Citation Nr: 18140141 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 13-09 840 DATE: October 2, 2018 ORDER Entitlement to service connection for an acquired psychiatric disorder, diagnosed as bipolar disorder, is granted. FINDING OF FACT The Veteran’s bipolar disorder had its onset during active service. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder, diagnosed as bipolar disorder, are met. 38 U.S.C. §§ 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from December 1982 to December 1987. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2011, the Veteran testified before a Decision Review Officer (DRO). In November 2015, the Veteran and A. F. testified during a Board hearing before the undersigned Veterans Law Judge. In March 2016, the Board reopened the previously denied claim of entitlement to service connection for an acquired psychiatric disorder and remanded it for further development on the merits. In May 2018, the Board requested a Veterans Health Administration (VHA) opinion in accordance with 38 C.F.R. § 20.901(a). The requested opinion was provided in September 2018 and has been associated with the claims file. Entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder, is granted. I. Veteran’s Contentions The Veteran asserts that his psychiatric disorder did not exist prior to service and that he began experiencing mental health problems including anxiety, depression, and suicidal thoughts during service which he continued to experience post-service. Specifically, he states that he started receiving counseling and was admitted to a psychiatric ward in service and that his mental condition stemmed from separation from his family and serving in a different branch of the military from the one he had chosen. See February 2010 Veteran Statement; November 2011 DRO Hearing Transcript at 2-4; and November 2015 Board Hearing Transcript at 7-14. II. Applicable Law Service connection may be established for a disability resulting from injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Generally, to establish service connection the evidence must show three elements: (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 in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). When there is an indication that a disorder for which the Veteran seeks service connection preexisted service, the presumption of soundness must be addressed. The presumption of soundness provides that a Veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment into service and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). When a Veteran seeks benefits and the evidence is in relative equipoise, the Veteran prevails. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. Analysis i. Presumption of Soundness In this case, no psychiatric disorders were noted on the Veteran’s October 1982 entrance examination. The examination report reflected a normal psychiatric evaluation. Therefore, the presumption of soundness is for application and to rebut this presumption VA must demonstrate that there is clear and unmistakable evidence that the disability both existed prior to enlistment into service and was not aggravated by such service. Here, the Board finds that the onerous burden is not established and such clear and unmistakable evidence does not exist as to a preexisting condition, thus the Board need not address the aggravation prong. Specifically, a private psychiatrist, Dr. C.T.V., stated that there was no evidence the Veteran’s mental problems started prior to service; a VA psychologist indicated the Veteran’s depression, social reclusive behavior, and persistent mood disorder began in service after he was unfairly singled out and received harsh discipline; the April 2017 VA examiner stated there was no evidence to support a pathology of bipolar disorder prior to the Veteran’s service, and the September 2018 VHA expert indicated it was unclear whether depression and other manifestations of bipolar disorder occurred prior to service. See Undated private treatment record; February 2013 VA treatment record; April 2017 Disability Benefits Questionnaire (DBQ); and September 2018 VHA expert opinion. The Board notes there are several VA examination reports that indicate findings to the contrary, and that the favorable evidence is based largely on the Veteran’s reported history; however, given the normal enlistment examination report and the long history of conflicting and contradictory evidence in this regard, the Board finds that the presumption of soundness cannot be rebutted by clear and unmistakable evidence, thus the claim becomes one for direct service connection. See Wagner, supra (indicating that, in cases where the presumption of soundness cannot be rebutted, the effect is that claim is converted into a normal claim for service connection). ii. Service Connection Over the course of the appeal period, which stems from February 2010, the preponderance of the evidence reflects that the Veteran has a current diagnosis of bipolar disorder. See January 2012, March 2013, October 2013, November 2015 and March 2016 VA treatment records; April 2017 DBQ; and September 2018 VHA opinion. Thus, element one is met. (To the extent that the Veteran is diagnosed with a personality disorder, the Board emphasizes that this disability is not subject to service connection, and there is no competent evidence that any psychiatric disorder other than bipolar disorder (which, as discussed below, is being granted on a direct basis) was superimposed upon his personality disorder during service. 38 C.F.R. §§ 3.303(c), 4.9, 4.127; VAOPGCPREC 82-90 (1990).) As to the second element, in-service incurrence of a disease or injury, a May 1983 service treatment record (STR) notes the Veteran was referred to a “psych tech” for depression and an August 1987 STR notes the Veteran’s reports of depression “on and off” for four years. Additionally, the Veteran was hospitalized in November 1987 for poor impulse control, and the hospital discharge notes indicate that he reported four years of chronic depressed mood, low self-esteem, recurrent suicidal ideation, and poor impulse control. See December 1987 STR. These findings, along with the VHA expert’s opinion, also establish element two. Regarding element three, nexus, there are conflicting medical opinions of record. Dr. C.T.V. noted the Veteran’s reports of psychiatry problems beginning in service and the Veteran’s mother’s report of changes she witnessed in her son through letters while he was in service. To this end, Dr. C.T.V. indicated that history showed the Veteran’s mental problems developed in service and continued to the present and reasoned that there was no evidence to the contrary. See Undated private treatment record. Additionally, a February 2013 VA psychologist, as noted above, opined that the Veteran’s depression, social reclusive behavior, and persistent mood disorder began in service after he was unfairly singled out and received harsh discipline. In support of his conclusion, he reasoned that “the Veteran had grown accustomed to being reclusive but [wa]s not getting affiliative needs met due to avoidant behavior based upon fear of being exploited and rejected or abandoned and this feeling of emptiness and of merely existing underlies his chronic mood disorder.” See February 2013 VA treatment record. Moreover, the September 2018 VHA expert stated that during service the Veteran was described as reclusive with social anxiety and chronic depression that worsened over time and was aggravated further by an incident with his Petty Officer after he failed to lock the munitions cabinet, requiring hospitalization and ongoing psychiatric care. He highlighted the fact that following the munitions incident the evidence of record supported continuing depression and other symptoms consistent with bipolar disorder, supportive of an in-service onset. Additionally, the expert acknowledged the VA examiners’ findings against a nexus, but stated that these conclusions cannot be answered with certainty. Lastly, he noted that although it could not be said with certainty that the Veteran’s psychiatric disability pre-existed service, to the extent it was present prior to service it was “significantly aggravated” during active duty. The Board finds that these opinions tend to demonstrate the Veteran’s bipolar disorder, which as noted above did not pre-exist service, had its onset during service, as all three medical providers provided understandable and rational bases for their opinions that adequately took into account the lay statements of record and relied on an accurate history. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). Thus, for the reasons outlined above the Board assigns these opinions high probative value. The Board notes that other VA examiners ultimately reached conclusions unfavorable to the Veteran’s claim. However, due to the long history of contradictory, conflicting, and insufficient medical opinions, including multiple VA examination reports, and in affording the Veteran the benefit of the doubt, the Board finds that the evidence is at least in relative equipoise as to whether the nexus element has been established. In sum, the Board finds that there is not clear and unmistakable evidence that the Veteran’s bipolar disorder preexisted service, and the preponderance of the evidence indicates that this disorder had its onset during active service. Thus, service connection is warranted. 38 U.S.C. §§ 1111, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(b). S. BUSH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Asante, Associate Counsel