Citation Nr: 1319434 Decision Date: 06/14/13 Archive Date: 06/21/13 DOCKET NO. 09-27 631 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for an acquired psychiatric disability, claimed as bipolar disorder. ATTORNEY FOR THE BOARD T. Sherrard, Counsel INTRODUCTION The Veteran, who is the Appellant in this case, had active service from January 1979 to January 1983. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a June 2007 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). On his VA Form 9, the Veteran requested a hearing before the Board. The hearing was scheduled for November 3, 2009, at the Cleveland RO; however, the Veteran did not report for the hearing, and no request for postponement was received and granted prior to the hearing date. Under 38 C.F.R. § 20.704(d) (2012), when a veteran fails to appear for a scheduled hearing and no request for postponement is received, the claim is processed as though the request for hearing had been withdrawn. Therefore, this case will be processed as though the request for a hearing was withdrawn. The Board has remanded this claim several times for further development, most recently in September 2012. As discussed below, the development requested has been completed, and the claim is now appropriate for appellate review. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDING OF FACT An acquired psychiatric disability did not manifest during active service, symptoms of a psychiatric disability were not unremitting in service or since service separation, and the Veteran's currently diagnosed bipolar disorder is not related to active service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disability, to include bipolar disorder, have not been met. 38 U.S.C.A. §§ 101, 1101, 1131, 5103(a), 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 Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. The claimed psychiatric condition at issue is not a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.309(b) (requiring continuity of a condition after service if chronicity is not found in service) does not apply to the claimed condition. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also 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). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The United States Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." See Layno, 6 Vet. App. at 469; 38 C.F.R. § 3.159(a)(2). The Court has emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of a veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran avers that he has a current psychiatric disability - claimed as bipolar disorder - that is related to active service. Specifically, he avers that, during active service, he was stationed at Diego Garcia during the Iran conflict, and that he was seen during active service for mental health symptoms. However, in earlier 2007 statements, he averred that he had bipolar disorder since birth. After a review of all the evidence of record, both lay and medical, the Board finds that the weight of the evidence demonstrates that while the Veteran reported symptoms of depression and trouble sleeping at the time of enlistment and at separation, the symptoms were not unremitting in service, and thus did not mark the onset of an acquired psychiatric disability. Simply stated, based on total review of the facts of this case, the Board finds that the Veteran is not always an accurate historian of his disability, as will be addressed within this decision. At the December 1978 enlistment examination, the Veteran checked "yes" next to "depression or excessive worry" and "frequent trouble sleeping." The examining physician noted anxiety induced insomnia and depression. However, the examination report shows a normal psychiatric evaluation, and no psychiatric diagnosis was made. The Board acknowledges that a veteran who served during a period of war, or after December 31, 1946, will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior to service and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002 & Supp. 2012); 38 C.F.R. § 3.304(b) (2012). In this case, although symptoms of depression and insomnia were reported at the time of enlistment and the Veteran stated that he had bipolar disorder since birth in several 2007 statements, the Board finds that the presumption of soundness still attaches, as psychiatric evaluation was marked as normal at enlistment, and the Veteran has denied any pre-military psychiatric treatment throughout the processing of this claim (see May 2007 VA examination report). The remainder of the Veteran's service treatment records is negative for any report, complaints, findings, treatment, or diagnosis of a psychiatric condition. At separation, the Veteran again checked "yes" next to "depression or excessive worry" and "frequent trouble sleeping," but psychiatric evaluation was marked as normal. The Board interprets the normal psychiatric evaluations at both enlistment and separation to be a strong indication that the Veteran's complaints of depression and insomnia were not in fact evidence of the onset of an acquired psychiatric disability in service. In sum, the evidence of record does not show unremitting psychiatric symptoms during service, nor was any psychiatric disability diagnosed during service, and thus, an acquired psychiatric disability did not manifest in service. The Board acknowledges the Veteran's contentions made in the course of this appeal that he sought psychiatric treatment in the early 1980s and was prescribed medication; however, there is no documentation of psychiatric treatment during service, and, indeed, the Veteran's more contemporary histories of treatment indicate that he first sought psychiatric treatment well after service separation, as discussed below. Next, having reviewed the evidence of record, the Board finds that the weight of the evidence is against a finding that the Veteran's current bipolar disorder is related to active service. Symptoms of a psychiatric disability have not been unremitting since service separation in January 1983. Following service separation in January 1983, the evidence of record shows no mention of psychiatric symptoms until June 1996, when VA treatment records list "history of bipolar disorder" on Axis I. The next chronological documentation of treatment or diagnosis of a psychiatric disorder is from June 2003, when the Veteran reported feelings of depression and was diagnosed with mood disorder and possible bipolar disorder. The absence of post-service complaints, findings, diagnosis, or treatment for 13 years after service separation until 1996 is one factor that tends to weigh against a finding of continuous symptoms of a psychiatric disability after service separation. See Buchanan, 451 F.3d 1336 (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible). Other evidence of record showing that symptoms of an acquired psychiatric disorder were not unremitting since service includes the Veteran's VA Form 21-526 on which he wrote that he began treatment for bipolar disorder in January 2004; the May 2007 VA examination report which indicates the Veteran denied any pre-military or military mental health treatment and stated that he began treatment for bipolar disorder in 1988; and the July 2011 VA examination report which also indicates that the Veteran reported that he first sought mental health treatment in 1987 or 1988 and was prescribed Lithium. Thus, the Veteran's own history of psychiatric treatment suggests that psychiatric symptoms were not unremitting since service separation, notwithstanding indications of a problem prior to service. While the Veteran is competent to report the onset of his psychiatric symptoms, his more recent assertions made in the context of the current disability claim of unremitting psychiatric symptoms since service are outweighed by the other, more contemporaneous, lay and medical evidence of record, both in service and after service, and are not reliable. See Charles v. Principi, 16 Vet. App. 370 (2002). The Board finds that the Veteran's assertion of unremitting psychiatric symptoms after service is not accurate because it is outweighed by other evidence of record that includes the more contemporaneous service separation examination report which shows a normal psychiatric evaluation, the 2007 and 2011 VA examination reports indicating that the Veteran reported his first psychiatric treatment in 1988, 5 years after service separation, the Veteran's claim form which indicates the first treatment for bipolar disorder in 2004, and the lack of any documentation of reports or treatment for psychiatric symptoms until 1996. As such, the Board does not find that the evidence sufficiently supports unremitting psychiatric symptomatology since service, so as to warrant a finding of a nexus between the current bipolar disorder and active service. Moreover, the Board finds that no competent medical opinions are of records which support a relationship between the current bipolar disorder and active service. Here, the Veteran was afforded a VA examination in July 2011. Several addendums to the July 2011 VA examination report were obtained in March 2012, December 2012, and March 2013, as the VA examiner did not initially have the opportunity to review the claims file. Ultimately, however, the VA examiner reviewed the claims file, including service treatment records, and conducted an interview and psychiatric evaluation of the Veteran. The examiner assessed bipolar disorder on Axis I, and, after noting the symptoms of depression and difficulty sleeping reported at both enlistment and separation from service, opined that it is more likely than not that these symptoms were related to a cause other than the later diagnosed bipolar disorder. The VA examiner reasoned that non-specific issues such as depression and trouble sleeping can have many causes, and that bipolar disorder occurs more frequently in individuals who have relatives that are diagnosed with bipolar disorder, as is true of the Veteran. The VA examiner further noted that bipolar disorder was diagnosed many years after service. The 2011 VA opinion and addendum reports are competent and probative medical evidence because they are factually accurate, and are supported by an adequate rationale. The VA examiner was informed of the pertinent evidence, reviewed the claims file, interviewed and examined the Veteran in 2011, and fully articulated the opinion in the 2013 addendum report. Moreover, there have been no physicians who have related the Veteran's current acquired psychiatric disability to his active service. Thus, the probative nexus opinion on file weighs against a finding of direct service connection for an acquired psychiatric disability to include bipolar disorder. Based on the evidence of record, the weight of the competent evidence demonstrates no relationship between the Veteran's current bipolar disorder and his military service, including no credible evidence of unremitting symptoms of a psychiatric disorder during active service, unremitting symptomatology of a psychiatric disorder following service separation, or competent medical evidence establishing a link between the currently diagnosed bipolar disorder and active service. Therefore, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claim for service connection for an acquired psychiatric disability, and outweighs the Veteran's more recent contentions regarding in-service chronic psychiatric disability symptoms and post-service psychiatric disability symptoms. For these reasons, the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). The Court issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In a timely January 2007 letter, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection, what information and evidence must be submitted by the Veteran, and what information or evidence VA will attempt to obtain. The letter also described how VA determines disability ratings and effective dates. The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, service personnel records, post-service VA treatment records, a VA opinion, and the Veteran's statements. A VA examination and opinion was obtained in July 2011 with regard to the question of whether the Veteran's acquired psychiatric disability is related to active service. As mentioned above, addendums to the July 2011 report were obtained in March 2012, December 2012, and March 2013. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the July 2011 VA opinion along with its addendums obtained in this case are adequate as to the question of whether the Veteran's bipolar disorder is related to active service. The opinion was predicated on a full reading of the private and VA medical records in the Veteran's claims file, as well as a complete psychiatric evaluation and interview of the Veteran. The VA nexus opinion considered all of the pertinent evidence of record, to include service and VA treatment records, comprehensive physical examinations, and the statements of the Veteran, and provides a complete rationale for the opinion stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the claim decided herein has been met. 38 C.F.R. § 3.159(c)(4). Moreover, the Board finds that the March 2013 addendum satisfies the Board's September 2012 remand directives, and that no further development is necessary to fulfill the duty to assist. Notably, the Veteran has not 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 Veteran is required to fulfill VA's duty to assist 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). ORDER Service connection for an acquired psychiatric disability, to include depression, is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs