Citation Nr: 1319064 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 09-48 165 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for bipolar disorder. 2. Entitlement to service connection for major depression. ATTORNEY FOR THE BOARD D.J. Drucker, Counsel INTRODUCTION The Veteran had active service from March 16, 1984, to August 7, 1984, and from December 6, 1990, to May 28, 1991, that included service in southwest Asia from February 1991 to May 1991. He also had service in the United States Army Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in St. Louis, Missouri. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. 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 Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c), (d) (2012). In his March 2008 claim and August 2008 notice of disagreement, the Veteran asserts that his nervous disorder became symptomatic during Operation Desert Storm. In his notice of disagreement, he contends that his bipolar disorder and major depressive disorder were diagnosed prior entering service and drastically intensified after service. The Veteran served in the United States Army Reserve and had over six years of inactive duty, according to the Certificate of Release or Discharge from Active Duty (DD Form 214) for his second period of active service. Service treatment records show that he was examined for enlistment in January 1984, and in January 1989 when he reported that he was discharged from the Army Reserve. Efforts should be made to verify all the Veteran's periods of active and inactive duty in the United States Army Reserve. Service treatment records do not discuss a psychiatric disorder. Service treatment records dated in 1984, and from 1990 to 1991, are in the claims file, but it is unclear if all the Veteran's records were obtained, in light of his six years of Reserve service. Efforts must also be made to obtain all of the Veteran's service treatment records, including those from his inactive Reserve service. Further, the Veteran was hospitalized at a VA medical facility in May 1995 for treatment of alcohol use. He reported that he started to drink at age 14, and that his drinking became a problem approximately four to five years prior to admission. The Veteran's prior medical history included one admission for drinking and using pot at age 15. The record reflects that "[h]e also indicated that he took an overdose of sleeping pills but required only minimal medical treatment at age 21. This led to his three-day admission at the State Hospital at age 16." While not entirely clear, this information suggests that the Veteran may have had psychiatric treatment in approximately 1982 (at age 16) prior to service, and in 1987 (at age 21) prior to entry into service in December 1990. Efforts must be made to obtain records of any pre-service psychiatric treatment given to him. In January 1998, VA hospitalized the Veteran for treatment of a dysthymic disorder and marital discord. February 2006 VA medical records show that the Veteran had bipolar disorder. A July 2006 VA examination report prepared by a psychologist reflects a history of sexual molestation at age seven. The diagnoses were alcohol and cocaine dependence. Medical records from the St. Louis County Justice Center, the North Center Community Health, and Moberly Correctional Center, dated from February 1998 to October 2009, describe the Veteran's treatment for bipolar disorder, major depression, and posttraumatic stress disorder (PTSD). In a March 10, 2009, record, the Veteran reported that he was in charge of make-shift morgues and laying out bodies for family identification and saw dead civilian women and children. In a June 2010 rating decision, the RO denied the Veteran's claim for service connection for PTSD. It was noted that, while research had shown that his battalion consisted of a Graves Registration element, a unit history did not document that personnel assigned to his company participated in it. His personnel records show he repaired tracked vehicles in service. A January 2011 VA medical record indicates that manic and depressed bipolar disorders were among the Veteran's active medical problems. A Veteran is presumed in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence that the disability existed prior to service and was not aggravated by service will rebut the presumption of soundness. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304 (2012); VAOPGCPREC 3-2003. In VAOGCPREC 3-2003, the VA's General Counsel determined that the presumption of soundness is rebutted only where clear and unmistakable evidence shows that the condition existed prior to service and that it was not aggravated by service. The General Counsel concluded that 38 U.S.C.A. § 1111 requires VA to bear the burden of showing the absence of aggravation in order to rebut the presumption of sound condition. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004) and Cotant v. Principi, 17 Vet. App. 116, 123-30 (2003). In sum, the law as interpreted under Cotant v. Principi, 17 Vet. App. at 116 and VAOPGCPREC 3-2003 mandates that, to rebut the presumption of sound condition upon entry into service under 38 U.S.C.A. § 1111, VA 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. See Wagner v. Principi, 370 F.3d. at 1096. Aggravation is not conceded where the disability underwent no increase in severity during service based on all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(b) (2012); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted with symptoms, has worsened. Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Thus, "a lasting worsening of the condition" - that is, a worsening that existed not only at the time of separation but one that still exists currently is required. Routen v. Brown, 10 Vet. App. 183, 189 (1997); Verdon v. Brown, 8 Vet. App. 529, 538 (1996). Congenital or developmental defects are not diseases or injuries within the meaning of the applicable legislation. See 38 C.F.R. §§ 3.303(c), 4.9 (2012); see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). VAOPGCPREC 82-90 (July 18, 1990) (a reissue of General Counsel opinion 01-85 (March 5, 1985)) in essence held that a disease considered by medical authorities to be of familial (or hereditary) origin by its very nature preexists a claimant' s military service, but could be granted service connection if manifestations of the disease in service constituted aggravation of the condition. Congenital or developmental defects, as opposed to diseases, could not be service-connected because they are not diseases or injuries under the law; however, if superimposed injury or disease occurred, the resultant disability might be service-connected. Id. Here, given the suggestion of psychiatric treatment prior to active service in 1984, and in 1990, and the varied psychiatric diagnoses given to the Veteran, the Board is of the opinion that he should be afforded a VA examination by a physician with expertise to determine if he had a disorder that existed prior to service and was aggravated by it. The burden is on the government to rebut the presumption of soundness by clear and unmistakable evidence that a condition was both preexisting and not aggravated by service. VAOPGCPREC 3-2003 Also, after issuance of the March 2011 Supplemental Statement of the Case, a March 2011 VA medical record was added to the claims file. The Veteran did not waive initial RO consideration of this record. See 38 C.F.R. § 20.1304(c) (2012). Finally, medical records regarding the Veteran's treatment at the VA medical center (VAMC) in St. Louis, Missouri, Jefferson Barracks Division, dated since March 2011, should be obtained. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC shall contact the Veteran in writing and request that he identify every medical facility and physician that provided psychiatric treatment to him prior to entering active service in 1984 and 1990, that is, at age 16 (in approximately 1982) and 21 (in approximately 1987). Then, obtain all records from the medical provider(s) identified by him. 2. The RO/AMC shall obtain all medical records regarding the Veteran's treatment at the VAMC in St. Louis, Jefferson Barracks Division, for the period from March 2011 to the present, and from any additional VA and non-VA medical provider identified by him. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) (West 2002 & Supp. 2012) and 38 C.F.R. § 3.159(e) (2012). 3. The RO/AMC shall contact the National Personnel Records Center, the Department of the Army, and/or any other appropriate state and federal agency and request the Veteran's United States Army Reserve service treatment records and the specific dates-not retirement points-for any period of active and inactive duty in the United States Army Reserve from August 1984 to December 1990. 4. After the development requested above is completed, the RO/AMC shall schedule the Veteran for VA psychiatric examination performed by a physician with expertise in diagnosing psychiatric disorders to determine the current etiology of any psychiatric disorder found to be present. A complete history of the claimed disorder(s) should be obtained from the Veteran. All indicated tests and studies should be accomplished and all clinical findings reported in detail. The Veteran's claims file must be made available to the examiner prior to the examination. The physician-examiner is requested to address the following. a. If a bipolar disorder, depression, or other psychiatric disorder is found, the examiner shall provide an opinion as to whether it is at least as likely as not that such disorder was incurred in or aggravated by active service or is otherwise related to active service. b. If the bipolar disorder, depression (or other similarly diagnosed psychiatric disorder) did not have its onset in service, the examiner should state whether it is undebatable (clearly and unmistakably) that the condition existed prior to the Veteran's active service, to include being a congenital defect. The examiner should state whether the disorder is a disease or a congenital defect. c. If it is determined that the identified disorder is a congenital defect, the examiner should opine whether a superimposed disability became manifested in service and, if so, address the nature of that superimposed disability. d. The examiner should then opine whether it is at least as likely as not that the superimposed disability developed in service or is otherwise causally related to service. e. If it is determined that the identified disability is not a congenital defect, the examiner should provide an opinion addressing whether clear and unmistakable (i.e., obvious or manifest) evidence supports finding both that the disorder existed prior to service and that it did not increase in severity during service other than due to the natural progression of the disorder. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. The absence of evidence of treatment a psychiatric disorder in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. All opinions and conclusions must be supported by a complete rationale. 5. The RO/AMC will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claims adjudication. 6. The RO/AMC will then readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, he and his representative must be provided with a Supplemental Statement of the Case. An appropriate period of time must be allowed for reply. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed. He has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. This claim must be afforded expeditious treatment. Claims remanded by the Board of Veterans' Appeals or 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). _________________________________________________ DEMETRIOS G. ORFANOUDIS Acting 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).