Citation Nr: 1315977 Decision Date: 05/15/13 Archive Date: 05/15/13 DOCKET NO. 05-00 470 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty from June 1974 to October 1974. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2003 rating decision of the Indianapolis, Indiana Department of Veterans Affairs (VA) Regional Office (RO). This case was previously remanded by the Board in April 2008, September 2010 and March 2012 for additional development. In November 2012, the Board again remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. to obtain records from the Social Security Administration (SSA). The action specified in the November 2012 Remand completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The Veteran's acquired psychiatric disability, to include bipolar disorder, did not have onset in service and was not caused by or otherwise related to the Veteran's active military service. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disability, to include bipolar disorder, have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has reviewed all of the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober 10 Vet. App. 488, 495-97 (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 Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). However, in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic by 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by showing in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). Psychoses are recognized as a chronic disease by 38 C.F.R. § 3.303(a). Certain chronic diseases, including 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 service. See 38 U.S.C.A. §§ 1101, 1112, (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.307, 3.309 (2012). 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) (2012). As noted above, the Veteran is seeking entitlement to service connection for an acquired psychiatric disability, to include bipolar disorder. In statements presented throughout the duration of the appeal, the Veteran has maintained that his current psychiatric disorder began during his active service. Service treatment reports reflect that no psychiatric abnormalities were found upon clinical evaluation in an April 1974 examination, just prior to the Veteran's entry into active service. In September 1974, the Veteran complained of being nervous which he reportedly had been through basic training. At this time, he was out of his basic training for two and a half weeks. He was diagnosed with questionable anxiety reaction and referred for further evaluation. In a September 1974 consultation report, the Veteran was noted to have a severe anxiety and depressive reaction to his present situation and concern over his family situation and it was noted that the service medical examiner had some doubt as to whether the Veteran would sufficiently be able to adapt to military life and be a productive individual. At this time, it was also noted the Veteran's eczema was significantly aggravated by his anxiety and stressful situations and that this would possibly warrant separation from active service through medical channels. In October 1974, the Veteran was provided a Medical Board evaluation in which he was diagnosed with moderate atopic dermatitis, mild asthma, and moderate hay fever. He was found to be unfit for induction and was recommended for separation from active service. An October 1974 separation examination revealed no findings of psychiatric abnormalities upon clinical evaluation. In a September 1996 VA general medical examination, the Veteran was diagnosed with chronic depression and chronic anxiety. During that examination, the Veteran reported that he drank heavily during service. VA outpatient records from 2001 through the present reflect a range of diagnoses, including bipolar disorder, depression, posttraumatic stress disorder (PTSD) due to childhood abuse, psychosis, antisocial personality disorder, borderline personality disorder, dependency, and histrionic personality disorder. VA treatment records also reflect a long history of substance abuse, including the use of alcohol, methamphetamines, and cannabis. VA outpatient treatment reports from March 2001 to January 2002 reflect that the Veteran was treated for and diagnosed with bipolar disorder, characterized as mixed and depressed. In March 2001, the Veteran reported a history of being hospitalized for severe depression on two occasions, in 1984 and in 1999, with suicidal ideation on both occasions. Both hospitalizations were also reportedly after one of his divorces. In October 2001 the Veteran was hospitalized for a suicide attempt and was discharged over a month later in November 2001 with a diagnosis of bipolar disorder, mixed, depressed type. During his hospitalization, he reported a past history of multiple psychiatric hospitalizations, as well as seven past suicide attempt. See VA Psycho-social Assessment (October 23, 2001). He described the first suicide attempt as occurring in the late 1970s by cutting his wrists and the second by drinking gasoline and battery acid in approximately 1978 after his first divorce. Id. The Veteran also reported a history of physical and verbal abuse from his stepfather. Id. Following his discharge, he was enrolled in a day treatment center in November 2001. During this treatment, he complained of depression on and off since his discharge from the military in 1974. See VA Discharge Summary (December 2, 2001). The Veteran was hospitalized in February 2002. During his admission, the Veteran continued to report severe physical abuse as a child at the hands of his stepfather, as well as childhood sexual abuse by both an aunt and uncle. See VA Discharge Summary (February 20, 2002). The Veteran also described auditory hallucinations in which he heard the voice of a deceased brother commanding him to commit suicide. Id. He was diagnosed with bipolar disorder with psychotic features. In an April 2004 lay statement, the Veteran's mother reported that, prior to his entrance into the military, the Veteran had no psychiatric treatment whatsoever, and was "a perfectly normal teenage son." She also reported that when he got out of the military, he "went off the deep end," she had no idea what happened to him, and he was a completely different person than he was when he entered active service. Finally, she stated that ever since the Veteran was discharged from the military, he has had mental problems. In an October 2009 VA examination, the Veteran reported that he drank heavily prior to entering active service, as well as during his active military service. He also described an "extremely dysfunctional and chaotic childhood which included both physical and sexual abuse." He claimed that he quit high school and joined the Army in an attempt to escape from home. The Veteran reported feeling upset during active service due to family problems. The Veteran also reported that he had tried to kill himself 37 times in his life, his first psychiatric hospitalization was in 1978, and his last psychiatric hospitalization was in 2002. He was diagnosed with bipolar disorder, controlled with medications as likely as not, and alcohol and cannabis abuse, in full sustained remission. The VA examiner concluded that the Veteran's current psychiatric diagnosis and difficulties did not appear to be related to the four months that he spent in military service and that symptoms of anxiety and depression were not early manifestations of his current psychiatric diagnosis (less likely than not) of bipolar disorder. In an April 2012 addendum, the examiner provided a detailed rationale for his earlier conclusion that the Veteran's current acquired psychiatric disability is less likely than not incurred in or caused by the Veteran's active military service. The examiner explained that no psychiatric disability was noted at the Veteran's separation examination or during his Medical Board proceedings and the earliest evidence of bipolar disorder after service is approximately 1978 based on the Veteran's self reports. The examiner described the Veteran's treatment in service as "a transient situational emotional disturbance related to unspecified family problems during his four month period of service" which is "diagnostically separate and distinct from the onset of bipolar disorder requiring hospitalization four years later and does not (less likely as not) represent an early manifestation of his later psychiatric diagnosis." While the examiner considered the April 2004 lay statement from the Veteran's mother, he noted that her characterization of the Veteran as a "perfectly normal" teenager is at odds with the Veteran's many accounts of childhood physical and sexual abuse, as well as alcohol abuse. He further noted that the Veteran's mother failed to provide any specific descriptions of any symptoms or behaviors the Veteran manifested after service that would support her generalized allegations that the Veteran "went off the deep end" after discharge. Based on all the above evidence, the Board finds that entitlement to service connection for an acquired psychiatric disability must be denied. While the Veteran's service treatment records note a complaint of psychiatric symptomatology, no chronic psychiatric condition is noted at the Veteran's separation examination or at his Medical Board proceedings. As explained by the October 2009 VA examiner in his April 2012 addendum, the symptoms related by the Veteran in service are best described as transient and situational, related to the unspecified family problems the Veteran was having, rather than an early manifestation of the Veteran's current psychiatric problems. While the Veteran has provided varying accounts of when his current disability first has onset, sometimes suggesting that his symptoms began after separation from service in 1974, on multiple occasions, including at his October 2009 VA examination, he has described onset of his current psychiatric disability in either the late 1970s or, more specifically, in 1978, many years after separation from service. The Veteran has further testified that the onset of his symptoms coincided with his first divorce. Thus, the Veteran's own testimony places onset of his current disability after separation from service. The Board has carefully reviewed the Veteran's VA treatment records and SSA records, but can find no competent evidence in these records establishing a connection between the Veteran's active military service and his current disability. However, a medical opinion prepared by the VA examiner concludes that that it is less likely than not that the Veteran's current acquired psychiatric disability had onset in service or was caused by or otherwise related to the Veteran's active military service. This medical opinion is supported by a rationale and based on a careful review of the evidence; accordingly, the Board finds this opinion to be highly probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). While the Veteran has offered his own opinion as to the etiology of his current acquired psychiatric disability, he has not demonstrated that he has any knowledge or training in determining the etiology of such conditions. In other words, he is a layman, not a medical expert. The Board recognizes that there is no bright line rule that laypersons are not competent to offer etiology opinions. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (rejecting the view that competent medical evidence is necessarily required when the determinative issue is medical diagnosis or etiology). Evidence, however, must be competent evidence in order to be weighed by the Board. Whether a layperson is competent to provide an opinion as to the etiology of a condition depends on the facts of the particular case. In Davidson, the Federal Circuit drew support from Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) for support for its holding. Id. In a footnote in Jandreau, the Federal Circuit addressed whether a layperson could provide evidence regarding a diagnosis of a condition and explained that "[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although the Veteran seeks to offer etiology opinions rather than provide diagnoses, the reasoning expressed in Jandreau is applicable. The Board finds that the question of whether the Veteran currently has an acquired psychiatric disability due to his military service is too complex to be addressed by a layperson. This connection or etiology is not amenable to observation alone. Rather it is common knowledge that such relationships are the subject of extensive research by scientific and medical professionals. Hence, the Veteran's opinion of the etiology of his current disability is not competent evidence and is entitled to low probative weight. This is particularly so in light of the fact that some of the Veteran's own testimony provides highly probative evidence against his own claim, indicating that his disability had onset many years after service and is unrelated to his active military service. Additionally, the Board give little weight to the April 2004 statement from the Veteran's mother, in which she describes the Veteran as a "perfectly normal teenage son" who "went off the deep end" when he was discharged from the military. In light of the Veteran's account of his childhood as documented in the record, the Board does not find her to be a reliable historian and therefore does not find her statement probative in establishing any of the necessary elements in this case. Also, as noted by the VA examiner in April 2012, the statement is not only at odds with the Veteran's account of his childhood, but also the statement fails to provide any specific descriptions of any symptoms or behaviors the Veteran manifested after discharge that would support her generalized statements. In conclusion, the preponderance of the evidence supports a finding that the Veteran's current acquired psychiatric disability, to include bipolar disorder, did not have onset in service nor was it caused by the Veteran's active military service. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). The Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the VCAA duty to notify was satisfied by letter sent to the Veteran in December 2001, January 2005, and April 2008. These letters informed the Veteran of what evidence was required to substantiate his claim, as well as of VA and the Veteran's respective duties for obtaining evidence. The Veteran was also informed of how VA assigns disability ratings and effective dates. However, the duty to notify was not satisfied prior to the initial unfavorable decision on the claim by the AOJ. Under such circumstances, VA's duty to notify may not be "satisfied by various post-decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant's presentation." Rather, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the AOJ's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the AOJ) see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). In this case, the VCAA duty to notify was satisfied subsequent to the initial AOJ decision by way of a letter sent to the appellant in January 2005 and April 2008. Although these notice letters were not sent before the initial AOJ decision in this matter, the Board finds that this error was not prejudicial to the appellant because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the appellant been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the AOJ also readjudicated the case after the notice was provided. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. VA also has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service treatment records, as well as VA treatment records and SSA records. The appellant was afforded a VA medical examination in October 2009 and a VA medical opinion April 2012. The examination and opinion are adequate and probative for VA purposes because the examiner relied on sufficient facts and data, provided a rationale for the opinion rendered, and there is no reason to believe that the examiner did not reliably apply reliable scientific principles to the facts and data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). (Continued on the Next Page) ORDER Entitlement to service connection for an acquired psychiatric disability, to include bipolar disorder, is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs