Citation Nr: 1610712 Decision Date: 03/16/16 Archive Date: 03/23/16 DOCKET NO. 10-02 487 ) 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, to include bipolar disorder, sleep disorder, anxiety attacks, schizophrenia, and depression. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Ishizawar, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from May 1972 to August 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Muskogee, Oklahoma Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, denied service connection for a bipolar disorder, to include manic depression; a sleep disorder; panic attacks; and schizophrenia. In June 2011, a Travel Board hearing was held before an Acting Veterans Law Judge who is no longer employed by the Board. A transcript of this hearing is of record. In March 2012 and May 2014, this case was remanded for additional development. The case has been reassigned, and in June 2015, a Travel Board hearing was held before the undersigned. A transcript of this hearing is also of record. At the June 2015 Travel Board hearing, the Veteran sought, and was granted, a 60-day abeyance period for the submission of additional evidence. 38 C.F.R. § 20.709 (2015). In July 2015, the Veteran submitted additional evidence with a waiver of initial Agency of Original Jurisdiction (AOJ) review. 38 C.F.R. § 20.1304 (2015). FINDING OF FACT It is reasonably shown that the Veteran's acquired psychiatric disorder (variously diagnosed), to include bipolar disorder, sleep disorder, anxiety attacks, schizophrenia, and depression, is related to his service. CONCLUSION OF LAW Service connection for an acquired psychiatric disorder (variously diagnosed), to include bipolar disorder, sleep disorder, anxiety attacks, schizophrenia, and depression, is warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION As the Board's decision to grant service connection for an acquired psychiatric disorder is completely favorable, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection also may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection, there must be evidence of a current disability; evidence of in-service incurrence or aggravation of a disease or injury; and evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements conveying sound medical principles found in medical treatises. Competent medical evidence may include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran seeks service connection for an acquired psychiatric disorder, to include bipolar disorder, sleep disorder, anxiety attacks, schizophrenia, and depression. In various statements, including at the June 2011 and June 2015 Travel Board hearings, he explained that this condition had its onset in service and that he has experienced ongoing problems with the condition since service. In particular, he explained that while undergoing his service entrance physical examination, he witnessed an individual who drank floor wax and tried to commit suicide. He also witnessed another individual take a vial of blood and throw it against the wall. The Veteran stated these incidents were upsetting to him and caused him to have a mental breakdown, such that he no longer wanted to serve in the military and "did everything that [he] could to get out." See June 2015 Travel Board hearing transcript, p. 5. This included going absent without leave (AWOL) in service and admitting to drug use prior to service even when it was not true in order to be discharged from service. See id. The Veteran noted that, on the contrary, prior to service he attended Kemper Military Academy where he was a member of their marching band and performed without incident. In August 2011, the Veteran submitted evidence from Kemper Military Academy to show that he was a member of their marching band. He also submitted a "character reference" from a former classmate of his, L.R., who stated that he "found [the Veteran] to be of sound mind and body with exceptional moral values and character." The Veteran's service treatment records, which include only a service examination physical examination report and do not include a service separation physical examination report, are silent for any complaints, findings, treatment, or diagnoses related to a psychiatric condition. However, the Board notes that at the June 2011 Travel Board hearing, it was his testimony that although he tried to seek mental health treatment in service, he was sent back to work. Instead, it was not until shortly after he separated from service that his parents sent him to a doctor for mental health treatment. See June 2011 Travel Board hearing transcript, pp. 5-8. The Veteran's service personnel records confirm that in June 1972, he received a nonjudicial punishment for being absent without authorization for about two hours. Around that time, he was also considered for an administrative separation from the naval service because he had "procur[ed] a fraudulent enlistment by concealing [his] pre-service use of LSD, methamphetamines, cocaine, THC, hashish, heroin, and barbiturates." The Veteran was eventually separated from service in August 1972 under honorable conditions. After service, it is the Veteran's contention that he was seen almost immediately thereafter by a physician, Dr. S., who diagnosed manic depression. The Veteran states those records are no longer available as the physician has passed away. After Dr. S., he sought mental health treatment from several other physicians who prescribed medication. The Veteran states these records are also no longer available due to length of time since treatment. The postservice treatment records available in the record show that in a May 2001 treatment record from Tulsa Bone & Joint (Dr. J.C.S.), the Veteran was noted to have a significant past medical history of depression. In July 2008, the Veteran was evaluated by R.A.H., D.O., from the Harvard Medical Clinic, as part of a claim for Workers' Compensation. The report indicates that as part of the evaluation, a history was taken followed by a physical examination, and that medical records were reviewed. The examiner stated, "The patient does have a known history of depression previously diagnosed and treated by [Dr. S.] approximately 30 years ago. He was placed onto Mellaril and did quite well." VA treatment records show that in April 2010, the Veteran seen by the mental health clinic for a comprehensive evaluation/initial treatment plan. During this visit, the Veteran complained of anger and an inability to deal with people, which he indicated had been going on since boot camp. He then provided a history of his military service that was consistent with what he provided during the June 2011 and June 2015 Travel Board hearings. In April 2012, the Veteran was provided a VA examination to determine whether he had an acquired psychiatric disorder that was related to his service. After reviewing the claims file as well as interviewing/examining the Veteran, it was the examiner's opinion that the claimed condition was less likely than not related to the Veteran's service. The examiner explained that despite the Veteran's self-report of mental issues in service and treatment for mental issues immediately after service, his claims file was "silent for any records of mental health treatment during his service or within the presumptive period following service." Therefore, he "would have to resort to mere speculation to opine whether [the] veteran's current schizoaffective disorder was the result of military service or had its onset during [the] veteran's military service." In reviewing the April 2012 VA examiner's medical opinion, the Board acknowledges that he provided an explanation for why he could not offer an opinion without resorting to mere speculation. See Jones v. Shinseki, 23 Vet. App. 382, 389 (2010) (stating that "it must be clear on the record that the inability to opine on questions of diagnosis and etiology is not the first impression of an uninformed examiner, but rather an assessment arrived at after all due diligence in seeking relevant medical information that may have bearing on the requested opinion."). However, the Board notes also that the examiner's sole reason for not being able to provide the requested opinion is the lack of medical records in service and immediately after service to corroborate the Veteran's testimony. In Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006), it was held that the Board may not determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Rather, it is only one factor that may be considered to assess the lay person's credibility. In this case, the Board finds no reason to question the Veteran's credibility as to his statements that he started having mental issues in service and was immediately treated for such after separating from service. Significantly, he has been consistent in his descriptions of the circumstances surrounding his service and they are not implausible. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (holding that as a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of the Veteran). Accordingly, the Board finds the April 2012 VA examiner's medical opinion to be lacking in probative value. In July 2015, the Veteran's treating VA psychiatrist, Dr. E.J.R., gave consideration to the history provided by the Veteran and stated, "In my opinion, [the Veteran's] depression was due to his experiences in Navy which started around 1972 when he was discharged. [Patient] said that he received psychiatric [treatment] with psychiatrist 2 months after he was discharged." This opinion is consistent with an earlier opinion provided in June 2009 by a private healthcare provider who stated, "[The Veteran] has a long history of depression, bipolar disorder and panic anxiety attacks that began during his military service. His symptoms were aggravated during his military service." In light of the July 2015 medical opinion from the Veteran's treating VA physician, as well as the June 2009 private medical opinion, the Board finds that it is reasonably shown that the Veteran has a current acquired psychiatric disorder that is etiologically related to his military service. Therefore, service connection for an acquired psychiatric disorder (variously diagnosed), to include bipolar disorder, sleep disorder, anxiety attacks, schizophrenia, and depression, is warranted. ORDER Service connection for an acquired psychiatric disorder (variously diagnosed), to include bipolar disorder, sleep disorder, anxiety attacks, schizophrenia, and depression, is granted. ____________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs