Citation Nr: 0721255 Decision Date: 07/16/07 Archive Date: 08/02/07 DOCKET NO. 05-07 788 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a psychiatric disorder, diagnosed as bipolar disorder and schizoaffective disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Lindio, Associate Counsel INTRODUCTION The veteran had active service from August 1992 until November 1992 in the Navy, May 1996 until October 1996 in the Army National Guard, and from June 2002 until October 2003 in the Army. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a May 2004 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. FINDINGS OF FACT 1. The veteran is presumed to have been of sound condition when she entered service. 2. A psychiatric disorder was diagnosed within the year following the veteran's service and is presumed to be causally or etiologically related to service. CONCLUSIONS OF LAW 1. The presumption of sound condition is not rebutted in this case; therefore, a psychiatric disorder cannot be said to have existed prior to the veteran's entry into active duty. 38 U.S.C.A. §§ 1111, 1153 (West 2002); 38 C.F.R. §§ 3.304, 3.306 (2006); VAOPGCPREC 3-03 (July 16, 2003); Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). 2. The criteria for a grant of service connection for a psychiatric disorder, including bipolar disorder, have been approximated. 38 U.S.C.A. §§ 1101, 1110, 1137, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist Before addressing the merits of the veteran's claim on appeal, the Board is required to ensure that VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2006). The notification obligation in this case was accomplished by way of letters from the RO to the veteran dated in December 2003 and August 2004. The RO also provided assistance to the veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The veteran and her representative have not made the RO or the Board aware of any supporting information not in the record of evidence that needs to be obtained in order to fairly decide this appeal. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Under Dingess v. Nicholson, 19 Vet. App. 473 (2006), VA must also provide notice that an effective date for the award of benefits will be assigned if a higher evaluation is awarded. Although the RO did not advise the veteran of such information, because the claim is being granted, the RO will, upon issuance of this decision, assign a disability rating and an effective date for service connection. Given the results favorable to the veteran, further development of the claim or other law would not result in a more favorable result for the veteran or be of assistance to this inquiry. Merits of the Claim The veteran seeks service connection for a psychiatric disorder, which she argues developed during service. Having carefully considered the claim in light of the record and the applicable law, the Board is of the opinion that the evidence supports the claim and that the appeal will be granted. Under applicable law, service connection is granted if the evidence establishes that coincident with her service, the veteran incurred a disease or injury, or had a preexisting injury aggravated, in the line of duty of her active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for certain chronic diseases, when such disease is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. That an injury or event occurred in service alone is not enough. There must be chronic disability resulting from that injury or event. 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. 38 C.F.R. § 3.303(b). Service connection can also be found for any disease diagnosed after discharge, if all the evidence establishes it was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including psychoses, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. §§ 3.307, 3.309. Service connection requires that the evidence establish: (1) medical evidence of a current disability, (2) medical evidence, or lay testimony in some cases, that the injury or disease was incurred or aggravated during service, and (3) medical evidence of a nexus between the current disability and the in-service injury or disease. Pond v. West, 12 Vet. App. 341 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). A veteran is presumed to be of sound condition except for the defects noted when examined and accepted for service. 38 U.S.C.A. § 1132. In VAOGCPREC 3-2003, the VA's General Counsel determined that the presumption of soundness is rebutted only where clear and unmistakable evidence shows that the condition existed prior to service and that it was not aggravated by service. The General Counsel concluded that 38 U.S.C.A. § 1111 requires VA to bear the burden of showing the absence of aggravation in order to rebut the presumption of sound condition. See also Cotant v. Principi, 17 Vet. App. 116, 123-30 (2003); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The evidence indicates that the veteran is diagnosed with a psychiatric disability, including bipolar disorder and schizoaffective disorder. Therefore, the question is whether the evidence supports a finding that the veteran's disability was incurred coincident with her time in service or within the one year presumptive period following service. Although the claim has been denied on the basis that the veteran's disorder preexisted military service, the Board finds that the veteran was in sound mental condition when she entered active military duty in August 1992, May 1996 and June 2002. It is noteworthy that no documents generated prior to the three distinct periods of military service (in particular the May 2002 examination report) indicate that the veteran had a diagnosed, pre-existing disorder. Nor can it be found that the veteran's release from active duty, either in November 1992 from the U.S. Navy or in October 1996 from an initial period of training for service in the Army National Guard was in any way connected with psychiatric symptoms. The record indicates that the veteran was released from active duty in the Navy because she failed to learn how to swim; she was released from her initial period of training in the Army because she completed basic training and schooling in her military occupational specialty. The veteran's May 2002 report of medical examination indicates that the veteran was deemed fit for service. No notations were made in that report and no other evidence of record pre-dating that report indicate that the veteran had a mental disorder or was not of sound mental condition. Thus, she is presumed to have been of sound condition. 38 U.S.C.A. §§ 1111, 1132; Crowe v. Brown, 7 Vet. App. 238, 245 (1994). The veteran's service medical records do not mention any psychiatric symptoms or diagnoses until December 2002, when it was noted that the veteran had anxiety or depression under temporary (minor) problems. The service medical records generally indicate that the veteran was prescribed psychiatric medications, to which she had adverse reactions, and received psychiatric therapy throughout the remainder of her service. The veteran was eventually assessed as having a personality disorder. The veteran's DD Form 214 indicates that she was discharged due to her personality disorder in October 2003. The law provides that personality disorders are not diseases within the meaning of applicable legislation providing for payment of VA disability compensation benefits. See 38 C.F.R. § 3.303(c), Part 4, § 4.9 (2005); Winn v. Brown, 8 Vet. App. 510, 516 (1996). Personality disorders are considered to be congenital or developmental disabilities for which service connection may not be granted. See 38 C.F.R. §§ 3.303, 4.9, 4.127. However, the medical evidence following service includes a period of hospitalization at Berkshire Hospital in October 2003, a few days after her discharge, where she first received a primary diagnosis of bipolar affective disorder, unspecified. The veteran also received a diagnosis of schizoaffective disorder from her consulting psychologist, J.R., PSY. D., before being transferred to the acute psychiatric unit of the VA Medical Center in Leeds, in November 2003, where she was diagnosed with bipolar disorder, hypomanic type. The veteran was provided a VA examination in December 2003 and was diagnosed with bipolar disorder, as well as, an unspecified personality disorder, with mixed features of schizoid, borderline, and histrionic qualities. The veteran was admitted to Kino Community Hospital in March 2004, due to anxiety and suicidal ideation. These diagnoses and treatments for a psychiatric disorder occurred within a year of the veteran's separation from service and raise a presumption that if a psychiatric disorder (not a personality disorder) was then present, it would have been caused by active military service. 38 C.F.R. §§ 3.307, 3.309. The veteran was provided another VA examination in May 2005, where she was diagnosed with schizoaffective disorder, with strong paranoid features and a borderline personality disorder. Although the VA examiner found it more likely than not that the veteran's schizoaffective disorder predated her military service, it is clear that the opinion was based upon the veteran's unsupported and unsubstantiated account of pre- service symptoms - the substance of which was that when an adolescent, the veteran consulted a mental health care professional for counseling. There is no evidence of record indicating the nature of the veteran's pre-service symptoms, complaints, or diagnoses. Usually in the context of a veteran reporting to a medical examiner that a disorder was incurred in service, or that relevant symptoms occurred in service, the law has held that the mere transcription of medical history does not transform the information into competent medical evidence merely because the transcriber happens to be a medical professional. Leshore v. Brown, 8 Vet. App. 406, 409 (1995); see Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant). The essential rationale of the holdings of Leshore, Swann and Reonal apply to this case. The May 2005 VA examiner based his opinion on a medical history that indicated that the veteran had a difficult childhood with mood swings, depressed mood, anger, hallucinations, and explosive temper. However, a complete medical history has not been documented or verified by all the relevant records, including those that would contemplate the veteran's mental health prior to service, when she underwent therapy. In the veteran's August 2004 21-4142, she admitted to seeing psychiatrists as a child, but claimed that they had not diagnosed her with a psychiatric disorder. Since those records were not available for the VA examiner to review, he could not give a fully informed opinion on the etiology of the veteran's disorder. While the VA examiner determined the veteran to not have been of sound condition when she entered service, the finding is unsubstantiated because there is no competent evidence supporting it. The veteran is therefore found to have been in sound mental condition at the time she entered active military duty. Since the presumption of soundness has attached, VA holds the burden of proving under the clear and unmistakable evidence standard that the veteran's disorder pre-existed service and was not aggravated by service. VAOGCPREC 3-03. As noted above, the veteran was diagnosed in October 2003 with bipolar affective disorder and schizoaffective disorder. There being no probative basis to find that the veteran's disorder preexisted military service, service connection will be granted. ORDER Service connection for a psychiatric disorder, including bipolar disorder and schizoaffective disorder, is granted. ____________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs