Citation Nr: 1329604 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 07-00 365 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Nathaniel J. Doan, Counsel INTRODUCTION The Veteran served on active duty from August 1970 to November 1974. He received several decorations and awards including the Vietnam Service Medal and the Combat Action Ribbon. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran and his spouse testified before the undersigned during a November 2008 Travel Board hearing, and a transcript of that proceeding is of record. The Board remanded the claim in December 2008, November 2009, and August 2011 for additional development. In addition, the Board sought a medical expert opinion from the Veterans Health Administration (VHA) pursuant to 38 C.F.R. § 20.901. As discussed in August 2011 remand, the Board has re- characterized the original claim of entitlement to service connection for bipolar disorder as entitlement to service connection for an acquired psychiatric disorder other than PTSD, pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009). In this regard, the issue of service connection for PTSD was separately denied in a November 2009 Board decision and is not currently before the Board. FINDINGS OF FACT 1. The Veteran participated in combat and experienced euphoria and depression as a result of such service. 2. The Veteran's lay statements reflect that his bipolar disorder began during service and has continued to the present. CONCLUSION OF LAW The criteria for establishing service connection for bipolar disorder have been met. 38 U.S.C.A. §§ 1110, 1112, 1154, 5107 (West 2002), 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION As the instant decision is fully favorable, no discussion of VA's duties to notify or assist is necessary. Generally, in order to establish direct service connection, three elements must be established. There must be medical evidence of a current disability; medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2013); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). In some circumstances, certain chronic diseases listed at 38 C.F.R. § 3.309(a) may be presumed to have been incurred in service if manifest to a compensable degree within one year from discharge from service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 are also satisfied. 38 U.S.C.A. §§ 1112, 1113, 1137 (West 2002); 38 C.F.R. § 3.309 (2013). For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. 38 C.F.R. § 3.303(b) (2013). Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. The Veteran participated in combat as evidenced by his receipt of the Combat Action Ribbon. In the case of any Veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. 38 U.S.C.A. § 1154(b) (West 2002). Service- connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. Id. The Federal Circuit has held that the presumption found in § 1154(b) applies not only to the potential cause of a disability, but also to whether a disability itself was incurred while in service. See Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). The Federal Circuit explained that with the presumption, the Veteran did not have to attempt to establish that the event during service led to a disability following service but instead only had to show that the disability incurred in service was a chronic condition that persisted in the years following active duty. Id. At 999-1000. In this case, there are numerous diagnoses of bipolar disorder of record, including within the most recent VA psychiatric examination report dated in April 2010. The first element of service connection is therefore met. Additionally, the Veteran's lay statements are sufficient proof of the occurrence of both in-service euphoria and depression as well as the resulting in-service bipolar disorder, because the Veteran served in combat and the evidence is consistent with the circumstances, conditions, or hardships of such service. Id. Finally, a nexus between the in-service injury and bipolar disorder, and the present diagnosis of bipolar disorder, has been established via continuity of symptomatology. The continuity provisions of 38 C.F.R. § 3.303(b) cited above only apply to the chronic diseases enumerated in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Pertinent to the case at hand, "psychoses" are among the list of chronic diseases listed within 38 C.F.R. § 3.309(a), and the Veteran's bipolar disorder has been classified as having "psychotic features," See, e.g., the June 2005 record from Laureate Hospital. While the Veteran did not seek treatment for bipolar disorder for years after service, as noted above he contends that he has experienced continuous euphoria and depression since exposure to combat. For example, in an October 2000 private treatment record, five years before he filed the instant claim for benefits, the Veteran reported experiencing symptoms of mania and depression since the age of 23, when he was on active duty. During his 2008 Board hearing, he testified that he experienced his first manic episode aboard the USS Blandy in January 1973, after a cease fire went into effect. His spouse has provided testimony and statements supporting the Veteran's assertions of continuous mood swings following his combat service. The Board emphasizes that the Veteran is competent to report observable symptomatology such as feelings of euphoria and depression. See Charles v. Principi, 16 Vet. App. 370 (2002). In addition, the Board finds the Veteran's testimony and statements that he has experienced these symptoms since combat service to be credible. There are contradictory VA medical opinions of record. However, these opinions do not account for the Veteran's competent and credible reports of in-service psychiatric symptoms that have continued to the present, and instead rely on an absence of treatment for bipolar disorder in service or many years thereafter in support of a negative nexus. Accordingly, they are afforded little probative weight, as they are based on an inaccurate factual premise, and do not constitute clear and convincing evidence that the Veteran's bipolar disorder is not a chronic condition that persisted in the years following active duty. See Reeves, supra. In summary, the Veteran experienced euphoria and depression coincident with his combat service, and he is competent to state that his bipolar disorder began during service and has continued to the present. For all the reasons stated above, service connection is warranted for bipolar disorder. ORDER Entitlement to service connection for bipolar disorder is granted. ____________________________________________ Sonnet Gorham Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs