Citation Nr: 1330655 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 06-24 386 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, other than posttraumatic stress disorder ("PTSD"). REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD T. Y. Hawkins, Counsel INTRODUCTION The Veteran served on active duty from February 2000 to November 2004. This matter comes before the Board of Veterans' Appeals ("Board") on appeal from a July 2005 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in St. Louis, Missouri, which, inner alia, denied entitlement to service connection for PTSD. This claim arises from the Veteran's claim of entitlement to service connection for PTSD as discussed below. The claim has subsequently been transferred to the Phoenix RO. The Board has previously considered this claim. In a May 2010 decision, the Board, inner alia, denied entitlement to service connection for PTSD and remanded the issue of entitlement to service connection for an acquired psychiatric disorder, other than PTSD, for additional development pursuant to the holding of the United States Court of Appeals for Veterans Claims ("Court") in Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that when a claimant makes a claim, he is seeking service connection for symptoms, regardless of how those symptoms are diagnosed or labeled), as the claim had not been adjudicated by the RO. A second remand for development took place in September 2011. Most recently, in January 2013, the Board remanded the claim again in order to afford the Veteran a new VA examination. As there has been substantial compliance with the Board's remand directives, the Board finds there is sufficient evidence to adjudicate the claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand). The Board notes that a portion of the Veteran's records are contained in the Virtual VA system. Instead of paper, a highly-secured electronic repository is used to store and review every document involved in the claims process. FINDING OF FACT There is at least an approximate balance of positive and negative evidence regarding whether the Veteran's bipolar disorder is the result of active duty service. CONCLUSION OF LAW Affording the Veteran the benefit of the doubt, bipolar disorder was incurred in service. 38 U.S.C.A. §§ 1110, 1153, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 ("VCAA") With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Furthermore, in light of the favorable decision for the Veteran in this case, any error in the timing or content of VCAA notice, if shown, would be moot. II. Analysis The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Under 38 U.S.C.A. § 1154(a), VA is also required to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. In Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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." (footnote omitted). However, the Court has held that "[t]he type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed." Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. In order to establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) the in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"- the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Federal Circuit has recently held that for purposes of 3.303(b), where the veteran asserts entitlement to a chronic condition, but there is insufficient evidence of a diagnosis in service, the veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013), aff'g Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011). (emphasis added). For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by a showing of in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). Additionally, service connection for certain diseases, such as psychosis, may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2012). The Veteran avers that she witnessed the deaths of two fellow sailors while she was stationed aboard the USS Enterprise during active duty service in 2001. She further claims that she developed an acquired psychiatric disorder in service. Review of the Veteran's service treatment records show that in an October 2004 report of medical history, she reported that she had experienced depression while on boat detail, and added that she had experienced a previous bout of depression approximately two months earlier. She also noted that she had not sought treatment for the claimed condition. It was further reported that she was now "ok" but that she still had occasional stretches of 2 to 3 days per month when she felt sad. Her October 2004 separation examination revealed psychiatric findings within normal limits. Post-service VA treatment records show that, in December 2004, the Veteran was seen for a psychiatry consultation at the VA Medical Center ("VAMC"), where she complained of "feel[ing] down most of the time." While she reported being very upset about the breakup of a long-term relationship, she also said that she could not get rid of thoughts and visions of two co-workers killed on the flight deck of the ship where she had served, and was experiencing flashbacks of the events. She said that, in 2001, she saw a man killed when he got caught on a moving object while planes were taking off. She also recounted a second incident, which she said happed about a year earlier, when she said a man was killed when he was directing a helicopter and was decapitated. She recounted having nightmares about these incidents, but said that, because she was the only woman on her ship, she did not want to show any emotion for fear that she would be considered inferior. The Veteran was diagnosed with depressive disorder, not otherwise specified ("NOS") and chronic PTSD. Her Axis IV findings (psychosocial and environmental causes) were listed as breakup with long-term relationship and unemployment. In April 2005, the Veteran was admitted to the psychiatric ward of the VAMC after being seen earlier in the day as an outpatient and reporting overwhelming feelings of depression. The diagnoses at that time were depressive behavior and neurosis, NOS. Again, she recounted witnessing the deaths of two fellow servicemen, adding that they "were always in a combat situation." The Veteran was hospitalized for eight (8) days and was discharged in May 2005 with diagnoses of major depression, recurrent, and PTSD. In April 2013, the Veteran was afforded a VA/DBQ examination pursuant to her service connection claim for an acquired psychiatric disorder. In addition to receiving a diagnosis of PTSD, the Veteran was also diagnosed on Axis I with bipolar disorder. The clinician opined that the Veteran's acquired psychiatric condition of bipolar disorder was at least as likely as not incurred in, or caused by the claimed in-service event, injury or illness. In this respect, he noted that the Veteran's claims folder showed that she had obtained mental health treatment for depression about one month after discharge from service, at which time, she reported witnessing two casualties aboard ship. He added that it was most likely that her depression at that time was a continuation of her depression in the military and most likely was an early sign of her current bipolar disorder. However, the examiner noted that the Veteran also reported PTSD symptoms during the examination related to witnessing one of the accidents on her ship, but noted that this stressor was unverified per his knowledge; he also said that she did not report being the victim of any assault. Thus, he concluded that the cause of the Veteran's PTSD could not be resolved without mere speculation. III. Conclusion It is VA's defined and consistently applied policy 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. By reasonable doubt, it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102 (2012); see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Court has stated that "[i]t is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Based on a review of the complete evidence of record, the Board concludes that service connection for bipolar disorder is warranted. As noted above, the VA/QTC examiner concluded that it was at least as likely as not that the Veteran's bipolar disorder was incurred in service. The examiner noted that the Veteran was seen for depression about one month after discharge from service reportedly having difficulty with witnessing two accidents aboard ship. The examiner also stated that the depression reported by the Veteran within one month of discharge was likely a continuation of the depression she experienced in service. While the Board notes that the RO has been unable to verify the accidents purportedly witnessed by the Veteran on board ship, she clearly reported at the time of her separation examination in October 2004 that she had experienced a couple of bouts of depression in service, and continued to experience recurrent periods of sadness since then. The Board notes further, that the examiner's conclusion that there is a causal link between the Veteran's depression reported in service and within one month of service, and her current diagnosis of bipolar disorder is clearly not dependent on the in-service incidents reported by the Veteran. The examiner clearly stated and acknowledged that the incident involving the death of a fellow soldier on the flight deck had not been verified, and thus, the cause of the Veteran's PTSD could not be resolved without mere speculation. The examiner, however, expressed no such reservations regarding the diagnosis of bipolar disorder and its likely relationship to the Veteran's service. Based on the foregoing, the Board finds the VA examiner's opinion to be of substantial probative weight in this case. Moreover, in accordance with the decisions of the Federal Circuit in Buchanan v. Nicholson, 451 F. 3d 1331, 1336-37 (Fed. Cir. 2006), and Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Board finds that the lay evidence presented by the Veteran concerning her in-service depression and continuous symptoms of depression since then, which an examiner has related to a current diagnosis of bipolar disorder, is generally credible and ultimately competent. As discussed above, the Veteran's service treatment records demonstrate that she reported having feelings of depression twice during service and sought treatment for depression approximately one month after discharge. For these reasons, the Board concludes that there is at least an approximate balance of positive and negative evidence regarding whether the Veteran's bipolar disorder is the result of active duty service. Consequently, having resolved doubt in favor of the Veteran, the Board finds that the Veteran's claim for service connection has been established. ORDER Entitlement to service connection for bipolar disorder is granted. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs