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Bipolar/tbi Case:


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Citation Nr: 0828925 Decision Date: 08/26/08 Archive Date: 09/02/08DOCKET NO. 06-20 848 ) DATE ) )On appeal from theDepartment of Veterans Affairs Regional Office in Roanoke, VirginiaTHE ISSUEEntitlement to service connection for bipolar disorder. REPRESENTATIONAppellant represented by: Virginia Department of Veterans AffairsWITNESSES AT HEARING ON APPEALAppellant and his motherATTORNEY FOR THE BOARDT. S. Kelly, CounselINTRODUCTIONThe veteran had active service from July 1997 to January 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Roanoke, Virginia. In June 2008, the veteran appeared at a hearing at the Board before the undersigned.In August 2008, the Board granted the veteran's motion to advance this case on its docket. FINDING OF FACTThe veteran's current bipolar disorder had its onset in service and was not the result of willful misconduct. CONCLUSION OF LAWBipolar disorder was incurred in service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2007). REASONS AND BASES FOR FINDING AND CONCLUSIONThe Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2008); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007).The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5- 2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision in this appeal, further assistance is unnecessary to aid the veteran in substantiating his claim.Service ConnectionService connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995).In order to establish service connection for a claimed disability the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.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).For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(:angry:.When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. Mere suspicion or doubt as to the truth of any statements submitted, as distinguished from impeachment or contradiction by evidence or known facts, is not justifiable basis for denying the application of the reasonable doubt doctrine if the entire, complete record otherwise warrants invoking this doctrine. The reasonable doubt doctrine is also applicable even in the absence of official records, particularly if the basic incident allegedly arose under combat or similarly strenuous conditions, and is consistent with the probable results of such known hardships. 38 C.F.R. § 3.102.The veteran sustained a traumatic brain injury (TBI) in service for which service connection is not currently in effect. The veteran was involved in a motor vehicle accident in July 2000. He was found to be intoxicated at the time of the accident and to have a blood alcohol content level of .18. The veteran's head injury was found to be due to alcohol and to be the result of his own willful and persistent misconduct. The veteran's service treatment records reveal no findings of a bipolar disorder in service. These records do show that he received treatment for alcohol abuse in service and was diagnosed as having alcoholism prior to the July 2000 accident. He also was involved in several disciplinary actions as a result of alcohol related problems. At the time of an April 2000 psychological evaluation, the veteran reported that he was referred to an alcohol treatment program after several recent alcohol related incidents. In February 2000, he had been arrested for driving under the influence of alcohol. In early April 2000, he had been found passed put in the bathroom of a grocery store. He had also been cited for underage drinking by his previous command officer. He noted that he had suffered blackouts on three separate occasions. The examiner indicated that based upon the available data, the veteran met the criteria suggestive of alcohol dependence. The veteran indicated that he knew that he had a problem with alcohol and that he wanted help. Following mental status examination, an Axis I diagnosis of alcohol dependence was rendered. At a July 2000 medical board evaluation, conducted following the motor vehicle accident, the veteran was diagnosed as having a cognitive disorder, NOS. He was deemed not to be able to handle his personal, financial, or medical affairs. At the time of the veteran's December 2000 service separation examination, he was again diagnosed as having a cognitive disorder, NOS. Subsequent to service, the veteran has been diagnosed as having bipolar disorder, in addition to the TBI and cognitive disorder, NOS. At the time of an April 2001 VA examination, the veteran was noted to have been involved in the July 2000 motor vehicle accident and to have had significant problems with alcohol in the year preceding the July 2000 accident. He had completed a 26 day outpatient treatment level II substance abuse program in May 2000. Following examination, Axis I diagnoses of organic personality disorder; cognitive disorder, NOS; and alcohol dependence in remission, were rendered. The veteran was afforded a VA examination in March 2005. The examiner noted that the veteran reported passing out at the age of 16 and suffering a mild concussion due to dehydration and shingles. The examiner observed that during service, the veteran had received numerous speeding tickets, reckless speeding, shown up to work drunk, and was found passed out drunk in Food Lion two or three times. He had also participated in an alcohol treatment program for thirty days. The veteran also noted significant alcohol abuse in the Navy. According to the examiner the veteran reported that while stationed aboard the USS Enterprise he felt worthless and did not believe in himself had low self-esteem, and a poor work ethic. He reported depression and mood swings. He started drinking at the time he entered the military and it intensified after he turned 21 years old. He reported that he was not an alcoholic prior or subsequent to the military. The veteran believed that he must have been self-medicating his symptoms of bipolar