Citation Nr: 18143916 Decision Date: 10/22/18 Archive Date: 10/22/18 DOCKET NO. 15-04 882 DATE: October 22, 2018 ORDER Entitlement to service connection for bipolar disorder is granted. FINDING OF FACT The preponderance of evidence supports a finding that the Veteran has bipolar disorder that is related to active service. CONCLUSION OF LAW The criteria for service connection for psychiatric disability, to include bipolar disorder has been met. 38 U.S.C. §§ 1110, 1131, 1132, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 1975 to September 1976. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran presented testimony at a Board hearing before the undersigned Veterans Law Judge in July 2018. A transcript of that hearing is of record. Entitlement to service connection for psychiatric disability, to include bipolar disorder The Board has thoroughly reviewed all the evidence in the claims file. While the Board must provide reasons and bases supporting a decision, there is no need to discuss, in detail, the evidence submitted by or on behalf of the Veteran. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence of record. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not given to each piece of evidence contained in the record. Every item of evidence does not have the same probative value. When the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App 370 (2002). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). To establish a service connection for a disability, a Veteran must show: (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 or aggravated during service. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence to prevail. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the Veteran. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 519 (1996). The Board finds that all three elements needed to establish service connection have been met, and the preponderance of evidence supports a finding that the Veteran's psychiatric disability is related to the event outlined by the Veteran during the claims period. The first recorded instance of psychiatric disability in the claims file occurs in March 2006. That record indicates the Veteran had been diagnosed with psychiatric disability prior to 2006. Private medical records from July 2018, confirm a current diagnosis of bipolar disorder. The Veteran explains the lengthy gap in time between his service separation and the March 2006 diagnosis by stating that “I basically did not believe in psychiatry, I was not interested in taking tablets, and resisted the idea of coming to see a psychiatrist… that basically was my attitude going back 20, 30 years until I began suffering from a severe depression in 2003, which necessitated my finally going to see a psychiatrist and therapist.” The Veteran contends that his bipolar disorder is due to an in-service event where other soldiers were injured. Specifically, the Veteran contends that his currently diagnosed psychiatric issues were triggered in September 1975, when he was participating in a field training exercise with the 2nd Ranger Battalion, that involved the “unintended uses of live anti-personnel ammunition.” The Veteran claims that during that field exercise he and other men in his squad were exposed to live rounds fired from a 90 millimeter recoilless rifle, which resulted in injury to “a couple of soldiers.” The Veteran claims that after that training exercise concluded, he immediately began having “serious depression” that led to his Airborne status being terminated and being transferred to the 24th Infantry division. The Veteran claims that since that time, he has not been the same person, suffering from symptoms of bipolar disorder. Service medical records confirm the Veteran’s contention of being terminated from the Ranger Battalion to an Infantry Division in fall 1975. Additionally, counseling records from October 1975 note that the Veteran “has done outstanding job since he entered. His job performance attitude and appearance makes him an outstanding soldier. He is a very aggressive man and always accomplishes his mission. There is no doubt in my mind [the Veteran] is definitely PFC material.” Evidence, consistent with the Veteran’s account of events, suggests that as time progressed the Veteran began having interpersonal difficulties, refused to obey orders, threatened to kill, became disrespectful, and had a poor attitude. That change in behavioral pattern is noted in written statements from various Privates and Sergeants, that were recorded during the Veterans service. In an April 1976 statement, a Private First Class stated that the Veteran “refuses to work and disobeys orders…I personally feel, like everyone else involved feels, that the man needs mental help.” In May 1976 statements, three Sergeants noted that the Veteran was insubordinate and disrespectful. Again, in May 1976, a Private First Class noted that the Veteran had a “poor attituded toward the squad” and he “has had a problem of threatening people.” During a June 1976 counseling session, the counselor noted that the Veteran is “a below average soldier, has an attitude problem, does not follow instructions – not only in field but in garrison.” In a July 1976 statement, a different Sergeant noted that on two separate occasions that month the Veteran was insubordinate, “missed movement,” and “has been a consistent problem.” That Sergeant recommended that a “disaster action should be taken against the man.” During August 1976, service records indicate that the Veteran went absent without leave (AWOL) twice for a total of 24 days. At the end of September 1976, the Veteran was discharged under honorable conditions for what he claims was on the “grounds of unsuitability” and “failure to meet acceptable standards for continued miliary service.” That change in behavioral pattern in 1975 and subsequent discharge, noted by the various written statements and records mention above, is consistent with the presence of a psychiatric disability occurring during the Veterans service. The Board finds that in-service injury or incident has been established, as the Board finds that the Veteran's lay contentions and supporting written statements to be both credible and competent. Therefore, the Board concedes an in-service incurrence of psychiatric disability. Finally, moving to the final requirement for establishing service connection, the evidence of record must establish that a current disability is etiologically related, or caused, by an in-service incident or injury. The Board finds that the preponderance of evidence is for the finding of a nexus between the Veteran's in-service psychiatric disability and a current disability. After a review of the Veteran’s claims files, and post-service VA and private treatment records, in July 2018, a board-certified psychiatrist opined that “it is at least as likely as not that [the Veteran] first exhibited symptoms of Bipolar Disorder while serving in the military, and that the onset of his psychiatric disorder occurred during his military service.” “It is in my profession[al] opinion, it is as likely as not that [the Veteran’s] current Bipolar Disorder had its onset during, and is related to his active military service, and that the symptoms of his disorder have persisted to the present, where they are being treated with psychiatric medications.” A March 2013 VA examination diagnosed bipolar disorder. The examiner noted no documented evidence of any psychiatric diagnoses, counseling, or medication during service. The examiner noted that the first outpatient treatment began in 2003, with treatment since 2006. The examiner found that the gap of 27 years between service separation and the first psychiatric treatment did not support the existence of a service-related condition. Therefore, the examiner concluded that the claimed disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed inservice injury, event, or illness. The Board finds the July 2018 examiner’s conclusion to be highly probative, as it explicitly notes consideration of the Veteran's reported lay statements, and is based on a sound rationale. The examiner’s conclusion is based on a full review and understanding of the Veteran’s medical and psychiatric history and over ten years of experience treating the Veteran. Therefore, the Board finds that comprehensive examination report to be of high probative weight and dispositive of the claim. Accordingly, the Board finds that the evidence is in favor of the claim and service connection must be granted. Therefore, considering the evidence as a whole, the Veteran’s presently diagnosed disability of bipolar disorder is related to his service, as the evidence establishes that it is at least as likely as not to have first manifested during service. The Board finds that the Veteran’s claimed in-service incurrence of the disorder has been shown to have as likely as not occurred during service. As the evidence of the record shows an in-service incurrence of the disability, a current diagnosis of bipolar disorder and satisfactory evidence of a link between the bipolar disorder and symptoms shown during service, the Board finds that the Veteran’s bipolar disorder was incurred in service. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that bipolar disorder first manifested in service and service connection for bipolar disorder must be granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Mondesir, Law Clerk