Citation Nr: 1751714 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 12-33 343 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), bipolar disorder, and depression. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD N. Stevens, Associate Counsel INTRODUCTION The Veteran had active service from November 1990 to November 1993 and from November 1993 to November 1995. The period of service from November 1990 to November 1993 was honorable. The period of service from November 1993 to November 1995 was dishonorable. In September 2009, the RO found that the Veteran's period of service from November 1993 through November 1995 was not honorable for VA purposes. VA benefits are not payable unless the period of service that the claim is based upon was terminated by a discharge or release under conditions other than dishonorable. 38 U.S.C.A. § 5303 (West 2014); 38 C.F.R. § 3.12 (a) (2017). Therefore, service connection is barred for any disability incurred in or aggravated by his second period of service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine. By that rating action, the RO denied the Veteran's claim for service connection for an acquired psychiatric disorder, to include bipolar disorder, and depression. The Board notes that claims of service connection for a psychiatric disability encompass claims for all psychiatric disorders that are reasonably raised by the record. Consequently, the Board has recharacterized the Veteran's claim a claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, bipolar disorder, and depression. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (stating that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). In February 2013, the Veteran testified at a videoconference hearing before a Veterans Law Judge (VLJ). A transcript of the hearing is of record. In January 2015, the Board remanded the issue to the Agency of Original Jurisdiction (AOJ) for additional development. The VLJ who presided over the February 2013 hearing is no longer at the Board. In September 2017, the Veteran was provided the opportunity to appear for another Board hearing. Pursuant to the notification letter, when no response is received within 30 days, the Board will assume no hearing is requested and proceed with adjudication. As there has been no response from the Veteran, the Board will proceed with adjudication of the case. FINDING OF FACT Affording the Veteran the benefit of the doubt, the evidence of record shows that the Veteran's acquired psychiatric disorder is related to service. CONCLUSION OF LAW The Veteran's acquired psychiatric disorder was incurred in service. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2017). If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for certain diseases. 38 C.F.R. §§ 3.303 (a), (b), 3.309(a) (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease 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) (2017). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303 (2017); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2014). A claimant 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 (2016). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518 (1996). Establishing service connection for PTSD requires (1) medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125 (a); (2) a link, established by medical evidence, between a veteran's present symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304 (f) (2017); Cohen v. Brown, 10 Vet. App. 128, 139 (1997). In August 2015, a VA examiner diagnosed of PTSD under the DSM-5. A mental disorder diagnosis must conform to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV), or, for claims received by or pending before the AOJ on or after August 4, 2014, the Fifth Edition (DSM-5). See 38 C.F.R. §§ 4.125, 4.130; 79 Fed. Reg. 45093 (Aug. 4, 2014). Since this case was certified to the Board prior to August 4, 2014, the DSM-IV controls. The August 2015 examiner's use of the DSM-5 does not warrant remand in this case, as the Veteran's noncombat stressors cannot be verified. The examiner concluded that it is at least as likely as not (50 percent probability or greater) that the Veteran's diagnosed PTSD is proximately due to or the result of the noted stressor which occurred during service in November 1990 to 1993. The examiner noted that "[w]hile the information gathered by this examiner is not all together consistent with the reported information from the Veteran gathered during his evaluation by this examiner [on November 12, 2012], the reported information regarding Stressor #1, the death of a close friend by a drive-by shooting, a civilian "J. S." does meet Criterion A for the diagnosis of Posttraumatic Stress Disorder. The Veteran reported symptoms meet DSM-[5] criterion for a diagnosis of Posttraumatic Stress Disorder." In this case, VA has been unable to verify the Veteran's reported noncombat stressors. The RO has made attempts, as recently as April 2015, to corroborate the in-service stressors, including the deaths of his three friends. However, the Veteran has failed to provide the full names and circumstances surrounding the deaths. In a July 2015 Report of General Information, the Veteran indicated that he had no new evidence to submit for the claim. In September 2015, he provided written notice that he had no new evidence to provide and asked that the Board proceed with the claim. Since the VA is unable to confirm the in-service stressors, service connection for an acquired psychiatric disorder based on a diagnosis of PTSD and the August 2015 examiner's nexus opinion for PTSD cannot be granted. However, for the reasons discussed below, service connection for an acquired psychiatric disorder based upon diagnoses of bipolar disorder and depression is granted. The Veteran contends that service connection is warranted for an acquired psychiatric disability because it began during his first period of military service in January 1993. Specifically, the Veteran reports that he received treatment for depression and alcoholism while in service, in Killeen, Texas, and two months after separation from service, he received treatment from a private physician in Portland, Maine, his hometown. The Veteran indicated that the records from the private physician are unavailable because he has retired from practice. The records from the Killeen, Texas facility are also unavailable. Post-service VA treatment records dated from January 2010 to May 2012, note that the Veteran presented with a primary diagnosis of alcohol dependency and depression. (Specifically, notes dated in February to November 2010, and from November and December 2011 and January, March and April 2012.) Notes dated in January 2010 indicate that the Veteran reported that he has had depression for 16 years and currently takes Wellbutrin 300 mg a day. The Veteran attributed "his depression to the death of a friend while in the military. His friend died in combat in Somalia in 1993. After that, he started drinking heavily while stationed at Fort Hood, Texas, and was hospitalized after drinking an alcoholic drink while taking Antabuse." Notes dated in February 2010 indicate that the Veteran reported an ongoing history of depression and alcohol dependency which started when he was in the military. He began drinking heavily after a close friend was killed while on duty in Somalia. Notes dated in November 2011, reported that the Veteran complained of depression and was assessed for those feelings. One physician noted that he stated that he began to receive treatment for depression in 2004. Another physician noted that he "talked about being 'depress[ed] all of his life,' which he now refers to more clearly as [b]i-polar illness." She also noted that the Veteran stated that he was struggling with depression/suicidal ideation in the context of the anniversary of his father's death in 1984 and the loss of a combat buddy in 1993. The physician diagnosed the Veteran with depression. Private treatment records (provided to the Social Security Administration) note that the Veteran was diagnosed with depressive disorder, not otherwise specified and anxiety disorder in 2003 by Dr. J. W. In 2005, Dr. J. W. again diagnosed the Veteran with depressive disorder and anxiety, secondary to his September 2003 stroke. Private treatment notes from Dr. W. E. C., indicate that the Veteran was diagnosed with bipolar disorder in June 2009. A letter provided by the doctor, dated in January 2010, indicates that he had been treating the Veteran since 2003. Dr. W. E. C. notes that the Veteran believes that his depressive symptoms date back to 1993 when he was stationed in Fort Hood and learned of the combat death of a close friend. Dr. W. E. C. also notes that the Veteran told him that he was treated for depression while in service. Dr. W. E. C. opined in his letter that "[t]here is no question that the [Veteran] suffers from depression and there is every reason to believe that his symptoms could date back as far as 1993 and possibly precipitated by the death of his close friend." To determine the etiology of the Veteran's bipolar and depression disorders, he was afforded a VA examination in November 2012. The examiner diagnosed him with bipolar disorder, most recent episode depression and alcohol dependence, in partial remission. During the examination, the Veteran reported that he was in the Army and was deployed to Korea. He shot down planes. His rapid deployment unit was deployed to Somalia and Iraq, and he did not go because he had an abscessed tooth. His friend T. L. M., however, was deployed to Somalia and was killed. The examiner noted that the Veteran reported, "I feel guilty because I was not there to protect him." The Veteran was asked about his history of mental health diagnosis, treatment, and symptoms. He reported that while in service he went to counseling services "for many months" down in Texas because "I lost a friend, alcohol, and drugs, being in a readiness unit. Lack of sleep. It pretty much rattled my cage." The Veteran reported that after he left service, he saw his mother's doctor and went to his sister's church to seek counseling to "try to kick the depression." He also reported that he went to the psychiatric hospital two times in 2011; once, he was hospitalized for a month, and he was suicidal at the time. He also reported that he has suicidal thoughts all the time but the only thing that keeps him going is his wife and kids. The examiner concluded that the Veteran had experienced a long history of depressive episodes and alcohol dependence. Further, she found that "based solely on the event that the Veteran was made aware of the death of T. L. M., is it least as likely as not that the Veteran's bipolar disorder/depression is solely related to the death of T. L. M. The Veteran underwent a second VA examination in August 2015, conducted by the same examiner who provided the November 2012 opinion. The Veteran reported that while in service, his mental health "began to roll downhill." He reported seeing a chaplain and was given the alcohol stabilizer, Antabuse in 1992 after a second friend passed away. He reported that a third friend "passed away [and] that is what did it for me." The Veteran reported seeing his family physician after separation from service and denied taking any medication; instead, he attended church for support. The examiner diagnosed the Veteran with bipolar disorder and PTSD. The examiner noted that the two disorders share a number of specific symptoms such as sleep disruption, anxiety, panic attacks, etc. However, the Veteran's primary diagnosis was bipolar I disorder. The examiner concluded that the Veteran's bipolar disorder "is at least as likely as not (50 percent probability or greater) proximately due to or had its origin during the Veteran's military service." The examiner rationalized that the Veteran was found fit for duty at the time of enlistment. Additionally, he reported being treated for depression and experienced a sharp increase in his alcohol use while in service 1990 to 1993. Further, the examiner added that the diagnosis of bipolar I disorder as primary appears important in understanding the Veteran's mental health picture and may have had an impact on his ability to explain himself and his history at times in the past. This opinion is highly probative because not only does it provide a favorable opinion, but it also based on circumstances other than the Veteran's uncorroborated stressors. In addition to the 2015 VA opinion, noting the Veteran's in-service increase of alcohol abuse as an indicator of onset bipolar disease, the Veteran's post-service treatment notes detail a history of alcohol and depression. Specifically, in a January 2010 entry, the physician noted that the Veteran had been suffering from depression and bipolar disorder for about 16 years. The Board notes that the onset of the Veteran's psychiatric disability, to include depression and bipolar disease, was in 1993. In summary, the Board finds the preponderance of the evidence supports a finding that the Veteran has a current acquired psychiatric disorder, which is related to his military service. The August 2015 opinion regarding bipolar disorder is highly probative. Thus, resolving all doubt in the Veteran' favor, service connection for an acquired psychiatric disorder is granted. 38 U.S.C.A. § 5107 (b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.309 (2017). ORDER Service connection for an acquired psychiatric disorder is granted. ____________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs