Citation Nr: 20028879 Decision Date: 04/24/20 Archive Date: 04/24/20 DOCKET NO. 15-22 837 DATE: April 24, 2020 ORDER Entitlement to service connection for an acquired psychiatric disorder, diagnosed as bipolar disorder with depressed mood, is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his bipolar disorder with depressed mood is at least as likely as not related to military service. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disability, diagnosed as bipolar disorder with depressed mood, have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1979 to May 1981. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. This matter was previously before the Board in June 2018 and March 2019, wherein the Board remanded for additional development, to include scheduling the Veteran for VA examinations. The claim has returned to the Board for adjudication. This appeal has been advanced on docket pursuant to 38 C.F.R. §§ 20.900(c) (2017). 38 U.S.C. §§ 7107(a)(2) (West 2012). The Veteran contends that his acquired psychiatric disorder, diagnosed as bipolar disorder with depressed mood, is related to his military service. The Veteran initially claimed depression and the Board has recharacterized the issue on appeal as entitlement to service connection for an acquired psychiatric disorder to include bipolar disorder and depressed mood. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from 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). 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) medical 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). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran’s service treatment records (STRs) are silent as to treatment or complaints of any mental health condition. The STRs document that in March 1980, the Veteran was involved in an encounter where he suffered trauma to his left forearm. The Veteran explained that he was assaulted during this encounter and broke his arm. See December 2018 Correspondence. The STRs from June 1980 reference some possible drug use during his service. The Veteran’s DD-214 shows that the Veteran was discharged with under honorable conditions due to frequent involvement of a discreditable nature with civil or military authorities. The Veteran was afforded a VA examination in July 2013 and was diagnosed with bipolar disorder with depressed mood. He reported that he began to isolate in the military and would get into fights with “higher ups.” He also reported increasing his alcohol use and starting drug experimentation in the military. The Veteran reported drug use until he went into a vet center and has been abstinent since 2007. The VA examiner opined that the Veteran’s current mental health condition is at least as likely as not proximately due to or the result of his service-connected conditions. She stated as rationale that the Veteran contended that his behavior was manageable until he was in the service and drug use began to escalate. The VA examiner also stated that he was comfortable in his home of origin and felt competent. In the service, he was exposed to new and challenging situations and chose drug use as a way of dealing with his anxieties. The Board notes that while the VA examiner provided a positive nexus opinion, she failed to show how the Veteran’s service-connected disabilities affected his psychiatric condition. In August 2013, an addendum medical opinion was provided by the same VA examiner who conducted the July 2013 VA examination. She opined that it is less likely than not (less than 50 percent probability) that his bipolar disorder with depression is related to his service-connected conditions (tinnitus and limitations of left forearm). Her rationale was that he was not treated for any mental health condition while in service and he was not diagnosed with a mental health condition until 2008 (twenty-seven years post discharge). However, she noted that the Veteran’s STRs showed a pattern of misconduct. She also stated that the Veteran’s medical conditions are less likely than not a sole reason for his current diagnosis of bipolar disorder with depression, but no explanation or rationale was provided for this statement. The Veteran’s sister submitted a questionnaire regarding the Veteran’s condition in December 2015. She stated that he was very outgoing and happy prior to the Navy in June 1979. After he returned from the military, he acted different and was quieter, quick to anger, and more introverted. She observed that he had depressed mood, anxiety, problems sleeping, periods of violence or unprovoked anger, excessive worry, and nightmares. The Veteran was examined again in October 2018 and diagnosed with bipolar disorder. The VA examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness as he had no complaints of mental conditions while in the military. The VA examiner stated that the Veteran was not diagnosed with any mental disorder more than twenty-seven years post service. He noted that any opinion about the behaviors in service would be pure speculation in the absence of mental health visits. Additionally, he opined that the bipolar disorder is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service-connected condition. He stated that the Veteran’s current diagnosis is unrelated to any service-connected diagnosis and that bipolar disorder is not caused by a medical disorder but likely by biological differences and genetics. The Veteran was again diagnosed with bipolar disorder at the July 2019 VA examination. The VA examiner found that the Veteran’s mental health condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness and that there was insufficient evidence to support direct service connection, secondary service connection, or aggravation. While the Veteran complained of depressive symptoms that began during military service in response to an assault, there is no evidence of treatment for depression or of depressive symptoms during military service. The VA examiner also stated that the Veteran was a poor historian who misstated some information and therefore, his lay statements cannot be considered sufficiently valid to determine that depression began during military service and there are no relevant mental health records until 2006 when he was seen for substance use issues. The VA examiner also stated that the Veteran was treated for medical issues of significant back and leg pain and it is likely that the contribution of these issues to depression greatly outweighs any contribution from the minor medical issues for which he is service-connected such as scars and limited motion of the forearm. In April 2020, the Veteran’s representative submitted a medical opinion from a clinical psychologist who had experience working with the VA at the Compensation and Pension Clinic during her internship and postdoctoral residency. The VA examiner provided a detailed account of the Veteran’s claims file, including reference to VA treatment records, VA examinations, and lay statements. She indicated that based on a review of records, the Veteran continues to meet criteria of bipolar II disorder, most recent episode depressed. She noted that he had a history of hyperactivity in childhood, which could represent attention deficit hyperactivity disorder, or early symptoms of bipolar disorder. Additionally, substance use, which began with alcohol prior to the military and then exacerbated with drug use during and after the military is often common in individuals with bipolar disorder who tend to seek stimulation. She further specified that age of onset of bipolar disorder and depression is often during the timeframe when he was in military service. She concluded that it is at least as likely as not (50 percent probability) that his bipolar disorder began while he was in his military service. The Board finds that the VA medical opinions from August 2013, August 2018, and July 2019 are inadequate, as the VA examiners primarily relied on the absence of medical evidence during service and lack of treatment for many years following service to provide a negative nexus opinion. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Dalton v. Nicholson, 21 Vet. App. 23 (2007) (an examination was inadequate when the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of evidence in the Veteran's service medical records to provide a negative opinion). In contrast, the clinical psychologist who provided the April 2020 medical opinion, provided a positive nexus opinion and considered all the pertinent evidence of record, to include statements of the Veteran, previous VA examinations, and VA treatment records and cited to relevant evidence. There is no indication that the psychologist was not fully aware of the Veteran's past medical history or that she misstated any relevant fact. Indeed, the psychologist provided pertinent recitation of the record and fully supported her conclusions with specific citation to the record. The Board accords probative weight to such opinion, as the opinion provided a complete rationale, relying on and citing to the records reviewed, and offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 304 (2008). Here, the opinion is consistent with the Veteran being presumed sound at entrance, having a behavior change during service, and being discharged from service due to difficulty getting along with authoritarian figures. Weighing the probative values of these opinions, both for and against service connection, the Board finds that the evidence is at least in equipoise. Therefore, the Board resolves reasonable doubt in the Veteran's favor and finds that service connection for bipolar disorder with depressed mood is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Kim, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.