BVA9501743 DOCKET NO. 91-39 881 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a psychiatric disorder, variously diagnosed. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARINGS ON APPEAL Appellant and Charles Brakebill ATTORNEY FOR THE BOARD Ronald R. Bosch, Counsel INTRODUCTION The veteran served on active duty from January 1943 to February 1946. The Board of Veterans' Appeals (Board) previously denied entitlement to service connection for hysterical neurosis in January 1982. That decision is final and it may not be reopened absent the presentation of new and material evidence. The current appeal arises from a September 1990 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The RO affirmed previous determinations that new and material evidence had not been submitted to reopen a claim of entitlement to service connection for a psychiatric disorder. When this case was previously before the Board for appellate review, it was REMANDED to the RO for further development in January 1992. The RO affirmed the determination previously entered when it issued a rating decision in June 1992. The case has been returned to the Board for final appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he has a chronic psychiatric disorder which is related to his period of active service. He states that any psychiatric symptomatology from which he suffered prior to service was aggravated by the stresses of pilot training and a military life style in general. The Board is asked to carefully evaluate the statements presented on the veteran's behalf showing that he demonstrated considerable change in his personality after service, has had numerous jobs and broken marriages since service, and has never adequately adjusted to civilian life as the result of stresses and strains encountered on active duty. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that new and material evidence has been submitted, and that the claim should be reopened. On de novo review of all of the evidence of record, it is the decision of the Board that the record supports a grant of entitlement to service connection for hysterical neurosis. FINDINGS OF FACT 1. The January 1982 Board decision was the last decision which reached the merits of the veteran's claim of entitlement to service connection for hysterical neurosis. 2. The additional evidence received since the January 1982 Board decision, when viewed in light of all of the evidence of record, raises a reasonable possibility of changing that prior decision. 3. In December 1994, a VA psychiatrist opined that the veteran was suffering from a bipolar affective disorder which either had its onset during or chronically worsened in service. CONCLUSIONS OF LAW 1. Evidence received since the January 1982 Board decision is new and material, and the veteran's claim has been reopened. 38 U.S.C.A. §§ 1110, 1111, 1153, 5107 (West 1991); 38 C.F.R. § 3.306(b) (1994). 2. A bipolar affective disorder was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1111, 1153, 5107; 38 C.F.R. § 3.306(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially the Board finds that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a), in that it is at least plausible that he has a psychiatric disorder which was either incurred in or aggravated by his active service. The Board is satisfied that as a result of the January 1992 remand of the case to the RO for further development, all evidence of record is sufficiently complete, and no further assistance to the veteran is required in order to comply with the duty to assist him in the development of facts pertinent to his appeal. Murphy v. Derwinski, 1 Vet.App. 78 (1990). Service connection may be granted for a psychiatric disorder which was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107. In this case, the denial of service connection for a psychiatric disorder, then diagnosed as hysterical neurosis, was upheld by the Board in a January 1982 decision. That decision is final, and the veteran's claim may not be reopened absent the submission of new and material evidence. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). "New" evidence is that which is not merely cumulative of other evidence of record. "Material" evidence is that which is relevant to and probative of the issue at hand, and which must be of sufficient weight or significance (assuming its credibility, see generally, Justus v. Principi, 3 Vet.App. 510, 513 (1992) that there is a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome. Cox v. Brown, 5 Vet.App. 95, 98 (1993). The evidence which was of record when the Board previously considered the veteran's case in January 1982 consisted of the service medical records and post service documentation encompassing correspondence, medical reports, and hearing testimony. The service medical records disclosed that the veteran had returned from overseas in December 1944 and requested to see a psychiatrist. "Operational fatigue" was noted and he was returned to duty. Other service documentation on file pertains to the veteran's training in Bombardier School. This documentation shows that while the veteran's understanding of the principles of bombing was satisfactory, his work was not consistent. Coupled with this inconsistency was a difficulty in applying his procedure smoothly. In view of poor bombing accuracy, it was recommended that his case be reviewed by the faculty board. It was noted that he failed to show the necessary progress in his bombardier training. His synchronization was noted to be erratic. It was recommended that he be eliminated from further training. In a January 1945 letter to his mother while he was on active duty, the appellant revealed his thoughts about becoming a minister. On file is a favorable determination for Social Security Disability benefits noting that the claimant was considered totally disabled from September 1975. A provisional diagnosis of anxiety neurosis was reported on a psychological evaluation in November 1976. Correspondence on file dated in the 1970's, 1980's prior to the Board's January 1982 decision, is from former employers, friends, and physicians who provided their personal knowledge and observations of the veteran noting the apparent changes in his personality and lifestyle demonstrated following his service discharge. The evidence also includes hearing testimony provided by the veteran at the RO in August 1981. Since the Board's January 1982 decision, there has been received additional hearing testimony provided before the Board, additional correspondence from family, friends, former industrial associates, and physicians. This evidence further elaborates on the changes observed in the veteran's behavior during his post service years. In November 1994, the Board referred the veteran's entire claims file and associated attachments to a VA specialist in psychiatry for the purpose of determining whether it was at least as likely as not that an acquired psychiatric disorder began during service when it was characterized as "operational fatigue." The Board requested that the opinion expressed should include a complete rationale with commentary on the evidence in service and lay evidence subsequent to service. The Board noted that a discussion of the facts and medical principles involved would be of considerable assistance to the Board in its determination. The VA specialist in psychiatry responded in December 1994 as follows: 1. At the request of the Department of Veterans Affairs the above veteran's voluminous records were reviewed on 8 December 1994. The nature of the request had to do with whether or not the veteran in question had acquired a psychiatric disorder during his military service in World War II. It is noted that he was diagnosed at that time as "suffering from operational fatigue". It is further noted that upon return to the United States from the European Theater he asked to see a psychiatric and this request was denied. The veteran some years later began to believe that his symptoms had begun or exacerbated while on active military duty and since that time his case has been under various stages of appeal. 2. The veteran served on active duty in the United States Air Force from 1943 to February of 1945. He looked upon his service in the Air Force as being part of an elite unit. Prior to his active service he had completed high school and was a student in college. Various notations throughout the voluminous records from colleagues and others who knew him say that he "changed dramatically upon returning from service." Although it is noted and agreed by the veteran that prior to military service he was "nervous" there seems to be a consensus that he was a "different man" after his military service. Of special import is the fact that this veteran was returned from the European Theater where he was serving in the eighth Air Force stationed in England while the war was continuing. In a letter submitted by Charles F. Brakebill who is a United States Air Force retired lieutenant colonel in support of this veteran's claims it is noted that Colonel Brakebill had the opportunity to speak personally with a teacher of the veteran when the veteran was in a vocational agricultural school and learned first hand of his outstanding record as a high school student. Apparently the veteran had earned the Tennessee Farmer Degree which is the highest honor bestowed by the state of Tennessee on a student of vocational agriculture. It is also noted that during this time he "worked hard as a business man and saved enough money to start his planned college education." The colonel goes on to note that the veteran entered the United States Army Corps with a :burning ambition to be a pilot." The colonel concludes that the veteran returned to civilian life in 1946 as "a different individual and in my opinion has not been capable of holding a responsible position since that time." The colonel wanted to make special note of the two particular points about which he had first hand information. He stated that the veteran being sent home from the European Theater of Operations during the height of the war was unheard of, in his opinion, unless there was serious physical or major mental problems. The colonel adds that "I have known [redacted] personally since August of 1947 and I can say without hesitation that at no time during this entire period would I have employed him for position of responsibility. He is consistently inconsistent. He goes from highs where he is able to do a tremendous amount of work to lows where he is unable to handle minimal pressure". 3. A number of letters in support of the veteran's claim from various individuals who worked with him throughout his checkered career as a business man make the same observations, i.e., that they observed personally that the veteran was prone to dramatic mood swings. 4. A letter from Steven T. Miller, M.D., dated 25 September 1989 notes that he has known the veteran since 1979 as his primary care physician and has reviewed his medical records for twenty years prior to that time. It is Dr. Miller's opinion that "my medical observations are that [redacted] had medical disability during the entire time he was under my medical observation. In the records provided to me the medical disability began during his military service and continued from that time. It is my medical opinion he demonstrated symptoms and signs of medical disabling illness during the period of 1978 to the current date". 5. Various psychiatric observations done at VA hospitals throughout the veteran's post military career have made diagnosis of hysterical neurosis, dysthymia, and have questioned the possibility of bipolar illness. For example, the veteran was hospitalized from 3 October 1989 to 9 November l989 in a VA hospital in Memphis, Tennessee. A psychiatrist at that time noted that the "patient reports over the years that he has had wide mood swings lasting two to three days at a time with highs manifested by excitement, euphoria, spending sprees, and grandiosity. [On] one occasion he believed that he was a bank president. The lows are characterized by withdrawal, excessive sleep, and lack of interest and activities". Following this only a diagnosis of psychothymia was made. Yet, the symptoms appear to indicate a bipolar illness at a mixed time. 6. In summary then, we have a long and complicated history of a young man who was in active military service during World War II. He had demonstrate difficulty in both gunnery and bombardier school where his performance was erratic. There is no indications in the military records at that time that this was based on emotional problems. Clearly, it could have been simply a matter of physical capacities. The veteran admits now that he was "terrified" during all of his military service but kept this to himself because he believed that "it was the thing to do". In any event, he was assigned as a member of a B-17 crew and sent to the eighth Air Force to England. However, he was dropped from the crew for reasons he doesn't understand. Following this, a large portion of his squadron was lost in a bombing mission. He continues to feel guilty about this. The veteran was then returned to the United States with the vague diagnosis of "operational fatigue". However, individuals who knew him prior to his military service and later all noted with consistency that there was a major and profound change in his mental state. Although he may have had some tension problems in activities such as having the violin prior to military service he was an excellent student in high school and this is confirmed by the records. He had ambitions to go to college. Following his military service he has had well over twenty jobs and three marriages. All observers note that he was prone to violent mood swings with grandiose highs and dramatic lows. 7. It is my opinion that the above veteran did indeed have a situation during his military experience which at the very least exacerbated an existing condition. It is quite possible that his psychiatric disorder began during his military service when he was "terrified" and "scared to death". I believe that the fact he was returned from active duty on the Queen Elizabeth in the middle of World War II is convincing evidence that he was profoundly disturbed at that time. Although it is difficult to make an accurate psychiatric diagnosis from reconstructing old records it seems clear that the most likely diagnosis based on the evidence available, which pertains to this man, is that of some variation of a bipolar affective disorder rather than hysterical neurosis. As I noted immediately above in all likelihood this began or was exacerbated during his military service. Certainly this possibility cannot simply be dismissed as it has been by a variety of boards over a number of years. There is simply too much documentation from too many reliable observers of the profound change in this man's mental state following his military service as compared to his mental state prior to entering military service. The life time documentation of instability and mood swings has also been observed by a variety of disinterested individuals and is well documented. Therefore, my opinion stands as above. Here we have an expert opinion that retrospectively dates the onset of the veteran's current psychiatric impairment in service. We are aware that the psychiatrist's conclusions are based on opinion and judgment. There is indeed some speculation, perhaps too much, as to the classification of the veteran's psychiatric illness during service and for a number of years thereafter inasmuch as there is little contemporaneous evidence on which to make solid judgments. Most of the "hard" evidence did not start coming in until the 1970's. Nevertheless, this Board accepts the opinion and conclusions of Dr. Garthwaite. His opinion is lengthy and in detail. He has given a fair and impartial rationale. This is new evidence and the basis for this Board reopening the veteran's claim and readjudicating it de novo. With this opinion and other evidence obtained, the evidentiary record is now in relative equipoise. When such is the case, the reasonable doubt existing must be resolved in favor of the veteran. Gilbert v. Derwinski, 1 Vet.App. 61 (1991). ORDER New and material evidence having been submitted, the veteran's claim of entitlement to service connection for a psychiatric disorder, variously diagnosed, is reopened. Service connection for bipolar affective disorder is granted. BRUCE KANNEE Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.