Citation Nr: 18160996 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 16-23 593 DATE: December 28, 2018 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder, is granted. Entitlement to service connection for a gastrointestinal disorder, to include irritable bowel syndrome (IBS) and gastroesophageal reflux disease (GERD), is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to a total disability rating due to individual unemployability is remanded. Entitlement to nonservice-connected pension is remanded.   FINDINGS OF FACT 1. The Veteran’s acquired psychiatric disorder, to include bipolar disorder, is related to an in-service head injury. 2. The Veteran’s gastrointestinal disorder, to include irritable bowel syndrome (IBS) and gastroesophageal reflux disease (GERD), is related to service. CONCLUSIONS OF LAW 1. The criteria for an acquired psychiatric disorder, to include bipolar disorder, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 2. The criteria for service connection for a gastrointestinal disorder, to include irritable bowel syndrome (IBS) and gastroesophageal reflux disease (GERD), have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1988 to October 1992. A hearing was not requested. In February 2017, the Board remanded the Veteran’s claims to conduct a hearing loss examination. In November 2017, the Board remanded the Veteran’s claims to obtain SSA records and to conduct additional VA examinations. There are four other issues for which the Veteran has perfected an appeal: (1) service connection for a traumatic brain injury (TBI), (2) service connection for sleep apnea; (3) an effective date prior to November 7, 2016 for the initial grant of service connection for residual scars, left periorbital; right upper lip and right chin; and (4) an increased disability rating for residual scars, left periorbital; right upper lip and right chin. Those issues will be the subject of a separate decision issued at a later time. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder These three elements are satisfied for an acquired psychiatric disorder, to include bipolar disorder. Regarding the first element, a current diagnosis is indicated in the June 2018 VA examination and private medical opinions dated November 2018 and October 2015. Regarding the second element, the Veteran argues that his bipolar disorder is the result of an in-service head injury. The nexus element is satisfied. The November 2018 private medical opinion cites to several peer-reviewed medical studies describing a link between mild traumatic brain injury and acquired psychiatric disorders. The examiner also notes that at his entrance to the Army, which was in his late 20s, the Veteran “had passed the usual age for presentation” of bipolar disorder and “was clearly documented as not having any psychiatric issues” upon entrance. The examiner also indicates that the Veteran has no familial history of bipolar disorder. For these reasons, the November 2018 private examiner concludes that the Veteran’s acquired psychiatric disorder, to include bipolar disorder, is at least as likely as not related to service. Consistent with this, the October 2015 private medical opinion also concludes that the Veteran’s bipolar disorder is at least as likely as not related to the Veteran’s in-service head injury. The strongest rationale in support of this conclusion is citation to peer-reviewed publications that indicate a link between traumatic brain injury and acquired psychiatric disorders. The opinion also relies on the changes in cellular signaling cascades that occur after a traumatic brain injury. The medical opinions are probative because they are based on a review of the record and contain clear conclusions with supporting data connected by a reasoned medical explanation. Nieves-Rodriguez, 22 Vet. App. at 301–02. This evidence supports the existence of a nexus between an acquired psychiatric disorder, to include bipolar disorder, and service. A June 2018 VA medical opinion concludes that the Veteran’s bipolar disorder is less likely than not related to service. Part of the rationale for this opinion is that because the Veteran’s mother has bipolar disorder there is a family history for this disease. However, the Veteran has submitted a note in which his mother’s treating physician states that the Veteran does not have bipolar disorder. As correctly noted by the Veteran’s attorney, “[a]n opinion based on an inaccurate factual premise has no probative value.” Reonal v. Brown, 5 Vet. App. 458, 461 (1993). For this reason, there is no probative evidence of record contradicting the private medical opinions described above. The Veteran is entitled to service connection for an acquired psychiatric disorder, to include bipolar disorder. As the three elements are satisfied, the Veteran is entitled to service connection for an acquired psychiatric disorder, to include bipolar disorder. 2. Entitlement to service connection for a gastrointestinal disorder, to include irritable bowel syndrome (IBS) and gastroesophageal reflux disease (GERD) These elements are satisfied for a gastrointestinal disorder, to include IBS and GERD. Regarding the first element, current diagnoses of IBS and GERD are indicated in the June 2018 VA esophageal examination and private medical opinions dated November 2018 and October 2015. Regarding the second element, service treatment records indicate abdominal pain and discomfort. The nexus element is also satisfied. The November 2018 private medical opinion describes how during the service the Veteran was experiencing abdominal pain of such severity that the Veteran was strongly encouraged to visit a doctor. According to the examiner, this “record suggests that symptoms of IBS may have stared in service . . . .” The examiner further notes that the Veteran would likely have under-reported his symptoms, as “young military recruits are notorious for,” and that “[o]nly a small percentage of those affected [by IBS] seek medical attention.” Service treatment records also indicate low albumin, which “is a medical predictor or developing future [a]nemia,” said anemia being “part of [the Veteran’s] documented IBS clinical picture.” In light of these findings, the examiner concludes that “it is at least as likely as not that [the Veteran’s] gastrointestinal problems,” which she also states involve GERD, “are service-connected.” These medical opinions are probative because they are based on a review of the record and contain clear conclusions with supporting data connected by a reasoned medical explanation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301–02 (2008). This evidence supports the existence of a nexus between the Veteran’s gastrointestinal disorder, to include IBS and GERD, and service. As the three elements are satisfied, the Veteran is entitled to service connection for this disorder. There is no medical evidence linking any other gastrointestinal disorder, such as gastritis or diverticulitis, with service. A June 2018 VA medical opinion concludes that the Veteran’s gastrointestinal disorder are less likely than not related to TBI or an acquired psychiatric disorder. As already noted, entitlement to service connection for TBI is the subject of a separate appeal. The June 2018 VA medical opinion does not, however, address entitlement to service connection on a direct basis. As there is no evidence to the contrary, on the basis of the November 2018 private medical opinion, the weight of the evidence supports a nexus between a gastrointestinal disorder and service. Alternatively, the November 2018 private medical opinion concludes that the Veteran’s gastrointestinal disorder is at least as likely as not related to the Veteran’s acquired psychiatric disorder. Since the private medical opinion and the VA medical opinion are equally probative, the evidence is in equipoise, and the Veteran remains entitled to prevail with respect to his claim. An October 2015 private medical opinion also suggests that there is a link between the Veteran’s IBS and his in-service head injury. The rationale for this conclusion starts with the fact that traumatic brain injury unleashes a biological signaling cascade affecting the “autonomic nerve system,” said system being “responsible for the functioning of internal organs, including [the] GI tract . . . .” Also according to the examiner, difficulties with the GI tract lead to IBS. In summary, traumatic brain injury impacts a system of organs that includes an organ linked to IBS. For this reason, the examiner concludes that “there is a specific link between mild traumatic brain injury and development of IBS symptoms with [the Veteran], which is at least 50% possible based on the current existing research.” There are three reasons that the October 2015 private medical opinion is entitled to minimal probative value. First, the reasoning is too diffuse, in that it suggests that a head injury could ultimately cause any disease linked to any organ that is impacted by the “autonomic nerve system.” See also November 2018 private medical opinion at 9, ¶ 30. Secondly, while the examiner cites to multiple peer-reviewed publications suggesting a link between the Veteran’s traumatic brain injury and acquired psychiatric disorders, he cites to no peer-reviewed publications that provide a specific link between traumatic brain injury and gastrointestinal disorders. The closest are articles describing how molecular signaling cascades change in response to head injuries Notwithstanding, the Veteran is still entitled to direct service connection on the basis of the November 2018 private medical opinion. REASONS FOR REMAND 1. Entitlement to nonservice-connected pension is remanded. The Veteran is in receipt of disability benefits from the Social Security Administration (SSA) from November 9, 2015. Prior to this time, his total disability rating is 40 percent. The assignment of ratings for the Veteran’s gastrointestinal disorder and bipolar disorder could impact whether or not he has a permanent and total disability. For this reason, it would at this time be premature for the Board to address entitlement to nonservice-connected pension. Also, additional development is required to verify the Veteran’s income for the time on appeal. There is an inconsistency with respect to reported income, in that a 2013 income tax statement lists $28,450 in total income, a June 2014 income statement indicates $1,500 in monthly income, and a July 2014 income statement indicates $1,400 in monthly income. Also, the Veteran’s disability income from SSA is are not indicated. Furthermore, while the Veteran’s September 2013 application indicates the birthdates of the Veteran’s three biological children, it is not clear whether any of these children, or the Veteran’s spouse, should be considered dependents during the period on appeal. For these reasons, additional development is required. 2. Entitlement to service connection for bilateral hearing loss The April 2017 VA audiological examination indicates that speech recognition ability using the Maryland CNC test is 56 percent in the right ear and 64 percent in the left ear. The examiner indicates that “[t]he use of the speech discrimination score is not appropriate for this Veteran because of language difficulties, cognitive problems, inconsistent speech discrimination scores” and other factors. The Board finds that the Veteran should be given a second opportunity to participate in an examination, with the reminder that failure to fully cooperate with an examination is the same as failing to report for the examination, in which case the Board will base its decision on the evidence of record. 38 C.F.R. § 3.655. 3. Entitlement to a total disability rating due to individual unemployability is remanded. The assignment of ratings for the disorders discussed above may affect whether the Veteran is entitled to TDIU on a schedular basis or a non-schedular basis. Accordingly, a decision by the Board on the Veteran’s TDIU claim would at this point be premature. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Additionally, on remand the RO should obtain all relevant VA treatment records dated from March 2017 to the present before the issues on appeal are decided on the merits. Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain all VA treatment records from March 2017 to the present. If no records are available, the claims folder must indicate this fact. Any additional records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file. 2. Take appropriate action to verify reported countable income and unreimbursed medical expenses for the Veteran and his spouse. This includes income tax returns for the Veteran and his spouse from 2014 to the present, verification of SSA income for the Veteran and his spouse, and verification of income arising from VA benefits. The Veteran should also be given an opportunity to indicate whether any of his children should be classified as “dependent children” for any period of the appeal. 3. After obtaining any additional records to the extent possible, schedule the Veteran for a VA audiological examination. If the Veteran does not wish to participate in an audiological examination, this should be noted in the claims file. Audiometric testing should be completed and any bilateral hearing loss disability under 38 C.F.R. § 3.385 should be noted. A Maryland CNC speech recognition test must be completed. Then, the examiner must provide the following medical opinions: (a.) Whether the Veteran has any current hearing loss disorder. (Continued on the next page)   (b.) Whether it is at least as likely as not (a 50 percent or better probability) that any current hearing loss disorder was incurred in or aggravated by the Veteran’s service. C. BOSELY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Cannon, Associate Counsel