Very New Cue, Newbie Plz Help

[cryingbear]

deleted

Edited April 7, 2014 by cryingbear

[cryingbear]

My claim is complicated.

[carlie]

Carlie, how about this recent C&P examination? I would ask my treating psychiatrist for a IMO if this seems to be enough. I am new, I don't understand how an IMO will help since CUE claims are based on evidence of record at the time of decision.

The first sentence in my reply states,'There is no CUE'

You are correct, only the evidence of record at the time the error was made,

is to be considered in a submission of CUE.

I, in no way, intended that an IMO at this time - would be relevant to a submission for CUE.

I also do not believe that a child watching his father beat his mother into a coma is a sign that he has bipolar disorder or a child being neglected and abused is a sign that he has bipolar disorder; Being depressed in boot camp is indicative of a problem in boot camp, not pre-enlistment, it is like saying I have brain damage after discharge from active duty so it is indicative of problems in the military. Genetic pre-disposition cannot be used as evidence or VA could deny all women of migraine claims because they are at a higher risk then men.

I asked my VSO officer, who is actually pretty good, about getting a IMO and after I told him about my recent examination and he does not want me to get one at the moment.

This examiner was board certified in psychiatry with over 40-years of experience.

Second Mental C&P Exam done November of 2012.

a.

Family: The veteran stated he was born in XXX and raised in XXX and in XXX. He explained that his father was diagnosed with "bipolar disorder', and that his parents divorced when he was XXX. He and

his younger brother remained with their mother but he spent most of the time with his uncle downstairs. The veteran stressed that he did not have 'a crazy sister" in reference to a previous Mental Health C & P Exam done by Dr. Gino dated Aug 15th 2007. Dr Gino's report has a statement regarding the veteran that said: "He was raised in Honolulu with a younger brother and an older sister". "The older sister had bipolar disorder and committed suicide in 40's"- The veteran reiterated that this is totally incorrect because he never had a sister.

b. Relevant Occupational and Educational history (pre-militaary, military, and post-military) :

pre: High School education and Associate Degree in Engineering.

Military: In the Air Force as aircraft and electronic specialist.

He is not currently employed. He obtained a Bachelor Degree in 2010 and at one time he was part time employed at the IT department of

the U of XXX

c. Relevant Mental Health history, to include prescribed medications and family mental health (pre-military, military, and post-military):

pre: The veteran stated that he was shy while growing up but he denied having any form of mental illness. Again the veteran said that the C & p Mental Health exam of 2007 was incorrect in diagnosing his bipolar condition starting before he joined the Air Force- He added that Dr. Gino made the diagnosis of bipolar disorder based on two incidents he had as a teenager. The first incident was in 1996 when the veteran attempted to shoplift a CD player from a store because he wanted to have it and did not have the money for it. He was arrested and had to do community service. The second incident was a fight he had in 1998 with "another boy" over a girlfriend.

The veteran denied having had psychiatric s] symptoms before he joined the Air Force.

Military: The veteran served in the Air Force from XXX to XXX and in the Reserves until XXX. The first time he sought psychiatric treatment was in March 2004. The C-files have a psychiatric note from XXX AFB dated Mar 22, 2004 with the diagnoses of Dysthymia (a form of minor depression) and Alcohol Dependency on Remission. He was seen again in April 2004 and this time diagnosed was changed to Major Depression. The veteran continued outpatient psychiatric treatment and was prescribed various antidepressant medications which he felt may have later played a role in activating his mood disorder to where he had a manic episode in 2007. The veteran was admitted to a hospital in early 2007 and was given 6 ECTs because he was very angry and wanting to kill someone. The diagnosis of bipolar disorder was made. In June 2007 the Air Force felt he was Medically Disqualified for World Wide Duty and was released from the

Reserves.

Post: Initially the veteran had psychiatric treatment as outpatient at the VA Clinic starting in June 2006. He was seen by various psychiatric residents and continued to receive treatment for depression with antidepressant medications. It was after he had a manic episode (2007) leading to a hospitalization that the veteran decided to seek psychiatric treatment elsewhere. Currently he sees a psychiatrist at the University of XXX and is taking the following medications: XXX

MSE: The veteran came one hour late for his appointment but was seen because the examiner did not have anyone scheduled for that hour. He gave the excuse that he was lost coming to the area for the appointment in spite of the fact that he had been to the C & P department Ewice on the previous days. In reality he was very apprehensive because he feared that he was not going to have a fair and impartial assessment of his mental condiEion. With him he had a folder

containing many psychiatric articles he had read. He was cooperative and seemed like a reliable informant. His speech and responses were slow but goal directed. He described his mood as "a little high" because he was feeling stressed about this examination. He was indeed anxious and tense. The veteran's mental content did not have delusions or hallucinations. He denied having suicidal or homicidal ideas at this time. He related that when he was admitted to the hospital in 2007 he was feeling suicidal and homicidal. Regarding his sleep pattern he said that he is in a "different world". He added that he does not have a perception of time passing by. He does not have a set time to go to

bed, may stay up reading for many hours or may sleep up to "20 hours" for three consecutive days. The veteran's intellect, memory and orientation functions are all in the normal range.

Relevant Legal and Behavioral history (pre-military, military, and

post-military) :

Pre: There are the two reported incidents; one in XXX when the veteran attempted to shoplift a CD player from a store because he wanted to have it and did not have the money for it. He was arrested and had to do community service. and the second incident in XXX when he had a fight with "another boy" over a girlfriend.

Military: The veteran denies disciplinary or legal problems while in

the Air Force.

Post Military: The veteran had a DUI in in 2009. He states he is home most of the time that way he stays away from people.

Relevant Substance abuse history (pre-military, miliitary, and

post-military) :

Pre: The veteran admits having drunk alcoholic beverages at parties when he was under the 1egal age for drinking but denied alcohol abuse

on a continuum. He denied using illegal drugs.

Military: The veteran stated that he was at an AFB in California at age XXX and was referred for substance abuse treatment. His C-File shows

that in March 2004 he was diagnosed with "Alcohol Dependency" as well as with Depression.

Post Military. The veteran stated that he stopped drinking alcoholic beverages "two years ago" and he denies current alcohol or drug use.

Military: The veteran served in the Air Force from XXX to XXX

2. Restatement of requested opinion

a. insert requested opinion from general remarks:

The request for this C & P Mental Health Examination states:

AGGRAVATION SERVICE CONNECTION.

CONTENTION/ CLAIMED CONDITION: bipolar disorder with depression.

The veteran is claiming that his AGGRAVATION SERVICE CONNECTION.

CONTENTION/ CLAIMED CONDITION "and was aggravated beyond its natural

progression by his military service. It. is shown that he had mental

health issues and sought treatment throughout service which includes

the dx of depression and mention of bipolar disorder".

OPINION REQUESTED:

Was the Veteran's bipolar disorder with depression, which clearly and unmistakably existed prior to military service, aggravated beyond its natural progression by military service?

PLEASE NOTICE: There is conflicting information between what it is said

under; AGGRAVATION SERVICE CONNECTION. That the veteran's bipolar disorder with depression, which "clearly and unmistakably existed prior to military service" and what the veteran said during this C & P mental

Health exam. The veteran claims that the diagnosis made on the Aug 16th, 2OO7 C & P Mental Health wrongly stated that his bipolar disorder began before he joined the Air Force on Dec 17th 2002.

SEE Conflicting Medical information below.

8. Opinion regarding conflicting medical- evidence

I have reviewed the conflicting medical- evidence and am providing the following opinion:

Opinion: There is no evidence to support that the veteran: "clearly and unmistakably" was diagnosed with bipolar disorder prior to his military service. Based on this C & P Mental Health exam and on the veteran's claim and on the available medical evidence; his mood disorder only became evident when he was first treated at xxxx AFB in xxxxx for Dysthymia (a form of minor depression). One month later this diagnosis was changed to Major Depression. Based on the above statement it can be said t.hat the veteran's mood disorder (bipolar disorder) was first manifested in the year 2004 when he began to have symptoms of depression and followed years later by having had a manic or mixed episode.The diagnosis of bipolar disorder cannot be

made unless the person has one or more episodes of mania, hypomania or mixed in addition to having a history of recurrent major depressive episodes It may take years for the full condition to develop. Therefore bipolar disorder is chronologically related to his time in the military.

The term "bi-polar disorder with depression" is accounted for by the diagnosis of Bipolar I Disorder.

Rationale: The veteran's contention during this examination differed from the statement that said his condition was: "clearly and unmistakably existed prior to military service".

There is no record of the veteran having received mental health treatment before he joined the Air Force. According to information in his C-file the veteran's first documented mental health treatment was at xxxx AFB on Mar 22nd, 2004 was given the diagnoses of Dysthymia (a form of minor depression) and Alcohol Dependency on Remission. When he was seen again in April 2004 his diagnosis was changed to Major Depression. The veteran continued outpatient psychiatric treatment for depression throughout his stay in the Air Force. The diagnosis of bipolar disorder was made in 2007 when he was hospitalized and treated with ECTs.

Explanation: "bipolar Disorder" is a mood disorder manifested by the person having periods of depressed moods alternating with periods of normal mood and/or with periods of elevated moods. More often than not the person may begin with bouts of depression lasting days, weeks or longer alternating with normal moods in between episodes. The diagnosis of bipolar disorder can only be made after the person has at least one defined period of mania or hypomania that is not caused by substances. From that point on the occurrence of depressive episodes will be referred to as the depressive phase of the bipolar disorder.

Was this Nov 2012 included in the evidence of record on your most recent decision ?

It reads to me as if it would help advance your claim issue for SC, to be granted.

JMHO

carlie

[carlie]

In regards to any questions on Bi-Polar and SC granted due to aggravation,

here's a relevant BVA case that spells it out really well.

Of course, many times when a claimant can get application of the BOD, it

works out in their favor.

I even find conflict in this decision in regard to application of the BOD.

http://www.va.gov/vetapp11/Files1/1104111.txt

Citation Nr: 1104111
Decision Date: 02/01/11 Archive Date: 02/14/11

DOCKET NO. 05-16 272 ) DATE
)
)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Winston-Salem, North Carolina


THE ISSUE

Entitlement to service connection for an acquired psychiatric
disorder (other than PTSD), to include bipolar disorder, major
affective disorder, borderline personality disorder, and
schizophrenia.


REPRESENTATION

Veteran represented by: The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran




ATTORNEY FOR THE BOARD

Katie K. Molter, Associate Counsel


INTRODUCTION

The Veteran had active duty military service in the United States
Navy from August 1964 to July 1967, during the Vietnam Era.

This matter comes before the Board of Veterans' Appeals (Board)
on appeal from a March 2004 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Winston-Salem,
North Carolina.

The Veteran testified in October 2008 at a Travel Board hearing
at the RO before the undersigned Veterans Law Judge. A
transcript of that hearing has been reviewed and associated with
the claims file. This was claim was previously before the Board
in April 2009. At that time, the Board reopened the Veteran's
claim for an acquired psychiatric disorder (other than PTSD), to
include bipolar disorder, major affective disorder, borderline
personality disorder, and schizophrenia and remanded the claim
back to the RO for further development.

As a final preliminary matter, the Board notes that, during the
pendency of the appeal, the Veteran filed a claim for entitlement
to service connection for posttraumatic stress disorder (PTSD) in
October 2008. The Veteran was sent VCAA notice on that issue in
October 2008. The Board acknowledged the Veteran's claim for
service connection for PTSD at his April 2009 hearing and
referred it to the RO for development. From a review of the
claims file, it appears that no further action has been taken on
the Veteran's claim for entitlement to service connection for
PTSD and, as such, the Board refers that issue to the RO for
appropriate action.



FINDINGS OF FACT

1. The Veteran's bi-polar disorder was not noted on the service
entrance examination.

2. Clear and unmistakable evidence demonstrates that the
Veteran's bi-polar disorder existed prior to active duty service.

3. The evidence is not clear and unmistakable that the Veteran's
preexisting bi-polar disorder did not permanently increase in
severity during service.


CONCLUSION OF LAW

Resolving all doubt in the Veteran's favor, preexisting bi-polar
disorder was aggravated in service. 38 U.S.C.A. §§ 1110, 1131,
5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duties to Notify and Assist

VA's duties to notify and assist claimants in substantiating a
claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102,
5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§
3.102, 3.156(a), 3.159, 3.326(a) (2010). VA's notice
requirements apply to all five elements of a service- connection
claim: veteran status, existence of a disability, a connection
between the veteran's service and the disability, degree of
disability, and effective date of the disability. Dingess v.
Nicholson, 19 Vet. App. 473 (2006). Given the favorable
disposition of the claim for service connection for an acquired
psychiatric disorder (other than PTSD), to include bipolar
disorder, major affective disorder, borderline personality
disorder, and schizophrenia, the Board finds that all
notification and development actions needed to fairly adjudicate
this claim have been accomplished.

II. Analysis

Service connection may be granted for a disability resulting from
disease or injury incurred in or aggravated by service. 38
U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).

A veteran is presumed to have been in sound condition when
examined, accepted, and enrolled for service, except as to
defects, infirmities, or disorders noted at the time of the
examination, acceptance, and enrollment, or where clear and
unmistakable evidence demonstrates that the injury or disease
existed before acceptance and enrollment and clear and
unmistakable evidence demonstrates that the preexisting disorder
was not aggravated. 38 U.S.C.A. § 1111. 38 C.F.R. § 3.304(b)
states likewise, but also states "[o]nly such conditions as are
recorded in examination reports are to be considered as noted."

A preexisting injury or disease will be considered to have been
aggravated by active 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.A. § 1153; 38 C.F.R. §
3.306(a). Clear and unmistakable (obvious or manifest) evidence
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 which may be
considered to determine whether the increase is due to the
natural progress 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 C.F.R. § 3.306(b).

The Veteran contends, in essence, that he is entitled to service
connection for an acquired psychiatric disorder because his
preexisting acquired psychiatric (bi-polar disorder) worsened in
service. In this case, the Board finds that the Veteran's
acquired psychiatric disorder was not "noted" on the service
entrance examination for the Veteran's period of active duty
service.

In Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004), the
Federal Circuit Court held that, when no preexisting condition is
noted upon entry into service, a 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 (West 2002)
requires that VA show 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.
The Federal Circuit Court has recognized the Board's "authority
to discount the weight and probity of evidence in light of its
own inherent characteristics and its relationship to other items
of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir.
1997).

After a review of the evidence, the Board finds that there is
clear and unmistakable (obvious and manifest) evidence that the
Veteran's acquired psychiatric disorder (bi-polar disorder) pre-
existed service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304. A June
2009 VA examination report shows that the Veteran reported having
signs of mania in his teens. The examiner found that the
Veteran's bi-polar disorder had its onset in his teens and there
was a 50 percent or greater probability that his psychiatric
disorder had its onset prior to the Veteran joining the military
service. In addition, the Veteran reported that the first signs
of mania started in his adolescence. (See Written Social History
by R.T. dated in March 1996).

The Board further finds that the there is no clear and
unmistakable evidence that the Veteran's preexisting acquired
psychiatric disorder, identified as bipolar disorder, did not
permanently increase in severity during service. In this regard,
the Veteran testified at his October 2008 Board hearing that
there were two incidents in his military service that increased
the severity of his condition. One of the incidents occurred
aboard the USS Shangri-La in the Caribbean when the Veteran felt
he failed to warn or properly train a friend who ended up going
overboard. The other incident was when the Veteran's father
passed away in 1967. The Veteran indicated that he wandered
around the Navy base aimlessly not knowing what to do for hours
when he found out his father passed away. He was seen by a
physician who treated him and gave him sleeping medication. (See
undated VA form 21-4142). In addition, the Veteran generally
alleged that his inability to sleep during his military service
aggravated his preexisting bi-polar disorder.

The Veteran's lay testimony is corroborated by the evidence of
record. Service treatment records reflect that the Veteran
underwent a neuropsychiatric evaluation in November 1966. The
record notes that the Veteran's neuropathic traits of childhood
include bedwetting until age 6, nail biting, restlessness, and
frequent fights. The Veteran was diagnosed with an immature
personality. Service treatment records also reflect that the
Veteran was having some personal problems in mid-1967. A May
1967 service treatment record notes that the Veteran reported
that his "nerves were shot" and that he could not sleep and was
unduly nervous. The record also reflects that the Veteran asked
to see a psychiatrist. It was also noted that the Veteran was
prescribed valium and lithium with results. The physician
reported that he "did not see need for a psychiatrist
evaluation."

The June 2009 VA examiner documented that the Veteran stated that
his inability to sleep while in the military aggravated his bi-
polar disorder. The Veteran also acknowledged excessive alcohol
use during his military service. The examiner stated that the
Veteran's psychiatric disorder permanently worsened during his
military service though the examiner could not state whether such
worsening was due to the natural progression of the disorder
without resorting to mere speculation. The examiner explained
that the above mentioned opinions were derived from the
examiner's clinical experience and expertise, a review of the
Veteran's records, an extensive clinical interview of the Veteran
and the current examination. The examiner further stated that
the Veteran meets the DSM-IV criteria for bi-polar. He has been
hospitalized and is currently being treated for bi-polar
disorder. Early signs of mania (bi-polar disorder) were noticed
by the Veteran in his early teens. His alcohol abuse was in part
a self-medicating mechanism and eventually became a clinical
disorder itself as evidence by his inpatient hospitalizations at
the Salisbury VA medical center for substance abuse. The
examiner further opined that his review of the records does not
indicate that the Veteran was taking psychiatric medications
during his military service though he already had the disorder
and he was also abusing alcohol during that time. Hence,
determining the nature of the worsening of his condition cannot
be done without resorting to mere speculation.

The Board notes that the VA examiner wrote that, without
resorting to speculation, he could not state whether or not
military service aggravated the Veteran's bi-polar disorder or if
this was the natural progression of the disease process. This is
not an opinion, but a statement that an opinion cannot be
rendered; therefore, it cannot be weighed against the claim as if
it were negative evidence. See Nieves-Rodriguez v. Peake, 22
Vet. App. 295 (2008).

In light of the VA examiner's notations that Veteran's bi-polar
disorder, which preexisted service, worsened during his military
service and various VA and private treatment records and the June
2009 VA examination showing the presence of an acquired
psychiatric disorder, identified as bi-polar disorder, the Board
cannot conclude that there was clear and unmistakable evidence
that the Veteran's preexisting bi-polar disorder was not
aggravated beyond the natural progression during the Veteran's
period of service. See Joyce v. Nicholson, 19 Vet. App. 36, 48-
53 (2005).

As the standard is clear and unmistakable evidence to rebut the
presumption of sound condition at service entrance, the rule of
resolving reasonable doubt in the Veteran's favor is not
applicable in this case. As a result, the Board finds that the
Veteran's preexisting bi-polar disorder was aggravated by
service, and the grant of service connection for an acquired
psychiatric disorder, identified as bi-polar disorder, is
warranted.


ORDER

Entitlement to service connection for an acquired psychiatric
disorder, identified as bi-polar disorder, is granted.

[cryingbear]

I don't know what BOD means but it would be a lot easier for me to claim pre-existing bipolar disorder for service connection now that the examiner provided evidence of aggravation from mild to major depression but I didn't have pre-existing bipolar disorder.

Bipolar disorder is a severe psychiatric disorder, it is one of SSA's medical listings, meaning you are automatically disabled. There is no way I would have been able to have gone through 4-years of military or even boot camp without proper medication, I would have been hospitalized within 3-months.

The VA did not take into account the examination from November because the decision was made in 2007. My claim is re-opened because they forgot to get my guard records during my first decision and it is in "Review of Evidence" phase at the moment.

They should take into account the recent C&P examination, SSA CE examination, State Air Surgeons medical report, and reports from my treating psychiatrist to the SSA about my condition.

I will likely take your guys advice and look for a lawyer after this decision if I find it unfavorable.

I am just anxious waiting for a decision because of past experiences.

[carlie]

Might be possible that with consideration of your Guard records,

if / when you get SC'd, that might get you an EED under 3.156c.

http://www.ecfr.gov/cgi-bin/text-idx?SID=c7686a4689fdce761bfbcd40ce5fc2e8&node=38:1.0.1.1.4.1.60.65&rgn=div8

[john999]

Before you talk to the VA you should have your right against self incrimination read to you! I remember talking to one VA doctor. He asked me if I ever argued with my parents? Did I ever have a scrap at school? Did I ever get drunk? The result was a DX of anti-social personality disorder. I had already been SC'ed for a mental disorder for many years, but his DX killed my claim for an increase. Now I only tell them of new pains and symptoms of mental disorders.

John