Citation Nr: 1527810	
Decision Date: 06/29/15    Archive Date: 07/09/15

DOCKET NO.  04-12 158A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

Entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	Robert Chisholm, Attorney at Law


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

P. Olson, Counsel

INTRODUCTION

The Veteran had active military service from August 1970 to November 1971.

This matter comes back before the Board of Veterans' Appeals (Board) on Remand from the United States Court of Appeals for Veterans Claims regarding a Board decision rendered in December 2013.  This matter was originally on appeal from a rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Winston-Salem, North Carolina.

In December 2005, the Veteran testified at a Travel Board hearing.  A transcript of that hearing is of record.

In a November 6, 2014 Joint Motion for Remand (JMR), the parties (the Veteran and VA) agreed that remand was necessary because the Board failed in its statutory duty to assist.  Specifically, the parties noted that VA failed to associate with the claims file VA treatment records from the Salisbury, North Carolina VA Medical Center (VAMC) and Hickory, North Carolina, Community Based Outpatient Clinic (CBOC) during the period from April 2007 to April 2010.  In April 2015, the Veteran submitted this evidence directly to the Board accompanied by a signed written waiver of the RO's initial consideration of this additional evidence.  

In preparing to decide the issues on appeal, the Board has reviewed the contents of the Veteran's electronic ("Virtual VA") file, as well as the evidence in his physical claims file.


FINDING OF FACT

The onset of Bipolar Disorder was at least as likely as not triggered by the Veteran's stress experienced during his active duty service.  



CONCLUSION OF LAW

Resolving all reasonable doubt in the Veteran's favor, Bipolar Disorder was incurred in active service.  38 U.S.C.A. §§ 1101, 1110, 5107 (West 2014); 38 C.F.R. § 3.303 (2014).


REASONS AND BASES FOR FINDING AND CONCLUSION

Preliminary Matter

Pursuant to the Board's April 2006, April 2011, June 2012, and July 2013 Remands, the Veteran's personnel file and outstanding VA treatment records have been associated with the claims file; VA examinations were scheduled to determine the nature and etiology of any psychiatric diagnoses and later, the claims file was referred to a psychiatric professional to determine whether a psychiatric disorder preexisted service; the claim was readjudicated under provision of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) as discussed in more detail below; and a Supplemental Statement of the Case was issued.  Based on the foregoing actions, the Board finds that there has been compliance with the Board's April 2006, April 2011, June 2012, and July 2013 remands.  Stegall v. West, 11 Vet. App. 268 (1998).

Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014).  In light of the favorable outcome of this appeal, any perceived lack of notice or development under the VCAA should not be considered prejudicial.  



Service Connection

Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Service connection may be established for a current disability on the basis of a presumption under the law that certain chronic diseases, such as psychosis, manifesting themselves to a certain degree within a certain time after service must have had their onset in service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.304, 3.307 and 3.309(a).  Service connection may be established under 38 C.F.R. § 3.303(b) by evidence of continuity of symptomatology.  

To prevail on the issue of service connection there must be evidence of a current disability, in-service incurrence or aggravation of a disease or injury; and a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 

The Veteran's service personnel records show that he was discharged by reason of unsuitability due to immature personality.

Administrative Remarks dated in September 1971 state, 

Assigned mark of 2.0 in military behavior, 2.8 in military appearance, and 2.8 in adaptability due to his extreme immaturity.  [The Veteran] is unable to adapt to military life.  He is respectful to seniors but his actions otherwise are erratic and unpredictable. [The Veteran's] appearance is normally dirty and unkempt.  He takes little pride in the proper wearing of a military uniform.  With his present attitude and unstable performance, [the Veteran] is of little value to the Navy.

The Veteran's service treatment records indicate that in May 1971, he was hospitalized for a suicidal gesture.  At that time, the Veteran stated that he had never had a home life and that his parents and relatives did not care about him.  The provider noted that the Veteran was also having trouble on the ship with his fellow workers in that they "kid" him and "ride" him.  The Veteran stated that he liked to get away from people and be by himself and that he seemed to be trying to get attention from his superiors at all times by doing various things.

The Veteran was referred for psychiatric evaluation at which time he stated that his father had a hot temper and seemed to disapprove of him and not care what happened to him and never seemed to be pleased by his efforts, seeming to prefer his younger brother.  The Veteran stated that his mother was somewhat better but still he felt that he was rejected by his family.  The Veteran reported that although having a few friends in high school, a good portion of his peers seemed to taunt and tease him trying to elicit some kind of response from him.  The Veteran stated that on one occasion after what sounded like a good deal of provocation, he finally did turn around and strike one of his peers hard enough that he had to be hospitalized briefly.  At that time, the Veteran was sent for psychiatric consultation on a one-term basis only.  The Veteran dropped out of high school in the tenth grade stating that his main problem was in getting along with his peers.  The Veteran stated that he was considering suicide at that point but joined the Navy to get away from the teasing and his father's anger and disapproval.  The Veteran stated that he was not especially unhappy with the Navy but was unhappy with the way that he seemed to be, as before, the butt of kidding and derision.  The provider noted that it was unclear from the Veteran's description how serious the kidding was and it was speculated that he might be over-reacting.

After mental status examination, the Veteran was diagnosed as having immature personality.  It was not felt at that time that the Veteran was a serious suicide risk; but it was felt that an impulsive suicide gesture in the future was not out of the question.  It was recommended that the Veteran be put in a program of therapy at that installation as his ship was not due to deploy until sometime in August.

In August 1971, he was referred for psychiatric evaluation by the base legal officer.  The provider indicated that the Veteran had been previously seen by that clinic in May 1971 at which time he was diagnosed as having an Immature Personality, that he was having problems with peer and authority relationships aboard ship, and that he was seen on two or three occasions on a counseling basis with some alleviation of his problem.  The provider noted that he had again began to engender interpersonal problems with authorities as well as his shipmates culminating in a Captain's Mast in June 1971 for a period of unauthorized leave followed by a Special Court-Martial for another period of unauthorized leave.  The Veteran reported that he had enormous difficulty getting along with his peers as well as authorities and perceived himself as intensely disliked aboard ship for reasons which escaped him.  The Veteran perceived himself as constantly harassed and persecuted by his shipmates because of his propensity for acute outbursts of temper.  The Veteran reported that because of his agitation and dislike for the Navy and for his relationships within the Navy, he made a mild suicide gesture approximately one week before by inflicting superficial lacerations to his own left wrist but denied any acute suicidal intent at that time.  The provider noted that the Veteran chronically had difficulties with peers and with control of his temper.  He did poorly in high school and dropped out of school in the tenth grade because of his problems with peers.

After mental status examination, the diagnosis of severe immature personality was reaffirmed.  The provider stated, 

It is quite evident that [the Veteran] has had considerable access to the normal avenues of counseling within the Navy; and although having some transient ameliorative effects, it becomes apparent that these effects are only transient and that his problems are chronic and most probably resistive and refractory to change within the context of the Navy.  Given this man's recent malperformance despite having had access to counseling as well as his blatant lack of motivation at this time to continue his enlistment resulting in his recent malperformance, it is the recommendation of this psychiatrist that his command consider [the Veteran] for separation from the Navy by reason of unsuitability based on a duly diagnosed character disorder...

The Veteran was admitted to the hospital in October 1971 after he had gone on unauthorized absence from his ship and missed his ship's movement.  The provider noted that the Veteran went to Manila and made a "suicidal attempt" with supposedly 20 Seconals but woke up and went to the American Embassy who referred him back to Subic Bay.  At the time of admission, he made it clear that he wanted to get out of the Navy and claimed that he had been recommended for discharge by a psychiatrist but that at the time of admission he was somewhat disoriented secondary to barbiturate.  After mental status examination, the Veteran was diagnosed as having acute brain syndrome secondary to barbiturates and immature personality.  It was recommended that he be processed for administrative separation as unsuitable for military service because of immature personality.

The Veteran underwent VA examination in May 2011.  In a June 2011 addendum opinion, the VA examiner who conducted the May 2011 VA examination noted that the Veteran's current diagnosis, based on a review of all the records and based on his clinical presentation during the examination, was bipolar disorder. 

In January 2013, the VA examiner who conducted the May 2011 VA examination stated,  

Due to conflicting information in the veteran's records, it is not entirely clear if the veteran entered service with a psychiatric disorder.  However, after considering all available information, it is the opinion of the undersigned examiner that the veteran entered service with a personality disorder, which is a specific type of psychiatric disorder.  On his enlistment paperwork, dated 8/14/70, the veteran answered "NO" to the following two questions:  "Have you ever been under the care of a psychiatrist or psychologist?" and "Have you ever been a patient (whether or not formally committed) in an institution primarily devoted to the treatment of mental, nervous, emotional, psychological, or personality disorders?"  His negative response would indicate no history of mental health treatment or psychiatric disorder or treatment prior to service.

However, when the veteran was seen by military medical providers in May 1971 following a suicide gesture, he reported to them that he had been "seen by a psychiatrist since grade school" and had been sent for psychiatric consultation and brief hospitalization during high school after having struck one of his peers.  This indicates that it is quite possible he entered military service with a psychiatric disorder that he had failed to disclose upon enlistment such that his enlistment paperwork was completed in a fraudulent manner.  Additionally, during his military service (May 1971), the veteran was diagnosed with a personality disorder (Immature Personality) which appears t[he] reason for his military discharge.  By definition, personality disorders consist of stable, enduring, chronic patterns of inflexible and maladaptive personality traits th[e] onset of which can be traced back at least to adolescence or early adulthood. 

Given the diagnostic features, clinical course, and definition of personality disorders, it is believed that traits of the veteran's personality disorder diagnosis existed in the veteran prior to his military service.  By definition, such traits would not have spontaneously developed between his enlistment in August 1970 and the initial diagnosis provided by the military medical providers in May 1971.

There is no evidence in available medical records that the veteran's personality disorder increased in severity during his military service.  Available records (see consultation dated 8/23/71) indicate he was sent for counseling (two or three sessions) which, according to the report, temporarily alleviated some of his interpersonal problems but he eventually became engendered in additional interpersonal difficulties.  Such a clinical course is entirely consistent and expected within the normal progression of a personality disorder and, in fact, is one of the defining features of personality disorders.

In an August 2013 opinion, the VA examiner who conducted the May 2011 VA examination opined that it was less likely as not that the Veteran's immature personality disorder was the early onset of the later diagnosed bipolar disorder.  In addition, the examiner also opined stated that there was no superimposed acquired psychiatric pathology demonstrated during service that resulted in additional disability.  The examiner stated that based on all information available, there was no known relationship between the Veteran's in-service symptoms (i.e., symptoms associated with personality disorder) and the later onset of the Veteran's bipolar disorder.  The examiner noted that immature personality disorder and bipolar disorder were entirely separate and distinct psychiatric disorders that fall within two separate and distinct diagnostic categories, personality disorders and mood disorders.  The examiner noted that personality disorders and mood disorders were coded on separate axes with the DSM-IV-TR multi-axial system for psychiatric diagnosis and that by definition and as demonstrated through classification means, neither of the disorders were the "early onset" of the other.

The VA examiner also stated that service treatment records were entirely absent any indication of "superimposed acquired psychiatry pathology," and that the only psychiatric pathology that was documented during military service was that associated with immature personality disorder.

In support of his claim, the Veteran submitted a March 2015 private psychological evaluation report.  The private psychologist noted that the assessment included an interview with the Veteran, behavioral observations and mental status examination, review of service record claims file, and Minnesota Multiphase Personality Inventory-2 (MMPI-2).  The psychologist noted that the Veteran's service medical records indicate that he made three suicidal gestures in 1971 and had multiple disciplinary issues, including AWOLs, during active duty in the Navy.  

The psychologist opined that the Veteran met the criteria for Bipolar Disorder due to historical data and evidence of several Major Depressive Episodes as well as symptoms of Hypomanic Episodes, despite denial in the self report.  The psychologist noted that it appeared evident from historical data and symptom presentation that the Veteran suffered from PTSD as a result of the assault and threats he encountered while on active duty and that such traumatic experiences at least as likely as not aggravated his major mood disorder and may have disposed him to the onset of a Major Depressive Episode as part of his current Bipolar Disorder.  The psychologist noted that the Veteran did not appear to meet the criteria for PTSD despite the fact that he still experienced some trauma-related symptoms.  

The psychologist noted that she believed that the Veteran's childhood experiences with an abusive father and uncaring environment contributed to the development of a personality disorder that had underlying fears of rejection and abandonment at its root.  The psychologist noted that Bipolar Disorder is a disorder based in brain chemistry with mean onset at 18 years old.  She noted that family history could serve as a risk factor for the disorder and stress could trigger the onset of the disorder as well as aggravate its course.  The psychologist noted that there were no distinct major depressive or manic/hypomanic episodes prior to military service that would have constituted a diagnosis of Bipolar Disorder prior to enlisting but that instead it appeared that the only clear episodes of psychiatric dysfunction emerged following his trauma during military service.  The psychologist opined that it was at least as likely as not that the Veteran's Bipolar Disorder had its onset during service.  

The Board notes that there is a difference of opinion among the medical professionals.  In deciding whether the Veteran's Bipolar Disorder is in any way related to his active duty service, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others.  Evans v. West, 12 Vet. App. 22, 30 (1998).  That responsibility is particularly onerous where medical opinions diverge.  At the same time, the Board is mindful that it cannot make its own independent medical determinations and that there must be plausible reasons for favoring one medical opinion over another.  Id.

However, a more detailed discussion of the specific opinions, credentials of the diagnosticians, and circumstances of opinions in this case would not clarify the matter.  It would merely highlight that there is not a clear, rational basis for the Board to prefer one opinion to another.  

Accordingly, the Board finds that the competent medical evidence of record, both for and against findings that the Veteran's Bipolar Disorder was incurred in or aggravated by his active duty service is in a state of equipoise.  Accordingly, reasonable doubt is resolved in favor of the Veteran.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.


ORDER

Entitlement to service connection for Bipolar Disorder is granted.


____________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs