Citation Nr: 1329495 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 10-08 267 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disability other than posttraumatic stress disorder (PTSD), to include bipolar disorder, including as due to herbicide exposure. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from September 1966 to August 1969, including in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied, in pertinent part, the Veteran's claim of service connection for an acquired psychiatric disability other than posttraumatic stress disorder (PTSD), to include bipolar disorder, including as due to herbicide exposure (which was characterized as bipolar disorder with insomnia). An RO hearing was held on this claim in March 2011 and a copy of the hearing transcript has been added to the record. Having reviewed the evidence of record, the Board finds that the issue on appeal is characterized more appropriately as stated on the title page of this decision. In November 2012 and in May 2013, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, DC, for additional development. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. In its November 2012 remand, the Board noted that, under the Court's decision in Clemons, separate service connection claims for PTSD and for an acquired psychiatric disability other than PTSD, to include bipolar disorder, including as due to herbicide exposure (which was characterized as bipolar disorder) were on appeal. See also Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that claims for service connection for PTSD also encompass claims for service connection for all psychiatric disabilities afflicting Veteran based on review of medical evidence). The Board directed in its November 2012 remand that the RO/AMC schedule the Veteran for appropriate examination to determine the current nature and etiology of his psychiatric disabilities. This examination occurred in March 2013. The Board directed in its May 2013 remand that the RO/AMC issue a Supplemental Statement of the Case (SSOC) to the Veteran and his service representative on the currently appealed claim. This SSOC was issued in June 2013. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Board notes that, in an April 2013 rating decision, the RO granted the Veteran's claim of service connection for PTSD, assigning a 10 percent rating effective October 10, 2007. This action constituted a complete grant of benefits with respect to the Veteran's service connection claim for PTSD. See Grantham v. Brown, 114 F .3d 1156 (1997). Thus, an issue with respect to service connection for PTSD is no longer in appellate status. This appeal was processed using Virtual Benefits Management System (VBMS). Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The Veteran's service personnel records show that he had active service in the Republic of Vietnam from September 1966 to August 1969; thus, his in-service herbicide exposure is presumed. 2. The record evidence shows that the Veteran does not experience any current disability due to an acquired psychiatric disability other than PTSD, to include bipolar disorder, which could be attributed to active service or any incident of service, including as due to herbicide exposure. CONCLUSION OF LAW An acquired psychiatric disability other than PTSD, to include bipolar disorder, was not incurred in or aggravated by active service, including as due to herbicide exposure. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. In letters issued in November 2007 and in May 2009, VA notified the Veteran of the information and evidence needed to substantiate and complete his claim, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). These letters informed the Veteran to submit medical evidence relating the claimed disability to active service and noted other types of evidence the Veteran could submit in support of his claim. The Veteran also was informed of when and where to send the evidence. After consideration of the contents of these letters, the Board finds that VA has satisfied substantially the requirement that the Veteran be advised to submit any additional information in support of his claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Additional notice of the five elements of a service-connection claim was provided in the VCAA notice letters issued during this appeal and in separate correspondence dated in October 2008, July and August 2010, and in July 2011, as is now required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As will be explained below in greater detail, the evidence does not support granting service connection for an acquired psychiatric disability other than PTSD, to include bipolar disorder, including as due to herbicide exposure. Because the Veteran was fully informed of the evidence needed to substantiate this claim, any failure of the RO to notify the Veteran under the VCAA cannot be considered prejudicial. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Veteran also has had the opportunity to submit additional argument and evidence and to participate meaningfully in the adjudication process. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). With respect to the timing of the notice, the Board points out that the Court has held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a Veteran before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the November 2007 VCAA notice letter was issued prior to the currently appealed rating decision issued in November 2008; thus, this notice was timely. Because the Veteran's claim is being denied in this decision, any question as to the appropriate disability rating or effective date is moot. See Dingess, 19 Vet. App. at 473. And any defect in the timing or content of the notice provided to the Veteran and his service representative has not affected the fairness of the adjudication. See Mayfield, 444 F.3d at 1328. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence and affording him the opportunity to give testimony before the RO. It appears that all known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's VBMS paperless claims file; the Veteran has not contended otherwise. The Veteran's Virtual VA claims file has been reviewed and no relevant evidence was located there. The Veteran's complete Social Security Administration (SSA) records also have been obtained and associated with the claims file. The Veteran has been provided with VA examinations which address the contended causal relationship between the claimed disability and active service. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4) ; McLendon v. Nicholson, 20 Vet. App. 79 (2006). Given that the pertinent medical history was noted by the examiners, these examination reports set forth detailed examination findings in a manner which allows for informed appellate review under applicable VA laws and regulations. Thus, the Board finds the examinations of record are adequate for rating purposes and additional examination is not necessary regarding the claim adjudicated in this decision. See also 38 C.F.R. §§ 3.326, 3.327, 4.2. Law and Regulations The Veteran contends that he incurred an acquired psychiatric disability other than PTSD, to include bipolar disorder, during active service. He alternatively contends that his in-service herbicide exposure while on active service in Vietnam caused or contributed to his acquired psychiatric disability other than PTSD, to include bipolar disorder. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection also may be granted for any disease diagnosed after discharge, when all of 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 presently existing 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. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)); Hickson v. West, 12 Vet. App. 247, 253 (1999). VA regulations provide that a Veteran who had active military, naval, or air service in the Republic of Vietnam during the Vietnam Era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. See 38 C.F.R. § 3.307(a)(6)(iii). In such circumstances, service connection may be granted on a presumptive basis for the diseases listed in 38 C.F.R. § 3.309(e). An acquired psychiatric disability other than PTSD, to include bipolar disorder, is not among the diseases listed in § 3.309 for which presumptive service connection is available based on in-service herbicide exposure. The Secretary of Veterans Affairs also has determined that there is no positive association between exposure to herbicides and any other condition for which he has not specifically determined a presumption of service connection is warranted. See Diseases Not Associated with Exposure to Certain Herbicide Agents, 67 Fed. Reg. 42,600 (June 24, 2002). Notwithstanding the foregoing, the Federal Circuit has determined that the Veteran's Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a Veteran from establishing service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The rationale employed in Combee also applies to claims based on exposure to Agent Orange. See Brock v. Brown, 10 Vet. App. 155 (1997). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing the second and/or third element of a service connection claim. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. See Savage, 10 Vet. App. at 495-498. In Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit recently overruled Savage and limited the applicability of the theory of continuity of symptomatology in service connection claims to those disabilities explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); see also 38 C.F.R. § 3.309(a). Because an acquired psychiatric disability other than PTSD, to include bipolar disorder, is not explicitly recognized as "chronic" in 38 C.F.R. § 3.309(a), the Board finds that Savage and the theory of continuity of symptomatology in service connection claims is inapplicable to this claim. See also 38 C.F.R. § 3.384 (listing specific psychoses for which service connection is available on a presumptive basis). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. Reasonable doubt is one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. Factual Background The Veteran's available service treatment records show no complaints of or treatment for an acquired psychiatric disability during active service. These records also show that, at his enlistment physical examination in September 1966, clinical evaluation of the Veteran's psychiatric system was normal. He denied all relevant pre-service medical history. The Veteran's clinical evaluation was unchanged at his separation physical examination in August 1969. He denied all relevant in-service medical history. The Veteran's available service personnel records (in this case, his DD Form 214) show that he was awarded the Vietnam Campaign Medal and the Vietnam Service Medal. The Veteran's DD Form 214 also shows that he served in Vietnam for 9 months and 27 days. The post-service evidence shows that, when he filed his original claim of service connection for an acquired psychiatric disability other than PTSD, to include bipolar disorder in October 2007, the Veteran contended that he experienced an acquired psychiatric disability as a result of his in-service herbicide exposure while in Vietnam. He specifically contended that he experienced "severe mental personality traits beginning during and after my tour of duty in Vietnam...I have a long term pattern of violent outburst[s], anger to the point of destroying pe[r]sonal items and beating on myself. Most of these occur during norm[a]l activity and are instant upon mood change or life not going as predicted (ok one minute and frantic or [belligerent] the next)." The Veteran also contended that he experienced short- and long-term memory problems which were related to his acquired psychiatric disability other than PTSD. On VA outpatient treatment in June 2008, the Veteran's complaints included "being depressed for [the] last 3 to 4 years due to his decreasing physical abilities and inability to work and recently because his mother died." He reported feeling restless at night, withdrawing into himself "at times," and crying over his mother's death. He drank 4 shots of whiskey and smoked 5 packs of cigarettes per day. He had been on Wellbutrin since July 2007. Mental status examination of the Veteran showed he was well groomed with normal speech, a coherent and goal-directed thought process, no perceptual disturbances or delusional material, no suicidal or homicidal ideation, grossly intact sensorium and cognition, full orientation, intact remote and recent memory, and good insight and judgment. The Axis I diagnosis was recurrent mild major depression. In July 2008, the Veteran "reported 'feeling much better, more awake'" on medications. The Veteran's wife reported that he was "more animated and spontaneous in his actions." He was sleeping 6-8 hours per night and feeling rested. His appetite, energy level, and concentration all were fair. He denied suicidal or homicidal ideation or delusions or hallucinations. He drank "2-3 shots of whiskey daily for the last year but he has stopped smoking 11 days ago." Mental status examination of the Veteran showed full orientation, good eye contact, "[o]ften looked to his wife to respond to questions [and needed] to be prompted independently of [his] wife's input." The VA clinician concluded that the Veteran was less depressed, "more awake and more animated since beginning Wellbutrin." The diagnoses were recurrent mild major depressive disorder and bipolar disorder. In August 2008, no relevant complaints were noted. The Veteran reported that he had a good relationship with his mother and a poor relationship with his father while growing up as the first of 4 children. He had been married to his second wife since 1993 and had a good marriage. He had a prior marriage which had ended in divorce after 4 years. He was retired. The Veteran's spouse stated that the Veteran "cannot be left alone, he falls and forgets things." The Veteran and his wife "have absolutely no income at this time." Mental status examination of the Veteran showed full orientation, a depressed mood, and no suicidal or homicidal ideation In a September 2008 statement, the Veteran's wife alleged that her husband always had a violent temper. "He seldom remembers being so angry and never remembers why he got mad. Seldom has there been a logical explanation....He breaks things and screams words like he is possessed." On VA outpatient treatment in September 2008, the Veteran's complaints included "daytime sedation/grogginess," irritability, and variable sleep with nightmares about his Vietnam service. The Veteran denied "any overtly manic symptoms," psychosis or paranoia, or thoughts of self-harm. He drank "3 shots of hard liquor daily." Mental status examination of the Veteran showed he was casually dressed with good eye contact, no abnormal movements, fluent speech with normal rate and tone, linear and goal-directed thought process, no auditory or visual hallucinations, and fair insight and judgment. The assessment included bipolar disorder, not otherwise specified. In November 2008, the Veteran's complaints included "[f]eeling depressed and anxious about his economic situation" because his application for Social Security Disability benefits had not yet been approved and memory problems. He denied suicidal or homicidal ideation or hallucinations or delusions. Mental status examination of the Veteran showed full orientation, good eye contact, and no abnormal psychomotor activity. The impressions were bipolar disorder and mild recurrent major depressive disorder. In February 2009, it was noted that the Veteran's "complaints are consistent w/symptoms of PTSD. Irritability, hyperstartle response, and continued nightmares and flashbacks all point to PTSD, rather than bipolar [disorder]." A diagnosis of bipolar disorder, not otherwise specified, was noted. The Veteran reported that his current medication regimen helped his mood stability. The Veteran's wife "states 'he is able to relax and sleep and is more awake during the day.'" There was no psychosis or paranoia and no suicidal or homicidal ideation. Mental status examination of the Veteran showed he was casually dressed with good eye contact, no abnormal movements, fluent speech with normal rate and tone, linear and goal-directed thought process, no auditory or visual hallucinations, and fair judgment and insight. In a May 2009 statement, the Veteran's wife asserted that her husband continued to have nightmares of his in-service experiences while in Vietnam. "He suffers severe ups and downs in mood even with the medication [though] they do contain the physical + verbal outbursts." On VA outpatient treatment later in May 2009, the Veteran reported that he was no longer stressed due to financial problems because his application for Social Security Disability benefits had been approved. He slept 8-9 hours a night and awoke feeling rested. He also was eating well and had good energy and concentration. He denied experiencing anxiety, depression, suicidal or homicidal ideation and was "getting on well with his wife and family members." Mental status examination of the Veteran showed he was "appropriately dressed and groomed" with full orientation, good eye contact, and no abnormal psychomotor activity. The impressions included stable bipolar disorder. In June 2009, the Veteran's complaints included depression, anxiety, and nightmares. Mental status examination of the Veteran showed normal speech, clear sensorium, full orientation, coherent and goal-directed thoughts, and intact memory. The impressions included bipolar disorder, unspecified. On VA psychiatric examination in July 2009, the Veteran's complaints included "problems with anger and aggression," nightmare about his Vietnam service 2-3 times a week, restless sleep, and initial and middle insomnia. The VA examiner reviewed the Veteran's claims file, including his service treatment records and post-service VA treatment records. The Veteran "says that minor things will trigger his anger." He received 8 hours a sleep per night even with his reported initial and middle insomnia. "He prefers to be alone and values his privacy. He says that he [is] easily agitated and overwhelmed." He also reported that he got along "fairly well" with his wife "but mainly because she tolerates a lot of his anger." He reported further that he had some friends but did not attend church or other organized social activities. He was full independent in his activities of daily living. He spent his time "watching TV and relaxing at home." Mental status examination of the Veteran in July 2009 showed he was casually dressed, well groomed, with fair social skills, logical, coherent, and relevant thought process, full orientation, fair judgment and reasoning, reported difficulty with short-term memory and concentration, fair long-term memory, reported periods of confusion, and a declining memory "over the last ten years or so." The Veteran stated that his depression had improved on medication. The VA examiner stated that the Veteran's psychiatric symptoms had only a mild impact on his social and occupational functioning. The VA examiner opined that the Veteran's mood disorder was "separate from military service." The rationale for this opinion was that the Veteran's mood disorder "appears to have had onset in the last three or four years and is not considered secondary to military service." This examiner also questioned whether the Veteran was exaggerating his psychiatric symptomatology "based on psychological testing." The Axis I diagnoses included mood disorder secondary to a general medical condition with depressed mood, anxiety, and behavioral disturbance. On VA outpatient treatment in August 2009, the Veteran's complaints included continued irritability with a hyperstartle response, nightmares 3-4 times a week which woke up his wife, continued flashbacks, self-isolation, an inability to be around others "even his grandchildren," constantly checking his doors at night, and feeling depressed and anxious. Mental status examination of the Veteran was unchanged from February 2009. The Veteran was advised to increase his Wellbutrin from 100 mg to 150 mg twice daily and to begin taking trazodone 100-200 mg once daily at bedtime each day. In October 2009, the Veteran's complaints included "[o]ccasional feelings of depression and anxiety 'because I am not healthy, I can't get around.'" He had good energy and concentration. He denied suicidal and homicidal ideation. He lived "with his wife with whom he has a good relationship." He spends his days "watching television shows, reading, and doing puzzles." Mental status examination of the Veteran showed he was appropriately dressed and groomed with full orientation, good eye contact, and no abnormal psychomotor activity. The impressions with bipolar disorder. In April 2010, the Veteran's complaints included improved irritability with hyperstartle response, continued intermittent nightmares, and continued intermittent flashbacks. The Veteran stated that his mood and anxiety were stable on his current medication regimen. He reported spending time on his coin and stamp collections. He denied any mania, hypomania, psychosis, paranoia, or thoughts of self-harm. Mental status examination of the Veteran showed he was casually dressed with good eye contact, no abnormal movements, fluent speech with normal rate and tone, linear and goal-directed thought process, no suicidal or homicidal ideation, and no auditory or visual hallucinations. On private psychiatric evaluation by W.B.R., M.D., in September 2010, the Veteran's complaints included difficulty falling and staying asleep, irritability and outbursts of anger, difficulty concentrating, hypervigilance, and an exaggerated startle response. Dr. W.R. stated that he had reviewed certain of the Veteran's VA treatment records. It was noted that the Veteran "now drinks an occasional beer, but admits to previous periods of binge drinking in response to feeling 'nervous.'" He lived at home with his wife and had been married to her for 17 years. Mental status examination of the Veteran showed full orientation, "[n]otably anxious in conversation and behavior," anxiety- driven psychomotor movements, no tardive dyskinesia, "[s]ome avoidance" of eye contact, "impaired but functional" attention and concentration, good remote memory, "impaired but functional" immediate memory, suicidal ideation "under stress, but not actively suicidal now," clear and linear thought process, and fair judgment and insight. The Axis I diagnoses included recurrent major depressive disorder and mood instability (bipolar type II versus mood instability of PTSD). A review of the Veteran's Social Security Administration (SSA) records, date-stamped as received by the RO in October 2010, shows that he was awarded SSA disability benefits for chronic obstructive pulmonary disease, osteoarthritis, gastroesophageal reflux disease (GERD), and liver disability. These records also show that, on private psychological assessment by P.A., Ph.D., in November 2008, no relevant complaints were noted. The Veteran's VA outpatient treatment for mental health problems was noted. Mental status examination of the Veteran showed he was casually dressed, adequately groomed, "no obvious speech problems but he deferred to his wife to answer some questions," inconsistent sleep, nightmares 2-3 times a week "which has seemed to increase with some of his medications," reported depression, occasional hopelessness, homicidal thoughts but no plan, no history of panic attacks or hallucinations "but said he sometimes thinks others are plotting against him." The Axis I diagnosis was recurrent moderate major depressive disorder. The Veteran's wife testified at the March 2011 RO hearing that, when she married the Veteran in 1993, "his temper was really bad." See RO Hearing Transcript dated March 2, 2011, at pp. 8. She also testified that the Veteran had significant mood swings which interfered with his sleep and he had not slept for 2 weeks prior to the hearing. Id., at pp. 9. The Veteran testified that he "relaxed an awful lot more" after he was started on medication by his VA treating clinician. Id., at pp. 11. On VA PTSD Disability Benefits Questionnaire (DBQ) in March 2012, it was noted that there had been no significant changes in the Veteran's mental health since his last VA examination. The VA examiner reviewed the Veteran's claims file, including his service treatment records and post- service VA treatment records. The Veteran reported increased social isolation since his last VA examination "primarily due to his having decreased patience because of his physical health." The Veteran still was married to his wife "and enjoys spending time with his dog, wife, collecting stamps and coins, and completing puzzles." He had not worked since 2007 due to physical problems. He quit smoking 2 years earlier "and drinks alcohol rarely/socially now and without problem[s]." The Veteran's drinking did not affect his psychiatric functioning. Mental status examination of the Veteran showed mild memory loss and difficulty in establishing and maintaining effective work and social relationships. The VA examiner stated: The Veteran does report some symptoms of depression (increased appetite and weight, anergia, amotivation, and mild hopelessness and helplessness), but these appear to be related to his physical health problems and resulting difficulty working. He reported being bored, but does enjoy doing things and does not have significant sadness. Overall, he reported that his psychiatric functioning is 'not that bad.' The Axis I diagnoses included mood disorder secondary to a general medical condition. On VA PTSD DBQ in March 2013, it was noted that the "Veteran reported he continues to enjoy stamp collecting, coin collecting, and spending time with his pet dog." He still was married to his wife of 20 years. The VA examiner reviewed the Veteran's claims file, including his service treatment records and post-service VA treatment records. It also was noted that he "maintains limited contact with his father and siblings." Mental status examination of the Veteran showed good eye contact, no inappropriate behavior, no current suicidal or homicidal ideation or plan, an ability to maintain personal hygiene and basic activities of daily living, full orientation, no gross short- or long-term memory deficits, thought process and communication within normal limits, a depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, and impaired impulse control. The VA examiner stated, "No evidence of psychosis was noted during current examination." This examiner also stated that no other mental disorder other than PTSD had been diagnosed. The Axis I diagnosis was PTSD. Analysis The Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for an acquired psychiatric disability other than PTSD, to include bipolar disorder, including as due to herbicide exposure. The Veteran has contended that his in-service herbicide exposure while in Vietnam caused or contributed to his acquired psychiatric disability other than PTSD, to include bipolar disorder. Because the Veteran's service personnel records (in this case, his DD Form 214) show that he had in- country duty in Vietnam, his active service meets the regulatory definition of Vietnam service found in 38 C.F.R. § 3.307(a)(6)(iii) and upheld by the Federal Circuit in Haas. See Haas v. Peake, 525 F.3d. 1168 (Fed. Cir. 2008) cert. denied 129 S. Ct. 1002 (2009) (upholding as permissible VA's regulatory interpretation of "service in Vietnam" as requiring in-country duty or visitation in Vietnam). Accordingly, because the Veteran had active service in Vietnam, his in-service herbicide exposure is presumed. See 38 C.F.R. §§ 3.307, 3.309. Although the Veteran's in-service herbicide exposure is presumed, an acquired psychiatric disability other than PTSD, to include bipolar disorder, is not among the diseases listed in § 3.309 for which presumptive service connection is available based on in-service herbicide exposure. Id. Thus, the Board finds that service connection for an acquired psychiatric disability other than PTSD, to include bipolar disorder, due to in-service herbicide exposure is not warranted. The Veteran also is not entitled to service connection for an acquired psychiatric disability other than PTSD, to include bipolar disorder, on a direct service connection basis. See 38 C.F.R. §§ 3.303, 3.304. The Veteran contends that he incurred an acquired psychiatric disability other than PTSD, to include bipolar disorder, during active service. The record evidence does not support the Veteran's assertions regarding in-service incurrence, however. It shows instead that the Veteran's psychiatric system was normal clinically at both his entrance and separation physical examinations. The July 2009 VA examiner also concluded that the Veteran's acquired psychiatric disability (which he diagnosed as mood disorder secondary to a general medical condition with depressed mood, anxiety, and behavioral disturbance) "appears to have had onset in the last three or four years" (i.e., several decades after service separation). The Board recognizes that a lack of service treatment records documenting in-service complaints of or treatment for an acquired psychiatric disability other than PTSD, to include bipolar disorder, does not preclude granting service connection. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). Critically, the record evidence indicates that the Veteran does not experience any current acquired psychiatric disability other than PTSD, to include bipolar disorder, which could be attributed to active service. The Board notes that the Veteran was diagnosed as having a variety of acquired psychiatric disabilities, to include PTSD and bipolar disorder, prior to his most recent VA PTSD DBQ in March 2013. The June 2009 VA examiner specifically opined that the Veteran's acquired psychiatric disability (which was diagnosed as mood disorder) was not related to active service, however. This opinion was fully explained and supported. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Following the Veteran's most recent VA PTSD DBQ in March 2013, a different VA examiner stated, "No evidence of psychosis was noted during current examination." This examiner also stated that no other mental disorder other than PTSD had been diagnosed. And the only Axis I diagnosis rendered in March 2013 was PTSD for which service connection already is in effect (as noted in the Introduction). A service connection claim must be accompanied by evidence which establishes that the claimant currently has a disability. Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection is not warranted in the absence of proof of current disability. The Board has considered whether the Veteran experienced an acquired psychiatric disability other than PTSD, to include bipolar disorder, at any time during the pendency of this appeal. Service connection may be granted if there is a disability at some point during the claim even if it later resolves or becomes asymptomatic. McClain v. Nicholson, 21 Vet. App. 319 (2007). In this case, although there is evidence of an acquired psychiatric disability prior to 2013, there is no evidence of current acquired psychiatric disability other than PTSD, to include bipolar disorder, which could be attributed to active service. The record evidence also indicates that the Veteran's prior diagnosis of an acquired psychiatric disability other than PTSD, to include bipolar disorder, was not related to active service. In summary, the Board finds that service connection for an acquired psychiatric disability other than PTSD, to include bipolar disorder, is not warranted. In this decision, the Board has considered all lay and medical evidence as it pertains to the issue. 38 U.S.C.A. § 7104(a) ("decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record"); 38 U.S.C.A. § 5107(b) (VA "shall consider all information and lay and medical evidence of record in a case"); 38 C.F.R. § 3.303(a) (service connection claims "must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence"). 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"). A Veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding 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). The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan, 451 F.3d at 1337; Barr, 21 Vet. App. at 303. In determining whether statements submitted by a Veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). As part of the current VA disability compensation claim, in recent statements and sworn testimony, the Veteran has asserted that his symptoms of an acquired psychiatric disability other than PTSD, to include bipolar disorder, have been continuous since service. He asserts that he continued to experience symptoms relating to an acquired psychiatric disability (anger, irritability, depression, anxiety) after he was discharged from service. In this case, after a review of all the lay and medical evidence, the Board finds that the weight of the evidence demonstrates that the Veteran did not experience continuous symptoms of an acquired psychiatric disability other than PTSD, to include bipolar disorder, after service separation. Further, the Board concludes that his assertion of continued symptomatology since active service, while competent, is not credible. The Board finds that the Veteran's more recently-reported history of continued symptoms of an acquired psychiatric disability other than PTSD, to include bipolar disorder, since active service is inconsistent with the other lay and medical evidence of record. Indeed, while he now asserts that this disorder began in service, in the more contemporaneous medical history he gave at the service separation examination, he denied any relevant in-service history or complaints of symptoms. Specifically, the service separation examination report reflects that the Veteran was examined and his psychiatric system was found to be normal clinically. His in-service history of symptoms at the time of service separation is more contemporaneous to service so it is of more probative value than the more recent assertions made many years after service separation. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements asserting different etiology); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board decision giving higher probative value to a contemporaneous letter the Veteran wrote during treatment than to his subsequent assertion years later). The post-service medical evidence does not reflect complaints or treatment related to an acquired psychiatric disability other than PTSD, to include bipolar disorder, for several decades following active service. The Board emphasizes the multi-year gap between discharge from active service (1969) and initial reported symptoms related to an acquired psychiatric disability other than PTSD, to include bipolar disorder, in approximately 2008 (a 39-year gap). See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (finding lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where Veteran failed to account for lengthy time period between service and initial symptoms of disability). The Board notes that the Veteran sought treatment for a myriad of medical complaints since discharge from service, including tinnitus and right ear hearing loss. Significantly, during that treatment, when he specifically complained of other problems, he never reported complaints related to an acquired psychiatric disability other than PTSD, to include bipolar disorder. Rucker, 10 Vet. App. at 67 (holding that lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). When the Veteran was seen by VA mental health professionals after service in June 2008, he did not report the onset of acquired psychiatric disability symptomatology during or soon after service or even indicate that the symptoms were of longstanding duration. He reported instead that he had been "depressed for [the] last 3 to 4 years due to his decreasing physical abilities and inability to work and recently because his mother died." Such histories reported by the Veteran for treatment purposes are of more probative value than the more recent assertions and histories given for VA disability compensation purposes. Id. The Veteran filed a VA education benefits claim in December 1971, approximately 2 years after his service separation, but did not claim service connection for any disability or make any mention of any relevant symptomatology. He did not claim that symptoms of his disorder began in (or soon after) service until he filed his current VA disability compensation claim. Such statements made for VA compensation purposes are of lesser probative value than his previous more contemporaneous in-service histories and his previous statements made for treatment purposes. See Pond v. West, 12 Vet. App. 341 (1999) (finding that, although Board must take into consideration the Veteran's statements, it may consider whether self-interest may be a factor in making such statements). The Board also notes in this regard that, following VA examination in July 2009, the VA examiner questioned whether the Veteran was exaggerating his psychiatric symptomatology "based on psychological testing." During the recent VA compensation claim, the Veteran reported the onset of symptoms to different times. Specifically, on the service connection claim he reported that his symptoms began during active service. As noted above, when seen on VA outpatient treatment in June 2008, the Veteran reported that his depression had begun 3-4 years earlier (or in approximately 2004-2005). These inconsistencies in the record weigh against the Veteran's credibility as to the assertion of continuity of symptomatology since service. See Madden, 125 F.3d at 1481 (finding Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (upholding Board's finding that a Veteran was not credible because lay evidence about a wound in service was internally inconsistent with other lay statements that he had not received any wounds in service). The Board has weighed the Veteran's statements as to continuity of symptomatology and finds his current recollections and statements made in connection with a claim for VA compensation benefits to be of lesser probative value than his previous more contemporaneous in-service history and findings at service separation, the absence of complaints or treatment for years after service, his previous statements made for treatment purposes, and his own previous histories of onset of symptoms given after service. For these reasons, the Board finds that the weight of the lay and medical evidence is against a finding of continuity of symptoms since service separation. ORDER Entitlement to service connection for an acquired psychiatric disability other than PTSD, to include bipolar disorder, including as due to herbicide exposure, is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs