Citation Nr: 0718533 Decision Date: 06/20/07 Archive Date: 06/29/07 DOCKET NO. 03-01 612 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. L. Wight, Counsel INTRODUCTION The veteran served on active duty from July 1971 to July 1974. This case comes before the Board of Veterans' Appeals (Board) on appeal of an October 2002 rating decision rendered by the Waco, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). In July 2003, the veteran testified at a hearing before a RO Decision Review Officer. A transcript of the hearing is associated with the claims folder. This case was previously remanded by the Board to the RO in July 2004 and October 2006. The requested development has been completed and the case has been remanded to the Board for further appellate consideration. FINDINGS OF FACT 1. There is clear and unmistakable evidence that the veteran's current acquired psychiatric disorder existed prior to his active service. 2. There is clear and unmistakable evidence that the veteran's current acquired psychiatric disorder did not increase in severity during his active service. CONCLUSIONS OF LAW 1. A psychiatric disorder clearly and unmistakably preexisted service and was not aggravated therein. The presumption of soundness at entry is rebutted. 38 U.S.C.A. §§ 1110, 1111 (West 2002); 38 C.F.R. § 3.303, 3.306 (2006). 2. An acquired psychiatric disorder was neither incurred in nor aggravated by service. 38 U.S.C.A. §§ 1110, 1111 (West 2002); 38 C.F.R. § 3.303, 3.306 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2005), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2006), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. In addition, VA must also request that the veteran provide any evidence in the claimant's possession that pertains to the claim. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Court further held that VA failed to demonstrate that, "lack of such a pre-AOJ-decision notice was not prejudicial to the veteran, see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832) (providing that "[i]n making the determinations under [section 7261(a)], the Court shall . . . take due account of the rule of prejudicial error")." Id. at 121. The timing requirement enunciated in Pelegrini applies equally to the initial disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the originating agency attempted to provide the veteran with the notice required under the VCAA by letter dated in August 2002 prior to the initial adjudication of the claim. Due to deficiencies in that notice, additional letters containing the required notice was furnished to the veteran in July 2004 and November 2006. The November 2006 letter included notice of the type of evidence necessary to establish a disability rating or effective date for the disability on appeal. See Dingess, supra. Although the originating agency has not specifically requested the veteran to submit all pertinent evidence in his possession, it has informed him of the evidence that would be pertinent and requested him to submit such evidence. Therefore, the Board believes that the veteran was on notice of the fact that he should submit any pertinent evidence in his possession. The veteran was provided ample time to submit or identify pertinent evidence after notice was provided. The Board also notes that VA has obtained the veteran's service medical records and post-service VA and private treatment records. The Board notes that the veteran has asserted that he received inpatient psychiatric treatment prior to service. However, he states that the treating medical facility is no longer in operation and that treatment records are not available. He has not identified any other outstanding evidence that could be obtained to substantiate the claim. The Board is also unaware of any such evidence. Following the completion of all indicated development of the record, the originating agency readjudicated the veteran's claim. There is no indication in the record or reason to believe that the ultimate decision of the originating agency would have been different had complete VCAA notice been provided at an earlier time. In sum, the Board is satisfied that any procedural errors in the development and consideration of the claim by the originating agency were insignificant and non-prejudicial to the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Accordingly, the Board will address the merits of the claim. Evidentiary Background At the time of his June 1971 service entrance examination, the veteran denied a history of nervous trouble, drug use, and excessive drinking as well as any prior suicide attempts. He also denied being a patient in a mental hospital or sanatorium or being treated by clinic, physicians, healers, or other practitioners within the past 5 years. Psychiatric examination was within normal limits. Subsequent service medical records are silent for any treatment, complaint, or diagnosis of an acquired psychiatric condition. On the contrary, a September 1972 includes a "PULHES" profile of 1 under the S category. The veteran's May 1974 service separation examination report notes that psychiatric examination was within normal limits. At that time, the veteran denied a history of depression, excessive worry, loss or memory, amnesia, or nervous trouble. Furthermore, he denied any prior suicide attempts. Private inpatient psychiatric treatment records in June 1980 show that the veteran was treated for an acute depressive reaction after attempting suicide by overdosing on Thorazine. He had lost his job and was worried about his ability to pay bills. He was also having marital problems. The veteran was noted to have a prior suicide attempt and inpatient psychiatric treatment at the age of 17. At that time, he was taking drugs and felt that no one cared about him. In June 1988, the veteran was hospitalized at a private medical facility for treatment of alcohol abuse and alcohol induced paranoia. It was noted that he felt that people were trying to kill him and he was worried about Satan worshippers trying to hurt him and that people in Alcohol Anonymous were hired by the mafia to injure him. Subsequent private psychiatric treatment records dated from December 1991 to December 2000 show that the veteran was treated for various psychiatric problems including bipolar disorder, mixed type, without psychotic features; alcohol dependence; and cannabis dependence. These treatment records show that the veteran had a family history of psychiatric problems with his paternal grandmother, biological mother, and siblings with psychiatric problems. VA treatment records dated from March 2001 to September 2005 show treatment for bipolar disorder and substance abuse. The veteran's mother, in statements dated in July 2003 and December 2004, confirmed that the veteran was hospitalized for psychiatric treatment prior to his active service. She reported that she came home from work and found that the veteran was in the bathroom with the gas stove on, but not lit. He was hospitalized for several weeks and placed on antidepressants. She reported that his behavior was erratic and subject to wide mood swings. In March 2006, the veteran was afforded a VA compensation and pension examination. The veteran reported that he was "pretty screwed up" and used speed crystal methamphetamine, and hash to deal with his problems. The veteran reported that, as a kid, he isolated himself and did not like other people. He was first treated by mental health professions in 1971 when he as hospitalized for a suicide attempt. He reported that he drank and smoked a lot of hash during his military service. He reported that he was not given any counseling or medication during service, but did discuss his mental condition with medics. The veteran reported that he did not report his preservice suicide attempt and hospitalization at the time of his induction. He felt that the military made his condition worse and that he felt trapped. Pertinent diagnoses were bipolar disorder with psychosis and polysubstance abuse as well as a personality disorder with antisocial and paranoid features. The examiner opined that it was as likely as not that the veteran's mood disorder and other mental illness had been strongly fueled by his substance dependency. Furthermore, it was likely that some or most of his difficulties were substance induced. The examiner opined that there was a 50/50 chance that the veteran's psychiatric condition would have gotten progressively worse without going into the military. His being in the military did not help apparently because of his ready access to illicit drugs and opportunities for acting out. Despite the foregoing, the examiner opined that the veteran was "bent on a pattern of strong substance dependency and irrationally behavior" with or without his military service. In a November 2006 addendum, the examiner that conducted the prior VA examination opined that the veteran's mental problems "definitely preceded his military service" and it was as likely as not that the veteran's mental condition was not significantly affected by his being in the military. The examiner cited the veteran's strong family history of mental illness and his preservice hospitalization and drug use. The examiner felt "strongly" that the veteran's mental health problems predated his active service and that his military service "did not play a significant role in aggravating or worsening his current mental problems." Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002). Service connection basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303 (2006). Service connection may also be granted for psychoses when it is manifested to a compensable degree within one year following discharge from active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 38 C.F.R. §§ 3.307, 3.309. A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for active service, except as to defects, infirmities, or disorders noted at entrance into service, or were clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b); see also Wagner v. Principi, 370 F.3d 1089, 1096-97 (Fed. Cir. 2004) (The burden falls on the government to rebut the presumption of soundness.) In May 2005, 38 C.F.R. § 3.304 was amended to reflect the Federal Circuits analysis in Wagner. If a