Citation Nr: 1304927 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 11-14 100 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, variously claimed as bipolar disorder with anxiety and depression and posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Michael Viterna, Attorney ATTORNEY FOR THE BOARD D.J. Drucker, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran had active military service from February 1962 to February 1965. This matter comes to the Board of Veterans' Appeals (Board) on appeal from January and May 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, that denied service connection for PTSD and schizophrenia reaction, paranoid type (now claimed as bipolar disorder with anxiety and depression), respectively. The Board notes that the United States Court of Appeals for Veterans Claims (Court) held that claims for service connection for PTSD encompass claims for service connection for all psychiatric disabilities. Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009) (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). As such, the Board has recharacterized the claim on appeal to more accurately reflect the Court's holding in Clemons. In an unappealed July 1968 decision, the RO denied service connection for paranoid schizophrenia. That determination is final and may not be reopened without new and material evidence. 38 U.S.C.A. §§ 5108, 7105 (West 2002). However, under 38 C.F.R. § 3.156(c)(1) (2012), a finally denied claim is to be reconsidered if relevant official service department records that existed and had not been associated with the claims file when the claim initially was decided subsequently are received and associated with the claims file. Here, after the RO's 1968 final decision, some of the Veteran's service treatment records were added to the record in 1969 and 2009. As such, his claim will be reconsidered rather than reopened. Id. Finally, the Board notes that, in February 2012, the Veteran's attorney submitted a private medical statement relevant to the claim on appeal without a waiver of initial agency of original jurisdiction (AOJ) review. See 38 C.F.R. § 20.1304 (2012). However, given the Board's finding herein, that grants the Veteran's claim, a remand is not warranted. Id. FINDINGS OF FACT The competent evidence is in equipoise as to whether the Veteran's acquired psychiatric disorder, diagnosed as a bipolar disorder, is due to his active service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, diagnosed as a bipolar disorder, have been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, (2012). REASONS AND BASES FOR FINDING AND CONCLUSION As the Board's decision to grant service connection for an acquired psychiatric disorder, diagnosed as a bipolar disorder herein constitutes a complete grant of the benefits sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations The Veteran asserts that he has an acquired psychiatric disorder, variously claimed as a bipolar disorder and PTSD, due to military service. In written statements in support of his claim, he contends that he witnessed the death of a fellow seaman who was fatally injured by an airplane propeller, that caused or contributed to his post-service diagnosis of an acquired psychiatric disorder. Thus, he contends that service connection is warranted for an acquired psychiatric disorder, variously claimed as a bipolar disorder and PTSD. Upon review of the evidence of record, the Board finds that the evidence of record is in relative equipoise. As such, affording the Veteran the full benefit of the doubt, the Board finds that service connection is warranted for an acquired psychiatric disorder, claimed as a bipolar disorder. When a veteran seeks benefits and the evidence is in relative equipoise, the Veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Under 38 U.S.C.A. §§ 1110 and 1131; 38 C.F.R. § 3.303, a veteran is entitled to disability compensation for disability resulting from personal injury or disease incurred in or aggravated by active military service. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, a veteran must show: "(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" - the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). This is a direct service connection theory of entitlement. Certain chronic diseases, such as psychoses, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from active service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). This is also a direct service connection theory of entitlement. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent evidence to the effect that the claim is plausible. Lay 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, 1377 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the appellant's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as a headache, varicose veins, or tinnitus, the Veteran is not competent to provide evidence as to more complex medical questions, such as the etiology of psychiatric disease pathology, as is the case here. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Prior to July 13, 2010, service connection for PTSD required: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f) (2009), effective prior to July 13, 2010. However, effective July 13, 2010, 38 C.F.R. § 3.304 (f) was amended to include a new paragraph (f)(3) that reads as follows, in pertinent part: (f)(3) If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of [PTSD] and the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. See 75 Fed. Reg. 39843 -51 (July 13, 2010) and corrective notice at 75 Fed. Reg. 41092 (July 15, 2010). The provisions of this amendment do not apply to the Veteran's claim because he attributes his psychiatric disorder, in large measure, to witnessing the death of a fellow seaman while aboard ship and also being placed on restriction (confined to ship) while in Hong Kong. See Veteran's December 2009 and January 2012 written statements. He indicated that he saw a fellow service member walk into an airplane propeller. According to a January 2010 record, results of a Joint Services Records Research Center (JSRRC) review revealed that the Veteran served aboard the USS TICONDEROGA from May 1962 to May 1965. He indicated that he witnessed the death of a fellow seaman from the "island structure" of the ship on August 6, 1964. Research showed some conflicting information: that the identified sailor died in South Vietnam and was a ground casualty from artillery, rocket, and mortar attacks but other research showed that the seaman was a casualty at sea and died from a non-hostile other cause. The RO conceded the Veteran's stressor. The next question is whether the Veteran has a psychiatric disorder, variously claimed as PTSD and a bipolar disorder, due to his stressful events in service. When examined for enlistment into the United States Navy in February 1962, a psychiatric abnormality was not noted and the Veteran was found qualified for active service. Clinical records do not refer to treatment for a psychiatric disorder. A separation examination is not of record. Following service, VA hospitalized the Veteran from May to August 1967 for treatment of a schizophrenic reaction, paranoid type, with symptomatic alcoholism. According to a May 29, 1967 Admission Report, the Veteran was initially hospitalized on May 5th from a private hospital where he was admitted the previous day. He gave a life-long history of emotional instability, acting-out behavior, alcoholism, sexual promiscuity, homicidal impulses and conflict with civil authorities. The Veteran admitted that he was a heavy weekend drinker since age 18. He signed out after one day but was readmitted on May 9th after drinking heavily and taking Valium tablets. On May 12, 1967, the Veteran was committed by court order and transferred to the VA hospital for continued psychiatric treatment. Upon examination, he was described as psychotic and diagnosed with a schizophrenic reaction, paranoid type, with symptomatic alcoholism, manifested by paranoid and persecutory feelings, depression, suicidal and homicidal ideations, history of delusions with ideas of reference, sadism, anxiety, and impaired insight and judgment. In a May 1968 written statement, the Veteran explained that he could not stand the confinement of a ship and had difficulty tolerating people in positions of authority. He submitted signed statements from several of his service comrades, to the effect that he drank excessively when on shore leave and occasionally became violent when intoxicated. He often wanted to leave his friends and drink alone. The Veteran's mother provided a signed statement to the effect that he was a moderate drinker with normal emotional instability prior to service but, after service, he drank heavily, was unstable, and was unable to properly react to stressful situations. VA medical records, dated from July 2007 to December 2010, indicate that the Veteran's psychiatric disorder was treated with prescribed medication and outpatient psychotherapy. In August 2009, the Veteran's treating VA clinic psychologist evaluated him for PTSD. The psychologist diagnosed a history of bipolar mood disorder and alcohol dependence in full sustained remission. In the VA psychologist's opinion, the Veteran did not meet all the diagnostic criteria for PTSD, although he manifested some of its symtoms. The majority of the Veteran's setbacks were more related to a history of affective disorder, namely bipolar disorder, rather than the trauma he experienced on board ship. The VA psychologist remarked that the consequences of its impact cannot be minimized but, considering the Veteran's current lifestyle and limitations brought about, the impact of the bipolar illness was more significant. In January 2010, a VA examiner found that the Veteran did not have PTSD but did have a bipolar disorder. In March 2010, the Veteran's treating VA psychologist commented that the Veteran suffered from a "longstanding bipolar mood disorder" and that "[it] would be safe to assume that...[the Veteran] did experience clinical symtoms while on active duty" that was "further reinforced" by his history of hospitalization and being treated with Mellaril. In an April 2010 opinion, the recent VA examiner concluded that it was less likely than not that the Veteran's bipolar disorder was caused by the verified stressor information or manifested during his active duty. The VA examiner explained that the Veteran did not voluntarily seek out nor was he sent for mental disorder intervention during active duty. The Veteran subjectively claimed he was drinking heavily and the VA examiner indicated that he was unable to find any information where he was sent for actual substance use disorders program (SUDP) intervention. The examiner noted that the Veteran's highest rank in service was an E-3 and he discharged at that rank. Further, the VA examiner noted that the Veteran reported that, during active duty, he went to a brothel type establishment where he procured a female for sexual activity. According to the VA examiner, this one piece of information was insufficient to provide enough evidence that the bipolar disorder was ongoing or manifesting during active duty. The VA examiner opined that the fact that the Veteran sought inpatient treatment two years after service suggested that the onset of the bipolar disorder was post service. Written statements from the Veteran's relatives received in January 2012 reflect that he was a happy and outgoing person prior to entering service and displayed changed behavior after his discharge. He was anti-social, angry, irritable, and depressed. In a January 2012 lengthy signed report, J.M., Ph.D., opined that the Veteran did not have PTSD but concluded that his bipolar disorder did develop within service. Dr. J.M. quoted from the Veteran's medical and other records and said that symptoms of bipolar disorder often included promiscuity and illegal activities and those with bipolar disorder very commonly self-medicated with alcohol. He explained that bipolar disorder was often incorrectly diagnosed as schizophrenia and indicated that this applied to the Veteran's May 1967 experience. Dr. J.M. pointed to the written statements of the Veteran's friends and mother and more recent statements from his family as evidence of his significant behavior change after service. He also noted the August 2009 and March 2010 VA clinic records from the Veteran's treating VA psychologist, discussed supra. Dr. J.M. found the lay testimony to be "particularly informative" and "persuasive" as to the onset of the Veteran's psychiatric disorder in service with a deterioration of mental functioning continuing from discharge until his 1967 hospitalization. See January 30, 2012 written statement from Dr. J.M. at page 11. Initially, the Board notes that there is no medical opinion to show that the Veteran currently has PTSD. See Brammer and Rabideau, supra. Thus, it is unnecessary to proceed any further with the analysis of whether PTSD is related to his military service. However, in January and April 2010, a VA examiner diagnosed the Veteran with a bipolar disorder that was less likely than not that incurred in or due to military service. But, in March 2010, the Veteran's treating VA psychologist opined that he suffered from "longstanding bipolar mood disorder" and "[i]t would be safe to assume that...he did experience clinical symtoms while on active duty". Furthermore, in January 2012, Dr. J.M. did not find the diagnosis of bipolar disorder inconsistent with Veteran's account of his military experiences and opined that witnessing the death of a shipmate may have precipitated the onset of bipolar disorder. These medical opinions have probative value and, after reviewing the record, the Board finds that such is plausible and probative. Additionally, the Veteran stated that he experienced significant emotional strain in service and written statements from his friends and family, submitted in 1968 and more recently, attest to his changed and erratic behavior after service, an allegation that they are competent to make as laymen. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); Jandreau v. Nicholson, 492 F.3d at 1377; Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Hence, in view of the totality of the evidence, the Board finds that the evidence is in relative equipoise as to whether the Veteran has an acquired psychiatric disorder, diagnosed as a bipolar disorder, that is related to his active military service. Accordingly, the Board resolves all reasonable doubt in his favor and finds that entitlement to service connection for an acquired psychiatric disorder, diagnosed as a bipolar disorder, is warranted. Finally, the Board recognizes the references in the medical records to "lifelong' emotional problems. However, his entrance examination was normal, and thus the Veteran is presumed sound at enlistment. 38 U.S.C.A. § 1111. Moreover the lay evidence from family members indicates that his behavior changed after service, with no mention of any pre-service difficulties. Overall, the file lacks clear and unmistakable evidence to rebut the presumption of soundness. Thus, the question on appeal is whether the claimed psychiatric disability was incurred in, rather than aggravated by, active service. As explained above, the evidence supports a finding that the currently diagnosed bipolar disorder is related to active service. (CONTINUED ON NEXT PAGE) ORDER Service connection for an acquired psychiatric disorder, diagnosed as a bipolar disorder, is granted. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals