Citation Nr: 21061595 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 16-46 396 DATE: October 4, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder diagnosed as bipolar disorder, also claimed as PTSD, is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran has a current bipolar disorder diagnosis related to service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for an acquired psychiatric disorder, diagnosed as bipolar disorder, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1974 to August 1978. This case comes to the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) continued the previous denial of service connection for PTSD. In October 2017, the Veteran appointed Disabled American Veterans as his representative. The Board recognizes this change in representation. In July 2021, the RO issued a rating decision determining that the Veteran was incompetent for purposes of managing VA payments. Although the RO characterized the disability on appeal as PTSD, the Board has recharacterized the issue as an acquired psychiatric disorder, diagnosed as bipolar disorder. The recharacterization more accurately reflects the Veteran's disability and facilitates resolution of the claim. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009). There are unappealed October 2005 and July 2008 rating decisions denying service connection for PTSD. However, the new and material evidence threshold provisions do not apply based on either rating decision. For the October 2005 rating decision, service treatment records (STRs) were not considered. Part of the Veteran's STRs were received in December 2006. Under 38 C.F.R. § 3.156(c), the claim must be considered without requiring new and material evidence. For the July 2008 rating decision, new and material evidence from constructively received September 2008, October 2008, February 2009, and March 2009 VA treatment records vitiate its finality. Lang v. Wilkie, 971 F.3d 1348, 1355 (Fed. Cir. 2020); 38 C.F.R. § 3.156(b). The Veteran requested a Board hearing for this appeal. He had postponed Board hearings scheduled in June 2019, January 2021, and June 2021. The instant decision results in a complete grant of the benefit sought, and no prejudice inures to the Veteran from adjudication based upon the current record without a hearing. See Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). Service connection for an acquired psychiatric disorder diagnosed as bipolar disorder, also claimed as PTSD Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first 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). This claim has also been developed as a PTSD claim. There are supplementary regulations governing PTSD claims imposing additional evidentiary requirements. 38 C.F.R. § 3.304(f). Service connection for PTSD requires: (1) a medical diagnosis of PTSD utilizing, in this case, the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-V) criteria, in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. See 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128, 138 (1997). Service department records showed that the Veteran's military occupational specialty (MOS) was as an Infantryman. He did not have any overseas service. Personnel records from April 1975 confirmed that the Veteran had convalescent leave for approximately three weeks for treatment of a gunshot wound injury. Personnel records from September 1976 provided conflicting narrative concerning the Veteran's military performance. One rater described the Veteran as outstanding. Another rater reported that the Veteran's numerous health and personal problems adversely affected his duty performance. Available service treatment records (STRs) do not include any mental health treatment or refer to psychiatric symptoms. However, STRs are incomplete. (See May 2005 Personnel Information Exchange System (PIES) response; May 2008 Formal Finding of Unavailability). In such a case, the Board has heightened obligations to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, the case law does not lower the legal standard for proving a claim of service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (declining to apply an "adverse presumption" where records have been lost or destroyed while in government control which would have required VA to disprove a claimant's allegation of injury or disease). The first reference to psychiatric problems following service is found in September 1982 correspondence concerning a VA notice of overpayment for educational benefits. The Veteran reported receiving psychiatric inpatient treatment for approximately three weeks in June 1982 under a manic depression diagnosis. May 1988 private medical records showed that the Veteran received inpatient treatment for approximately three weeks under the diagnoses of alcoholism, manic depressive illness, tobacco dependency and sinusitis. It noted that this was the second alcoholism treatment admission. The Veteran had an alcohol abuse history from at least 1986. He had been diagnosed as manic depressive since approximately 1982. He currently took Lithium under psychiatric care. The hospital course noted that the Veteran appeared eager to maintain sobriety. He repeatedly expressed concern about his levels of mania and lithium levels. The physician noted that the Veteran's mood remained stable despite some minor lithium fluctuations. Rather, the Veteran exhibited some angry outbursts suggestive of an antisocial personality. On discharge, the Veteran's condition improved. His prognosis was fair. He was referred for mental health treatment, Alcoholics Anonymous, and a special manic-depressive support group as well as medical consultation for lithium management. September 1997 VA treatment records reported that the Veteran enrolled in the Substance Abuse Treatment Program (SATP) to clear an old driving under the influence (DUI) charge. He reported completing a private substance abuse program in June 1996. He had been sober for 16 months and regularly attended Alcoholics Anonymous meetings. He continued to take lithium for bipolar disorder. June 2004 VA treatment records showed that the Veteran reported feelings of depression and inability to function. Although not currently intoxicated, he had been heavily consuming alcohol. His wife expressed concern about his alcohol consumption and described him as verbally and physically abusive. The Veteran denied suicide ideation but reported a prior suicide attempt with a self-inflicted gunshot wound. The clinician reported the Veteran had numerous issues that required evaluation, including depression, alcohol abuse, status post traumatic brain injury (TBI), and possible PTSD from childhood and military trauma. Later June 2004 VA treatment records confirmed that the Veteran had a psychiatric admission under diagnoses of depression, vague history of bipolar disorder and questionable PTSD. He reported intrusive thoughts about self-harm. The clinician noted a 2002 history of TBI. After the TBI, the Veteran reported having intrusive thoughts about very bad memories of service for which he did not want to elaborate. Mental status examination was notable nervousness and tearfulness. He had memory problems about the past and exhibited poor concentration. Judgment and insight were fair. No psychosis was indicated. June 2005 VA social worker notes reported that the Veteran had significant PTSD type symptoms from his childhood and military stressors. December 2006 VA treatment records showed that the Veteran received mental health treatment for depression and suicidal ideations. He reported a suicide attempt in 1974 where he intended to shoot himself in the chest but moved the weapon and shot himself in the leg. January 2008 VA treatment records showed that the Veteran received inpatient treatment for bipolar disorder, mood disorder secondary to TBI, PTSD and alcohol dependence in remission. The Veteran reported experiencing severe trauma in service as member of the Presidential Guard. He witnessed or discovered several suicides. He also stated that he developed depression after spending his adolescence in foster care. He had previous suicide attempt with a gunshot wound to his thigh. However, the shooting was listed as accidental. He reported a history of childhood abuse from both natural parents and foster parents. The clinician reported that the Veteran actively participated in treatment and made excellent progress during the program and in the application of coping skills. February 2008 VA treatment records again noted that the Veteran experienced significant childhood abuse and military stressors. During service, he reported finding a friend with a plastic bag over his head and linked PTSD symptoms to intrusive thoughts and memories, emotional distress, avoidance, difficulty remembering event details, and guilt. The Veteran also had significant sleep disturbances and difficulty concentrating. The clinician assessed alcohol dependence and PTSD. May 2008 VA treatment records showed that the Veteran began psychiatric treatment at a different VA medical center. He reported having a complex history with bipolar disorder first diagnosed in 1979, TBI from 2002 and PTSD first treated in 2005. He stated that he had a series of mixed mania and depression symptoms since about 1979. He was treated with lithium from 1982 until 2002. He reported series of traumatic events beginning with childhood and including several military stressors. Clinical findings were detailed. The VA psychiatrist diagnosed TBI, bipolar disorder, probable PTSD and alcohol dependence. September 2008 VA treatment records reflected that the Veteran was avoidant about addressing military stressors. He reported having a 1975 suicide attempt with a firearm injury. He indicated a sergeant was very critical of him and he already had low self-esteem from childhood. He also found his friend laying with a bag of his head in apparent suicide. Then, he had another incident he pointed a gun at another soldier and other soldier aimed his gun at him during an argument. He reported having nightmares every week or two and it was sometimes related to military stressors. He was easily reminded of the military stressors when he hears of or sees guns. A subsequent September 2008 VA treatment entry noted possible PTSD and bipolar diagnoses. He reported feeling "drugged" all the time. He had more anger outbursts. His mood was fair. The psychiatrist listed an impression of probable bipolar disorder Type I. It was fairly stable. He commented that the Veteran appeared overmedicated and advised medication adjustments. The psychiatrist also listed an impression of possible PTSD. He stated that although the Veteran's irritability is more likely connected to frontal lobe damage, it may also be connected to PTSD. He noted continuing nightmares. October 2008 VA treatment records noted diagnoses of PTSD and bipolar disorder. The Veteran recounted experiencing several stressors, including distressing circumstances of separating from military service. He reported that during service he was erroneously charged with missing a training and forced into separation only to later learn he had been cleared of the charge. January 2009 VA treatment records noted that the Veteran continued to be both about past stressors. He had difficulty staying on topic. He referred to military stressors in a vague manner and childhood stressors. He expressed feelings of loss and anger due to mistreatment during active service and inability to further pursue a military career. The clinician assessed PTSD and depressive disorder. February 2009 VA treatment records showed that the Veteran continued to ruminate on childhood and military stressors in a disorganized manner. His goal was to avoid a major depressive episode. He again referenced a 1975 suicide intent when he tried to shoot himself in the head. He also referenced his 2002 head injury and accepting the consequences of his limitations due to it. March 2009 VA treatment records referred to additional military stressors including difficulty accepting his separation, having soldier under him get hurt, and being mistreated by superiors because of his knee injury. In November 2011, a private licensed counselor, L.A., issued an evaluation in support of the claim. She detailed the Veteran's social history. He had childhood stressor from living in foster homes. During military service, he was repeatedly demeaned and harassed by his sergeant. He recounted an incident where his sergeant essentially dared him to commit suicide and led to a suicide attempt about two weeks later. However, the incident was not characterized as a suicide attempt. Then, in 1977, he knew several soldiers who committed suicide, and he found the body of a friend who committed suicide. He stated that these military events continued to bother him and negatively impact his functioning. He stated that in 1979 he was diagnosed with bipolar disorder and entered a six month alcohol abuse rehabilitation program with the Salvation Army. It was helpful but he later relapsed. In 2002, he had significant TBI following a 25 foot fall off of a roof. He had VA treatment for PTSD and alcohol dependence on two occasions and received VA counseling for several years. When his most recent VA therapist left, he was referred to the private counselor. Currently, the Veteran lived with his partner who managed the household. He had difficulty with concentration and attention. He was irritability and struggled with isolation and lack of motivation. He had passive suicide ideation and difficulty with overspending. The counselor diagnosed PTSD, bipolar disorder, cognitive disorder and alcohol dependence. She commented that while the Veteran's childhood had a role in his life struggles, his traumatic military experiences exacerbated his negative emotions. He tried to cope with alcohol. The 2002 TBI exacerbated his PTSD symptoms and complicated his life. Although there was several events contributing to the Veteran's PTSD, there was a direct link between these symptoms and military service. In October 2015, the Veteran had an RO hearing. He reported that during service he initially intended to shoot himself in the heart with a pistol, but divine intervention stopped him from doing so, and he shot himself in the leg. He also found another soldier's body after he had committed suicide. He stated that he continued to ruminate over military stressors practically every day for the past 30 years. He believed it was the most significant stressor in his life and wished he could stop thinking about it. He stated that he spent a lot of time thinking about how he wanted to continue military service and had to separate following a right foot injury. In October 2015, Dr. W issued an evaluation and medical opinion in support of the claim. He stated that the Veteran had a long history of emotional difficulty associated with military experiences. The Veteran recounted a suicide attempt in 1975 following harassment by his sergeant. He also found another soldier's body following a suicide and witnessed an incident where a lieutenant kicked another soldier. He had considerable intrusive thoughts from these experiences as well as nightmares and problems maintaining interpersonal relationships. He reported being self-employed for many years to avoid social stressors. He also had a history of a July 2002 TBI and six or seven psychiatric hospitalizations. Dr. W reviewed the November 2011 private evaluation as well as VA treatment records and detailed the Veteran's current psycho-social functioning. He diagnosed PTSD, Bipolar disorder, cognitive disorder and alcohol dependence. He related the Veteran's PTSD symptoms to military stressors. In June 2016, the RO obtained a VA TBI medical opinion from a neurologist. The neurologist reviewed the pertinent medical history. The Veteran sustained a severe TBI in 2002 from a fall. He had two separate neuropsychological tests in 2008 that were consistent. The neurologist reported that the Veteran reached a new baseline in cognitive function about two years after the TBI and these symptoms were stable. She reported that the cognitive deficits were related to the 2002 head injury and not to any mental health condition. In July 2016, the Veteran had a VA PTSD examination with a psychologist. She reported that the Veteran's symptoms did not meet the DSM-V criteria for PTSD. She diagnosed unspecified depressive disorder. She detailed the Veteran's psycho-social history. For military stressors, the Veteran reported having a 1975 suicide attempt with a firearm following verbal abuse by his sergeant and then being in proximity to other service members who committed suicide. The psychologist commented that based upon the Veteran's reported treatment for depression during service, history of childhood trauma, symptoms more consistent with depression and lapse in PTSD diagnosis from VA treatment records until 2004, she did not believe the Veteran met the criteria for service-incurred PTSD. She concluded that while the Veteran cited several military stressors which reportedly caused him to develop PTSD symptoms, the service records were silent for evidence supporting the reported stressors. The psychologist furnished a negative medical opinion for the unspecified depressive disorder. She cited the absence of supporting STRs for a mental health condition and reports of childhood abuse history. However, she qualified that if new evidence concerning in-service psychotherapy for depressive symptoms was received, she would review and potentially revise her opinion. In the September 2016 substantive appeal, the then-representative asserted that there was corroborating supporting evidence from the Army's Causality Information System about a December 1975 self-inflicted suffocation/ strangulation that merited further investigation. In July 2018, the Veteran's VA psychiatrist issued a letter for the Veteran. He reported treating the Veteran at the VA PTSD outpatient clinic since May 2008. He stated that the Veteran had reported a number of traumatic incidents from military and that the Veteran believed these incidents had dramatically affected his life. The military stressors included discovering the body of a good friend who committed suicide, an armed standoff with a senior soldier, assault during a robbery, and standing too close to a live fire explosion. The VA psychiatrist reported that the clinical situation and PTSD had been complicated by other mental health problems, most important being the 2002 TBI causing substantial cognitive deficits. He also noted the Veteran had longstanding nightmares and daytime ruminations about the military stressors. Quantitative testing showed results within the range for PTSD symptoms. In July 2018, a private licensed counselor, L.A., issued another evaluation in support of the claim. She again recount the Veteran's psychosocial and military history with substantially similar reports given in November 2011. She detailed his current mental status. She continued the diagnoses of PTSD, bipolar disorder, cognitive disorder and alcohol dependence and her assessment. In an August 2019 brief, the representative requested that due consideration be given to the Veteran's reported military stressors as he is competent to report them. In a September 2021 letter, S.B. stated that she had known the Veteran since 1978, right after he left the Army. The Veteran was proud of his military service but seemed to unable to overcome his bad military experiences, specifically harassment and suicide events. She recalled that the Veteran frequently had service related nightmares and severe anxiety and hypervigilance. She indicated that the Veteran had his first manic depressive episode in 1980 and the behaviors and symptoms had been present since 1978. She also reported that the Veteran's family members also noticed that the Veteran had an altered personality when he returned from service. For the following reasons, service connection for bipolar disorder is warranted. As an initial matter, the Board observes that manic depression is the former name for bipolar disorder. https://www.mayoclinic.org/diseases-conditions/bipolar-disorder/symptoms-causes/syc-20355955; https://medical-dictionary.thefreedictionary.com/manic+depressive. The Board finds that the references to manic depressive disorder are synonymous with the current bipolar disorder diagnosis. See id. The Veteran dates his bipolar diagnosis to 1979, and the record includes a June 1982 report referring to it as a current diagnosis. In this regard, the Veteran's reports are probative evidence to establish a diagnosis since he is relating information given to him by a treating mental health clinician. Jandreau v. Nicholson, 492 F.3d 1372, 1377, n. 4 (Fed. Cir. 2007). The Veteran's account is supported by the subsequent medical evidence confirming a bipolar disorder diagnosis over the course of many years. (See May 1988 private medical records; VA treatment records from September 1997, June 2004, January 2008; private medical records from November 2011, October 2015, and July 2018). The issue is whether the current bipolar disorder diagnosis is related to military stressors or stressful military experiences. The Veteran asserts that the psychiatric symptoms underlying the current bipolar disorder are linked to military stressors from harassment by a sergeant resulting in a suicide attempt with a firearm and learning of service member suicides. Although STRs are incomplete and the available STRs do not document mental health treatment, there are reports supporting the Veteran's assertion of in-service stressors. April 1975 personnel records confirm a gunshot wound injury requiring significant hospitalization and support the Veteran's account of a suicide attempt by firearm in service. The Board point out that the actual STRs documenting treatment for the gunshot wound are absent, and the Board is obligated to give heightened consideration to the Veteran's reports about the circumstances of this injury. See O'Hare, supra. Next, the comments referring to personal problems found in the September 1976 performance appraisal also support the Veteran's account of stressors or stressful event occurring during military service. These reports are suggestive of continuous symptoms since service for bipolar disorder. There is also medical evidence supporting a relationship to service. Medical reports from L.A. in November 2011 and July 2018, Dr. W in October 2015, and a treating VA psychiatrist in July 2018, link the Veteran's psychiatric symptoms to stressful military experiences. Although there is no direct service record corroborating any of the military stressors, the above clinicians' reports can be construed as evidence supporting the credibility of the Veteran's reports about stressful military experiences linked to a non-PTSD diagnosis. Here, L.A. and Dr. W. also list bipolar disorder as a diagnosis and do not provide any indication to distinguish PTSD symptoms from the bipolar symptoms. The Board may properly infer that L.A. and Dr. W intended to link bipolar disorder to the military stressors. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (when it is not possible to separate the effects of the service-connected and non-service-connected disabilities, the benefit of the doubt doctrine described in 38 C.F.R. § 3.102 dictates that such signs and symptoms be attributed to the service-connected disability or disabilities). The evidence weighing against the claim consists of reports about preexisting adolescence stressors and July 2016 VA medical opinion. As to the adolescence stressors, STRs are incomplete and there is not an enlistment examination of record. For VA compensation purposes, there are specific considerations in determining whether there is a preexisting disability. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). The Veteran is entitled to the presumption of soundness when an entrance evaluation fails to note a disorder. Id. The term "noted" refers to "[o]nly such conditions as are recorded in examination reports." 38 C.F.R. § 3.304(b). However, it is presumed that prior to any period of active duty service that an entrance examination was furnished, and the presumption of soundness applies even in cases where the entrance examination report was lost or missing in VA custody. Quirin v. Shinseki, 22 Vet. App. 390, 396, n.5 (2009). Such is the case here. The presumption of soundness with respect to the Veteran's psychiatric condition at his August 1974 enlistment applies. Id. Although the record undoubtedly shows that the Veteran had childhood and adolescence stressors, there is no report about a formal psychiatric diagnosis or treatment prior to enlistment. Without such evidence, the Board is unable to find that the Veteran had a preexisting psychiatric disorder at enlistment under the onerous clear and unmistakable evidentiary standard. 38 C.F.R. § 3.304(b). The Board has considered the July 2016 VA medical opinion. It appears premised on the requirement that there must be corroborating service records to substantiate the stressor and left open the possibility that receipt of additional records could change the opinion. However, the corroborating service records requirement only applies for certain PTSD claims and does not extend to claims based on non-PTSD psychiatric disorders. 38 C.F.R. § 3.304(f); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). As noted above, there are some service records supporting the Veteran's account that he experienced stressful events in service, in addition to the statements from the clinicians indicating that they found the Veteran's account of experiencing stressful events in service credible. Given this conflicting evidence, limited STRs, and the opinion's qualification about missing STRs, the Board does not find the July 2016 VA medical opinion persuasive to weigh against a relationship to service. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (setting forth factors to be considered in assigning probative weight to an opinion). For the foregoing reasons, the basic service connection elements for a bipolar disorder are met. Service connection for an acquired psychiatric disorder, diagnosed as bipolar disorder, is therefore warranted. The Board notes that the benefit granted herein is service connection for an acquired psychiatric disorder diagnosed as bipolar disorder and not PTSD as appealed by the Veteran. Although the Federal Circuit "recognize[d] that bipolar disorder and PTSD could have different symptoms and it could therefore be improper in some circumstances for VA to treat these separately diagnosed conditions as producing only the same disability," Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009), that is not the situation here with regard to the Veteran's psychiatric diagnoses. See id. (considering the possibility that bipolar disorder and PTSD did not constitute the same disability, but rejecting this argument based on the facts of that case). Rather, the evidence above does not reflect that the Veteran's psychiatric symptoms can be separated or clearly attributed to one or another of his psychiatric disorders, and they must be considered as a single psychiatric disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (when it is not possible to separate the effects of the service-connected and non-service-connected disabilities, the benefit of the doubt doctrine described in 38 C.F.R. § 3.102 dictates that such signs and symptoms be attributed to the service-connected disability or disabilities). Consequently, the Board need not remand any portion of the claim in order to separately address the issues of entitlement to service connection for PTSD. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) ("[a] veteran's interest may be better served by prompt resolution of his claims rather than by further remands to cure procedural errors that, at the end of the day, may be irrelevant to final resolution and may indeed merely delay resolution"). Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. D. Simpson, 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.