Citation Nr: 1322198 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 08-37 000A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, other than posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from September 1987 to October 1990. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which denied service connection for PTSD and a personality disorder. The Veteran testified at September 2009 hearing before a Decision Review Office (DRO) held at the RO. The hearing transcript has been associated with the claims file. In a December 2010 decision, the Board added service connection for an acquired psychiatric disorder, to include bipolar disorder, panic disorder, a mood disorder, and a personality disorder, to the appeal and denied service connection for PTSD. See Clemons v. Shinseki, 23 Vet. App. 1 (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). The Board remanded service connection for an acquired psychiatric disorder in December 2010. The December 2010 Board remand directed additional development that included a request for a VA psychiatric examination to address service connection for an acquired psychiatric disorder other than PTSD. This was accomplished, and the Board concludes that it may proceed with a decision at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). Because the Board denied service connection for PTSD in December 2010, the Board need not address that issue again in the current decision. For these reasons, the Board has recharacterized the remaining issue on appeal as service connection for an acquired psychiatric disorder, other than PTSD. FINDINGS OF FACT 1. The Veteran was treated for alcohol abuse and a personality disorder in service, an acquired psychiatric disorder was not diagnosed in service, and there was no disease or injury superimposed over the personality disorder in service. 2. The Veteran has currently diagnosed bipolar disorder. 3. Currently diagnosed bipolar disorder is not related to service, to include alleged sexual harassment in service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 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 United States Court of Appeals for Veterans Claims (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 May 2007 letter, the RO provided preadjudicatory notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the Veteran, and what evidence VA would obtain. The May 2007 VCAA notice letter included provisions for disability ratings and for the effective date of the claim. The Veteran was afforded VA psychiatric examinations in February 2008 and January 2011. 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, cumulatively, the VA examinations and opinions obtained in this case are adequate. Comprehensive medical examinations were completed in February 2008 and January 2011, which included a full psychiatric examination of the Veteran. The January 2011 VA opinion considers all of the pertinent evidence of record, to include the statements of the Veteran and her medical history, and was based on a factually accurate background, to include consideration of both the medical and lay evidence of record. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue of fibromyalgia has been met. 38 C.F.R. § 3.159(c)(4). The Board finds that that the RO has complied with the terms of the December 2010 remand order in obtaining a January 2011 VA examination and medical opinion. The claims file was reviewed in conjunction with the January 2011 VA examination. The December 2010 remand order requested a VA psychiatric examination and opinion to assist in determining the diagnosis of any current psychiatric disorder, and for an opinion as to whether any diagnosed psychiatric disorder is related to service. The Board finds that a January 2011 opinion adequately identifies the Veteran's current psychiatric diagnosis based on a review of the records, the Veteran's presentation, and medical history, and adequately addresses the etiology of such disorder, to include adequate reasons and bases of the opinion rendered. Thus, the Board finds that the January 2011 VA examination and medical opinion substantially complied with the terms of the December 2010remand order. See Stegall, 11 Vet. App. at 270 (holding that a remand by the Board imposes upon the Secretary of the VA a concomitant duty to ensure compliance with the terms of the remand). 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 service treatment records, VA examinations and opinions, VA and private treatment records, and the Veteran's statements and testimony. The Veteran and her representative have not identified any outstanding evidence that needs to be obtained. For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. Service Connection Laws and Regulations 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. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The Board finds, in this case, that currently diagnosed bipolar disorder is not a "chronic disease" listed under 38 C.F.R. § 3.309(a) and the Veteran is not shown to have diagnosed psychosis; therefore, 38 C.F.R. § 3.303(b) does not apply. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Personality disorders are considered congenital or developmental defects and, therefore, generally are not diseases or injuries for the purposes of service connection. 38 C.F.R. §§ 3.303(c), 4.9 (2012); see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). However, if a disease or injury is superimposed over the congenital or developmental defect during service, service connection may be warranted for the resultant disability. VAOPGCPREC 82-90. With respect to claims filed after October 31, 1990, an injury or disease incurred during active service will not be deemed to have been incurred in line of duty if the injury or disease was a result of the person's own willful misconduct, including abuse of alcohol or drugs. 38 U.S.C.A. § 105 (West 2002); 38 C.F.R. § 3.1(m) (2012). The isolated and infrequent use of drugs by itself will not be considered willful misconduct; however, the progressive and frequent use of drugs or alcohol to the point of addiction will be considered willful misconduct. 38 C.F.R. § 3.301(c). Where drugs are used to enjoy or experience their effects and the effects result proximately and immediately in disability or death, such disability or death will be considered the result of the person's willful misconduct. Id. VA's General Counsel has interpreted that direct service connection for disability resulting from a claimant's own drug or alcohol abuse is precluded for all VA benefit claims filed after October 31, 1990. See VAOPGCPREC 7-99; VAOPGCPREC 2-98. However, service connection for compensation purposes is permitted for an alcohol or drug abuse disability acquired as secondary to a service-connected disability. See Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). Compensation may be awarded only "where there is clear medical evidence establishing that alcohol or drug abuse is caused by a veteran's primary service-connected disability, and where the alcohol or drug abuse disability is not due to willful wrongdoing." Allen, 237 F. 3d at 1381. In rendering a decision on appeal the Board must also 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. 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"). 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 the 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). Service Connection Analysis As noted above, because the Board denied service connection for PTSD in a December 2010 decision, the Board need not address that issue again in the current decision and will adjudicate the remaining issue of service connection for an acquired psychiatric disorder, other than PTSD. The Veteran contends that a currently diagnosed acquired psychiatric disorder is due to sexual harassment in service. In her May 2007 claim, the Veteran contends she was sexually harassed by her supervisor while stationed onboard the USS Platte, from May 1990 to September 1990. The Veteran described the sexual harassment as verbal threats and unwanted sexual advances made against her by a superior officer. In her September 2009 DRO hearing, she also testified that she brought the harassment to the attention of both her Leading Petty Officer (LPO) and the Command Master Chief, but that it was not written down and no disciplinary action was taken. After reviewing all the lay and medical evidence, the Board finds that the weight of the evidence demonstrates that an acquired psychiatric disorder was not incurred in service. The Board finds that the Veteran was treated for alcohol abuse and a personality disorder in service, an acquired psychiatric disorder was not diagnosed in service, and there was no disease or injury superimposed over the personality disorder in service. A psychiatric disorder was not indicated on the Veteran's October 1985 enlistment examination and a psychiatric evaluation was stated to be normal. Service treatment records show that the Veteran was seen in emergency care with depression in September 1990. At that time, she reported that her personal and professional life situations were overwhelming. She reported that she was unable to get along with her LPO, alleged sexual harassment, and reported that she could not go back to work for fear of hurting her LPO. The Veteran was referred for a psychiatric evaluation which was completed that same day. During the September 1990 psychiatric evaluation, the Veteran expressed anger toward her LPO, alleged abuse and sexual harassment at the hands of her LPO, and reported that she could not stand ship life. The interview also included an in-depth discussion of the Veteran's past history, which was positive for relationship problems, problems with stealing, drinking, promiscuous sex, running away, and three prior suicide attempts. The psychiatrist stated that the Veteran had a history of unstable relationships, impulsive behavior, instability, anger with thoughts of violence, suicide attempts, fights, reactions to criticism with rage, and lack of empathy. The Veteran was diagnosed with alcohol abuse and a personality disorder NOS with passive-aggressive, borderline, and narcissistic features. A second in-service psychiatric evaluation dated in September 1990 confirmed a diagnosis of alcohol abuse and personality disorder NOS with passive-aggressive, borderline, and narcissistic features. An administrative separation was strongly recommended. The examiner stated that, while the Veteran was not considered mentally ill, she manifested longstanding behavior and character disorders. An October 1990 letter from the Veteran's commanding officer shows that she was recommended for separation by reason of convenience of the government due to a personality disorder. The personality disorder was evidenced by a medical consultation conducted at the Naval Hospital. See 38 C.F.R. §§ 3.303(c), 4.9 (personality disorders are considered congenital or developmental defects and, therefore, generally are not diseases or injuries for the purposes of service connection). A summary of military offenses cited disrespect toward a petty officer and an unauthorized absence for a period of seven days. The Veteran received an honorable discharge with RE-4 reenlistment code. The weight of the evidence demonstrates no disease or injury superimposed injury on the personality during service. The Board notes that the Veteran was treated for psychiatric or behavioral problems in service stemming from conflict with her supervisor; however, she was not diagnosed with an acquired psychiatric disorder in service. Instead, psychiatric evaluations in service reflect a diagnosis of alcohol abuse and personality disorder NOS with passive-aggressive, borderline, and narcissistic features. The evidence establishes a current diagnosis of bipolar disorder. The weight of the evidence shows that the Veteran does not have a current diagnosis of alcohol abuse. An April 2007 letter from the Veteran's private physician reflects a diagnosis of bipolar disorder NOS and borderline personality disorder. VA treatment records dated in 2007 reflect a diagnosis of mood disorder NOS, and more recent VA treatment records dated from 2008 to 2009 reflect a current diagnosis of bipolar disorder. A May 2009 VA treatment report reflects a diagnosis of bipolar disorder NOS, to rule out panic disorder. Additionally, while PTSD was noted in VA treatment records, service connection for PTSD is not currently at issue. A February 2008 VA examination, conducted by licensed clinical psychologist, describes the Veteran's relevant social, military, and medical history. The examiner diagnosed the Veteran with bipolar disorder, not otherwise specified and borderline personality disorder. The February 2008 VA opinion was thorough and took into account the results of both a clinical interview and psychological testing, as well as a complete review of the claims folder and documented medical history. A January 2011 VA examination confirmed a current diagnosis of bipolar disorder. The VA examiner stated that the claims file and medical records were reviewed thoroughly. The examination report included a detailed description of the Veteran's pre-service family history, noted behavioral problems prior to service, to include alcohol abuse and truancy as a teen, and included a discussion of the Veteran's military history and history of psychiatric treatment. A psychiatric examination of the Veteran was also completed. The VA examiner stated that the Veteran met the DSM-IV criteria for bipolar disorder on the bases of her symptoms, specifically, irritable mood, excess energy, racing thoughts, reduced need for sleep, pressured speech, and impulsivity followed by a period of depressive symptoms that include low energy, sad mood, reduced interest, reduced motivation, poor concentration, and hypersomnia. The VA examiner opined, based on the review of the Veteran's history, service records, medical records, and examination, that it was not as likely as not that bipolar I disorder was caused by or the result of military service, and there was no indication that bipolar disorder was aggravated by service. The January 2011 VA examiner stated, that although the Veteran did exhibit disrespect of authority figures, problem drinking, and impulsive behavior during her teenage years and in service, she did not have a history of the persistent maladaptive behavior and personality characteristics through her adult years to be consistent with either borderline, antisocial, or narcissistic personality disorder. The examiner reasoned that there was no indication of consistent disregard of authority, criminal behavior, lying or remorselessness indicative of antisocial personality. There was not the arrogance, envy, lack of empathy, exploitiveness, preoccupation with fantasy, or entitlement typically found in narcissistic individuals. The VA examiner stated that while the Veteran did exhibit some characteristics of borderline personality disorder, most of these symptoms are nonspecific for borderline personality disorder and are better explained as a part of her bipolar disorder. The Board finds that the weight of the evidence shows that the Veteran has a current diagnosis of bipolar disorder. The Board finds that the January 2011 VA examination provides the most probative evidence with respect identifying the Veteran's current diagnosis as it was based on a comprehensive review of the record, the Veteran's history, and examination, and the VA examiner provided a complete rational for the psychiatric diagnosis rendered based on the Veteran's symptoms and presentation in the context of the DSM-IV criteria. The January 2011 diagnosis of bipolar disorder is consistent with medical evidence of record, which primarily reflects a diagnosis of bipolar disorder since the onset of the Veteran's symptoms. A diagnosis of borderline personality disorder was also provided during the February 2008 VA examination. Personality disorders are not diseases or injuries for the purposes of service connection, and the evidence, in this case, does not show that a currently diagnosed acquired personality disorder was superimposed upon the personality disorder diagnosed in service. See 38 C.F.R. §§ 3.303(c), 4.9; VAOPGCPREC 82-90. The Board finds that the January 2011 VA examination provides competent, credible, and probative evidence showing that a currently diagnosed bipolar disorder is not etiologically related to service. The VA examiner opined that it was not as likely as not that bipolar I disorder was caused by or the result of military service based a review of the records and discussion of the Veteran's history as noted above. According to the Court, "the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches." Guerrieri v. Brown, 4 Vet. App. 467, 470 (1993). The credibility and weight to be attached to these opinions is within the province of the Board. Id. In this case, the Board finds that the January 2011 VA opinion, which was based on a review of the entire record, considered the Veteran's lay assertions as to harassment in service and her psychiatric presentation in service, and was based on accurate factual assumptions which are consistent with the credible evidence of record. The Board finds that it is more probative than lay assertions by the Veteran which attempt to relate her psychiatric disorder to service. VA and private treatment records do not otherwise relate diagnosed bipolar disorder to any event in service, to include alleged sexual harassment in service. While the Veteran was diagnosed with alcohol abuse and a personality disorder in service, the evidence of record shows no nexus between a current acquired psychiatric disorder (bipolar disorder) and military service. The Veteran is competent to report sexual harassment in service, and the Board finds, based on reports of harassment shown in service treatment records and post-service psychiatric treatment records, that the Veteran is credible in her reports. However, a September 2009 DRO hearing testimony and a January 2008 statement provided during the course of VA psychiatric treatment, clarify that such harassment was only verbal, and that her superior officer is alleged to have harassed her by giving her undesirable duty and by writing her up for minor infractions when she refused to go out with him. While the Veteran is competent to report harassment in service, she is not competent to relate a currently diagnosed acquired psychiatric disorder to such incidents in service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the Board finds that the etiology of a specifically diagnosed psychiatric disorder of bipolar disorder falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer)." The DSM-IV cautions that the "proper use of these criteria requires specialized clinical training that provides both a body of knowledge and clinical skills." The "purpose of DSM-IV is to provide clear descriptions of diagnostic categories in order to enable clinicians and investigators to diagnose" various mental disorders. (emphasis added) Moreover, in light of the probative medical opinion evidence provided by the January 2011 VA examiner on the question of etiology, the Board finds that the Veteran's assertion with regard to causation is of little probative value and is outweighed by such opinion. Based on all of the evidence of record discussed above, the Board finds that a preponderance of the evidence is against the claim for service connection for an acquired psychiatric disorder, diagnosed as bipolar disorder, and 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. ORDER Service connection for an acquired psychiatric disorder (other than PTSD) is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs