Citation Nr: 0002138 Decision Date: 01/27/00 Archive Date: 02/02/00 DOCKET NO. 98-17 704 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, claimed as a bipolar disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The veteran served on active duty from April 29 to August 7, 1996. This case was previously before the Board of Veterans' Appeals (Board) in May and August 1999, on which occasions it was remanded for additional development. The case is now, once more, before the Board for appellate review. For reasons which will become apparent, additional development regarding the issue currently on appeal will be the subject of the REMAND portion of this decision. FINDING OF FACT In correspondence of October 1998, a private psychologist wrote that the veteran's "rigorous" inservice training, in conjunction with the lack of appropriate medication to control his symptomatology, "aggravated" his (psychiatric) condition, requiring subsequent hospitalizations. CONCLUSION OF LAW The veteran's claim for service connection for an acquired psychiatric disorder, including a bipolar disorder, is well grounded. 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1998). REASONS AND BASES FOR FINDING AND CONCLUSION As to the issue currently before the Board, the threshold question which must be resolved is whether the veteran's claim is well grounded. See 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1998); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). A well-grounded claim is a plausible claim, meaning a claim which appears to be meritorious. See Murphy, 1 Vet. App. 81. A mere allegation that a disability is service connected is not sufficient; the veteran must submit evidence in support of his claim which would "justify a belief by a fair and impartial individual that the claim is plausible." 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1998); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In order for a claim to be well grounded, there must be competent evidence of current disability (medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the inservice injury or disease and the current disability (medical evidence). See Caluza v. Brown, 7 Vet. App. 498 (1995); see also Epps v. Gober, 126 F.3d. 1464 (Fed. Cir. 1997); Heuer v. Brown, 7 Vet. App. 379 (1995); Grottveit v. Brown, 5 Vet. App. 91 (1993). The second and third elements of this equation may also be satisfied under 38 C.F.R. § 3.303(b) (1998) by (a) evidence that a condition was "noted" during service or during an applicable presumptive period; (b) evidence showing post service continuity of symptomatology; and (c) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post service symptomatology. See 38 C.F.R. § 3.303(b) (1998); Savage v. Gober, 10 Vet. App. 488 (1997). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of (i) the existence of a chronic disease in service or during an applicable presumptive period and (ii) present manifestations of the same chronic disease. Ibid. For the purpose of determining whether a claim is well grounded, the credibility of the evidence in support of the claim is presumed. See Robinette v. Brown, 8 Vet. App. 69 (1995). In the present case, service medical records disclose that, while at the time of a service entrance examination in early April 1996, no psychiatric disability was in evidence, it was eventually determined that the veteran was suffering from a psychosis which preexisted his entry upon active service. In correspondence of October 1998, the veteran's private psychologist wrote that he was aware of the history, onset, and progress of the veteran's mental condition since adolescence, and that, while in service, the "rigorous training" and "lack of appropriate medication to control (the veteran's) symptomatology" resulted in an aggravation of his condition which required subsequent hospitalizations. The veteran argues that his preexisting psychiatric disability was, in fact, aggravated during his relatively brief period of active military service. More specifically, it is contended that the lack of appropriate medication and treatment in service resulted in a clinically-identifiable increase in the veteran's preexisting psychiatric symptomatology. While at the time of the aforementioned October 1998 opinion, the veteran's private psychologist was, apparently, not in possession of his claims folder, that opinion nonetheless suggests some relationship between the veteran's current psychosis and his active service. It is true that other evidence is of record which does not attribute any connection of his psychiatric illness to service. The probative value of the evidence is not to be weighed for purposes of determining a well-grounded claim. Under such circumstances, the veteran's claim for service connection for an acquired psychiatric disorder, including a bipolar disorder, is well grounded. ORDER The veteran has submitted a well-grounded claim for service connection for an acquired psychiatric disorder, including a bipolar disorder. REMAND As noted above, the Board has concluded that the veteran's claim for service connection for an acquired psychiatric disorder, including a bipolar disorder, is well-grounded. Nonetheless, there exists some question as to the exact nature and etiology of the veteran's current disability. This is particularly the case given the absence of evidence of preservice treatment for the veteran's psychiatric disability, and his very brief (four-month) period of service. Moreover, as previously noted, the aforementioned opinion by the veteran's private psychologist was rendered without benefit of the veteran's claim folder. Under such circumstances, the Board is of the opinion that further development of the evidence is appropriate prior to a final adjudication of the veteran's claim for service connection for an acquired psychiatric disorder, including a bipolar disorder. Accordingly, the case is once again REMANDED to the Regional Office (RO) for the following actions: 1. Any pertinent inpatient or outpatient treatment records prior to April 1996, the date of the veteran's entry upon active service, should be obtained and incorporated in the claims folder. To that end, the veteran should be requested to identify all preservice outpatient treatment and hospitalization for psychiatric (including emotional) and/or drug or alcohol problems. The RO should then attempt to obtain copies of all of these medical records. Included in such records should be all reports of treatment from "Gateways on Effie" where the veteran reportedly had been hospitalized on no fewer than six occasions for "5150s," as well as any preservice records from Cedars-Sinai Medical Center/Cedars-Sinai Medical Center Thalians. 2. After the above development has been completed, and any additional records have been added to the file, the veteran should be afforded an examination by a psychiatrist in order to more accurately determine the exact nature and etiology of his current psychiatric disability. A copy of this REMAND and the veteran's complete claims file must be made available to the examiner for review prior to examination, and a notation must be made of such review on the examination report. All indicated testing should be accomplished. Following examination, the examiner should render an opinion as whether any pre-service disorder as likely as not underwent an increase in severity (and not just a temporary exacerbation) during or as a result of the veteran's active service. If there was an increase in severity, the examiner should state whether such increase was due to the normal progress of the disorder. A complete rationale for any conclusions reached must be included. 3. The RO should then review the veteran's entire claims folder. If the aforementioned examination report is not responsive to the Board's instructions, it must be returned to the examiner as inadequate. 4. After the above additional evidence has been obtained, the RO should readjudicate the claim, and, should the claim remain denied, issue an appropriate supplemental statement of the case. The case should then be returned to the Board, if in order. No action is required of the veteran until he is so informed. In taking this action, the Board intimates no opinion as to the ultimate disposition warranted in this case. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. John E. Ormond, Jr. Member, Board of Veterans' Appeals Error! Not a valid link.