Citation Nr: 21006367 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 16-05 622 DATE: February 4, 2021 ORDER Entitlement to service connection for bipolar disorder is granted. REMANDED Entitlement to a rating in excess of 10 percent for left knee bursitis, status post incision and drainage (herein left knee disability), is remanded. Entitlement to service connection for hypertension is remanded. FINDING OF FACT The Veteran’s bipolar disorder was aggravated by service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for bipolar disorder have been met. 38 U.S.C. § 1131; 38 C.F.R. § 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1976 to October 30, 1980 and from October 31, 1980 to September 1986. The Veteran’s discharge for the first period of active service was honorable and the Veteran’s discharge for the second period of active service was issued under dishonorable conditions for VA purposes and is therefore a bar to any rights or benefits based on this period of service. See July 1987 VA Administrative Decision (character of discharge determination). The Board remanded these claims in September 2018. Service Connection – Bipolar Disorder Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Entitlement to secondary service connection is warranted for disability which is proximately due to or the result of a service-connected disability or for disability that was aggravated (increased in severity) by a service-connected disability. See 38 C.F.R. § 3.310. With respect to aggravation, 38 C.F.R. § 3.310(b) states “[a]ny increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected.” Analysis Upon review, the Board finds that the Veteran’s bipolar disorder was aggravated by service-connected disability and that entitlement to service connection is accordingly warranted. Secondary service connection has been the primary argument during this appeal. See July 2016 Representative Brief (“The Veteran should be awarded service connection for bipolar I disorder secondary to his service connected left knee bursitis and tinnitus”). As referenced in the July 2016 Representative Brief, the Veteran’s is service-connected for a left knee disability and tinnitus. With the July 2016 Representative Brief, also submitted was private medical evidence from Dr. H.H.G., a licensed psychologist. Dr. H.H.G. completed a Mental Disorders Disability Benefits Questionnaire (DBQ) and also provided a separate statement. Dr. H.H.G. noted on the DBQ that the Veteran’s claims file and VA records were reviewed and that a mental status exam was performed. A diagnosis was noted on the DBQ of bipolar disorder. In the separate statement, Dr. H.H.G stated that the Veteran “struggles with his permanent and debilitating left knee bursitis and tinnitus” and that “[t]here is a body of literature detailing the connection between medical issues, like the issues that [the Veteran] struggles and psychiatric disorder, similar to his bipolar disorder. In fact, there is a causal relationship between medical and psychiatric difficulty.” Dr. H.H.G. variously cited to medical evidence in the claims file and to medical journal articles. Dr. H.H.G. additionally stated that “this expert opines the left knee bursitis and tinnitus have aggravated the bipolar disorder” and that “[i]t is the belief of this examiner, based on interview and the [claims file,] that [the Veteran’s] left knee bursitis and tinnitus is more likely than not permanently aggravating his bipolar disorder.” As referenced above, the Board remanded this claim in September 2018. The Board requested “a VA examination to determine the nature and likely etiology of the claimed acquired psychiatric disorder” and specifically requested an opinion as to whether “the Veteran’s current acquired psychiatric disorder [was] caused or aggravated (permanent worsening) by service-connected left knee bursitis or tinnitus.” The requested examination and opinion were afforded and obtained in August 2019 from Dr. K.L., a clinical psychologist. The opinion provided was that “[i]t is less likely as not (less than 50% probability) that the [V]eteran has an acquired psychiatric disorder proximately due to or aggravated (permanent worsening) by his service connected left knee bursitis or tinnitus.” The rationale stated that “[b]ased on a thorough review of the [V]eteran’s VA treatment history, the examiner did not find compelling evidence to suggest that his (the [V]eteran’s) bipolar condition is either secondary to or aggravated beyond its natural course the service connected knee condition and/or tinnitus.” The examiner also stated that “[t]he [V]eteran’s most recent VA treatment records show the [V]eteran’s diagnosis with Bipolar I with mood stability for ‘several years’” and that “the [V]eteran’s current VA treatment records suggest his symptoms are well controlled with medication.” Upon review of the August 2019 VA opinion, the Board finds that it was inadequate as to the issue of secondary service connection and aggravation. In this regard, as noted, the opinion provided stated that “[i]t is less likely as not…that the [V]eteran has an acquired psychiatric disorder…aggravated (permanent worsening) by his service connected left knee bursitis or tinnitus.” The opinion therefore considered aggravation in the secondary service connection context to require permanent worsening. The United States Court of Appeals for Veterans Claims (Court), however, has held that aggravation in the context of secondary service connection does not require permanent worsening. Specifically, the Court stated in Ward v. Wilkie, 31 Vet. App. 233 (2019) that “[t]hough it is settled that ‘aggravation’ for purposes of the presumption of aggravation (section 1153) requires a permanent increase in severity, it does not follow that permanent worsening is a requirement for secondary service connection of a non-service-connected injury or disease under sections 1110 and 1131” and that “the ‘permanent worsening’ standard has no application in cases involving an incremental increase in disability of a non-service-connected condition proximately due to or the result of a service-connected disease or injury.” The Court further stated, with citation to Allen v. Brown, 7 Vet. App. 439, 448 (1995), that secondary service connection was warranted “for any incremental increase in disability—any additional impairment of earning capacity—in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase—regardless of its permanence.” In review, the August 2019 VA opinion as to secondary service connection and aggravation used a standard (aggravation requiring permanent worsening) that the Court in Ward found to be inapplicable in this context. As such, the Board finds that the August 2019 VA opinion was inadequate as to the issue of secondary service connection and aggravation. On the other hand, as outlined, the private July 2016 opinion from Dr. H.H.G. stated that the Veteran’s bipolar disorder was aggravated by service-connected disability. This opinion was provided following review of the claims file and mental status exam of the Veteran and the opinion included a rationale and citation to medical journal articles. The Board finds this opinion to be the most probative evidence of record as to the issue of whether the Veteran’s bipolar disorder was aggravated by service-connected disability and the Board notes that there is no adequate and competent evidence contrary to the conclusion provided by Dr. H.H.G. In sum, the Board finds that the Veteran’s bipolar disorder was aggravated by service-connected disability. As such, the Board concludes that the criteria for entitlement to service connection for bipolar disorder have been met and, to this extent, the Veteran’s claim is granted. 38 U.S.C. § 1131; 38 C.F.R. § 3.310. REASONS FOR REMAND 1. Increased Rating – Left Knee Disability An April 2020 Supplemental Statement of the Case (SSOC) addressed this issue. Under the evidence heading, no VA treatment records were listed. At the time of April 2020 SSOC, VA treatment records of record were dated up to February 2016. Subsequent to the SSOC, additional VA treatment records were associated with the Veteran’s electronic claims file on June 2, 2020. These records were dated from February 2016 to May 2020. The newly obtained VA treatment records are pertinent and relevant to this issue on appeal, as they contain information related to the severity of the Veteran’s service-connected left knee disability. The additional records added to the record were obtained by VA and therefore waiver of consideration of such evidence by the agency of original jurisdiction (AOJ) is not assumed and the Veteran did not otherwise waive AOJ review of such records. See 38 U.S.C. § 7105(e)(1) (2018). This claim was transferred from the AOJ to the Board on June 3, 2020. As such, the VA treatment records associated with the claims file on June 2, 2020 were received by VA prior to transfer of the case to the Board. Remand is therefore required for the issuance of a SSOC pursuant to 38 C.F.R. § 19.31(b)(1) and 19.37(a). While on remand, outstanding VA treatment records from May 2020 must also be obtained. 2. Service Connection – Hypertension As outlined above, the Board has granted entitlement to service connection for bipolar disorder. The Board finds that the issue of secondary service connection with respect to hypertension and bipolar disorder has been reasonably raised by the record. See DeLisio v. Shinseki, 25 Vet. App. 45, 53 (2011) (VA “generally must investigate the reasonably apparent and potential causes of the veteran’s condition and theories of service connection that are reasonably raised by the record or raised by a sympathetic reading of the claimant’s filing”); Bailey v. Wilkie, No. 19-2661, 2021 U.S. App. Vet. Claims LEXIS 13, at *20-22 (Vet. App. Jan. 6, 2021) (finding that entitlement to secondary service connection was reasonably raised by the record). In this regard, a July 2014 VA treatment record stated “transient hypertension (no history of essential hypertension) could be in response to anxiety, associated with catatonia, related to alcohol withdrawal, or combination of these.” The Board notes that the June 2016 Mental Disorders DBQ completed by Dr. H.H.G. noted anxiety as a symptom of the Veteran’s bipolar disorder. Overall, the Board finds that secondary service connection was reasonably raised by the record and that the requirements to obtain a VA opinion as to this issue were met. See 38 C.F.R. § 3.159(c)(4). Remand is therefore required to obtain such opinion, as outlined further in the remand directives below. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records from May 2020. 2. Obtain an opinion from a medical professional that addresses the Veteran’s hypertension claim. If the medical professional determines that additional examination of the Veteran is necessary to provide an adequate opinion, such examination must be scheduled. The medical professional must provide an opinion addressing the following: (a.) Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that hypertension is due to or caused by the Veteran’s service-connected bipolar disorder. (b.) Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that hypertension has been aggravated (i.e., increased in severity) by the Veteran’s service-connected bipolar disorder. The medical professional’s attention is invited to a July 2014 VA treatment record that stated “transient hypertension (no history of essential hypertension) could be in response to anxiety, associated with catatonia, related to alcohol withdrawal, or combination of these.” For all opinions provided, the medical professional must include the underlying reasons for any conclusions reached. (Continued on the next page)   3. Issue an SSOC with respect to the issue of entitlement to a rating in excess of 10 percent for left knee bursitis, status post incision and drainage. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Hoopengardner, 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.