disability was not noted at the time of entry into service and VA fails to establish by clear and unmistakable evidence either that the disability existed prior to service or that it was not aggravated by service, the presumption of sound condition will govern and the disability will be considered to have been incurred in service if all other requirements for service connection are established. Essentially, to rebut the presumption of sound condition under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003); see also Cotant v. Principi, 17 Vet. App. 116, 123-30 (2003) (detailing legislative history relating to presumption of soundness and the possibility that the omission of the relevant language from 38 C.F.R. § 3.304(b) was unintentional and that 38 C.F.R. § 3.304(b) should be construed as consistent with the VA's pre-February 1961 regulations). Specifically, VAOPGCPREC 3-2003 held that the claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. It was determined that the provisions of 38 C.F.R. § 3.304(b) are inconsistent with 38 U.S.C.A. § 1111 insofar as § 3.304(b) states that the presumption of sound condition may be rebutted solely by clear and unmistakable evidence that a disease or injury existed prior to service. It was concluded that 38 C.F.R. § 3.304(b) is invalid and should not be followed. Regarding the provisions of 38 C.F.R. § 3.306(b), providing that aggravation may not be conceded unless the pre-existing condition increased in severity during service, it was determined that this properly implements 38 U.S.C.A. § 1153, which provides that a pre-existing injury or disease will be presumed to have been aggravated in service in cases where there was an increase in disability during service. The requirement of an increase in disability in 38 C.F.R. § 3.306(b) applies only to determinations concerning the presumption of aggravation under 38 U.S.C.A. § 1153, and does not apply to determinations concerning the presumption of sound condition under 38 U.S.C.A. § 1111. Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. This includes medical facts and principles that may be considered to determine whether the increase is due to the natural progression of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(b) (2006). Moreover, "temporary or intermittent flare-ups of a pre- existing injury or disease are not sufficient to be considered aggravation in service unless the underlying condition, as contrasted to symptoms, is worsened." Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). However, the increase need not be so severe as to warrant compensation. Browder v. Derwinski, 1 Vet. App. 204, 207 (1991). Nonetheless, silence of the record on this point may not be taken as indication of no aggravation, an opinion must be provided. See Verdon v. Brown, 8 Vet. App. 529 (1996); Wisch v. Brown, 8 Vet. App. 139 (1995). Further, such medical questions must be addressed by medical experts. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The military physical profile serial (known as PULHES) classifies the overall physical and psychiatric condition of the veteran on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service). The "P" stands for "physical capacity or stamina;" the "U" indicates "upper extremities; "the "L" is indicative of the "lower extremities; "the "H" reflects the state of the "hearing and ear; "the "E" is indicative of the eyes; and the "S" stands for psychiatric condition. See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis In the instant case, there has been no assertion of combat. Thus, the provisions of 38 U.S.C.A. § 1154(b) (West 2002); § 3.304(f) are not applicable. The veteran has asserted that he had an acquired psychiatric disorder prior to service that was aggravated during his military service. He reported that his initial psychiatric hospitalization at the age of 16 or 17 and that he tried to commit suicide 6 months prior to his active military service. According to the veteran, his own life meant little to him and he enlisted in the Army because he wanted to kill or die in battle. He reported that he because heavily involved in drugs and alcohol to medicate his psychiatric illness. Despite the veteran's report of psychiatric treatment prior to service, his service entrance examination and subsequent service medical records are silent for any acquired psychiatric conditions. To reiterate, when no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. See 38 U.S.C.A. §§ 1111, 1137 (West 2002). In Wagner, the Federal Circuit Court found that, when no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry and then the burden falls on the government to rebut the presumption of soundness. The Federal Circuit Court held, in Wagner, that the correct standard for rebutting the presumption of soundness under 38 U.S.C.A. § 1111 requires that VA shows by clear and unmistakable evidence that (1) the veteran's disability existed prior to service and (2) that the preexisting disability was not aggravated during service. In the present case, the evidence clearly and unmistakably shows that the veteran had an acquired psychiatric disorder