Citation Nr: 0707594 Decision Date: 03/14/07 Archive Date: 03/20/07 DOCKET NO. 03-28 874A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for bipolar disorder. 2. Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Sorisio, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty from May 1970 to May 1978. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2002 rating decision of the Seattle, Washington Department of Veterans Affairs (VA) Regional Office (RO). The veteran appeared before a Decision Review Officer (DRO) at the RO in February 2004. A transcript of this hearing is of record. In January 2007, the veteran submitted new evidence to the Board. FINDINGS OF FACT 1. In a February 2004 statement, prior to the promulgation of a decision in the appeal, the appellant submitted a statement that he intended to withdraw his appeal seeking service connection for bipolar disorder; there is no question of fact or law remaining before the Board in this matter. 2. The evidence reasonably establishes that the veteran has PTSD stemming from a stressor event in service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a Substantive Appeal by the appellant have been met; the Board has no further jurisdiction in the matter of service connection for bipolar disorder. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2005); 38 C.F.R. §§ 20.202, 20.204 (2006). 2. Service connection for PTSD is warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.303, 3.304, 4.125 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The VCAA applies to the instant claims. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his or her possession that pertains to the claim. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Given the veteran's expression of intent to withdraw his appeal on the issue of service connection for bipolar disorder, further discussion of the impact of the VCAA on that claim is not necessary. Since the determination below constitutes a full grant of the claim of service connection for PTSD, there is no reason to belabor the impact of the VCAA on this matter, since any error in notice content or timing is harmless. Furthermore, it is not prejudicial that the Board is considering and relying upon evidence received in January 2007 in the first instance, as it is granting the veteran's claim. B. Factual Background The veteran's service medical records are negative for complaints, findings, treatment, or diagnosis relating to a psychiatric disorder. On April 1978 separation examination, clinical psychiatric evaluation was normal. Service personnel records indicate the veteran served in the Navy and was stationed aboard the USS Swordfish from January 1973 to August 1975 and aboard the USS Barb from May 1976 to May 1978. An April 2001 Adult Memory Assessment from psychologist C. D. A, Ph.D. (completed in conjunction with a Washington State Disability claim) notes a diagnosis of anxiety disorder not otherwise specified, with minor features of PTSD. The veteran reported traumas in the Navy to include emergency surfacing maneuvers of a nuclear submarine and incidents that could have caused reactor meltdowns. He described symptoms of post-traumatic anxiety, such as intrusive thoughts, avoidance, nightmares, and social isolation. The psychiatrist stated that the medication the veteran was taking for bipolar disorder may have been masking some of his symptoms of anxiety and depression and that he showed long term post-traumatic anxiety from his military service. Axis IV stressors included exposure to military traumas. A January 2002 letter from C. D. A., Ph.D., indicates the veteran had been receiving treatment at Northeast Washington Family Counseling since April 1999. An Axis I diagnosis of PTSD was assigned "subsequent to his experiences on nuclear submarines which include collision at sea, critical reactor incidents, and sudden uncontrolled descent" and was based upon mental status examination and testing, self-reported history, and supporting documentation, including his DD Form 214. Mental status examination showed the veteran had limited social support; tended towards social avoidance; was hesitant and guarded in speech and manner; had concerns about his cognitive decline, especially regarding his memory and concentration; had a flat to dysphoric affect; and had suicidal ideation. An Axis IV diagnosis noted a history of traumatic experiences in the military and the following opinion was provided: "In my opinion, [the veteran's] condition of [PTSD] is directly related to his traumatic experiences in the Navy." A January 2002 stressor statement reports the veteran experienced two stressor events when he was aboard the Swordfish: 1) During an emergency blow drill, a trainee was at the helm and caused the submarine to heel over and snap back and forth several times; there was worry that there could have been possible steam bubble loss that would cause an instant nuclear reactor meltdown; 2) the submarine hit an undersea mountain that ripped the sonar package from the submarine and tore several feet off the lower front of the submarine. He reported an additional stressor event that occurred while he was on the USS Barb where the main battery disconnected and blew up, leaving only the flashlights working on the ship. He had to work in 160 degree heat for eleven hours to restore power. April 2002 to June 2003 VA treatment records show treatment for and diagnoses by psychiatrists of PTSD. On June 2002 private examination on contract by VA, the veteran reported the above described stressors. He stated he was nervous after his discharge from service and got very little sleep. Mental status examination revealed the veteran was calm and cooperative; had a moderately depressed mood and flattened affect; no anxiety, panic disorder, or obsessive compulsive symptoms. The examiner indicated that he reviewed the veteran's claims file. He did not make a diagnosis of PTSD because of the type of stressors indicated and the signs and symptoms described in response to Neurontin, which the veteran took for bipolar disorder. The examiner noted that bipolar disorder was not related to any PTSD symptoms. A November 2002 letter from C. D. A., Ph.D., states the veteran experiences symptoms sufficient to meet the DSM-IV criteria for PTSD, to include symptoms of re-experiencing, avoidance, and autonomic nervous system arousal. A January 2003 VA treatment plan meeting report shows that a psychiatrist, psychologist, social workers, and other mental health professionals met to discuss the veteran's treatment. The Axis I diagnoses included PTSD, delayed, chronic; treatment for PTSD included meeting certain behavioral goals, such as decreasing dissociative episodes and improving control of aggressive impulses. A July 2003 letter from C. D. A., Ph. D. and J. A. M. (a Veterans Services Coordinator) states that the veteran's inability to recall the specific dates of his stressors is consistent with the diagnosis of PTSD. SSA records include a May 2001 statement from psychiatrist C. S. D. that the veteran possibly has PTSD. February 1995 to April 2001 Northeast Medical Group treatment records show diagnoses of PTSD. A January 2001 disability evaluation by the Washington Department of Social and Health Services indicates that the veteran's PTSD symptoms recently began to overwhelm him; he rarely left his home and slept about 12 hours a day. She notes that his PTSD resulted from three submarine accidents and the stress involved in trying to stay alive during them. He reported that his PTSD symptoms overshadowed his life one year in the 1980s, when he completely took off time from work. He said that his mind had been foggy since he left the Navy and that he felt like he had lost 50 percent of his mental functioning. A December 2003 letter to Senator Maria Cantwell from the Center for Unit Records Research (now known as U. S. Army and Joint Services Records Research Center (JSRRC)) encloses deck logs, histories, and rosters of the USS Swordfish and USS Barb during the time periods the veteran was stationed on these submarines. Deck logs show that on February 15, 1975 the Swordfish had to perform an "emergency surface" because of 200 gallons of water flooding the torpedo room. The flooding occurred because a muzzle door and signal ejector drain were opened at the same time. Toxic gas was also present in the stern room, so the room needed to be evacuated. The torpedo room was secured from the flooding and the stern room was secured from the toxic gas and ventilated. These events occurred between 3:15 and 4:48 p.m. At the February 2004 DRO hearing, the veteran stated that his military specialty was reactor operator, preventative maintenance coordinator, and training coordinator. He reported a stressor incident on the Swordfish that he believed occurred towards the end of 1974 when it was out of dry dock running sound trials. There was an announcement that they had to "emergency blow;" he believed the submarine ran into the bottom of the ocean. He said he was very scared because if they had hit something and it caused a large hole, the submarine could have sunk and they all could have died. When they were able to look at the submarine a day or so later, the lower half of the front of the submarine was missing, specifically the sonar and he believed they missed tearing the pressure hole open by about an inch. He also explained an incident on the USS Barb in about January or February 1978 when the submarine was out in the middle of the Pacific and all the lights went out for 11 hours. He was involved in trying to fix the problem and had to work in 160 degree temperatures; they found that the main disconnects in the battery compartment had disintegrated and caused the power in the entire submarine to shut down. The veteran also expressed his dissatisfaction with the June 2002 VA examination; the DRO stated that the examiner had some records to review, but did not have the veteran's full record. In November 2005, the veteran reported that the incident he recalls of the submarine hitting the bottom of the ocean is the same one where there was flooding. He said he has had trouble remembering the specifics of the incident, but a letter from fellow crewmember, J. F., helped to bring back some of his memories. A buddy statement from J. F. states that he remembers when the USS Swordfish struck the bottom of the ocean in February 1975. He was in the stern room at the time and that while the submarine was ascending for the emergency blow a lithium Chloride CO2 absorption canister fell and ruptured, causing chlorine gas to pervade the air of the stern room. A Tuesday, February 18, 1975 article from the Honolulu Star-Bulletin reports that the USS Swordfish "mysteriously struck the bottom of the Pacific near Lanai Saturday night and damaged sensor devices mounted on the hull." The Navy denied flooding in the torpedo room. March to November 2005 VA treatment records indicate treatment for anxiety disorder not otherwise specified with increasing symptoms. In December 2005, the treating psychiatrist provided an assessment of probable PTSD that was moderately exacerbated; the veteran was working on his VA claim and had located more evidence regarding his stressors. In January 2006, the treating psychiatrist indicated the veteran had probable PTSD with some improvement; in February 2006, he noted it was stable. In January 2007, the veteran submitted several "buddy" statements and internet websites regarding the incident on the USS Swordfish. These statements discuss the events that occurred in February 1975, including the torpedo room flooding, the emergency blow, the toxic gas in the stern room, and the grounding of the Swordfish on the ocean floor. C. Legal Criteria and Analysis Service Connection for Bipolar Disorder The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.101. Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal, which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In a written statement received in February 2004, the veteran withdrew his appeal seeking service connection for bipolar disorder. Hence, there is no allegation of error of fact or law for appellate consideration on this claim, and the Board does not have jurisdiction to consider an appeal in this matter. Service Connection for PTSD 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, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) [i.e., a diagnosis under DSM-IV]; a link, established by medical evidence, between current symptoms and a stressor event in service; and credible supporting evidence that the claimed stressor event in service occurred. 38 C.F.R. § 3.304(f). If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f); West v. Brown, 7 Vet. App. 70 (1994). Where the veteran did not engage in combat with the enemy, or the claimed stressors are not related to combat, the veteran's testimony alone is not sufficient to establish the occurrence of the claimed stressors, and it must be corroborated by credible supporting evidence. Cohen v. Brown, 10 Vet. App. 128 (1997). Service department records must support, and not contradict, the claimant's testimony regarding noncombat stressors. Doran v. Brown, 6 Vet. App. 283 (1994). 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). 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 evidence of record tends to verify the veteran's stressor of flooding on the USS Swordfish and it hitting the bottom of the ocean. Deck logs show that the submarine experienced flooding and toxic gas leakage in February 1975; a Honolulu news article, printed contemporaneously to the event, also supports that the submarine hit the ocean floor. Also, buddy statements from fellow Swordfish crewmembers describe the events of that day in sufficient detail to show that it is one of the stressor events the veteran has alleged. Corroboration of a claimed in-service stressor does not require "that there be corroboration of every detail, including the appellant's personal participation in the identifying process." See Suozzi v. Brown, 10 Vet. App. 307, 311 (1997). Service personnel records and rosters of the USS Swordfish state the veteran was stationed on the submarine at the time of the above described incident. Although not all of the veteran's claimed stressors have been verified, the Board finds that the independent evidence of record is sufficient to corroborate the veteran's account of the alleged stressor that occurred on the USS Swordfish. Review of the medical evidence shows that PTSD has been diagnosed by both VA and private practitioners on more than one occasion; these examiners have specifically noted Axis IV diagnoses of exposure to military traumas as stressors supporting the PTSD diagnosis. While the June 2002 private VA-contract examiner did not diagnose PTSD, it is notable that this examiner indicated that the medication the veteran was taking for his bipolar disorder might have lessened his symptoms. [Notably, the veteran's treating psychologist, C. D. A., also noted the medication's potential effect in April 2001 and did not provide a PTSD diagnosis at that time.] Also, the VA-contract examiner stated that he did not make a PTSD diagnosis because of the types of the veteran's stressors. It is unclear exactly what the examiner meant by this statement, but it is notable that DSM-IV criteria state that a stressor is sufficient when a person is exposed to a traumatic event that involved actual or threatened death or serious injury and the person's response involves intense fear, helplessness, or horror. The Court of Appeals for Veterans Claims (Court) has indicated that this is a subjective standard and is based on the individual's actual response to the stressor experienced, rather than on usual experience and response. Cohen v. Brown, 10 Vet. App. 128, 141 (1997). At the time of the June 2002 examination, the claims file did not contain any verification of the alleged stressors. The veteran has also stated his dissatisfaction with the examination and the DRO indicated his agreement that the examination was not complete. Hence, the Board concludes that the findings from this examination do not have substantial probative value. Significantly, VA treatment providers after the June 2002 VA contract examination have generally been of the opinion that the veteran probably does have PTSD. The veteran has reported that the events on the Swordfish scared him and made him fear for his life. His treating psychologist has concluded that his stressors, to include the flooding and grounding incident aboard the USS Swordfish, are sufficient to meet DSM-IV criteria and he has described how the veteran's symptoms also meet DSM-IV PTSD criteria. He has also provided his opinion that PTSD "is directly related to his traumatic experiences in the Navy." Since there is competent evidence of a current diagnosis of PTSD, credible supporting evidence that a claimed inservice stressor actually occurred, and competent (medical) evidence of a nexus between the diagnosis of PTSD and a specific claimed stressor, the requirements for establishing service connection for PTSD are met. Resolving reasonable doubt in the veteran's favor, the Board concludes that service connection for PTSD is warranted. ORDER The appeal seeking service connection for bipolar disorder is dismissed. Service connection for PTSD is granted. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs