Citation Nr: 1325450 Decision Date: 08/12/13 Archive Date: 08/16/13 DOCKET NO. 12-32 798 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for bipolar disorder. 2. Entitlement to service connection for an acquired psychiatric disability other than bipolar disorder, claimed as posttraumatic stress disorder. 3. Entitlement to service connection for residuals of a traumatic brain injury. 4. Entitlement to service connection for psychosis for the purposes of establishing eligibility to treatment under 38 U.S.C.A. § 1702. REPRESENTATION Appellant represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD J. M. Kirby, Counsel INTRODUCTION The Veteran served on active duty with the United States Marine Corps from May 2005 to May 2009 and his decorations include the Iraq Campaign Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2012 and August 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The appeal is advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a) (2) (West 2002). The issues of entitlement to service connection for an acquired psychiatric disability other than bipolar disorder, claimed as posttraumatic stress disorder (PTSD); residuals of a traumatic brain injury (TBI), and psychosis for the purposes of establishing eligibility to treatment under 38 U.S.C.A. § 1702 are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office. FINDING OF FACT The competent and credible evidence of record relates the Veteran's diagnosed bipolar disorder to his military service. CONCLUSION OF LAW The criteria for service connection for bipolar disorder have been met. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In light of the favorable action taken herein, discussion of whether VA has met its duties of notification and assistance is not required, and deciding the appeal at this time is not prejudicial to the Veteran. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset, frequency, duration, and severity of his symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, 7 Vet. App. at 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions). After review of the record, the Board finds that the evidence supports a grant of service connection for bipolar disorder. Although the Veteran's service treatment records do not reflect treatment for psychiatric symptoms or a diagnosis of a psychiatric disorder, his 2008 post-deployment health assessment noted that he had experienced memory loss and insomnia. In his January 2012 claim for an acquired psychiatric disability, he reported that he experienced anger, difficulty expressing himself, withdrawing from society, suicidal ideation, paranoia, impaired judgment, and difficulty adjusting to post-military life. The Board finds these assertions credible as they are repeatedly noted by the Veteran as documented in VA outpatient treatment records dated through 2012. He has retained a current diagnosis of bipolar disorder since June 2011 from VA clinicians, and reportedly had the same diagnosis from clinicians during an inpatient stay at a private facility. Unfortunately, while the May 2012 fee-based examiner diagnosed bipolar disorder, no opinion was offered as to whether this diagnosis was related to the Veteran's military service. However, review of the most recent VA treatment records, particularly those dated in October 2012, note that the Veteran had delusional beliefs during an inpatient stay for bipolar disorder, and that the examining clinician felt these "stemmed from post combat trauma." Similarly, another October 2012 VA treatment record documented a discussion with the Veteran about how his "mania" episodes' symptoms were induced with stress and potentially post combat distress. Ultimately, while the record lacks the benefit of the May 2012 VA examiner's opinion as to a relationship between the Veteran's bipolar disorder and his military service, through no fault of the Veteran, it is clear that his treating VA clinicians have determined at least part of his bipolar symptomatology is triggered or otherwise the result of combat stress. Indeed, many other records besides those discussed individually above document the presence of combat stress symptoms. In light of the short length of time between the Veteran's service separation and the documented onset of his bipolar symptoms, and the evidence establishing that the bipolar disorder is at least in part a residual of the Veteran's combat stress, the Board finds that service connection for bipolar disorder is warranted. ORDER Service connection for bipolar disorder is granted. REMAND In conjunction with his claim for service connection for an acquired psychiatric disability, the Veteran submitted a VA Form 21-4142 in January 2012 for treatment records from Griffin Memorial Hospital from July 2011 to September 2011. As noted in this form, the authorization inherent in a VA Form 21-4142 is valid for a period of 180 days. For unknown reasons, the RO notified the Veteran in an April 2012 letter that he would have to submit authorization for VA to obtain those records; review of the claims file does not show that the RO ever attempted to obtain the records. Although service connection for bipolar disorder is granted elsewhere in this decision, the Board finds that adjudication of the Veteran's claim for entitlement to service connection for psychosis for the purposes of establishing eligibility to treatment under 38 U.S.C.A. § 1702 requires that these records be obtained. This is because the records may establish the existence of symptomatology within the two-year statutory period defined by that regulation; although bipolar disorder is no longer considered a psychosis under the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th Edition (1994) (DSM-IV), recent (October 2012) VA outpatient treatment records reflect that the Veteran's bipolar disorder is manifested by psychotic mania episodes. Unfortunately, because the VA Form 21-4142 