Citation Nr: 18143212 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 08-15 413 DATE: October 18, 2018 ORDER Entitlement to service connection for a cognitive and/or acquired psychiatric disorder is denied. FINDINGS OF FACT 1. The preponderance of evidence establishes the Veteran has been diagnosed as having bipolar disorder, type II, throughout the appeal period. 2. The preponderance of evidence is against a finding that the Veteran has had major depression/depressive disorder, adjustment disorder, anxiety disorder, post-traumatic stress disorder (PTSD), or attention-deficit/hyperactivity disorder (ADHD) during the appeal period. 3. The preponderance of evidence is against a finding that the Veteran’s current bipolar disorder, type II, is the result of disease or injury in service, to include in-service exposure to hazardous chemicals. CONCLUSION OF LAW The criteria for entitlement to service connection for a cognitive and/or acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125, 4.126, 4.130 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that reopened but confirmed and continued a prior denial of service connection for a “chronic mental disorder.” The Board deemed the claim reopened in a June 2011 decision. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (indicating the issue of whether a claim should be reopened is a jurisdictional matter that must be addressed by the Board regardless of the action by the Agency of Original Jurisdiction (AOJ)). The Board notes the Veteran’s service connection claim includes any disorder that is reasonably encompassed his reported symptomatology. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The issue on appeal has been characterized accordingly, as service connection for any cognitive and/or acquired psychiatric disorder. As explained in its July 2014 remand order, the Board considers the Veteran’s request for a Board hearing withdrawn because he failed to report for a Board hearing scheduled at his local RO in February 2010 and has not provided a reason for his absence or requested a rescheduled hearing. See 38 C.F.R. § 20.704(d). Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires evidence showing: (1) the existence of a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the current disability and the disease or injury during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for post-traumatic stress disorder (PTSD) generally requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. See Cohen v. Brown, 10 Vet. App. 128, 139-43 (1997); 38 C.F.R. § 3.304(f). When there is an approximate balance of positive and negative evidence regarding any material issue, reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The first element of any service connection claim is the establishment of a current disability. The current disability requirement is met if a claimed condition is demonstrated at the time of the claim or while the claim is pending. McClain v. Nicholson, 21 Vet. App. 319 (2007). In the context of a service connection claim for a cognitive/psychiatric disability, the Board is often required to determine whether a prior diagnosis was made in error or whether a previously diagnosed disorder is in remission due to variations in a claimant’s diagnostic history. See Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Here, the Veteran has been diagnosed as having several cognitive/psychiatric disorders over the years, to include major depression/depressive disorder; adjustment disorder; anxiety disorder; bipolar disorder, type II; PTSD; and ADHD. Due to the significant variation in the Veteran’s diagnostic history, the Board requested an expert opinion from a psychiatrist with the Veteran Health Administration (VHA) in accordance 38 C.F.R. § 20.901(a) to guide its analysis of the Veteran’s claim. In July 2017, S.M., M.D., provided the requested VHA opinion. After a review of the claims file, to include the Veteran’s full psychiatric treatment history as documented in treatment records, S.M., M.D., determined the Veteran has met the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-V) criteria for a bipolar disorder, type II, diagnosis throughout the appeal period. S.M., M.D., arrived at this diagnosis, noting treatment records confirm several major depressive episodes (criteria A-C under “Major Depressive Episode”) and at least two hypomaniac episodes documented by four separate clinicians (criteria A-F under “Hypomanic Episode”) during the appeal period. S.M., M.D., explained the other psychiatric diagnoses noted in treatment records were either in error or subsumed by the more severe diagnosis of bipolar disorder, type II, in accordance with DSM-V criteria. S.M., M.D., noted the previous diagnoses of major depression/depressive disorder are accounted for by the bipolar disorder, type II, diagnosis, since bipolar disorder often presents with depressive episodes occurring first with the bipolar diagnosis being applied upon the first documented hypomanic, as in the Veteran’s case. S.M., M.D., also noted the 2004 diagnosis of adjustment disorder is also subsumed by the more severe diagnosis of bipolar disorder, type II, under the DSM-V criteria. S.M., M.D., acknowledged anxiety disorders are common comorbid conditions with bipolar disorder, type II, but explained the limited charting of a specific anxiety diagnosis or a diagnosis of panic disorder in the Veteran’s well-documented psychiatric treatment history is insufficient to support a finding that the Veteran has an anxiety disorder. S.M., M.D., noted there is also insufficient evidence to support a PTSD diagnosis as the PTSD diagnosis noted in treatment records in 2004 is not based on a specific stressor with no documentation of intrusive thoughts, nightmares, or flashbacks, as required under for a PTSD diagnosis under the DSM-V criteria. S.M., M.D., also explained cognitive deficits are expected with bipolar disorder and are present in the Veteran’s case, but noted the past diagnosis of ADHD was most likely in error based on cognitive testing completed during the appeal period. The Board finds the July 2017 VHA opinion to be the most probative evidence with respect to the Veteran’s specific diagnosis because S.M., M.D., conducted a detailed analysis of the Veteran’s full psychiatric treatment history and provided a well-reasoned rationale for his opinion why bipolar disorder, type II, is the most likely diagnosis in the Veteran’s case. The July 2017 VHA opinion is also corroborated by the opinions of January 2012 and March 2016 VA examiners, both of whom diagnosed the Veteran as having bipolar disorder, as well as the Veteran’s diagnostic history as documented in treatment records. In sum, the Board finds the preponderance of evidence establishes the Veteran has had bipolar disorder, type II, throughout the appeal period and is against a finding that the Veteran has had any other cognitive and/or acquired psychiatric disorder, to include major depression/depressive disorder, adjustment disorder, anxiety disorder, PTSD, or ADHD, during the appeal period. In light of its finding regarding a current disability, the Board must determine whether the Veteran’s bipolar disorder, type II, is at least as likely as not the result of disease or injury in service. The Veteran asserts his psychiatric disability is the result of exposure to hazardous chemicals in service. The Board notes service treatment records clearly indicate that the Veteran was exposed to a number of different chemicals such as petroleum, lead, chromic acid, and the decontaminating agent DS-2. The Board also notes service treatment records show the Veteran may have manifest signs of neurotoxicity during service. Thus, the Board must determine whether there is a nexus between the Veteran’s bipolar disorder, type II, and the in-service injury. In September 2017, the Board requested a second VHA opinion from an occupational medicine specialist regarding a potential link between the Veteran’s in-service chemical exposures and his currently diagnosed bipolar disorder, type II. In November 2017, an occupational health provider, M.K.R., MPAS-C, and a physician, A.M., M.D., provided a joint opinion in response to the Board’s request indicating the Veteran’s bipolar disorder, type II, is less likely than not the result of in-service chemical exposures. The November 2017 VHA opinion includes a detailed analysis of the available research concerning a possible link between chemical exposure and the development of bipolar disorder. The authors determined there is no definitive study that indicates chemical exposure causes bipolar disorder, type II. The authors acknowledged the Veteran may have had symptoms associated with neurotoxicity in service, but ultimately concluded this evidence standing alone is insufficient to meet the “at least as likely as not standard” since researchers have failed to establish a definitive link between chemical exposure and the development of bipolar disorder, type II. The Board finds the November 2017 VHA nexus opinion probative with respect to the Veteran’s assertion that his psychiatric disability is the result of in-service exposure to hazardous chemicals since the authors considered an accurate factual history regarding the Veteran’s claim and provided a well-reasoned rationale for their opinion that the Veteran’s current bipolar disorder, type II, is less likely than not the result of in-service chemical exposure. The Board notes the VA examiners and the author of the July 2017 VHA opinion all determined the Veteran’s bipolar disorder, type II, is less likely than not the result of disease or injury in service. Although the January 2012 VA examiner initially suggested the Veteran’s bipolar disorder, type II, may have pre-existed service, he provided an August 2014 addendum explaining it would be speculative to state bipolar disorder, type II, pre-existed service in the Veteran’s case because he was not treated for bipolar or any other mood disorder prior to service. The March 2016 VA examiner also suggested the Veteran’s bipolar disorder, type II, may have pre-existed service. Regardless, the Board finds the presumption of soundness applies in the Veteran’s case with regard to a cognitive/psychiatric disorder because a cognitive and/or psychiatric defect was not noted at the time of his entry into active service, and there is insufficient evidence to rebut the presumption since at least one examiner has stated it would be speculative to state the Veteran’s bipolar disorder, type II, pre-existed service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Overall, there is a consensus among the experts who have reviewed the Veteran’s claims file that the manifestations of a nervous stomach, lightheadedness, fogginess, and decreased memory noted after chemical exposure in May 1989 were not manifestations of bipolar disorder, type II. The expert evidence indicates the in-service manifestations are not symptoms associated with bipolar disorder and do not support a finding of a mood disorder in service. In sum, there is no competent evidence linking the Veteran’s current bipolar disorder, type II, to a disease or injury in service. In fact, all the competent evidence suggests the Veteran’s bipolar disorder, type II, is not the result of a disease or injury in service. As a result, the Board finds the preponderance of evidence is against a finding that the Veteran’s current bipolar disorder, type II, is the result of disease or injury in service, to include in-service exposure to hazardous chemicals. Although the record establishes a current disability and an in-service injury, the preponderance of evidence is against a finding of a causal relationship between the in-service injury and the current disability, diagnosed as bipolar disorder, type II. Since the nexus element has not been established, the Board finds the criteria for entitlement to service connection for a cognitive and/or acquired psychiatric disorder have not been met, and the Veteran’s appeal must be denied. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. S. Kyle, Counsel