Citation Nr: 21061482 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 16-00 769 DATE: October 4, 2021 ORDER Service connection for attention deficit hyperactivity disorder (ADHD), also claimed as adjustment disorder, PTSD, and bipolar disorder, is denied. FINDING OF FACT With resolution of the doubt in his favor, ADHD was due to the Veteran's active military service. CONCLUSION OF LAW The criteria to establish service connection for ADHD are approximated. 38 U.S.C. §§ 1131, 1133, 1153, 1154, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, and 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 2002 to January 2006, and service in the National Guard thereafter. The Board of Veterans' Appeals (Board) applies the law enacted by Congress and published in Title 38, United States Code ("38 U.S.C."); regulations established by VA and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). This matter was before the Board in March 2021 and remanded to the Regional Office (RO) for substantial compliance with August 2020 Board remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). A December 2018 Board remand instructed the RO to schedule the Veteran for a VA examination to determine the nature and etiology of any acquired psychiatric disorders, to include ADHD, adjustment disorder, and bipolar disorder, to include whether it is clear and unmistakable that any of the Veteran's psychiatric disorders, to include ADHD, adjustment disorder, and bipolar disorder, preexisted his service. A VA examination of the medical and clinical evidence was conducted without the Veteran on August 14, 2019, while two other examinations from that date were cancelled. During a September 2019 telephone call with VA, a representative from VetFed, the contractor for the examination, reported that the Veteran did not attend any of his examinations except for the mental health examination, that the results were pending with Quality Assurance (QA), and that they should be released within two weeks. During an October 2019 telephone call with VA, a VetFed representative reported that the examination was in the final QA stages. However, the VA examination associated with the claims file in December 2019 is blank, but for a notation that the Veteran did not report for the confirmed appointments. An August 2020 Board remand instructed the RO to confirm the Veteran's attendance at a VA mental disorders examination in September 2019 and, if the examination was located, associate the examination with the claims file. If the examination was not located, the RO was instructed to schedule the Veteran for a new VA examination to determine all relevant psychiatric diagnoses and determine whether the disorder(s) is related to an in-service injury, event, or disease. Following the August 2020 Board remand, the record does not show that the RO attempted to obtain the 2019 VA examination referenced by VetFed in September 2019. Rather, the RO scheduled the Veteran for a VA examination without documenting any attempts to obtain the 2019 examination. However, the record shows that the Veteran cancelled his scheduled examination in December 2020. Accordingly, the March 2021 Board remand instructed the RO to attempt to confirm the Veteran's attendance at a VA mental disorders examination around September 2019 and, if the examination was located, associate it with the claims file. If the examination could not be located, the RO was instructed to schedule the Veteran for a new VA examination. An examination scheduling request for evaluation of an acquired psychiatric disorder, to include ADHD and adjustment disorder, was associated with the Veteran's claims file in April 2021. In April 2021, the Veteran was notified that he had been scheduled for a telemedicine VA examination in May 2021; he was provided with the date and time of the examination, as well as the information of the provider who was scheduled to conduct the examination. During a June 2021 telephone call with VA, the Veteran stated that he did not want to report for his VA examination, and that he wanted a decision on his claim based on the evidence already of record only. During a July 2021 telephone call with VA, the Veteran was asked whether he declined his examination due to COVID-19 concerns. However, the Veteran denied declining his examination due to COVID-19 concerns. Instead, the Veteran stated his belief that there is enough evidence of record to decide his claim and that he does not want to undergo an examination. Notes from the telephone call show that the requirements for service connection were discussed with the Veteran, to include the importance of an examination in order to establish the medical nexus element of a claim for service connection, and that the Veteran acknowledged his understanding of the subject matter of the discussion. However, the Veteran stated his preference not to attend the examination. During a July 2021 telephone call with VA, an operation support analyst for VetFed was asked whether the Veteran reported for a mental health examination that was scheduled in 2019, and the analyst replied that the Veteran was scheduled for a VA examination in May 2019, but that he did not report, and the examination was cancelled. As discussed above, the record shows that the Veteran was scheduled for a VA examination in May 2019, that he did not report for the examination, and it was cancelled. The record also shows that the Veteran was scheduled for a new VA examination to be conducted in May 2021. However, the record shows that the Veteran expressed his desire not to attend the scheduled examination and that he wanted his claim decided based on the evidence already of record. Since his request to cancel his VA examination, and to have his claim decided based on the evidence already of record, the Veteran has not indicated any desire to reschedule his VA examination or that he planned to submit any additional evidence in support of his claim. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is a two-way street. If the Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential [. . .]."). Further development has been completed in accordance with the March 2021, August 2020, and December 2018 Board remand directives. As the record shows that the Veteran did not report for his scheduled May 2019 or May 2021 VA examinations, and given his expressed desire not to attend another VA examination and to have his claim decided based on the evidence already of record, there has been substantial compliance with the March 2021, August 2020, and December 2018 Board remand directives. Stegall, 11 Vet. App. at 268. The Board finds that the duty to assist has been met and the Veteran's claim may be adjudicated based upon the evidence of record. Service connection for ADHD will be granted based on the benefit of the doubt doctrine. See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009) (observing in part that when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant). Service Connection The Veteran argues that he has a mental disorder that was caused by his active military service. The disorder has been characterized by the Veteran as ADHD, a bipolar disorder, posttraumatic stress disorder and an anxiety disorder. The Board will grant service connection for ADHD. The law provides that service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination about the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The law provides that every Veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment. 38 U.S.C. § 1111. The term "noted" denotes only such conditions that are recorded in examination reports. The existence of conditions prior to service reported by the Veteran as medical history does not constitute a notation of such conditions, but it will be considered together with all the other evidence in question as to the commencement of the disease or disability. Determinations of whether a condition existed pre-service should be based on a thorough analysis of the evidentiary showing and careful correlation of all medical facts, with due regard to manifestations, clinical course and character of the injury or disease or residuals thereof. 38 C.F.R. § 3.304(b)(1). Under 38 C.F.R. § 3.304 (b)(3), signed statements of veterans relating to the origin, or incurrence of any disease or injury made in service if against his or her own interest is of no force and effect if other data do not establish the fact. Other evidence will be considered as though such statement were not of record. Service connection for ADHD is granted During his July 2001 report of medical examination at service entrance, the Veteran had a normal psychiatric clinical evaluation. There is no notation of any ADHD or psychiatric condition. He specifically denied then having, or ever having had "nervous trouble of any sort (anxiety or panic attacks)" and "depression or excessive worry," among other mental symptoms. The July 2001 medical prescreen of medical history report and report of medical history show no notation regarding ADHD or psychiatric condition. However, active-duty service treatment records (STR) beginning in January 2004 and dated through April 2004 reflect a continuing diagnosis and treatment for ADHD. Although an April 2004 STR shows that the Veteran reported that all issues had resolved, the Veteran's ADHD treatment was noted in a March 2005 counseling record, and a September 2005 STR shows a diagnosis of ADHD, noted as a "phase of life" problem. A December 2007 VA medical record shows that the Veteran reported a family history of bipolar disorder. The examiner noted a diagnosis of bipolar disorder. The results of December 2007, July 2009, and February 2013 VA PTSD screening tests were negative for PTSD. During a July 2009 VA mental health outpatient treatment visit, the Veteran reported inconsistency in academic performance, but no other academic difficulties. He reported treatment for the development of behavioral-cognitive techniques to improve learning skills but reported that he has not had any other psychiatric treatment. An August 2009 VA mental health outpatient note shows that the Veteran presented with symptoms indicative of bipolar disorder. During an October 2009 VA psychological assessment, the examiner stated that she was unable to find that the Veteran had bipolar disorder based on the applicable diagnostic criteria. A November 2009 VA psychiatry note reiterates the finding as the examiner stated that, based on the history reported by the Veteran, he did not have a bipolar disorder. In an August 2010 letter, a VA psychiatrist stated that the Veteran has been in her care for treatment of ADHD since October 2009. The Veteran informed the physician that he had been told that he had the disorder previously. The physician opined that the Veteran's symptoms date to his childhood. A March 2014 VA examiner reviewed a diagnosis of PTSD, due to childhood abuse, and ADHD. However, the examiner noted that the diagnosis of PTSD was a tentative diagnosis based on the Veteran's reports of abuse by his father and exposure to gang violence. The examiner noted that the Veteran was a "difficult" historian, which made it hard to establish a firm diagnosis. The Veteran reported that he had barely passing grades in high school and that he was frequently in trouble, in part, for inattention and disruptive behaviour. He reported that he was currently in a neuroscience degree program, but that he had difficulty concentrating in class. The examiner stated that, based on the history provided by the Veteran, it was "probable" that the Veteran's attention deficit disorder (ADD) symptoms began before his service, but there was no clear evidence that his service aggravated the symptoms beyond their natural course. The examiner opined that it is less likely than not that his ADD was either incurred in or caused by his service. The examiner stated that it is possible that PTSD existed prior to service and/or was aggravated by exposure to traumatic events during service. However, the examiner stated that it is not possible to draw any conclusion regarding aggravation of PTSD due to the difficulty of obtaining a quality history from the Veteran who remained irritable and argumentative throughout the appointment. In a May 2014 VA addendum opinion, the examiner stated that the Veteran's records showed no actual or clear evidence for a diagnosis of PTSD either related to his childhood or to his service. The examiner stated that the original examiner provided a tentative diagnosis of PTSD related to childhood abuse by the Veteran's father and exposure to gang violence. However, the examiner stated that a review of the claims file did not provide evidence of a diagnosis for PTSD. Instead, the examiner noted that the Veteran was not diagnosed with PTSD until the recent VA examination, and the diagnosis was tentative, not firm. During a July 2015 VA mental disorders examination, the examiner noted a diagnosis of ADHD and adjustment disorder with mixed disturbance of emotions and conduct. Bipolar disorder was not diagnosed. The examiner stated that it is not possible to differentiate what symptoms are attributable to each diagnosis and stated that both diagnoses affect ability to concentrate. The Veteran reported a history of attention and concentration problems in grade school. He reported that he recently graduated with a bachelor's degree in neuroscience. The examiner opined that the conditions were less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner stated that the Veteran's mental health diagnoses appear to have been present before his service. The examiner opined that symptoms of adjustment disorder appear to have been exacerbated by National Guard stressors. In an August 2015 VA addendum opinion, the examiner opined that, based on the Veteran's description of stressors, the Veteran's adjustment disorder symptoms were aggravated by events that occurred, and continue to occur, during his civilian service as a National Guardsman, not by his active service. The examiner noted that the Veteran did not describe any events occurring during active service that would have contributed to the onset or aggravation of his mental health symptoms. The examiner stated that the Veteran described childhood symptoms of ADHD before age 12, which are part of the diagnostic criteria for this disorder. The examiner opined that ADHD pre-dated the Veteran's active service; however, there is no evidence that his active service aggravated his condition beyond its normal progression. The examiner did not otherwise elaborate the basis of this opinion. The results of a May 2016 VA PTSD screening test were negative for PTSD. During a March 2017 VA mental health outpatient treatment visit, the examiner noted that the Veteran did not mention symptoms of PTSD and results of a PTSD screening test were negative for PTSD. The examiner noted initial diagnoses of ADHD and anxiety, and a history of depression. The results of an October 2018 VA PTSD screening test were negative for PTSD. July 2020, November 2020, January 2021, May 2021 VA medical problem lists include ADD and bipolar disorder. The Veteran's Social Security Administration (SSA) records show complaints of PTSD, ADD, and ADHD. However, his SSA records are silent regarding any complaints of bipolar disorder. Analysis The Veteran was presumed to be in sound mental condition when he was examined and accepted for active military duty in January 2002. Although examiners have found the Veteran had a preexisting ADHD before he entered active military duty, these opinions are not as a matter of law sufficient to find the Veteran was no in sound mental disorder when he was accepted for military duty in January 2001. Psychiatric, mental or depressive symptoms were clearly not "noted" within the meaning of the law when the Veteran was first examined. When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. Because the Veteran is entitled to a presumption of soundness, the Board must determine whether, under 38 U.S.C.A. § 1111, the presumption of soundness is rebutted by clear and unmistakable evidence. The burden of proof is on VA to rebut the presumption by producing clear and unmistakable evidence that a disability existed prior to service and that it was not aggravated during service. See Wagner v. Principi, 370 F 3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-03 (July 16, 2003). In discussing the characteristics of clear and unmistakable evidence, 'the word 'unmistakable' means that an item cannot be misinterpreted and misunderstood, i.e., it is undebatable. Vanerson v. West, 12 Vet. App. 254, 258 (1999) (citing Webster's New World Dictionary 1461 (3rd Coll. ed. 1988) (other citations omitted). The Veteran's self-reported history as detailed above is not sufficient to constitute clear and unmistakable evidence of the pre-existence of ADHD. This is not criticism of the various physicians who have provided opinions in this matter. The opinions are by clearly trained and well-practiced medical professionals, but they do not rise to the level of being undebatable. The Courts have observed that the standard of proof for rebutting the presumption of soundness is not met by even "cogent and compelling" evidence but only that which may be found undebatable. Cotant v. Principi, 17 Vet. App. 116, 132 (2003), citing Vanerson. There are no medical records or medical opinion evidence generated before January 2002 that may be reviewed in this matter. Instead, the Veteran is the only source of information as to the possible preexistence of ADHD, and he has been evaluated as a "difficult" historian. Other than his general descriptions of difficulty in school and his report to a service treatment provider that he "may" have been treated for ADHD before service, there is no certain information as to specific treatment, diagnoses, or duration of symptoms. This information cannot support a finding that it was "undebatable" the Veteran had a pre-existing ADHD. The question then becomes whether the Veteran's ADHD may be service connected. As noted, he was treated in service for ADHD, and treatment continued at various points after he was discharged. Having carefully considered the Veteran's contentions in light of the evidence and the applicable law, the Board finds that the weight of such evidence is in approximate balance and the claim will be granted on this basis. 38 U.S.C.A § 5107(b) (West 2002); Alemany v. Brown, 9 Vet. App. 518 (1996); Brown v. Brown, 5 Vet. App. 413 (1993) (under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the claimant shall prevail upon the issue). Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Timothy T. Emmart The Board's actions in this case are not precedential. They do not represent general policy or interpretations of general law.