Citation Nr: 21065284 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 14-00 620 DATE: October 25, 2021 ORDER Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and bipolar disorder is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had a diagnosis of PTSD under DSM-V criteria at any time during or approximate to the pendency of the claim. 2. The preponderance of the evidence is against finding that the Veteran's bipolar disorder began during active duty service, or is otherwise related to his service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disability, to include PTSD and bipolar disorder, have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 4.125 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1981 to February 1985 and from March 1986 to September 1993. This case is before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2015, the Veteran submitted a written statement to withdraw his previous request for a Board hearing. In November 2017, the Board denied the Veteran's service connection claim for a psychiatric condition. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In October 2018, the Court granted a Joint Motion for Partial Remand and vacated the Board's November 2017 decision and remanded the matter for readjudication. The Court found that the Board erred by not fulfilling its duty to obtain additional overseas service treatment record (STR) identified by the Veteran and not discussing whether a new examination is warranted because the December 2013 VA medical opinion would have been based on incomplete record. Since then, the Board remanded the matter for additional development in March 2019 and February 2021. Now the matter is returned to the Board. The Veteran is seeking service connection for his psychiatric disability. The Veteran contends that his service, including receiving dental fillings which contained mercury, caused his current disability. He also submitted an EPA article on health effects of exposures to mercury to support his claim. A veteran is entitled to VA disability compensation if there is disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110, 1131 (2012). To establish an entitlement to service connection for a disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for PTSD requires: (1) medical evidence diagnosing the condition 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 link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2020). See also Cohen v. Brown, 10 Vet. App. 128 (1997). Within the legal framework for evaluating claims of service connection for PTSD, the sufficiency of a stressor is a medical determination, while the occurrence of the stressor is a legal determination. Sizemore v. Principi, 18 Vet. App. 264 (2004). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) (2012). For VA to deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App., at 54. The Board notes that the evidence of record does not contain the Veteran's current diagnosis of PTSD under DSM-V criteria. See December 2013, July 2020, and May 2021 Initial PTSD Disability Benefits Questionnaires. Thus, the Board finds that the preponderance of the evidence of record is against finding that the Veteran has had a diagnosis of PTSD under DSM-V criteria at any time during or approximate to the pendency of the claim. However, the evidence of record shows the Veteran's current diagnosis of bipolar disorder under DSM-V criteria. As such, the first Shedden element for service connection for bipolar disorder is met. On the outset, the Board acknowledges the Veteran's contention of receiving in-service mental health treatment while serving in Panama, and getting treatments for excessive drinking in Germany and Turkey. However, the Board notes that the RO has exhausted all efforts to obtain those STR from overseas, and they were determined to be not available. See e.g., February 2021 VA Request for Information (all available records were shipped for scanning). The Board also notes that the RO notified the Veteran on its determination that any additional STRs are not located and all efforts to obtain them were exhausted. See February 2021 Correspondence. As to the in-service incurrence of the current psychiatric disability, the STR of record does not show any complaints, diagnosis, or treatment related to a psychiatric condition. See February 21, 1981 and August 26, 1993 Reports of Medical Examination. However, the STR does show that the Veteran received dental fillings in service. See e.g., November 7, 1986 and January 4, 1991 STRs. Thus, resolving reasonable doubt in the Veteran's favor, the second Shedden element for service connection for bipolar disorder is also met. Nevertheless, three VA examiners opined that the Veteran's bipolar disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. First, the December 2013 examiner pointed out that the Veteran's symptoms of bipolar disorder did not manifest until 10 years after his separation although the Veteran reported having problems with coping in the military. The July 2020 examiner also noted that the Veteran's bipolar symptoms began years after his military discharge. The July 2020 examiner further provided that there is no STR that documents mental health treatments except for the Veteran's own report of receiving treatments in service for stress and drinking alcohol. Moreover, the May 2021 examiner concurred with the previous examiners' findings that there is insufficient evidence to connect the Veteran's bipolar condition or any other psychiatric condition to his time in service. Notably, the May 2021 examiner also opined that it is less likely than not that the Veteran's mercury filled fillings were responsible for any cognitive deficits or mood swings. To support his opinion, the examiner referenced a September 2020 FDA article entitled "Recommendations About the Use of Dental Amalgam in Certain High-Risk Populations: FDA Safety Communication," The examiner cited a portion of the article that provides how the FDA and other public health agencies have conducted numerous reviews of potential health effects of dental amalgam, but these reviews have generally arrived at the conclusion that the weight of the existing evidence does not show that exposure to mercury from dental amalgam leads to adverse health effects in the general population. In June 2021, the examiner provided an addendum opinion and stated that the EPA article that the Veteran submitted was in regard to "high levels" of mercury exposure, which the Veteran did not have from the dental fillings. The examiner also provided that he has consulted with a licensed dentist in providing this opinion and noted that the American Dental Association still approves the use of mercury fillings. The Board finds the medical opinions by the VA examiners to be competent and credible evidence and assigns high probative weight as the examiners rendered their opinions after conducting reviews of the Veteran record, relevant literature, and the evidence submitted by the Veteran in conjunction with examinations of the Veteran. Furthermore, the Board notes that the Veteran is not competent to establish a nexus in this case as to whether his current psychiatric disability is related to his mercury exposure via having dental fillings in service, because this question would require medical expertise to review and interpret his medical history, any necessary tests, and the involved bodily systems. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Based on above, the Board finds that the preponderance of the evidence is against finding that the Veteran's bipolar disorder began during active duty service, or is otherwise related to his service. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply here. Consequently, the Veteran's entitlement to service connection for an acquired psychiatric disability, to include PTSD and bipolar disorder, is not warranted. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 4.125 (2020). MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. 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.