Citation Nr: 21077017 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 17-28 963 DATE: December 28, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder to include bipolar disorder is denied. FINDING OF FACT The preponderance of the evidence of record does not reflect that the Veteran has an acquired psychiatric disorder which was incurred in, aggravated by, or otherwise related to his active duty service; a mental disorder superimposed upon intellectual disability is not shown. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder to include bipolar disorder are not met. 38 U.S.C. §§ 1110, 1111, 1153 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1969 to March 1970. The Board of Veterans' Appeals (Board) remanded the claim in February 2021 to the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). As the actions specified in the remand have been completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). Also, in August 2021, the VA Regional Office granted entitlement to service connection for residuals of a concussive injury characterized as loss of balance, effective May 31, 2016, the date of the claim. This represents a full grant of the benefit sought on appeal, and as such, this issue is not before the Board. Service connection for an acquired psychiatric disorder The Veteran contends that his current psychiatric disorder to include bipolar disorder, which clearly and unmistakably preexisted the Veteran's service, was aggravated by his active service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three elements required to establish service connection are: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). A veteran is presumed to be in sound condition upon entrance into service, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment. 38 U.S.C. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). If a disorder is noted, the question is whether it was aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the" preexisting condition. 38 U.S.C. § 1153. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Moreover, "temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered aggravation in service unless the underlying condition, as contrasted to symptoms, is worsened." Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). However, the increase need not be so severe as to warrant compensation. Browder v. Derwinski, 1 Vet. App. 204, 207 (1991). If the disorder was not "noted" at the time of induction, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304; Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-03 (July 16, 2003). Specifically, the Court in Wagner held: When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the" preexisting condition. 38 U.S.C. § 1153. If this burden is met, then the veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness under section 1111, the veteran's claim is one for service connection. See 38 C.F.R. § 3.322. Wagner, 370 F.3d at 1096. Generally, the evidence must show: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The term "disability" for VA compensation purposes refers to the functional impairment of earning capacity rather than the underlying cause of the impairment and it is noted that pain alone may be a functional impairment. See Saunders v. Wilkie, 887 F.3d 1356, 1364-68 (Fed. Cir. 2018). Congenital or developmental defects, including personality disorders, are not diseases or injuries within the meaning of applicable legislation. See 38 C.F.R. §§ 3.303 (c), 4.9, 4.127 (2015); see also O'Bryan v. McDonald, 771 F.3d 1376, 1380-81 (Fed. Cir. 2014) (holding that intellectual developmental and personality disorders are excluded as injuries or diseases for compensation purposes under 38 C.F.R. § 3.303 (c) and noting that a veteran with such disorders is not entitled to the presumption of soundness under 38 U.S.C. § 1111 and 38 C.F.R. § 3.304 (b)). However, a disability resulting from a mental disorder that is superimposed upon a personality disorder may be service connected. 38 C.F.R. § 4.127. The service treatment records (STRs) show that the Veteran was treated for suicidal gestures in February 1970. In January 1970, the Veteran underwent a psychological evaluation for anxiety, depression, and suicidal thoughts. The Veteran's March 1970 separation examination noted that the Veteran was unsuitable for service. Further, his May 1969 Report of Medical History indicated that the Veteran had depression and excessive worry upon entrance into the military. During a March 2011 VA psychiatry consultation, the Veteran stated that he was unfit for military duty based on the military discovering that he had psychiatric treatment prior to enlistment. He was diagnosed with bipolar disorder NOS, Bipolar II disorder, and rapid cycling bipolar disorder. A November 2014 VA behavioral health note indicated that the Veteran reported behavioral health treatment prior to military service, during military service, and after service. In October 2016, a VA examiner diagnosed the Veteran with persistent depressive disorder (dysthymia) and intermittent explosive disorder. The examiner concluded that the Veteran's claimed condition was less likely than not incurred in or caused in-service injury, event, or illness as the Veteran had a clear history of significant preexisting behavioral health problems including marked impulse control difficulties and interpersonal difficulties. He saw a psychiatrist throughout high school per his own report. The Veteran had significant behavioral problems during basic training. He was treated by a military psychologist that obtained his civilian mental health records, which clearly indicated the Veteran's history of behavioral and psychiatric problems existed prior to active service. Subsequently, he was discharged due to his behavioral health issues as he was deemed unsuitable for the military. The examiner indicated that the Veteran has exhibited a long-term pattern of significant adjustment issues in terms of both psychosocial and occupational functioning. These issues had been present since his adolescence, prior to military service. Based on the above, the examiner opined that in no way was the Veteran's chronic psychiatric problem caused by military service. Also, the examiner stated that there is no evidence that his psychiatric problems were in any way aggravated by military service. Lastly, the examiner opined that whether the Veteran joined the military or not, it is at least as likely as not that he would have had his long-term mental health problems, which he had had during high school and throughout his adult life. In January 2017, the Veteran was diagnosed with dysthymic disorder and personality disorder, unspecified based on psychoeducational and cognitive-behavioral interventions. During his September 2020 Board hearing, the Veteran stated that his VA treating physicians believed his psychiatric disabilities were aggravated by his military service. In February 2021, the Board remanded the claim to obtain the Veteran's most recent treatment records and to ascertain whether a diagnosed personality disorder was subject to any superimposed acquired psychiatric disorder in service, resulting in additional current disability. In April 2021, the Veteran underwent a VA examination for mental disorders. His claims file was reviewed. He was diagnosed with bipolar disorder, unspecified. The Veteran was diagnosed with major depressive disorder and psychotic disorder in April 2018, bipolar disorder in 2011, and intermittent explosive disorder and persistent depression in 2016. The Veteran reported hearing voices as a young child. He first had auditory and visual hallucinations, as well as thoughts of suicide in high school. He reported many physical fights during high school. He was placed on medication but stopped taking medication prior to enlistment. The examiner opined that the Veteran's acquired psychiatric disorder which clearly and unmistakably existed prior to service was not aggravated beyond its natural progression. The examiner explained that the Veteran was showing signs of impulsivity, depression, and behavioral problems since childhood, per his childhood psychiatrist. The Veteran began hearing voices as a child. He denied sexual trauma or life-threatening events during military service, so it is not believed that the preexisting condition worsened due to an in-service event. His symptoms persist today as the Veteran refuses to take psychiatric medication. The examiner mistakenly noted that the Veteran had never been diagnosed with a personality disorder when she was responding to a remand directive, therefore an addendum opinion was needed. In August 2021, the examiner reviewed the claims file and opined that the Veteran did not have a current diagnosis of a personality disorder and that the record does not support a diagnosis of personality disorder. The examiner explained that she did not diagnose a personality disorder, nor have many other physicians, notably the last VA examiner in 2016. Some clinicians considered a personality disorder diagnosis; however, did not diagnose such. For example, in January and March 2021, the Veteran was diagnosed with rule out diagnoses of personality disorder, which means it was a possibility but not a certainty. In May 2020, the Veteran underwent two personality inventories which both noted that he exaggerated his responses; therefore, he was not diagnosed with a personality disorder. In January 2017, a clinician noted that the Veteran may have had an unspecified personality disorder, but was unable to verify which of a dozen personality disorders he had. The examiner noted that the January 2017 notation of personality disorder unspecified is insufficient to establish a longstanding pattern of toxic interpersonal patterns which is required for a personality disorder diagnosis. Further, personality disorders are always an artifact of childhood trauma that starts prior to age 18. Traumas later in life cause preexisting personality disorders to exacerbate and cannot be the cause of the personality disorder. The examiner's 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). The most competent and credible evidence of record shows that there is clear and unmistakable evidence that the Veteran's psychiatric disorder preexisted service and was not aggravated by service. As such, the presumption of soundness is rebutted. As noted above, the Veteran indicated that he had depression and excessive worry on his May 1969 Report of Medical History. Also, the Veteran reported treatment for psychiatric issues prior to military service. Notably, he reported hearing voices as a young child. He first had auditory and visual hallucinations, as well as thoughts of suicide in high school. He was placed on medication but stopped taking medication prior to enlistment. The Board finds that this evidence along with the evidence outlined above overwhelmingly indicates that the Veteran had a preexisting psychiatric disorder. Regarding the second prong, the government may show a lack of aggravation by establishing by clear and unmistakable evidence "that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the preexisting condition. Wagner, 370 F.3d at 1096 (quoting 38 U.S.C. § 1153). This burden of proof must be met by affirmative evidence demonstrating that there was no aggravation. The burden is not met by finding "that the record contains insufficient evidence of aggravation." Horn v. Shinseki, 25 Vet. App. 231, 236-37 (2012). In April 2021, a VA examiner opined that the Veteran's acquired psychiatric disorder which clearly and unmistakably existed prior to service was not aggravated beyond its natural progression. The examiner explained that the Veteran was showing signs of impulsivity, depression, and behavioral problems since childhood, per his childhood psychiatrist. The Veteran began hearing voices as a child. He denied sexual trauma or life-threatening events during military service, so it is not believed that the preexisting condition worsened due to an in-service event. His symptoms persist today as the Veteran refuses to take psychiatric medication. Also, an October 2016 VA examiner stated that there is no evidence that his psychiatric problems were in anyway aggravated by military service. The examiner explained that the Veteran exhibited a long-term pattern of significant adjustment issues in terms of both psychosocial and occupational functioning. These issues had been present since his adolescence, prior to military service. Correspondingly, the examiner opined that whether the Veteran joined the military or not, it is at least as likely as not that he would have had his long-term mental health problems, which he had had during high school and throughout his adult life. The Board finds that this evidence establishes that the Veteran's preexisting acquired psychiatric disorder did not chronically worsen or increase in severity during his period of service. See 38 U.S.C. § 1111; Wagner v. Principi, 370 F.3d at 1094-96. As such, the Board also necessarily finds that the provisions of 38 U.S.C. § 1153 are not met in this case. Furthermore, the Board finds that the record shows that the Veteran does not have a personality disorder. As explained above, the January 2017 notation of unspecified personality disorder was found to be insufficient to establish a longstanding pattern of toxic interpersonal patterns which is required for a personality disorder diagnosis. Specifically, the August 2021 opinion indicated that the other psychiatrists, including the October 2016 VA examiner and March 2021 clinician, did not find that the Veteran met the criteria for a personality disorder diagnosis. As such, the Veteran's other psychiatric diagnoses cannot be found to have been superimposed on a personality disorder diagnosis. See 38 C.F.R. §§ 3.303 (c), 4.9, 4.127. The Veteran believes his depression and bipolar disorder are related to an in-service injury, event, or disease, or was aggravated by his active service. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of pathology. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the April 2021 and August 2021 examiner. The most probative evidence establishes that the Veteran's psychiatric condition is not related to any qualifying period of service on the basis of service incurrence or service aggravation. Service connection is not warranted. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The preponderance is against the Veteran's claim, and it must be denied. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Costello, 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.