Citation Nr: 1807919 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 12-08 532 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for bipolar disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Christopher Gannon, Associate Counsel INTRODUCTION The Veteran had active air service in the United States Air Force from August 1980 to May 1981. This case comes to the Board of Veterans' Appeals (Board) from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the Veteran's claim for service connection for bipolar disorder. The instant matter was previously before the Board in August 2016, where the Board remanded for further development. The case is returned to the Board at this time for further appellate review. The Veteran underwent a VA examination in October 2016 and the RO issued a supplemental statement of the case (SSOC) in the same month. Thus, there has been compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's current bipolar disorder had its onset during his active military service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, bipolar disorder was incurred in service. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). In order to prevail on the issue of service connection for any particular disability, there must generally be a showing of the following: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may 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). The Veteran asserts that his current bipolar disorder had its onset in and is related to his active service, or in the alternative that his bipolar disorder preexisted service and was aggravated therein by the conditions of his Air Force service. Specifically, he contends that during service he was the subject of a long list of disciplinary actions, amounting to thirteen negative counselings, two formal letters of reprimand, and several Article 15 proceedings, a number of which have been submitted to the record in this proceeding. The Veteran's experiences at RAF Lakenheath in Suffok, England caused him an undue amount of stress, which aggravated his underlying bipolar disorder. For the reasons set forth below, the Board concludes that service connection for bipolar disorder is warranted. In the Veteran's March 1980 enlistment examination and the April 1981 separation examination, psychiatric evaluations of the Veteran were normal. A March 1981 military personnel record gives the first recorded indication that the Veteran was experiencing difficulties in service. The Veteran reported to his commander, who memorialized the statement in a memorandum, that he had recently started drinking, he had trouble sleeping, he did not trust himself, and that "he did not like his thoughts and they scared him." The commander concluded, "I feel [the Veteran] is unstable in his present frame of mind. I think he is fully capable of harming himself and have asked mental health to see him on an emergency basis." As a result, the Veteran was examined for behavioral health issues in March 1981. The Veteran's service treatment records show he was seen at the USAF Hospital Mental Health Clinic at RAF Lakenheath in Suffolk, England in March 1981. The examiner noted that he was given a psychological exam following a reported conflict with his commander, and that he indicated that he wanted to be discharged. He was described as "withdrawn and uncommunicative." He repeated a desire to "get out of the Air Force." In a related military personnel record associated with the exam, the examiner relayed a report by the Veteran that one of his supervisors was "out to get him." Also in March 1981, the Veteran was seen by a clinical social worker for a clinical interview regarding his mental health. The social worker's conclusion was that the Veteran was "immature and hostile, but not suffering from serious psychological problems." The Veteran nevertheless received a diagnosis of passive-aggressive personality. Following a separation process, the Veteran was discharged on May 18, 1981. Submitted as part of his separation packet were a number of memoranda which included statements from supervisors describing the Veteran as being defiant, not displaying military customs and courtesy, and tardiness or absence from ordered work. Because they were the factual basis for his referral to a mental health clinic in March 1981, according to a VA examiner in October 2016, these disciplinary actions appeared to be consistent with symptoms of bipolar disorder. He received an honorable discharge, and his DD-214 indicates that he was discharged for misconduct - frequent involvement with civil/military authorities. The "misconduct" cited in the DD-214 relates to his disciplinary issues documented as part of his service at RAF Lakenheath. The Veteran's post-service medical treatment records are replete with hospitalizations and assorted treatment for mental health, spanning from as early as 1984 to the present day. Court documents from the state of Michigan show that the Veteran was hospitalized and seen by a physician in May 1987 after he jumped from a second-story window for no apparent reason. A relative indicated in an associated statement regarding this hospitalization that the Veteran was ranting in a paranoid manner about basketball players and was not making sense when the incident occurred. One earlier psychiatric hospitalization was referenced by the physician, in 1986, although no record of the event is attached. Related records from the state courts of Michigan show a number of hospitalizations between 1987 and 1988. The Veteran's cousin applied to the state of Michigan to have the Veteran involuntarily committed for mental health in October 1991 for displaying violent behavior. The Veteran was evaluated for mental health in February 1992 by a private physician. During that exam, he reported that his first onset of mental illness was in 1984 when he was hospitalized for suspected schizophrenia. A related statement from the Veteran made in August 2007 references this hospitalization, stating that he was hospitalized in 1984 in or around Detroit following a suicide attempt. In the Veteran's February 2007 claim, he reported that his father had mental health problems and that he witnessed the state "take him away" to be hospitalized before he committed suicide. He believes he inherited his father's disease and experienced mental health symptoms while in the Air Force. He further states that he had homicidal ideation when he was serving, but did not relay them because he was afraid of the repercussions. In his October 2009 notice of disagreement, the Veteran stated, "I have been struggling with bipolar disorder since I was in the military. I admit that I did not complain about the symptoms while on active duty. I was afraid of any repercussions from my chain of command. I thought of suicide while on active duty. I did attempt suicide shortly after discharge." The record reflects that the Veteran has a current diagnosis of bipolar disorder, as well as personality disorder - not otherwise specified, as reflected in a VA examination dated October 2016. As noted above, private treatment records from at least 1987 to the present day reflect extensive mental health treatment related to what the VA examiner in October 2016 referred to as "symptoms consistent with bipolar disorder." In support of his claim, the Veteran submitted several lay statements from his mother. In a November 2016 statement, she describes him as being depressed, and attributes his mental condition to his experience in the Air Force. She attributes his mental decline to negative experiences in the Air Force, specifically disappointment from not attaining professional success, experiencing racism, and being made to endure demeaning activity, such as cleaning up feces. She stated that while he was in service, he relayed homicidal ideations. She indicated that that the Veteran's father was an alcoholic who committed suicide in 1983. Lastly, she stated that she noticed that the Veteran's mental health problems began in the 1980s when he was discharged from the service. The Veteran was afforded a VA examination in October 2016. The examiner, a VA psychologist, determined that it is less likely than not that the Veteran's bipolar disorder "was caused by his military service, given: (1) the nature and duration of his military service, including likely stressors he would have encountered during that service, (2) his known familial history of severe mental illness (i.e., his father was reportedly diagnosed with paranoid schizophrenia and committed suicide, and his brother was described by the veteran as 'slow'), and (3) objective psychological testing and evaluation conducted during his military service, which was described as consistent with traits of a personality disorder, rather than a traditionally Axis I disorder such as bipolar." Despite this negative opinion, the examiner acknowledged the possibility that the personality disorder diagnosed in March 1981 had overlapping symptoms with bipolar disorder. At the outset, the lack of contemporaneous evidence of psychiatric symptoms is not in and of itself a proper basis for a negative nexus opinion where there are lay statements indicating such symptoms. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 n. 1 (Fed. Cir. 2006) (noting that VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the Veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence"). Moreover, here the Veteran's lay statements and the statements by clinical professionals when the Veteran was in active service and later indicate psychiatric problems in service. The examiner's opinion is therefore not entitled to as much probative weight as other medical and lay evidence of record because it is based on an inaccurate factual premise. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). The Veteran has credibly reported that he received treatment both in service while at RAF Lakenheath and shortly after service in 1984 and had severe mental health illness following service. The Veteran is also competent to report observable symptomatology and the onset of his symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994). In this regard, the Veteran's statements regarding his psychiatric symptoms, to include his responses to events that triggered his symptoms, such as his documented disciplinary issues in service, are competent evidence which the Board finds to be credible, as his testimony and assertions have remained consistent with regard to the onset and continuation of his symptomology since service. The Board finds particularly persuasive the Veteran's military personnel records, which include a contemporaneous note from his then-commander who expressed concern that the Veteran was at serious risk of self-harm. This statement, coupled with a diagnosis of a psychiatric disorder which has overlapping symptoms with bipolar disorder, is indicative of an in-service manifestation of his current disability. Furthermore, the Veteran's mother's letter also indicates that the Veteran experienced psychiatric symptoms during and shortly after service. While "[i]t is generally the province of medical professionals to diagnose or label a mental condition, not the claimant," Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009), lay witnesses are competent to testify as to observable symptoms. Finally, the Veteran is presumed to have been in sound condition when he entered service, as no abnormalities were noted on the entrance examination, and there is no clear and unmistakable evidence that a psychiatric disorder preexisted service and was not aggravated thereby. 38 U.S.C. § 1111 (2012). The evidence is, thus, at least evenly balanced as to whether the Veteran's bipolar disorder is related to service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for bipolar disorder is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As indicated above, the Veteran has also been diagnosed with personality disorder - not otherwise specified. "[P]ersonality disorders and mental deficiency as such are not disease or injuries within the meaning of applicable legislation." 38 C.F.R. § 3.303(c). See also 38 C.F.R. § 4.127 (2017) ("personality disorders are not diseases or injuries for compensation purposes and . . . disability resulting from them may not be service-connected"). Notably, the VA treatment providers did not differentiate between symptomatology associated with the Veteran's bipolar disorder and personality disorder. As the symptoms of the bipolar disorder and personality disorder cannot reliably be distinguished from each other, VA must attribute the effects to the now service-connected bipolar disorder. See Howell v. Nicholson, 19 Vet. App. 535, 540 (2006); Mittleider v. West, 11 Vet. App. 181, 182 (1998) (VA must apply the benefit of the doubt doctrine and attribute the inseparable effects of a disability to the claimant's service-connected disability). ORDER Entitlement to service connection for bipolar disorder is granted. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs