Citation Nr: 18154816 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 15-00 171A DATE: November 30, 2018 ORDER Service connection for bipolar disorder is granted. REMANDED Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. VETERAN’S CONTENTIONS The Veteran is seeking service connection for bipolar disorder and disabilities of both knees. He contends that his bipolar disorder had its onset during his active duty service. He also contends that his knee disabilities are caused by an in-service injury he sustained when he fell twenty feet through a ship’s hatch. FINDING OF FACT The Veteran’s currently diagnosed bipolar disorder had its onset during his active duty service. See August 1993 Separation Examination; November 2009 VA Treatment Record; December 2009 Claim for Service Connection. CONCLUSION OF LAW The criteria for service connection for bipolar disorder are met. 38 U.S.C. §§ 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Navy from April 1985 to August 1993. This case is before the Board of Veterans’ Appeals (Board) on appeal from a March 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. Generally, in order to prove service connection, there must be competent, credible evidence of 1) a current disability, 2) in-service incurrence or aggravation of an injury or disease, and 3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The Veteran has had a diagnosis of a psychiatric disorder, to include bipolar disorder and depression, throughout the claim period, and his Navy separation examination reflects a history of in-service treatment for a psychiatric disorder (diagnosed as dysthymia). See August 1993 Separation Examination; November 2009 VA Treatment Record; February 2011 VA Examination. Thus, the first and second elements of service connection are satisfied. In his December 2009 claim for service connection, the Veteran stated that he had been diagnosed in service with PTSD and then bipolar disorder, and received weekly treatment until his release from active duty. The Veteran also reported at a February 2011 VA examination that he was diagnosed in service with bipolar disorder. Other than his separation examination, the Veteran’s service treatment records are unavailable. See November 2014 Formal Finding of Unavailability. For this reason, the Board is unable to verify the Veteran’s reports of diagnosis and treatment in service. However, the Veteran is competent to report diagnoses and treatment he himself received, and the Board finds him to be credible. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (2009) (rejecting the view that competent medical evidence is required when the determinative issue involves a medical diagnosis). Weighing against the Veteran’s account of the course of his disability are the conclusions of two medical opinions rendered by the same VA examiner in February 2011 and April 2014. In her opinions, the examiner concluded that the Veteran’s bipolar disorder pre-existed his active duty service, and was not aggravated by his service. She noted that the Veteran reported a long history of personal trauma and psychiatric symptoms pre-dating his military service. In addition, she opined that the increasing severity of the Veteran’s bipolar disorder did not indicate aggravation during service, as increasing severity is the typical course of the disease. She also opined that the Veteran’s entrance examination may have occurred between episodes of his pre-existing bipolar disorder, which would explain the examiner’s failure to note it at that time. The VA examiner’s opinions rest on the factual premise that the Veteran’s bipolar disorder pre-existed his active duty service. However, absent clear and unmistakable evidence to the contrary, the Veteran is presumed to have been in sound psychological health upon enlistment. Although the Veteran’s enlistment examination is unavailable, because there is no evidence that he was not examined upon enlistment, the Board presumes that he was examined and that no defects were noted. 38 C.F.R. § 3.304(b); cf. Crowe v. Brown, 7 Vet. App. 238, 245 (1994) (noting that the presumption of soundness does not attach when an enlistment examination is not performed). Therefore, only clear and unmistakable evidence can rebut the presumption that the Veteran was in sound psychological health upon enlistment. The VA examiner’s conclusion that the Veteran’s bipolar disorder pre-existed his service was based on his self-reported history. Although the Veteran is competent to report his history and, as noted above, the Board finds him to be credible, nevertheless his reports alone do not suffice to meet this elevated level of evidentiary proof. Therefore, the Board finds that the presumption of soundness is not rebutted, and the Veteran is presumed to have been in sound psychological condition on entrance into service. Accordingly, since the opinions of the VA examiner rest on premises contrary to the facts found, they are inadequate for VA rating purposes, and the Board affords them no probative weight. Attendant on this finding, in order to remedy the dearth of probative medical evidence, in June 2018, the Board requested an advisory medical opinion from a Veterans Health Administration (VHA) expert. In an October 2018 opinion, the VHA expert opined that the Veteran’s current diagnosis of bipolar disorder could not be related to his active duty service on the basis of the objective medical evidence of record. However, the expert also opined that if the Veteran’s reports of in-service treatment for bipolar disorder were accepted as true, then his current diagnosis of bipolar disorder was more likely than not related to service. The expert’s opinion is competent, credible, and entitled to significant weight. Significantly, in light of the Board’s finding that the February 2011 and April 2014 VA medical opinions are inadequate for VA rating purposes, there is no probative evidence to the contrary. As noted above, the Board does accept the Veteran’s reports, and so finds that he was treated in-service for bipolar disorder. Therefore, relying on the October 2018 opinion of the VHA expert, the Board finds that the Veteran’s currently diagnosed bipolar disorder had its onset in service. Accordingly, service connection for bipolar disorder is warranted. REASONS FOR REMAND Entitlement to Service Connection for Left and Right Knee Disabilities is Remanded. The Veteran is seeking service connection for disabilities of both knees, which he claims were caused by an in-service injury he sustained when he fell through a ship’s hatch. As noted in the previous section, the Veteran’s service treatment records are mostly unavailable. See November 2014 Formal Finding of Unavailability. However, the Veteran is competent to report injuries he himself sustained, and the Board finds him to be credible. VA must provide a VA medical examination where the evidence reveals an event, injury, or disease incurred in service which may be associated with the Veteran’s current disability, but where the competent medical evidence of record is insufficient to adjudicate the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). However, despite the Veteran’s credible report of injury to both knees in service, VA has not yet afforded him a medical examination. Therefore, a remand is necessary to afford the Veteran an examination on his claims for service connection for disabilities of the right and left knees. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims file. 2. After completing the development outlined in Item 1., schedule the Veteran for a VA examination and opinion on his claims for service connection for disabilities of the right and left knees. Upon physical examination of the Veteran and a thorough review of the claims file, the examiner should respond to the following: (a.) Please state whether it is at least as likely as not (50 percent probability or more) that the Veteran’s current right knee disability had its onset in or is otherwise related to his active duty service, to include an injury sustained in a fall through a ship’s hatch? (b.) Please state whether it is at least as likely as not (50 percent probability or more) that the Veteran’s current left knee disability had its onset in or is otherwise related to his active duty service, to include an injury sustained in a fall through a ship’s hatch? In rendering these opinions, please accept as true the Veteran’s report of falling through a ship’s hatch in service. The examiner must provide a fully articulated medical rational for each opinion, citing to peer-reviewed medical literature referenced in formulating it, if any. If the examiner finds that an opinion cannot be provided, this conclusion should also be clearly explained (e.g. lack of sufficient information/evidence in this case, or a lack of knowledge among the medical community at large, and not the insufficient knowledge of the individual examiner). (Signature on next page) S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Timmerman, Associate Counsel