disorder. He noted that instead of receiving treatment for bipolar disorder, he received treatment for alcoholism. Following examination, Axis I diagnoses of bipolar disorder, NOS, and alcohol dependence were rendered. The examiner stated that he was unable to determine whether the bipolar disorder was a primary disorder or due directly to a general medical condition, i.e., the veteran's TBI.The examiner observed that the veteran's alcohol abuse appeared to have predated his psychiatric symptoms. He observed that there was no evidence of assessment or treatment of a bipolar disorder or other psychiatric illness while in the military prior to his motor vehicle accident, which appeared to be directly related to alcohol consumption given the blood alcohol level at the time of the accident. He further observed that the onset of the bipolar symptomatology appeared to be consistent with the TBI occurring as a result of the accident. The examiner added that it was difficult to determine whether the onset of this disorder was the direct result of the TBI or whether this disorder would have occurred without the head injury. He stated that it appeared that this disorder was not likely present at an earlier time based upon the lack of documented assessment and treatment, military and pre-military; the report by the veteran of normal adolescence; and only generic symptoms while in the military (poor work ethic, poor self-esteem, useless to self and others) not generally descriptive of the usual symptom picture of bipolar disorder. The examiner further indicated that the veteran's alcohol dependence and subsequent brain injury were not caused by or the result of a preexisting bipolar disorder. In a May 2008 letter, the veteran's VA psychiatric clinical nurse reported that the veteran had described multiple incidents of harassment and severe hazing while on board the Enterprise. He dealt with this harassment by using alcohol to cope with the stressors. She also noted that the veteran reported that he had experienced constant anxiety, racing thoughts, was unable to complete assignments, completed his work early, and spent time away from the ship. He felt overstimulated on board and eventually got behind on visuals. He reported losing his qualification card and being threatened. He felt extremely pressured by this and found himself running around to complete the qualification card in one day. He was in fear for his life. The harassment continued until the time of the accident. The veteran experienced difficulty which was not responded to by his superiors. He used alcohol to help him manage the daily stress and the racing thoughts that he continued to have. He was unable to recognize what was happening to him. The veteran was extremely young at the time and thought he could manage things on his own. He made an effort to speak to the chaplain but then decided against it. The veteran noted being brought on board ship by EMTs and shore patrol after not having slept for two days and drinking. He described feelings of mania and fear and felt that he was safest when off the ship. She noted that the veteran was able to express himself more to others after his TBI, which ultimately led to the diagnosis of bipolar disorder. She indicated that the veteran used alcohol to feel normal and relieve himself of the stress he was experiencing. She further reported that the veteran experienced a stream of thoughts that were difficult to control. He tended to feel pumped full of adrenaline, not getting things done fast enough, or being too tired to move. She noted that the veteran's fellow soldiers were aware of his difficulties and took advantage of his weakness and disability. The veteran displayed some of these difficulties during his time on board the Enterprise. He was not seen, evaluated, or treated for the symptoms of bipolar disorder. He experienced severe episodes of depression with severe crying spells. He knew that something was wrong with but was unsure what was happening. He felt the desire to want to get away and disappear. He had difficulty with relationships and was impulsive with behavior. The impulsivity related to his bipolar disorder. Examples of this included purchasing expensive electronic equipment, numerous short term relationships, and promiscuity. The nurse observed that the veteran used alcohol to help him to cope with the experiences of the daily harassment and abuse by his fellow sailors. She indicated that it was her expert opinion that the veteran's current disability was related to his bipolar disorder and that the bipolar disorder manifested itself during his naval career. The symptoms of the bipolar disorder were exacerbated by the situations of stress and constant harassment that the veteran experienced during active duty on board the Enterprise. This further caused the veteran to attempt to cope by using alcohol to self-medicate which ultimately led to the motor vehicle accident that resulted in the TBI. At his June 2008 hearing, the veteran's mother testified that she had no problems with her son prior to service. She indicated that the veteran had not been irresponsible, reckless, or abusive of alcohol. He did not drink and excelled at school. He had a part-time job and was an honor roll student. He did not get into mischief. She observed a huge change while he was stationed aboard the Enterprise. She related that the veteran got into trouble by taking the door knob off his roommate's door and by driving at excessive speeds. She also reported that the veteran drove at excessive speeds when she was in the car with him on one occasion. He continued at a high rate of speed even when she asked him to slow down. The veteran stated that he became manic and had racing thoughts while in service. He further reported that he did not practice good personal hygiene aboard ship and that he was harassed by fellow shipmates due to this. The veteran also testified of his inability to sleep and showing up for work like a "zombie". He reported that he had participated in an alcohol treatment program while in service and indicated that he had been drinking at the time of the accident. The veteran stated that he was going to be seen by another VA treating psychologist and would forward the report after he had been seen. Subsequent to the hearing, the veteran forwarded a report from a VA psychologist dated in June 2008. The psychologist stated that he had reviewed the veteran's service record, his medical records, his military performance records, and his arrest record. The examiner noted that the veteran was first treated at their VA facility after sustaining injuries in a motor vehicle accident. The examiner observed that the veteran had excelled in high school, made friends easily, and was popular among his peers. As the veteran started his military training his stress rose. He was subjected to harassment by fellow soldiers. The veteran first experienced dissociation after a hazing incident and was so frightened that he left awareness of his then present circumstances. He also reported having racing thoughts beginning around that time. He was unable to complete work assignments and got furtrher behind. He felt pressured and at one point in fear of his life. He began to experience racing thoughts that were difficult for him to control. He started feeling a rush and as though he were pumped full of adrenaline. He felt as though he could not get things done fast enough. The veteran went through periods where he did not take care of himself from a cleanliness standpoint. He also noted having periods of deep depression and crying spells. He began to become impulsive in behavior. Examples included numerous short-term and promiscuous relationships. He also made inappropriate expensive purchases and received multiple speeding tickets. The veteran began to use alcohol in order to feel normal and to slow his thoughts down. Anxiety and his racing thoughts became so extreme that he felt abnormal and did not know of any other way to cope. The examiner noted that although the veteran was placed in alcohol treatment while in service, there were no attempts made to find out why he was drinking. The examiner stated that impulsive and irrational behavior was one of the symptoms of bipolar disorder. The veteran's experience of being pumped full of adrenaline and having racing thoughts were also symptoms of bipolar disorder. He concluded that it was more likely than not that the veteran was making an attempt to self-medicate for bipolar disorder through the use of alcohol. He opined that the Navy's contention that his bipolar disorder was caused by the head injury resulting from the motor vehicle accident while under the influence of alcohol was not fully supported. He found that by examining the veteran's behavior prior to the motor vehicle accident, it was clear that he was exhibiting symptoms consistent with bipolar disorder prior to the accident. He added that most likely, the veteran's accident was actually a result of his attempt to self-medicate and his irrational judgment, both due to bipolar disorder. After review of all available records, the examiner ultimately concluded that it was more likely than not that symptoms of bipolar disorder were present prior to the = motor vehicle accident. These symptoms included erratic behavior, as evidenced by his driving record; his performance ratings, which were consistently substandard in March 2000; his use of alcohol to decrease anxiety and racing thoughts; and his poor judgement in purchases, relationships, and promiscuity. He noted that it was likely that the stress of nuclear power training coupled with traumatic experience during the hazing incident tipped his psychological balance, bringing out the symptoms of bipolar disorder. Axis I diagnoses of bipolar I disorder and PTSD related to military sexual trauma were rendered. AnalysisThe veteran has current diagnoses of bipolar disorder. There is no dispute that he has a current disability.The record contains varying opinions as to whether the veteran's bipolar disorder is related to his period of service. The March 2005 VA examiner was unable to determine if the bipolar disorder was directly incurred or a result of the auto accident and TBI. If it was the latter, service connection would be precluded, because the disability was a result of willful misconduct. 38 U.S.C.A. § 1110. The examiner's opinion can be read as saying the evidence is in equipoise on this question. Resolving reasonable doubt, the opinion would support a conclusion that the bipolar disorder was coincident with the accident, but not one of its results.In contrast, the veteran's treating psychiatric nurse specialist, in her May 2008 report, and the psychologist, in his June 2008 statement essentially concluded that the bipolar disorder began in service and pre-existed the accident. The veteran's testimony and that of his mother are consistent with these conclusions.There is negative evidence in the form of the silent service treatment records and lack of any finding of pre-existing psychiatric disability when the veteran was treated for the TBI. The opinions as to the etiology of the veteran's current bipolar disorder are, however, at least in equipoise.For a veteran to prevail in his claim it must only be demonstrated that there is an approximate balance of positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for benefits to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, at 54 (1990). It cannot be stated that the preponderance of the evidence is against the claim of service connection.Resolving reasonable doubt in favor of the veteran, service connection for bipolar disorder is warranted.ORDERService connection for bipolar disorder is granted. ____________________________________________Mark D. HindinVeterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairshttp://www.va.gov/vetapp08/files4/0828925.txt

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