Citation Nr: 1322929 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 11-01 071 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bipolar disorder. 2. Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from December 1974 to September 1976. These matters come before the Board of Veterans' Appeals (Board) from a March 2010 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Winston-Salem, North Carolina. In October 2012, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. 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 NME - Bipolar Disorder In a 1999 rating decision, the RO denied the Veteran's claim for entitlement to service connection for bipolar disorder. The RO determined that the Veteran had a preexisting nervous condition which was not aggravated by service. In 2009, the Veteran filed a claim to "reopen claim for severe depression." The Veteran averred that she had been subject to military sexual trauma (MST) in service. In a March 2010 rating decision, the RO denied service connection for posttraumatic stress disorder (PTSD). The RO also found that new and material evidence had not been received to reopen a previously denied claim. The RO stated that service connection for bipolar disorder, now claimed as depression, remained denied. In June 2010 correspondence, the Veteran's representative stated that the Veteran was in disagreement with the denial of "entitlement to service connection for a mental health condition to include PTSD due to personal trauma." In December 2010, the RO issued a statement of the case (SOC) on the issue of entitlement to service connection for PTSD, but did not issue an SOC on the issue of whether new and material evidence had been received to reopen the previously denied claim of entitlement to service connection for bipolar disorder. In a January 2011 attachment to a VA Form 9, the Veteran's representative alleged that the Veteran had a preexisting psychiatric condition which was aggravated by service; thus, indicating the Veteran's intent to disagree with the rating decision which denied reopening the previously denied claim of entitlement to service connection for bipolar disorder. In Manlincon v. West, 12 Vet. App. 238 (1999), the Court held that in circumstances where a NOD is filed, but an SOC has not been issued, the Board must remand the claim to the RO to direct that an SOC be issued. Accordingly, in the circumstances presented in this case, the RO must issue an SOC on the issue of whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for bipolar disorder. Acquired Psychiatric Disorder (other than bipolar disorder), to include PTSD The Veteran has given various stressors for her mental health. Although she has stated that she left the military due to preeclampsia, she has also averred that when she was pregnant with her first child, she separated from the military because military doctors erroneously told her that her unborn child was dead and that she should leave the service to obtain a D & C (dilation and curettage). (See November 2009 VA records.) Contrary to the Veteran's statement that she was told her unborn baby had died, the record reflects that she was discharged under Chapter 8, AR 635-200 - Separation of Enlisted Women-Pregnancy. The Veteran has also stated that while at AIT (advanced individual training) in San Antonia, Texas, her sergeant coerced her into a sexual affair, and that while stationed in Germany, a female friend grabbed her in the shower. (See November 2009 VA records.) The Veteran entered military service in 1974. A preservice February 1973 private record from Dr. R.F. (psychiatrist) states as follows: Since her move from [W.] she has been maladjusted and unhappy. Had many friends in [W.]. angry and depressed: conflict at school. Missed 20 days this year with various colds, cramps and other flimsy excuses. One teacher challenged her and a crying and yelling and shaking spell resulted. Mother is overprotective, she does take [the Veteran's] side. Girls grades have slipped she "worries about [sic] everybody", is tender hearted", preoccupied with nervous breakdown, over involved with worrying about friends problems (to the point of obsessions). Clinging to Mom (brings mom into interview). Rivalry with older sister. She is the middle child "nobody loves me". Suicidal attempted (scratched wrist 1 year ago." Diagnosis: Depression Anxiety Neurosis School Phobia Adjustment Reaction to Adolescence. A January 1976 STR reflects that the Veteran had complaints of nervousness. It was noted that she had been on Librium and Valium previously and that she had had shock treatment. It was noted that she had a "[history of ] nervous disorder for years - was hospitalized prior to entry and had shock therapy. Did not enter this on enlistment physical." The Veteran's September 1976 report of medical history for separation purposes reflects that she had been treated for mental depression and nerves at New Hannover Memorial Hospital in Wilmington North Carolina in 1974, and that she had been a patient in the hospital. In a July 1984 statement, the Veteran stated that she had been in a car accident in June 1980 (postservice) and indicated that she was depressed due to feeling as if she had lost everything due to the car accident. She reported that the accident left her with a "life-time of suffering and pain" which eventually cost her job. She stated that the car accident was the "most devastating thing that has ever happened" to her, and that prior to the accident she felt good about herself. A May 1985 private clinical record reflects that the Veteran described herself as depressed since she was a little girl. She indicated that she had had an inferiority complex and described herself as a loner in school. It was noted that her first inpatient psychiatric hospitalization was when she was 17 and made a suicidal attempt. It was further noted that she had been on and off anti-depressants since late teens. A 1986 statement by the Veteran reflects that she became depressed due to raising a child as a single mother after her first marriage ended due to her husband's extra-marital affairs. She also stated that a subsequent marriage was the "worst nightmare" that she could ever imagine due to the sexual perversions of her husband and his abuse which led to a miscarriage. She described this as a "very dramatic chapter" in her life. She also noted that she had been injured in a "terrible car accident [in 1980]." A VA medical record dated in May 2010 by Dr. W. K. reflects that the Veteran had provided him with medical and military records and requested that he provide her with an "opinion regarding her PTSD and it's [sic] relationship to her time in the army." Dr. W.K. stated that, upon review of the records, and her November 2009 description of sexual trauma in service, it was his opinion that it is "as likely as not that the condition of PTSD had its onset while the veteran was on active duty and was related to the claimed incident to that of coercion for sex by as [sic] superior while on active duty." A review of the November 2009 VA clinical records reflects that the Veteran had informed Dr. W.K. that she had no symptoms of major depression prior to the military. She reported a brief period of grief after her grandmother died but "I got over that and did well in school and was very popular." She further reported that her first depression was in the military in Germany. The Board finds, based on the treatment records noted above, that the Veteran is less than credible with regard to the onset of her symptoms. Thus, Dr. W.K.'s opinion, which is based on inaccurate factual basis and unsupported stressor allegations, is not probative. A September 2010 QTC report reflects that the Veteran reported that her PTSD symptoms began in 1975 as a result of her experience in the army. She reported that she had a sexual affair with a sergeant in service due to a fear of him ruining her career if she refused. The Veteran did not report any other psychiatric disorder to the examiner; she failed to report her years of diagnosis of bipolar disorder. The Veteran also reported that her premilitary sibling relation was described as good; thus, contrary to the 1973 record. She also stated that she has had back pain since 1980 and that it was not severe enough to cause a disability; thus, contrary to her July 1984 statement and an April 1985 clinical record which reflects she reported that she could not work as a "street cop" due to her back injury. She also stated that she had no psychiatric history in her family; thus, contrary to a July 1995 private record which reflects that her older sister has depression. The QTC examiner stated that he had reviewed the claims file; however, he failed to address the inconsistencies in the Veteran's statement, or her preexisting diagnoses of depression, anxiety neurosis, school phobia, and adjustment reaction to adolescence. The Board finds the opinion, which fails to address any of the Veteran's preexisting symptoms, or inconsistencies, and is based on unsupported stressor allegations, is not probative. The claims file reflects that the Veteran has been diagnosed with numerous psychiatric disabilities. The Board finds that a clinical opinion which discusses the Veteran's current mental health in relation to her preexisting disabilities and her service may be helpful to the Board in adjudicating the Veteran's claim. Extensive mental health treatment records over a 30 year period are negative for any mention of the Veteran's now claimed in-service stressors. The Board has also considered that the Veteran separated from service in 1976, and then reenlisted in 1979. Based on the record as a whole, the Board finds the Veteran's alleged in-service stressors are not credible and thus, the clinician need not consider them when rendering an opinion as to PTSD. The examiner should, however, consider the STRs which reflect, among other things, that the Veteran reported anorexia, depression, and difficulty sleeping in September 1975, was very anxious in December 1975 with a clinical assessment of probable functional reaction to stress, and was assessed with adjustment reaction in January 1976. The September 1976 report of medical history for discharge purposes reflects that the Veteran was hospitalized at New Hannover Memorial Hospital in Wilmington, North Carolina, in 1974, for her nerves. VA should attempt to obtain all records from such hospitalization. The record reflects that the Veteran has reported that she is in receipt of Social Security Administration (SSA) disability benefits due to depression. VA should attempt to obtain all such records The Veteran's service personnel records reflect that she had service with the U.S. Army Reserve, 650th Transportation Company, in Wilmington, North Carolina. VA should attempt to obtain all STRs and personnel records associated with such service. Accordingly, the case is REMANDED for the following action: 1. Request the appellant to identify all medical providers (VA and private) from whom she has received mental health/psychiatric treatment, and to complete and return a provided VA Form 21-4142, Authorization and Consent to Release Information, for each mental health medical treatment provider identified, to include inpatient treatment at New Hannover Memorial Hospital in Wilmington, North Carolina in 1974. After obtaining completed VA Forms 21-4142, the AOJ should attempt to obtain all identified pertinent medical records. 2. Contact the Social Security Administration (SSA) and obtain a copy of all agency records and any decision which awarded or denied the Veteran SSA disability benefits, including all medical records used to make the decision 3. Attempt to obtain all STRs and service personnel records, if any, for the Veteran's U.S. Army Reserve service with the 650th Transportation Company, 2144 Lake Short Drive, Wilmington, North Carolina 28401. 4. Thereafter, forward the entire file to a VA psychologist or psychiatrist for a clinical opinion. The clinician is requested to furnish an opinion concerning whether the Veteran has an acquired psychiatric disability (other than bipolar disorder) causally related to, or aggravated by, her military service. The clinician should consider, the entire claims file to include: a.) the February 1973 private record from Dr. R.F., b.) the September 1975 STR, c.) the December 1975 STR, d.) the January 1976 STR, e.) the September 1976 report of medical history for separation purposes, f.) the Veteran's July 1984 statement regarding her June 1980 car accident and depression, g.) the May 1985 private clinical record which reflects that the Veteran reported depression since she was a "little girl"; h.) the Veteran's 1986 statement regarding her marriages and car accident. i.) that the Veteran re-enlisted in the U.S. Army reserves in 1979, j.) records received from New Hannover Memorial Hospital from 1974 if associated with the claims file, and k.) SSA records, if associated with claims file. The clinician should also consider that the Board has found that the Veteran is less than credible with regard to her allegations of sexual harassment (military sexual trauma) in service and allegations that she was erroneously told that her unborn daughter had died. The clinician should also provide an opinion as to whether the Veteran had a preexisting acquired psychiatric disability, and what if any, affect active service had on such a preexisting disability. Any opinion expressed should be accompanied by a complete rationale. If the clinician cannot render an adequate opinion without examining the Veteran, schedule the Veteran for such an examination. The examiner should provide an opinion as noted above. 5. Thereafter, readjudicate the issue of entitlement to service connection for an acquired psychiatric disability (other than bipolar disorder). If the benefit sought is not granted, issue a supplemental statement of the case and afford the appellant and her representative an appropriate opportunity to respond. Thereafter, the case should be returned to the Board, as warranted. 6. Issue a Statement of the Case to the Veteran and her representative pertaining to the claim of whether new and material evidence has been received to reopen a claim for entitlement to service connection for bipolar disorder. The Veteran should be informed that she must file a timely and adequate substantive appeal in order to perfect an appeal of this issue to the Board. See 38 C.F.R. §§ 20.200, 20.202 and 20.302(b). If a timely substantive appeal is not filed, the claim should not be certified to the Board. If a timely substantive appeal is filed, the issue should be returned to the Board for further appellate consideration, if appropriate. The appellant has the right to submit additional evidence and argument on the matters 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). _________________________________________________ MICHAEL MARTIN 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).