that predated his active military service. In this regard, the Board notes that the veteran has consistently reported hospitalization prior to service. Of particular note is the report of inpatient treatment records in June 1980 that note a prior history of a suicide attempt and hospitalization at the age of 17. This history was obtained from the veteran over 20 years prior to his claim for VA benefits. Furthermore, this history is supported by statements of the veteran's mother who cared for him prior to service and a recent medical opinion from a VA psychologist who opined that the veteran's psychiatric disorder predated his active military service. In light of the foregoing, the Board concludes that the competent evidence clearly and unmistakably shows that the veteran's bipolar disorder pre-existed the period of active service. The Board must next address whether this disability increased in severity or was aggravated during the period of active service. As noted, a pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; see also 38 C.F.R. § 3.306(a) (2006). The Board has carefully reviewed the evidence of record, taking into account the manifestations of the disability that were recorded prior to, during and subsequent to service, as required by 38 C.F.R. § 3.306(b), and it is found that there was clear and unmistakable evidence that the pre-existing bipolar disorder was not aggravated by the period of active service. The threshold questions are: 1) was there an increase in the veteran's pre-existing psychiatric when he served on military duty, and 2) if an increase is shown, was it due to the natural progression of the disease. Based on the evidence below, the Board finds that the veteran's disorder did not undergo a permanent increase during military service. First, as noted above, active service medical records do not show complaints of, treatment for, or a diagnosis of bipolar disorder or any other acquired psychiatric disorder. A treatment record dated in September 2006 shows that a "1" was recorded in the "S" category of the "PULHES" profile. This finding is indicative of a high level of psychiatric fitness. See Odiorne. Moreover, psychiatric examination at the time of his service separation examination was negative. Furthermore, the VA psychologist that conducted the March 2006 examination of the veteran has opined that the veteran's military service did not significantly aggravate or worsen his current mental problems. This evidence is clear and unmistakable that the veteran had no increase of his pre- existing psychiatric disorder while on active duty. Next, there is a lack of documented postservice treatment for psychiatric problems for over 5 years after the veteran's military discharge. This weighs against a finding of a permanent increase in the veteran's pre-service psychiatric disorder while he was on active duty. The Board finds the multi-year gap between service separation and post-service symptomatology, without competent intervening evidence of complaints or treatment for a psychiatric disorder, an indication that there was no in-service increase in the veteran's pre-service psychiatric disorder. In sum, the evidence shows that the veteran was had an acquired psychiatric prior to his entry into active duty, but had no complaints or findings of an acquired psychiatric disorder while on active duty. Moreover, psychiatric examination at service discharge was negative and the veteran did not receive psychiatric treatment for years after military discharge. Cumulatively, there is clear and unmistakable evidence that there had been no aggravation of the veteran's acquired psychiatric disorder, to include bipolar disorder, during service. The Board has also considered the veteran's own assertions that his psychiatric disorder worsened during military service. His assertions are not deemed to be persuasive in light of the other objective evidence of record showing no permanent increase in severity during service and no indications of worsening symptoms. In the alternative, the Board notes that there is a lay report of a pre-service suicide attempt and hospitalization prior to service, but the records are not available. If we conclude that the available evidence is not competent to establish a pre-service disability, service connection would still be denied. Despite the lay assertions, there is no competent evidence that an acquired neuropsychiatric disorder preexisted service or that it was manifested during service. Under such circumstances, the normal entrance examination, the silent active duty records, the normal separation examination, and the absence of competent evidence in proximity to service would tend to establish a post service onset. This same evidence is adequate to rebut the second step of the presumption of soundness or conclude that there was a remote post service onset unrelated to active duty. (See Wagner, the government may show a lack of aggravation by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. 38 U.S.C. § 1153.) ORDER Service connection for an acquired psychiatric disorder is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs