Citation Nr: 1334673 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 97-14 694 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran had active service from December 1962 to December 1966. He was a member of the Air Force Reserves and also served on active duty for training (ACDUTRA) from July 1980 to December 1980, January 1988 to May 1988, and additional periods of shorter duration until his separation from the Reserves in June 1990, including (in relevant part) May 3, 1989, to May 11, 1989. This matter comes to the Board of Veterans' Appeals (Board) from an October 1993 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, in which the RO determined that new and material evidence had not been presented to reopen the Veteran's claim for service connection for a psychiatric disorder. The Veteran perfected an appeal of that decision. In October 1997, the Veteran had a hearing before a representative of the Board. A transcript of that hearing has been associated with the claims file. The Veteran's appeal was previously before the Board in May 1998, at which time the Board remanded the case to the RO for additional development. The case was then returned to the Board, and in a June 2003 decision the Board determined that new and material evidence had not been submitted to reopen the previously denied claim. The Veteran appealed the Board's June 2003 decision to the United States Court of Appeals for Veterans Claims ("Court"). As the result of a Joint Motion, in a January 2004 Order, the Court vacated the June 2003 decision and remanded the case to the Board for further development and re-adjudication. In July 2004, the Board determined that new and material evidence had been presented and reopened the Veteran's claim. The Board then remanded the case for certain procedural and evidentiary development. In February 2009, the Board again remanded the Veteran's case for additional procedural and evidentiary development. In February 2011, the Veteran was informed that the Veterans Law Judge that conducted his October 1997 Board hearing was no longer employed by the Board. In a response submitted that same month, the Veteran indicated that he wished to appear at a hearing before a Veterans Law Judge in Washington, D.C. In a letter dated in May 2011, the Veteran was informed that he was scheduled for this hearing in July 2011. However, in a May 2011 written statement, the Veteran's representative withdrew the hearing request. Subsequently, in an August 2011 decision, the Board denied the Veteran's claim. The Veteran again appealed the denial to the Court and in a March 2013 Memorandum Decision, the Court vacated the August 2011 Board decision and remanded the matter for further consideration. 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 The Veteran contends that he has a diagnosed bipolar disability as a result of his military service. Specifically, the Veteran asserts that while driving back from service that ended May 11, 1989, he began to experience symptoms that later were diagnosed as bipolar disorder. The March 2013 Memorandum Decision found that the Board's analysis in the August 2011 decision was inadequate with respect to the Veteran's credibility in statements about the initial onset of his symptoms. The Board had found several of the Veteran's statements to be inconsistent as to when he arrived home from training and other events during the time period that the Veteran claimed psychiatric symptom onset. The Court, however, found that the Veteran, "has consistently reported that, upon completion of a refueling mission out of Seymour Johnson Air Force Base in Goldsboro, North Carolina, he drove in the direction of his home in Charleston, South Carolina, during which time he felt euphoric, extremely elated, "high" or as if "struck by lightning... He has consistently indicated that, after initially arriving at home, he stayed there for only a brief period, no more than two hours... He has consistently stated that, in his euphoric state, he then drove around between Charleston, Myrtle Beach, and Goldsboro for several days... He has consistently reported that, when he finally returned home to Charleston, his best friend came over shortly after his arrival." (Citations omitted.) The Court found the Board's August 2011 conclusions that the Veteran had been inconsistent in his reports about when he initially returned home to Charleston after completing training on May 11, 1989, and the time period when his friend found him to be contrary to the evidence of record. That said, the Court did acknowledge that the Veteran's statements during a June 1993 VA examination report that his symptoms began while he was flying were inconsistent with other statements of records; however, the Board had not relied on this inconsistency in the August 2011 decision. As such, the Veteran has consistently reported that his psychiatric symptoms subsequently diagnosed as bipolar disorder began either while flying or on his trip returning home after release from duty on May 11, 1989. Moreover, there are numerous diagnoses of bipolar disorder of record, the first diagnosis of record having been made several days after the Veteran's period of service ending on May 11, 1989, when he was involuntarily hospitalized on May 22, 1989. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). The threshold for determining a possibility of a nexus to service is a low one. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the Veteran was afforded a VA examination in June 1993. At that time, the examiner diagnosed the Veteran with bipolar disorder, manic type. The examiner, however, did not offer an opinion as to whether the bipolar disorder was related to the Veteran's military service. In light of the evidence of record, the Board concludes that a VA examination is necessary to determine any relationship between any current psychiatric disorder, including bipolar disorder, and the Veteran's military service. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA psychiatric examination. The claims file should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. After reviewing the file, eliciting a history directly from the Veteran, and conducting a thorough examination, as well as any studies deemed necessary, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed psychiatric disorder or any psychiatric disorder not currently diagnosed but diagnosed at some point during the appellate time period (i.e. bipolar disorder), was incurred in or is otherwise related to the Veteran's active duty or active duty for training (ACDUTRA) service. In that regard, the examiner is requested to presume for the purpose of the above opinion that the Veteran was on active service for the period May 3, 1989 through May 12, 1989 (i.e. including the Veteran's travel time after his service period ended on May 11, 1989). In addition to the above, the examiner is requested to consider, and discuss as appropriate, the perceived credibility of the Veteran's assertions as to the onset of his psychiatric symptoms on which his diagnoses of bipolar disorder have been based. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinion provided. 2. After the above is complete and undertaking any additional development deemed necessary, readjudicate the Veteran's claim. If the claim remains denied, issue a supplemental statement of the case (SSOC) to the Veteran and his representative, and they should be given an opportunity to respond, before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or 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 A. PAPPAS 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).