Citation Nr: 1032289 Decision Date: 08/27/10 Archive Date: 09/01/10 DOCKET NO. 07-32 357 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for a bipolar disorder. REPRESENTATION Appellant represented by: Massachusetts Department of Veterans Services ATTORNEY FOR THE BOARD J Fussell INTRODUCTION The Veteran had active service from November 1986 to July 1991. This matter comes before the Board of Veterans' Appeals (Board) from a March 2007 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In May 2010, the Veteran failed to appear at a scheduled hearing before the Board. Because good cause shown for the failure to appear is not shown, the request for the hearing is deemed withdrawn. 38 C.F.R. § 20.704(d). FINDINGS OF FACT In the absence of the Veteran's service treatment records, competent and credible lay evidence which is consistent with the Veteran's available service personnel records establishes that the onset of the symptoms leading to the postservice diagnosed bipolar disorder had their onset during active service. CONCLUSION OF LAW A bipolar disorder was incurred during active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Principles Governing Service Connection Every person employed in the active military, naval, or air service 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, 1137 (West 2002). A pre-existing injury or disease will be considered to have been aggravated by active 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. 38 U.S.C.A. § 1153. In July 2003, the VA General Counsel issued a precedent opinion holding that to rebut the presumption of soundness in 38 U.S.C.A. § 1111, VA must show, by clear and unmistakable evidence, that (1) the disease or injury existed prior to service and (2) that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). The claimant 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. See also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). 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, 1131 (West 2002). A showing of inservice chronic disease requires evidence of (1) a sufficient combination of manifestations for disease identification, and (2) sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." A showing of continuity of symptoms is not required when disease identity is established but is required when inservice chronicity is not adequately supported or when an inservice diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain conditions, such as a bipolar disorder or other psychosis, will be presumed to have been incurred in service if manifested to a compensable degree within 1 year after service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. Developmental defects, such as personality disorders which are characterized by developmental defects or pathological trends in the personality structure manifested by a lifelong pattern of action or behavior, are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303(c). See also Johnson v. Principi, 3 Vet. App. 448, 450 (1992). The Board must find whether the preponderance of the evidence is against the claim. If so, it is denied, but if the preponderance supports the claim or the evidence is in equal balance, the claim is allowed. 38 U.S.C.A. § 5107 (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1365-66 (Fed. Cir. 2001); 38 C.F.R. § 3.102. If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. Legal Analysis The March 2007 rating decision which is appealed denied the claim for service connection for a bipolar disorder on the basis that it was neither incurred in nor caused by active service. The RO made a January 2007 formal finding that the Veteran's service treatment records were not available and listed all of the steps taken to locate those records. However, in the March 2007 rating decision it was noted that evidence suggested that the Veteran was involved with substance abuse prior to and during service and that she was hospitalized for behavioral problems during service which was diagnosed as a personality disorder. Moreover, as to lay statements of the Veteran, her mother, and another family member, they were laypersons who were not medically competent to diagnosis psychiatric symptoms and the diagnosis of a bipolar disorder was not medically established until several years after service. Following the March 2007 rating decision, some of the Veteran's service personnel records were received. These do in fact show that she was either advised or sought periodic counseling for a personality disorder. Moreover, one of her deficiencies was writing checks with insufficient funds in her account and issuing checks from a closed account. Voluminous private clinical records show that the Veteran began receiving psychiatric treatment from Dr. A in 1993, just 2 years after her service discharge, and then by Dr. S. However, the records of these physicians are not on file (nor is it clear whether she is in receipt of Social Security Administration disability benefits). Also, there is evidence the Veteran made suicide attempts prior to service, at age 14, and several such attempts after service. There is evidence that during her childhood there was emotional and physical (but not sexual) abuse by her father. Also, after service she had had to file for bankruptcy because she had spent a lot of money during a manic episode. A licensed clinical social worker reported in December 2006 that the Veteran's treatment for a bipolar disorder had begun in 1993. Her condition had been misdiagnosed during active duty. She had been hospitalized during service in 1988 and at that time demonstrated manic behavior which was left untreated. This illness had affected her career and she had been forced out of work for long periods for psychiatric hospitalization and electroshock therapy (ECT). A family member wrote in October 2006 that it was believed that the Veteran had mental problems in 1986 when the Veteran was treated at a naval hospital or clinic for alcohol and drugs. In a December 2006 statement the Veteran's mother reported that the Veteran had had mental illness for almost 20 years. It had become evident in 1988, after the birth of the Veteran's son, that there was something wrong with the Veteran. In phone conversations at the time, she seemed to have begun to exhibit self-destructive behavior. She had seriously overspent. The Veteran had then been admitted to a Naval Hospital for manic depressive symptoms. Also during service, another couple had had to take care of the Veteran's baby because the Veteran had been unable to do so as a result of her mental illness. The Veteran was afforded a VA psychiatric examination in February 2007, at which time the examiner reviewed the claim file. The Veteran reported that at the age of 14 she had felt that she wanted to die. Several of her blood relatives had serious mental problems. She appeared to have been in a manic state during her first year of college, with heavy consumption of alcohol and manic behavior alternating with severe depression. A mental status examination revealed that a significant theme in the Veteran's thought processes was the perception that she had been wronged by others, and particularly that a bipolar disorder should have been diagnosis by the Navy. Instead, she had been "ambushed" by a Navy psychiatrist who had performed "confrontative therapy." The diagnosis was a history of a borderline personality disorder, a history of past alcohol abuse, and a bipolar disorder. The examiner commented that the Veteran had a history of manic states in the past that suggested she needed some arrangement to ensure that her funds would not be wasted should a manic state occur. The Veteran reported that ECT had caused some memory loss. The examiner opined that the Veteran had a "preexisting bipolar disorder which is genetically determined." As to this, the examiner noted that the Veteran had several family members who had also showed signs of the disorder. However, it must be observed that under governing law and regulations, to find that the Veteran had a pre-existing bipolar disorder that was not aggravated during service, there must be clear and unmistakable evidence of both the pre-existence and lack of aggravation. Here, with nothing more than a single suicide attempt prior to service it cannot be said that the Veteran's current bipolar disorder pre-existed service as an active psychopathological disorder. This is true even if there was a genetic pre-disposition toward the development of such a disorder. Moreover, even if it had pre-existed service as an active psychopathological disorder, in the absence of the service treatment records it cannot be found that there was no increase in severity during service. This is particularly true since there is evidence of overspending during service, as shown in the personnel records, which is at least one of the postservice characteristic symptoms of her bipolar disorder. Significantly, the Board observes that the 2007 VA examiner never addressed the question of whether any putatively pre-existing bipolar disorder underwent or did not undergo an increase in severity during active service. In sum, there is no clear and unmistakable evidence that a bipolar pre-existed active service and no clear and unmistakable evidence that, if it did pre-exist service, that it did not undergo an increase in severity during service. While service connection is not warranted for a personality disorder, the question remains whether the evidence shows that a bipolar disorder first manifested during the Veteran's active military service. It is true that laypersons are generally not competent to render a medical diagnosis. Nevertheless, an award of service connection generally requires (1) medical evidence of a current disability, (2) medical or lay evidence of in-service incurrence or aggravation of an injury, and (3) medical evidence of a nexus between the claimed in-service disability and the present disability. Dalton v. Nicholson, 21 Vet. App. 23, 26 (2007). But, even without medical nexus evidence, there may be a showing a continuity of symptomatology which requires a showing (1) that a condition was 'noted' during service, (2) evidence of postservice continuity of the same symptomatology, and (3) medical or lay evidence of a nexus between the present disability and the postservice symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Where the determinative issue involves either medical etiology or diagnosis, medical evidence can be used but "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir. 2007). Whether lay evidence is competent is a question of fact requiring a two-step analysis. First, is whether the disability stems from the type of injury or disease for which lay evidence is competent. Robinson v. Shinseki, 312 Fed.Appx. 336, 339 (Fed.Cir. 2009). If the etiology or diagnosis requires the application of medical expertise to facts, including a description of history and symptoms, then lay evidence is not competent. Clemons v. Shinseki, 23 Vet. App. 1, 4 - 5 (2009). However, if lay evidence is competent, then in the second step, all the evidence of record must be weighed-including in-service record documenting inservice injury or disability or the lack thereof. Robinson v. Shinseki, 312 Fed.Appx. 336, 339 (Fed.Cir. 2009) (holding that in some circumstances lay evidence can be competent as to etiology or diagnosis). Lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence, but such absence is a factor for consideration, as is the presence or absence of supporting or contradictory medical or lay evidence, the length of time between alleged incurrence of disability and the first medical or lay evidence thereof. Buchanan v. Nicholson, 451 F.3d 1331 (Fed.Cir. 2006). In this case, the symptom addressed in the lay statements of over expenditure of money is one that occurred during and after service. The postservice evidence shows that this is a characteristic of the Veteran's bipolar disorder. Merely because this was mentioned in the service personnel records in conjunction with a diagnosed personality disorder, is not persuasive that this symptom was due to a personality disorder, rather than the bipolar disorder first diagnosed after service. This is particularly true in light of the absence of the service treatment records. Thus, the lay evidence of an over expenditure of monies being an inservice symptom of a bipolar disorder is competent evidence. Next, in addressing the credibility of this lay evidence, it cannot be found to lack probative value because it is unaccompanied by contemporaneous service treatment records inasmuch as these records are, through no fault of Veteran's, unavailable. Moreover, there is ample clinical evidence showing that the Veteran sought and received psychiatric treatment, beginning in 1993, for what was later diagnosed as a bipolar disorder. Accordingly, based on the evidence on file, including the absence of the Veteran's service treatment records, the Board finds that the Veteran's bipolar disorder first manifested during active service. This conclusion is consistent with the opinion of the licensed social worker in 2006 who concluded that the Veteran displayed manic behavior during service and that the later diagnosed bipolar disorder was misdiagnosed during service as a personality disorder. Significantly, this very matter was not addressed, and so not refuted, by the 2007 VA examiner. This being the case, with the favorable resolution of doubt in favor of the Veteran, service connection for a bipolar disorder is warranted. The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. As the claim for service connection for a bipolar disorder is resolved in the Veteran's favor, further discussion of VCAA compliance is not required. ORDER Service connection for a bipolar disorder is granted. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs