Citation Nr: 1307154 Decision Date: 03/01/13 Archive Date: 03/11/13 DOCKET NO. 11-22 446 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from October 31, 1974, to December 11, 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the North Little Rock, Arkansas, Regional Office (RO) of the Department of Veterans Affairs (VA). In October 2011, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. The issue on appeal was adequately explained to him and the submission of evidence which he may have overlooked and which would be advantageous to his position was suggested. See 38 C.F.R. § 3.103(c) (2012). The Veteran waived agency of original jurisdiction (AOJ) consideration of additional evidence submitted to the Board in October 2011. In June 2012, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. for additional development, to include affording the Veteran a VA medical examination. The actions specified in the June 2012 Remand completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). 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 appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In this case, the Veteran contends that he has a bipolar disorder that was incurred during active service, to include as due to stress in basic training. In his August 2011 VA Form 9 he reported he had been severely depressed in service which affected his performance leading to a mental breakdown and his discharge from service. He testified at his October 2011 hearing that he had been involved in an incident in which he was smoking in the chow line and that he was picked on because he had problems with his feet. He stated family members had noticed a change in his behavior upon his returned home and he provided lay statements dated in December 2008, July 2011, and August 2011 in support of that claim. He described having been placed in a room he believed was probably a hospital and having been watched 24 hours a day. He stated he had broken down mentally after having been assigned to a confidence building course with an inability to function. He testified that after his discharge his mother had taken him to a doctor in 1974, but that the doctor was unable to find anything wrong with him. He reported that he had received treatment at a number of places in the early to mid 1970's and that he had been unable to locate any records of that earlier treatment. The Veteran's service treatment records demonstrate a normal clinical psychiatric evaluation upon enlistment examination on October 31, 1974. In an associated report of medical history the Veteran denied having ever had depression or nervous trouble of any sort. A November 18, 1974, report noted he was placed on a 72 hour profile with no marching, running, or jumping. A November 29, 1974, treatment report noted he complained of left lateral leg area leg pain over the previous week. An examination was unremarkable. The treatment plan included arch supports. A December 11, 1974, statement signed by the Veteran indicates he underwent a separation medical examination more than three working days prior to his departure from the place of separation with no change in his medical condition; however, the available record does not include a copy of a separation examination report. A November 2008 service department report noted all available treatment records were submitted to VA. A September 2010 report noted a specific search for inpatient mental treatment records dated in 1974 at Fort Polk, Louisiana, revealed no records. The Veteran was provided notification of the unsuccessful VA effort in November 2010. Service personnel records include a December 4, 1974, report recommending the Veteran be discharged from service. It was noted he had been sent to a "CBP" but still lacked the demonstrated qualities in aptitude, attitude, and motivation necessary for completion of basic combat training. An associated statement signed by the Veteran declined a separation medical examination if the discharge was approved. A DD Form 214 shows he received an honorable discharge on December 11, 1974, for administrative purposes and that "Table 3-1, AR 601-210 applies." The Board notes that in correspondence dated in August 2011 the Veteran's service representative asserted that Table 3-1, AR 601-210 included psychiatric disorders as an issue on this table; however, no supporting evidence was provided for the record. The available medical evidence includes statements from J.B.M., Psy.D., a VA clinical psychologist, dated in November 2009 and August 2011 noting the Veteran had been provided a diagnosis of bipolar disorder. The August 2011 statement also noted, in essence, that it was likely the high stress/high demand environment of service contributed significantly to the development of his bipolar disorder, that the reasons for his service discharge may very well be explained by the presence of bipolar disorder, and that there were no corresponding complaints in school records or from family members prior to service. In December 2009, G.A, Ph.D, a VA clinical psychologist, noted that "Bipolar disorder can be triggered or exacerbated by environmental stressors, and [the Veteran] reports military experiences that could have triggered the disorder, and very likely exacerbated it." A May 2011 VA examination included an Axis I diagnosis of bipolar disorder; however, that examiner noted the records were completely silent as to whether or not the Veteran received any sort of treatment for depression or manic depression in service and that the reason for his discharge could not be determined without resorting to speculation. Social Security Administration (SSA) records include medical records showing the Veteran reported a history of depression since age 12. The Board notes that VA treatment records dated in April 2008 show the Veteran complained of recurrent episodes of extreme agitation and that he reported he had numerous similar episodes since his teenage years often with alternating episodes of depression. A diagnosis of mood disorder was provided. A June 2008 report included a diagnosis of bipolar disorder, by history. The Board also notes that although the November 2009, December 2009, and August 2011 VA clinical psychologists' opinions indicate the Veteran's bipolar disorder was likely caused or aggravated as a result of service, the opinions appear to have been provided based upon an incomplete review of the available record. Significantly, there is no indication that they reviewed records showing the Veteran had reported a history of depression since childhood. Also, the statement that there were no corresponding complaints in school records appears to be inconsistent with the Veteran's 10th grade record which indicates a decline in his academic performance over that year. In light of the inconsistent evidence of record and the complex nature of the issue on appeal, the Board remanded the matter for another VA examination. The Veteran was afforded a VA examination in June 2012. Following a review of the claims folder, in a July 2012 opinion, the examiner opined that it is less likely than not that the Veteran's bipolar disorder had "its origins" during the Veteran's active military service. Around this time, additional personnel records were submitted, showing that the Veteran was discharged from service because of a "demonstrated lack of maturity and responsibility", as well as an "inability to adapt to military life." In a December 2012 addendum, the VA examiner stated that these were not symptoms of bipolar disorder and reiterated her opinion that it is less likely than not that the Veteran's current bipolar disorder is related to his military service. Unfortunately, while the VA examiner has offered an opinion regarding whether the Veteran's current disability was caused by his military service, she failed to address the issue of aggravation. As there is evidence that the Veteran's acquired psychiatric disability preceded his military service and at least one of the Veteran's treatment providers has opined that his military service exacerbated his disability, the Board finds that another remand is necessary to clarify whether there is clear and unmistakable evidence that the Veteran's acquired psychiatric disability existed prior to his military service, and if so, whether there is clear and unmistakable (obvious and manifest) evidence that this disability was not permanently aggravated by his active military service. VAOPGCPREC 3-2003. If possible, the case should be returned to the VA examiner who performed the VA examination in June 2012 and issued opinions in July 2012 and December 2012, Dr. T.A., who should issue another addendum to her examination report. If Dr. T.A. is no longer available, the claims file should be referred to a VA examiner of equal qualifications to render the requested opinion. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. If possible, return the claims file to Dr. T.A.. If Dr. T.A. is not available, refer the claims file to a VA examiner of equal qualifications. The examiner is asked to render an opinion as to whether there is clear and unmistakable (obvious and manifest) evidence that the Veteran's acquired psychiatric disability existed prior to service, and if so, whether there is clear and unmistakable evidence that there was no aggravation of the disability during service. (The term "aggravated" refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with a return to the baseline level of disability.) Prior to the examination, the claims folder must be made available for review of the case. A notation to the effect that this record review took place should be included in the report. Opinions should be provided based on the results of any examination, a review of the medical evidence of record, and sound medical principles. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. After completion of the above and any additional development deemed necessary, the AMC/RO should review the issue on appeal. All applicable laws and regulations should be considered. If any benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).