Citation Nr: 21064499 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 12-31 679 DATE: October 20, 2021 ORDER Entitlement to service connection for treatment purposes only for an acquired psychiatric disorder on a presumptive basis under 38 U.S.C. § 1702 is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. FINDINGS OF FACT 1. The Veteran had active service from September 2009 to March 2010, during the Persian Gulf War. 2. The Veteran did not develop an active psychosis or mental illness within the two years following his separation from active wartime service. CONCLUSION OF LAW The criteria for eligibility for Chapter 17 medical services under 38 U.S.C. § 1702 for a mental illness are not met. 38 U.S.C. §§ 1702, 5107; 38 C.F.R. §§ 3.2, 17.109. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 2009 to March 2010. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented testimony at a May 2015 Board hearing held before a Veterans Law Judge who is no longer with the Board. A transcript is of record. The Veteran was given the opportunity to request a new hearing, which he declined. These matters were previously remanded by the Board in July 2015 and May 2020. They have since been returned to the Board for appellate review. The issues of entitlement to service connection for left and right knee disabilities were also subject to the July 2015 and May 2020 Board remands. Service connection for these disabilities was subsequently granted in a November 2020 rating decision. As entitlement to the benefit sought has been granted, those issues are no longer on appeal before the Board. Entitlement to service connection for treatment purposes only for an acquired psychiatric disorder on a presumptive basis under 38 U.S.C. § 1702 is denied. The Veteran's active service between September 2009 and March 2010 renders him a veteran of the Persian Gulf War. See 38 C.F.R. § 3.2. Under 38 U.S.C. § 1702(a), any veteran of World War II, the Korean conflict, the Vietnam era, or the Persian Gulf War who develops an active psychosis (1) within two years after discharge or release from the active military, naval, or air service, and (2) before the following date associated with the war or conflict in which he served: July 26, 1949, in the case of a Veteran of World War II; February 1, 1957, in the case of a veteran of the Korean conflict; May 8, 1977, in the case of a Vietnam era veteran; or before the end of the two-year period beginning on the last day of the Persian Gulf War, in the case of a veteran of the Persian Gulf War, shall be deemed to have incurred such disability in the active military, naval, or air service, for the purposes of eligibility for Chapter 17 benefits. 38 U.S.C. § 1702. In addition, under 38 U.S.C. § 1702(b), any veteran of the Persian Gulf War who develops an active mental illness (other than psychosis) shall be deemed to have incurred such disability in the active military, naval or air service if the disability develops (1) within two years after discharge or release from active service during the Persian Gulf War, and (2) before the end of the two-year period beginning on the last day of the Persian Gulf War. 38 U.S.C. § 1702(c) specifies that there is no minimum length of active-duty service required for presumptive eligibility for mental illness under this section. The Veteran has been diagnosed with other specified bipolar disorder. The evidence of record, however, demonstrates that the active mental illness first developed prior to service, rather than during the two-year period following the Veteran's separation from active wartime service. Although the Veteran stated in a June 2009 medical prescreen of a medical history report that he had not seen a psychiatrist or psychologist for any reason and had no psychiatric abnormalities noted on his August 2009 enlistment examination report, he reported a history of problems with depression over the prior 2 years to a psychiatric nurse practitioner during service in January 2010. At that appointment, he further reported that he had been treated for depression six months prior to enlistment for three months and had been prescribed Celexa, but that he had stopped using the medication due to cost. He also reported presenting to a walk-in clinic with suicidal ideation at age 21, before service, and staying as an inpatient for 3 days on a voluntary status. In January 2010, he was assessed with attention-deficit hyperactivity disorder and depression. At the November 2010 VA examination, the Veteran again reported that he had depression and bipolar disease during service with an onset of June 2009, prior to his September 2009 entrance. Although the Veteran later stated at a November 2020 VA examination, after filing his claim for service connection for an acquired psychiatric disorder, that he never had mental health or psychiatric treatment prior to his service, his documented reports to the contrary in his service treatment records which include specific details of his treatment concerning the type of medication prescribed are found to render his later assertion not credible. When considering the evidence in total, the Board finds that the Veteran's acquired psychiatric disorder clearly and unmistakably preexisted service, and did not develop within the two year period following his separation from active service. Accordingly, presumptive eligibility for Chapter 17 medical services under 38 U.S.C. § 1702 for bipolar disorder is not warranted, and the claim must be denied. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder is remanded. The Veteran was provided with a VA examination pertaining to this claim in November 2020. On the examination report, the examiner indicated that the Veteran had a diagnosis of other specified bipolar and related disorder and opined that it clearly and unmistakably existed prior to service and clearly and unmistakably was not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner noted that the Veteran reported symptoms similar to those pre-existing service, but with additional symptoms occurring as a natural progression of the disorder. The examining psychologist then stated that the Veteran's current condition and diagnosed mental health condition is similar, and in some respects, improved as a result of treatment, over where it was at the time of the November 2010 examination. These seemingly contradictory statements require clarification. It is also unclear why potential improvement with treatment post-service would preclude the possibility of aggravation of the condition during service. Further, the Veteran has asserted that his psychiatric disorder is secondary to his service-connected orthopedic disabilities. While the examining psychologist checked boxes indicating that the Veteran's claimed condition was not at least as likely as not proximately caused by or aggravated beyond its natural progression by service-connected condition, the rationale provided pertains to the question of causation or aggravation in service, as opposed to whether the Veteran's service-connected knee disabilities and symptoms caused or aggravated his psychiatric disorder. On remand an addendum opinion with adequate rationale should be sought. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate). The matter is REMANDED for the following action: Refer the file to the psychologist who provided the November 2020 medical opinion, or to another suitably qualified medical professional, for an addendum opinion pertaining to the Veteran's claimed psychiatric disorder. If another examination is found needed, such should be scheduled and the Veteran provided with sufficient notice. The clinician must address each of the following: a. What is the likelihood that the Veteran's psychiatric disorder, which preexisted service, was aggravated beyond its natural progression during service? Of the following, which is the best characterization: i. Nearly a medical certainty that the disability was not aggravated in service: that the psychiatric symptoms noted in service were in line with the natural progression of the disability and/or represented temporary flare-ups without worsening of the underlying disability; ii. Less likely than not that the underlying disability worsened beyond its natural progression during service; iii. More likely than not that the underlying disability worsened beyond its natural progression during service; or, iv. Nearly a medical certainty that the underlying disability worsened beyond its natural progression during service. b. Is it at least as likely as not that the Veteran's current psychiatric disorder is proximately caused or aggravated beyond its natural progression by his service-connected knee disabilities? (Continued on the next page) (Aggravation, for this particular inquiry only, does not require a permanent worsening; i.e. Has there has been an increase/worsening of symptoms at any point during the relevant appeal period, from July 2010 to Present, due to service-connected disabilities?) A clear rationale must be provided for any conclusion or opinion stated. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Solomon, 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.