has now expired, the RO must first obtain reauthorization from the Veteran, and then obtain the records. Additionally, the record reveals that VA has conceded that the Veteran sustained a head injury during the stressor event identified in his February 2012 statement, especially in light of his 2008 post-deployment health reassessment in which he noted that he had been involved in a blast or explosion involving an improvised explosive device (IED). A VA TBI examination was conducted in August 2012, determining that the Veteran had hearing loss and tinnitus as residuals of TBI, and directed that the hearing loss and tinnitus be evaluated. While service connection had already been granted for tinnitus, the consequent VA audiology examination tested only for tinnitus, not hearing loss, thus making the underlying VA TBI examination incomplete. When VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). To that end, although the April 2009 fee-basis audiology examination found that the Veteran's hearing acuity was not impaired to the degree it constituted hearing loss for VA purposes under 38 C.F.R. § 3.385, the VA TBI examination findings suggest that the Veteran's hearing loss may be worse than documented at that earlier examination. Accordingly, remand is required to determine if compensable hearing loss exists for the purposes of establishing service connection under the relevant TBI Diagnostic Code. Finally, clarification is required with respect to the Veteran's claim for service connection for PTSD. The May 2012 fee-basis PTSD examination found that the Veteran had bipolar disorder, not PTSD, but curiously did not address the Veteran's February 2012 written stressor statement. While the VA TBI examiner stated that the Veteran "appears to have PTSD (nightmares, anxiety, paranoia)" and suggested he seek a PTSD evaluation, no further psychiatric testing was completed. VA treatment records dated from 2010 to 2012 reflect diagnoses of bipolar disorder, "[rule out] PTSD." However, these records repeatedly note that no diagnosis of PTSD was given was because it was unclear whether the Veteran had a Criterion A event, as noted in an October 2011 VA treatment record, conceded that he had significant combat stress symptoms, as noted in September 2011 VA treatment records, and indicated he had PTSD-like symptoms, as noted in a July 2011 VA treatment record. On remand, an additional VA PTSD examination is required to determine whether the Veteran has an Axis I diagnosis of PTSD, and if not, whether his other diagnosed mental health disorder, anxiety disorder not otherwise specified, is related to his military service. Accordingly, the issues of entitlement to service connection for an acquired psychiatric disability other than bipolar disorder, claimed as posttraumatic stress disorder (PTSD); entitlement to service connection for residuals of a traumatic brain injury (TBI), and entitlement to service connection for psychosis for the purposes of establishing eligibility to treatment under 38 U.S.C.A. § 1702 are REMANDED for the following actions: 1. After obtaining authorization from the Veteran, obtain all outstanding records from Griffin Memorial Hospital relating to treatment of the Veteran's acquired psychiatric disability. Document all attempts to secure this evidence in the claims file. If the records cannot be obtained, the RO should notify the Veteran as to the unavailable records, and explain the efforts taken to obtain them. Give the Veteran an opportunity to respond. 2. Schedule the Veteran for a VA audiology examination to determine whether the hearing loss found during the August 2012 VA TBI examination constitutes a hearing loss disability under 38 C.F.R. § 3.385 (2012). The examination must include word recognition percentage testing using the Maryland CNC word list as well as a complete audiogram, and document the Veteran's report of his situations of greatest hearing difficulty and the effect of his hearing loss on his daily life. Any opinion offered by the examiner must be supported by a clear rationale citing to clinical findings and claims file documents as appropriate. 3. Schedule the Veteran for a VA examination to ascertain the nature and etiology of any present acquired psychiatric disability other than bipolar disorder, to include PTSD. The examiner is instructed to review the Veteran's February 2012 written stressor statement and the description he gave of that stressor to the August 2012 VA TBI examiner. If PTSD is diagnosed, then the examiner is asked to provide an opinion as to whether it is at least as likely as not that the Veteran's claimed stressors are adequate to support a diagnosis of PTSD and whether it is at least as likely as not that the Veteran's PTSD is related to the claimed stressors. In addition, the examiner should specifically state whether or not the underlying stressor is related to the Veteran's fear of hostile military or terrorist activity. With respect to the Veteran's diagnosed anxiety disorder not otherwise specified, diagnosed at a September 2012 VA outpatient visit among other occasions, the examiner should state whether the anxiety disorder not otherwise specified is at least as likely as not related to the Veteran's military service, to include the Veteran's stated stressor event(s) or any other event(s) in service. The examiner should fully explain the stated opinion(s), citing to claims file documents as appropriate. 4. After undertaking the development above, readjudicate the Veteran's claim. If any benefit sought on appeal remains denied, provide a Supplemental Statement of the Case to the Veteran and his representative, and an appropriate period of time in which to respond. Then, return the appeal to the Board. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. All claims 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). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs