and corroborated by the appellant's son to be entirely explainable on the basis of the alleged beating he suffered. In August 2009, the Board again remanded this matter indicating that the examiner had not complied with the instructions in the prior remand as he had not answered questions that had been set forth in the previous remand. The Board requested that the claims folder be returned to the December 2008 VA examiner and that he be requested to answer the following questions: (a) What was the likelihood (i.e., 50 percent probability or greater) that the diagnosis that was assigned by the Aptitude Board during service was proper? (b) What was the likelihood (i.e., 50 percent probability or greater) that the psychiatric disorder recorded during service pre-existed the appellant's period of service, as found by the Aptitude Board? (c) If the in-service disorder pre-existed service, to what degree did it increase in disability during service? (d) What was the likelihood (i.e., 50 percent probability or greater) that the psychiatric manifestations recorded during service were related to the appellant's current psychiatric disorder or to any psychiatric disorder that had been present since 2004, i.e., that the symptoms noted during service were manifestations of a current psychiatric disorder? The examiner was to discuss the opinion provided by another VA physician in September 2008. He was also requested to provide rationale for each opinion that was rendered. In a December 2009 addendum report, the December 2008 VA examiner indicated that in response to question (a) it was important to appreciate the change in nomenclature. The diagnostic categories used in the Report of Aptitude Board on March 13, 1943, were no longer used in contemporary practice. The report of an IQ of 76, which is classified in the borderline range of measured/psychometric intelligence, likely represented a reliable finding. That is, it was likely that the appellant displayed similarly modest intellectual abilities prior to entering the military. As to the likely implications of the psychiatric diagnostic categories applied at that time (i.e., constitutional psychopathic state, inadequate personality) it was at least as likely as not consistent with a significant disturbance that now may be best described as bipolar disorder. The examiner noted that it was very difficult to retrospectively apply current diagnostic criteria to the appellant's symptoms and behavior but it was apparent that a combination of modest (borderline) intellectual abilities and psychiatric disorders were present. With regard to question (b) these conditions were most likely present prior to entering the military. As to the appellant's son's allegations that the appellant was beaten up by officers when he refused orders, the only evidence of this seemed to be anecdotal. The report of physical examination dated March 13, 1943 stated "No illnesses, injury, or disability incurred during this present tour of active duty". The examiner noted that on the other hand, reference was also made in the Report of Aptitude Board to a "possible history of brain hemorrhage and also glandular disorder". As to question (c), the examiner stated that it was unlikely that a significant deterioration in the appellant's intellectual functioning occurred during his time in service. As to the psychiatric diagnoses, neither of these (constitutional psychopathic state, inadequate personality) necessarily implied acute psychotic symptomatology but rather what were more enduring or characterological features. Constitutional implies longstanding and likely developmental and inadequate personality was in reference to what would now be an Axis II personality disorder. These both represented enduring characteristics and to a lesser extent reactive or acute elements. As to question (d) the examiner indicated that the appellant's dementia was not related to his time in service. He noted that based upon the information what was described in the service records may have had occasion to be identified and documented while in the structure of the military but these were not the result of or caused by being in the service. He noted that the allegations of the appellant being beaten up in service were important but anecdotal. With regard to the September 2008 VA physician's statement, the examiner noted that he agreed that severe life stress may in some cases serve as a precipitant to the emergence of symptoms for individuals with a biological predisposition. He stated that it would be surprising and unusual if a single traumatic event such as the alleged beating would be sufficient to induce the chronic picture of psychiatric impairment that eventuated. Because normal psychiatric findings were made at the time of the appellant's February 1953 general induction examination, the presumption of soundness is applicable. 38 U.S.C.A. § 1111. There is evidence both for and against the notion that the Veteran's constitutional psychopathic state, inadequate personality, now classified at least as likely as not as bipolar disorder, pre-existed service. The Veteran served for a period of only 17 days. Moreover, on the service separation report of medical history, it was noted that the appellant specifically stated that the above defects existed prior to his entry into service. Furthermore, the December 2008 VA examiner following a through examination of the appellant, and a review of the claims folder on two separate occasions, indicated that these conditions were most likely present prior to entering the military. He cited to the report of March 13, 1943, wherein it was noted that no illnesses, injury, or disability incurred during this present tour of active duty. However, he also noted that on the other hand reference was made in the Report of Aptitude to a possible history or brain hemorrhage and also a history of a brain disorder. In contrast, the September 2008 VA physician noted that when the appellant was admitted to the service he was given a clean bill of health. Yet, he was only able to serve 17 days, and, at discharge, he was noted to have very peculiar behavior, emotional instability, and crying spells. Moreover, he observed that a psychological evaluation resulted in a psychopathic state and inadequate personality, which now fit the criteria for the current condition known as bipolar disorder. He indicated that the current thinking about the causation for bipolar disorder and many other psychiatric differences held that different individuals were born with a predisposition of the illness which was then activated by severe life stress. He stated that given that the appellant was admitted to service without a mental illness and left the service with mental disabilities, it was reasonable to conclude that the appellant's time in the service activated his innate predisposition to develop a mental illness. In addition, while the December 2008 VA examiner did not agree with the September 2008 physician's premise that the psychiatric disorders did not preexist service, he did indicate that he agreed with the VA physician's assessment that severe life stress may in some cases serve as a precipitant to the emergence of symptoms for individuals with a biological predisposition. As there is not clear and unmistakable evidence that the Veteran's psychiatric disorders existed prior to service, the presumption of soundness has not been rebutted. Thus, the Veteran must be considered as having been in sound condition at the time of his entrance into service. Moreover, both the VA examiner and the VA physician agree that the symptomatology demonstrated by the appellant in service would best be described in current terms as bipolar disorder, which the Veteran has been diagnosed with on numerous occasions subsequent to service. There is also conflicting evidence as to whether the Veteran was actually assaulted in service. The December 2008 examiner noted the findings in the March 13, 1943, report which supported no illness or injuries in service but then also observed that a possible history of brain hemorrhage and also glandular disease was noted in the Aptitude board report. The Board further notes that the appellant, through his son, has indicated on many occasions, including at his hearing, that he was physically assaulted as a result of refusing orders while in service. Although the December 2008 VA examiner indicated that it would be surprising and unusual if a single traumatic event such as an alleged beating would be sufficient to induce the chronic picture of psychiatric impairment that eventuated, he did note that he agreed with the September 2008 VA physician that severe life stress in some cases could serve as a precipitant to the emergence of symptoms for individuals with a biological predisposition. Resolving reasonable doubt in favor of the Veteran, service connection is warranted for bipolar disorder. The Veteran was diagnosed with symptomatology consistent with bipolar disorder in service and he has been diagnosed with bipolar disorder on numerous occasions subsequent to service. The evidence is at least in equipoise as to whether the Veteran's bipolar disorder is related to his period of service, including a specific incident in service. In such a case, reasonable doubt must be resolved in favor of the Veteran. Eligibility for Non-Service-Connected Pension Under VA regulations, the payment of nonservice-connected pension benefits is provided to veterans who are permanently and totally disabled from a nonservice-connected disability which is not the result of willful misconduct, but only where the veteran has the requisite active wartime service. 38 U.S.C.A. § 1521(a) (West 2002); 38 C.F.R. §§ 3.3, 3.314(b) (2009). A veteran meets the service requirements of that section if he or she served in active military, naval or air service under one of the following conditions: (1) for ninety days or more during a period of war; (2) during a period of war and was discharged or released from service for a service- connected disability; (3) for a period of ninety consecutive days or more and such period began or ended during a period of war; or (4) for an aggregate of ninety days or more in two or more separate periods of service during more than one period of war. 38 U.S.C.A. § 1521(j) (West 2002); 38 C.F.R. § 3.3(a)(3) (2009). As noted above, the appellant had active service from February 24, 1943, to March 13, 1943. This was during a period of war. He was discharged from duty due to unsuitability and was given a special order discharge as a result of his constitutional psychopathic state, inadequate personality. Based upon the above actions, service connection is now in effect for bipolar disorder, was noted to have at least as likely as not been the constitutional psychopathic state, inadequate personality, diagnosed in service. As such, the Veteran meets the requirements for basic eligibility for nonservice-connected pension benefits. Duty to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). 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) and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 has been amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5- 2004 (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decisions on this claim, further assistance is not required to substantiate that element of the claim. ORDER Service connection for bipolar disorder is granted. The Veteran has basic eligibility for nonservice-connected pension benefits; the appeal is granted. ____________________________________________ MARY GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs