Citation Nr: 18146851 Decision Date: 11/01/18 Archive Date: 11/01/18 DOCKET NO. 09-46 708 DATE: November 1, 2018 ORDER Entitlement to service connection for bipolar disorder is granted. Entitlement to service connection for an acquired psychiatric disorder other than bipolar disorder, to include a panic disorder and posttraumatic stress disorder (PTSD) and as secondary to service-connected right shoulder and right ankle disabilities, is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REFERRED The issue of a thoracic spine disorder was raised in an August 2009 statement and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. FINDINGS OF FACT 1. Clear and unmistakable evidence establishes that the Veteran had bipolar disorder prior to her period of active duty. 2. The record does not show by clear and unmistakable evidence that the Veteran’s preexisting bipolar disorder was not aggravated during his period of active duty. 3. The weight of evidence is against a finding that the Veteran currently has or has had a panic disorder, PTSD, or other anxiety disorder during the pendency of this appeal. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bipolar disorder have been met. 38 U.S.C. §§ 1111, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 2. The criteria for entitlement to service connection for an acquired psychiatric disorder other than bipolar disorder, to include a panic disorder and PTSD and as secondary to service-connected right shoulder and right ankle disabilities, have not been met. 38 U.S.C. §§ 1111, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1995 through March 1998. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2008 rating decision that was issued by the Department of Veterans Affairs (VA) Regional Office (RO). Testimony from the Veteran, her brother, and her son was received during a July 2013 videoconference hearing before the undersigned Veterans Law Judge. A transcript of that testimony is associated with the electronic record. In September 2013, the Board erroneously issued a decision that was signed by a different Veterans Law Judge. In April 2016, the Board vacated that decision and retook jurisdiction over the issues on appeal. The Board determined also that the evidence raised an implicit claim for TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). In April 2016, June 2017, and March 2018, the Board remanded the claims of entitlement to service connection for an acquired psychiatric disorder and entitlement to TDIU for further development. The Board is granting service connection for bipolar disorder and will adjudicate that claim separately from the other psychiatric disorders. An October 2009 VA treatment record reveals a diagnosis of a mood disorder not otherwise specified with an element of difficulty managing chronic pain. A September 2015 VA examination report reveals that the examiner addressed whether the Veteran’s stress and depression (claimed as PTSD) are as likely as not proximately due to or the result of the service-connected right ankle and right shoulder disabilities. The RO did not adjudicate whether the psychiatric disorders are secondary to the service-connected disabilities even though it requested a secondary-service-connection opinion. In Schroeder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000), the United States Court of Appeals for the Federal Circuit (the Federal Circuit) held that VA’s duty to assist attaches to the investigation of all possible causes of a current disability, including those unknown to a claimant. The Veteran is not prejudiced by the Board’s consideration of the secondary-service- connection theory of entitlement because the Board will be adjudicating that theory on the same basis as the direct theory of entitlement – whether the Veteran has an acquired psychiatric disorder other than bipolar disorder. Bernard v. Brown, 4 Vet. App. 384 (1993). Service Connection Duties to notify and assist VA’s duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran and her representative have not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). 1. Entitlement to service connection for bipolar disorder Governing law and regulations In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110. Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(a). 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 (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). “Clear and unmistakable evidence” is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the “clear and convincing” burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than that of “clear and unmistakable evidence”). It is an “onerous” evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be “undebatable.” See Cotant v. West, 17 Vet. App. 116, 131 (2003) citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). VA’s General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The Veteran is not required to show that the disease or injury increased in severity during service before VA’s duty under the second prong of this rebuttal standard attaches. See VAOPGCPREC 3-2003; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The burden of proof is on VA to rebut the presumption by producing clear and unmistakable evidence that a disability existed prior to service. See Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). The determination of whether there is clear and unmistakable evidence that a defect, infirmity, or disorder existed prior to service should be based on “thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to accepted medical principles pertaining to the history, manifestations, clinical course, and character of the particular injury or disease or residuals thereof.” 38 C.F.R. § 3.304(b)(1). A preexisting disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 U.S.C. § 1154; 38 C.F.R. § 3.306(a). Analysis The September 2015 and November 2016 VA examination reports reveal a diagnosis of bipolar disorder. Though 2009 VA treatment records reveal a diagnosis of a mood disorder other than bipolar disorder and 2010 VA treatment records reflect a diagnosis of psychotic disorder not otherwise specified, the more recent medical evidence shows that the mood and psychotic disorders are currently diagnosed as bipolar disorder. In particular, the November 2016 VA examiner diagnosed bipolar disorder with a history of psychotic features. Thus, the current disability element is met. A September 1994 entrance examination report shows that the Veteran reported a history of depression or excessive worry. The examining doctor noted that the Veteran worries some about her mother not taking care of herself. The psychiatric evaluation was normal. Because the examining doctor merely noted that the Veteran worries about her mother and did not diagnose a psychiatric disorder, the Veteran is entitled to the presumption of soundness as to bipolar disorder. The next matter is whether there is clear and unmistakable evidence that the Veteran’s bipolar disorder preexisted her active service. During VA treatment in August 2009, she reported that she had been experiencing sleep difficulties, fatigue, and auditory and visual hallucinations since she was 14 years old. The November 2016 VA examiner noted that there is a notation that the Veteran had been experiencing command hallucinations since age eight. That VA examiner opined that based on a review of her history, there was ample evidence in the record that the Veteran began experiencing bipolar disorder symptoms prior to her enlistment into active duty service. Thus, there is clear and unmistakable evidence that the Veteran had bipolar disorder prior to her service entrance. Turning to whether there is clear and unmistakable evidence that the Veteran’s preexisting bipolar disorder was not aggravated during service, her service personnel records reflect that in January 1998 she violated three articles of the Uniform Code of Military Justice. In March 1998, the Veteran was discharged due to her inability to comply with dependent care policy. The September 2015 VA examiner noted that the Veteran had a history of violent behavior before and after service but not during service. The examiner further noted that her military records were free of mental health complaints. The November 2016 VA examiner noted that there is no evidence that anything happened during military service that significantly exacerbated her bipolar disorder beyond its normal expected progression. In a July 2018 addendum, the November 2016 VA examiner opined that it is less likely than not that the Veteran’s bipolar disorder was exacerbated beyond its expected progression as a result of serving in the military. Given that there is evidence of disciplinary problems in service and given that the November 2016 VA examiner did not specifically opine that the evidence clearly and unmistakably (i.e., undetabably) shows that the Veteran’s preexisting bipolar disorder was not aggravated by service and instead merely stated that it is less likely than not that the bipolar disorder was exacerbated during service (a lower level of probability), the Board reaches the conclusion that the record, viewed as a whole, does not show by clear and unmistakable evidence that the Veteran’s preexisting bipolar disorder was not aggravated during service. Service connection for bipolar disorder is warranted. The benefit sought on appeal is accordingly granted. 2. Entitlement to service connection for a chronic acquired psychiatric disorder other than bipolar disorder, to include a panic disorder and PTSD Governing law and regulations To establish service connection for the claimed disorder on a direct basis, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). To establish service connection for a claimed disability on a secondary basis, there must be (1) medical evidence of a current disability; (2) a service-connected disability; and (3) medical evidence of a nexus between the service-connected disease or injury and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (1997). To be present as a current disability, the claimed condition must be present at the time of the claim for benefits, as opposed to sometime in the distant past. Gilpin v. West, 155 F. 3d 1353 (Fed. Cir. 1998). The Gilpin requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service connection for PTSD requires medical evidence diagnosing the disorder in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between the current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). In non-combat cases of PTSD involving an allegation of personal assault, more particularized requirements are established to verify whether the alleged stressor actually occurred. Patton v. West, 12 Vet. App. 272, 278-80 (1999). In this regard, evidence from sources other than the Veteran’s service records may corroborate the appellant’s account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, mental health counseling centers, hospitals, or physicians; and/or statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is another type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to, a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. 38 C.F.R. § 3.304(f)(3). Personality disorders are not disabilities for the purposes of service connection. See 38 C.F.R. §§ 3.303 (c), 4.9, 4.127 (2017). Analysis A November 2010 VA treatment record reflects the presence of cluster B personality traits. An August 2017 VA treatment record reveals a diagnosis of rule out borderline personality disorder. A personality disorder is not a disability for purposes of service connection. The Veteran claims that she has panic attacks. The Veteran is competent to report the symptom of panic attacks, and the Board finds her credible. VA treatment records, Vet Center records, and the VA examination reports, however, do not show a diagnosis of a panic disorder. The November 2016 VA examiner noted near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, but that examiner only diagnosed bipolar disorder. As for PTSD, VA treatment records show a diagnosis of PTSD. VA treatment records show an assessment of anxiety but no diagnosis of an anxiety disorder other than PTSD. The September 2015 VA examiner noted that the Veteran had the symptom of anxiety but only diagnosed bipolar disorder. The examiner noted that VA treatment records reveal the Veteran was diagnosed with anxiety disorder not otherwise specified in 2008. The 2008 VA treatment records reflect a past medical history of anxiety, but an anxiety disorder, such as anxiety disorder not otherwise specified, was not diagnosed. A September 2008 VA treatment record shows that the Veteran had an appointment scheduled to discuss the treatment of anxiety. In October 2008, the Veteran had follow-up treatment for anxiety. Celexa was increased, but an anxiety disorder was not diagnosed. The November 2016 VA examiner noted that the Veteran does not show typical symptoms of PTSD and that instead shows significant symptoms of bipolar disorder. The examiner noted the presence of anxiety. The examiner opined that it appears less likely than not that the Veteran suffers from PTSD at the present time either related to or not related to her military service. The Board gives greater weight on the VA examination reports than on the VA treatment records because the reports are based on thorough examinations. Both examiners detail the presence of an array of symptoms. In fact, the November 2016 VA examiner stated that the Veteran has a total occupational and social impairment due to the bipolar disorder. As for the Veteran’s assertion that she has PTSD, lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Nonetheless, as to the specific matter in this case, the existence of PTSD falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372, 1733 n. 4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Put simply, Hickson and Wallin element (1), current disability, is not established. In summary, for the reasons and bases set forth above, the Board concludes that the weight of the evidence is against a finding that Veteran currently has or has had a panic disorder, PTSD, or other anxiety disorder since she filed her claim in April 2006. Therefore, the preponderance of the evidence is against the claim as to direct and secondary service connection for an acquired psychiatric disorder other than bipolar disorder, and it is denied. Since the Board is denying the claim based on no current disability, the Board does not further address whether there is credible supporting evidence of the alleged in-service sexual assault or whether there is medical nexus evidence relating a psychiatric disorder to the service-connected right shoulder and right ankle disabilities. REASONS FOR REMAND The RO should readjudicate the claim of entitlement to TDIU in light of the grant of service connection for bipolar disorder. Because the TDIU claim must be readjudicated, the RO should ask the Veteran to identify treatment records relevant to the claim and afford her another opportunity to submit a formal TDIU claim. The matter is REMANDED for the following action: 1. Ask the Veteran to identify all treatment for her bipolar disorder, right shoulder disability, right ankle disability, and any other disorders pertaining to her claim for TDIU, and obtain any identified records. 2. The AOJ must provide the Veteran a formal application for her claim of entitlement to TDIU. 3. After the development in 1 and 2 is completed, the RO should undertake any necessary development as warranted by any additional evidence of record. 4. Thereafter, the AOJ should readjudicate the issue on appeal. The AOJ should not readjudicate the TDIU claim until the effective date and initial rating or ratings are assigned for the bipolar disorder. If the benefit is not granted, the Veteran should be furnished with a supplemental statement of the case, with a copy to her representative, and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Cherry, Counsel