Citation Nr: 21000822 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 12-11 381A DATE: January 6, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include bipolar affective disorder, depression, and posttraumatic stress disorder (PTSD), is denied. FINDING OF FACT The Veteran’s psychosis was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and an acquired psychiatric disorder, to include bipolar affective disorder, depression, and PTSD, is not otherwise etiologically related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include bipolar affective disorder, depression, and PTSD, are not met. 38 U.S.C. §§ 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. . REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1978 to September 1982. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a November 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) North Little Rock, Arkansas. In February 2013, the Veteran testified before the undersigned Veterans Law Judge via video conference. A transcript of the hearing is associated with the claims file. This appeal was previously remanded by the Board in April 2015, October 2017 and June 2019 for additional evidentiary development. The Board finds that there has been substantial compliance with the prior Board remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for an acquired psychiatric disorder, to include bipolar affective disorder, depression, and PTSD The Veteran has asserted that his psychiatric disorder is related to service. At the Board hearing, the Veteran’s representative indicated that the Veteran may have PTSD related to military sexual trauma (MST). In this regard, a September 1981 service treatment record indicated that the Veteran was involved in a homosexual act. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Initially, the Board observes that a Veteran is presumed to have been sound upon entry into the military, except as to conditions noted at the time of the acceptance, examination, or enrollment. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). In this case, the Veteran is presumed sound because there was no notation of a psychiatric disorder on acceptance, examination, or enrollment in December 1977. Clear and unmistakable evidence that the disability existed prior to service and was not aggravated by service will rebut the presumption of soundness. 38 U.S.C. § 1111; VAOPGCPREC 3-2003. Here, October 2009 and November 2016 VA examiners indicated that the Veteran’s bipolar disorder preexisted service. However, based on a review of the overall record, there is not clear and unmistakable evidence that the Veteran’s current psychiatric disorder preexisted service. In this regard, service treatment records are silent with respect to any preexisting psychiatric disability. Importantly, the October 2020 VA examiner found that there was no clear and unmistakable evidence of a diagnosis before service. The examiner then indicated that the Veteran’s disability, which did clearly and unmistakably exist prior to service, was not clearly and unmistakably aggravated beyond its natural progression by in service events. The examiner observed that the Veteran was not diagnosed until 1991, 19 years after service and therefore, there does not appear to be any clear and unmistakable evidence of any aggravation by any military event. Although the examiner appeared to give contradictory opinions, regardless, the evidence does not rise to the clear and unmistakable standard given that the examiner did indicate that the disability did not preexist service as it was not diagnosed until many years after service. Moreover, as noted in the Board’s prior remands, the October 2009 and November 2016 VA examiners did not apply the correct evidentiary standard of clear and unmistakable evidence when determining whether there was a preexisting disability. Further, the Board finds that the Veteran’s own reported medical history of a preexisting psychiatric disability is not clear and unmistakable evidence. As such, considering the above, the presumption of soundness has not been rebutted. In turn, the question for the Board is whether the Veteran has a current disability that began during service with attributable continuity of symptomatology, within one year of discharge of service, or is at least as likely as not related to an in-service injury, event, or disease. The Veteran has a current diagnosis of bipolar disorder as evidenced by the October 2020 VA examination. Prior VA treatment records also show a previous diagnosis of psychosis. Psychosis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. With respect to the Veteran’s claim for PTSD due to MST, the evidence of record does not show a diagnosis based on an in-service corroborated stressor. See 38 C.F.R. § 3.304 (f). In this regard, although VA treatment records show a history of PTSD, the primary diagnosis is still bipolar disorder and the PTSD diagnosis does not appear to be based on a corroborated in-service stressor but rather the Veteran’s reported history. After examining the Veteran and reviewing the record, none of the VA examiners found that the Veteran met the criteria for PTSD. Rather, all of the examiners found that the appropriate diagnosis under the DSM criteria was bipolar disorder. The Board finds the VA examinations to be the most probative evidence of record concerning the Veteran’s current diagnosis. Moreover, the Veteran’s psychosis was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. Service treatment records are silent with respect to treatment for or diagnosis of an acquired psychiatric disorder, including any psychosis. Although the Veteran reported depression and excessive worry in his July 1982 Report of Medical History, the contemporaneous service examination prior to discharge showed that the Veteran was clinically evaluated as psychiatrically normal. Post service, the Veteran reported that he was first diagnosed with bipolar disorder in 1991, 9 years after his separation from service and 8 years outside of the applicable presumptive period. While the Veteran is competent to report experiencing psychiatric symptoms since service, the Board finds the reports of continuity of symptomatology not credible. The Veteran’s reports are internally inconsistent with the service treatment records that showed no clinically diagnosed psychiatric disorder. Moreover, again, the first evidence of any psychiatric disorder is many years later, outside of the presumptive period. Importantly, at the initial VA examination in January 2009, the Veteran himself reported that he began receiving treatment in 1991, which, again, is many years after his discharge from service. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Further, the Veteran is not competent to determine that his psychiatric symptoms were manifestations of psychosis as the Veteran has not demonstrated the necessary medical expertise. The issue is medically complex, as it requires specialized medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board gives more probative weight to competent medical evidence, which establishes that these symptoms began many years after service. Service connection for an acquired psychiatric disorder may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s psychiatric disorder and an in-service injury, event or disease. 38 U.S.C. § 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. The Board previously found that the December 2008 VA examination with October 2009 and April 2010 addendum opinions and the June 2015 VA examination with November 2016 and December 2017 addendum opinions were inadequate for appellate review. In this regard, the Board previously found that the December 2008 VA examiner provided a contradictory mix of opinions, including as to whether the Veteran’s disability pre-existed service. However, as discussed above, the Board finds that the Veteran is presumed sound with respect to any psychiatric disorders. Likewise, the June 2015 VA examiner indicated that the Veteran’s disability was related to service but failed to offer any sort of rationale. In the subsequent addendum opinion, the examiner again indicated that the Veteran’s symptoms preexisted service. However, in December 2017, the examiner indicated that the Veteran’s disability was not related to service but failed to address whether there was clear and unmistakable evidence that the Veteran’s disability preexisted service. Most recently, in December 2019, the same examiner indicated that he could not offer an opinion without resorting to mere speculation and that additional information cannot be provided without performing a new evaluation. Importantly, the Veteran was afforded a VA examination in October 2020. The examiner reviewed the claims file, took a thorough medical history from the Veteran and again diagnosed the Veteran with bipolar disorder. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner rationalized that all medical and lay evidence had been reviewed. Although the Veteran states drinking a lot and anger problems in service were manifestations of his disability, there is no evidence/documentation before or while in service indicating a diagnosis of bipolar disorder until 19 years after the service. Therefore, there is no clear and unmistakable link or evidence of the diagnosis or progression of the diagnosis to or being caused by in service events. All medical evidence concerning bipolar disorder dates from 1991 and later. Lay evidence is not clear and unmistakable of the anger problems and alcohol consumption being related to bipolar disorder or military service. Although the examiner used the term “clear and unmistakable” evidence in his rationale, the examiner applied the correct standard of as likely as not in his opinion. Further, although the examiner wrote 19 years after service as opposed to 9, this appears to be a typographical error as again, the examiner reviewed the claims file and knew when the Veteran was in service as well as the date of his diagnosis. Moreover, this error does not change the crux of the opinion. The VA opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Veteran believes his acquired psychiatric disorder is related to an in-service injury, event, or disease, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it required specialized medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. As the preponderance of the evidence is against the claim for service connection for an acquired psychiatric disorder, to include bipolar affective disorder, depression, and PTSD, the benefit of the doubt doctrine is not for application, and the Veteran’s claim must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 55 L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.N. Moats 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.