Citation Nr: 21010488 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 16-35 584A DATE: February 25, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, other than posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran served in the United States Army from February 1971 to February 1974 and from August 1974 to September 1976. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2018, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing has been associated with the claims file. After the hearing, the Veteran submitted additional evidence which has been associated with the record for consideration. 38 U.S.C. § 7105(e). This matter was previously before the Board in June 2019, March 2020, and June 2020. This matter has since returned to the Board for further appellate action.   Entitlement to service connection for an acquired psychiatric disorder, other than PTSD, is remanded. The Veteran was afforded VA examinations in November 2019 and July 2020. The Board previously determined the November 2019 examination to be inadequate in its March 2020 remand. In the July 2020 examination, the examiner noted the Veteran had a diagnosis of bipolar II disorder (bipolar disorder). The examiner referenced the November 2019 VA examination with respect to notes made by that examiner about the onset of symptoms prior to the Veteran’s entry into service. Notably, the July 2020 examiner mentioned the Veteran’s statement about having had his first “manic” episode “many years ago” that he described as “just before I went into the service” in 1970. Additionally, the examiner notes the Veteran’s in-service notations of anxiety, as well as his assignment to the funeral detail during service, were less likely than not related to his presently diagnosed bipolar disorder. The examiner opines that the Veteran’s bipolar disorder is less likely than not due to service, stating that “[i]t appears at least as likely as not that this Veteran’s Bipolar II Disorder existed prior to service and was not directly due to service.” The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff’d 749 F.3d 1370 (Fed. Cir. 2014). In this case, there is a question as to whether the Veteran’s bipolar disorder preexisted his military service from February 1971 to February 1974 and from August 1974 to September 1976. The November 2019 and July 2020 VA examiners noted the Veteran reported the onset of symptoms of bipolar disorder in 1970, before he entered his first period of service. Additionally, the July 2020 examiner stated “[i]t appears at least as likely as not that this Veteran’s Bipolar II Disorder existed prior to service and was not directly due to service.” The Veteran’s July 1970 and June 1974 entrance examinations are absent of any notations of defects, infirmities, or disorders. Additionally, the evidence is at least in equipoise as to whether a psychiatric disability manifested during the Veteran’s first period of service as his service treatment records reflect treatment in 1973 for night sweats, nervousness, and shaking with an impression of anxiety provided in September 1973. Therefore, the presumption of soundness attaches. 38 C.F.R. § 3.304(b). Because the presumption of soundness attaches with respect to a psychiatric disability other than PTSD, there must be clear and unmistakable evidence that the disorder both pre-existed service and was not aggravated in service. Id.; see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence is defined as obvious or manifest. 38 C.F.R. § 3.306(b). Clear and unmistakable evidence means that the evidence “‘cannot be misinterpreted and misunderstood, i.e., it is undebatable.’” Quirin v Shinseki, 22 Vet. App. 390, 396 (2009). Although on November 2019 VA examination the Veteran reported experiencing a manic episode prior to his first period of service, during the July 2020 examination he denied mental health symptoms prior to service and indicated he first experienced symptoms in 1972, during his first period of service. As the examiners’ opinions that the Veteran had a mental health disorder that preexisted his first period of service have been based on the Veteran’s statements regarding experiencing symptoms prior to service and these statements are conflicting, the Board finds that there is not clear and unmistakable evidence that a mental health condition preexisted his first period of service. Therefore, the presumption of soundness has not been rebutted. When VA fails to carry its burden as to either preexistence or lack of aggravation, whether and to what extent the Veteran is entitled to compensation for a disability is determined upon the assumption that a disability was incurred during service. It does not necessarily follow, however, that an unrebutted presumption of soundness will lead to service connection for the disease or injury. The Veteran must still demonstrate a current disability and a nexus between the current disability and the injury or disease in service. Horn v. Shinseki, 25 Vet. App. 231, 233 (2012). The July 2020 examiner’s opinion appears to primarily be based on the notion that the Veteran’s bipolar disorder preexisted service, and therefore it could not have been caused by his service. As the Board is finding that there is not clear and unmistakable evidence that the condition preexisted his service, the opinion is based on an inaccurate factual premise. Therefore, the July 2020 examiner’s opinion is inadequate, and an addendum opinion is necessary to properly adjudicate the Veteran’s claim. Accordingly, this matter is REMANDED for the following action: 1. Obtain and associate with the claims file VA treatment records from June 2020 to the present. 2. Obtain an addendum opinion from the July 2020 examiner or other qualified clinician regarding the Veteran’s acquired psychiatric condition, other than PTSD, to include bipolar II disorder. If the reviewing clinician determines the Veteran should be given another examination (including via telehealth if an in-person examination is not possible) to answer the below questions, one should be scheduled. The clinician is asked to opine on the following: Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s bipolar II disorder was caused by or otherwise due to an event or injury during service, to include in-service symptoms and treatment, serving on funeral detail, or any other in-service event? The clinician is advised that the Board has made a finding that the Veteran’s psychiatric disorder did not preexist his first period of service. Thus, the opinion should not be based on a conclusion that the condition preexisted service. The clinician is to review and address the evidence of record, to include the in-service anxiety noted in the Veteran’s STRs. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be given due to limitations of knowledge in the medical community at large and not those of the particular clinician. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Gabrielle Ongies, 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.