Citation Nr: 21012317 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 15-40 290 DATE: March 4, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include a mood disorder, bipolar disorder, and adjustment disorder with anxiety, is denied. FINDING OF FACT The Veteran’s psychiatric disorder was not incurred in or caused by his time in service. CONCLUSION OF LAW The criteria for service connection for a psychiatric disorder, to include a mood disorder, bipolar disorder, and adjustment disorder with anxiety have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1967 to June 1970. The Veteran died in December 2017 and the appellant is his widow. The appellant filed and was granted a request for substitution. See January 2018 VA Form 21-534; May 2019 Notification Letter. A claim for service connection for a mental disability may encompass claims for service connection of any mental disability that may reasonably be encompassed by several factors, including the veteran’s description of the claim, the symptoms the veteran describes and the information the veteran submits or that the Secretary obtains in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Accordingly, the Board of Veterans’ Appeals (Board) has taken an expansive view of the claim for service connection for a mood disorder, bipolar disorder, and adjustment disorder with anxiety pursuant to Clemons and re-characterized it as shown on the cover page of this decision. This matter previously before the Board in June 2018, June 2019, and August 2020 and was remanded for further development, which has been completed. This is the only issue on appeal. The appellant contends that the Veteran’s acquired psychiatric disorder was due to his time in service more than 50 years ago, to include as due to exposure to herbicide agents. Service connection may be granted for a 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-element test for service connection requires evidence of: (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). The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). As to herbicide exposure, VA laws and regulations provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam war (i.e., January 9, 1962, to May 7, 1975), shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116 (a)(3); 38 C.F.R. § 3.307 (a)(6)(iii). The last date on which such a Veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he served in the Republic of Vietnam during the Vietnam war period. 38 C.F.R. § 3.307. For these Vietnam Veterans, diseases associated with exposure to certain herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309. For purposes of applying the herbicide presumption, “service in Vietnam” includes service in the waters offshore or service in other locations if the conditions of service involved duty or visitation to Vietnam from January 9, 1962, to May 7, 1975. 38 U.S.C. § 1116 (a)(3); 38 C.F.R. §§ 3.307 (a)(6)(iii); 3.313(a). While the Department of Defense (DoD) has conceded some use of herbicides outside the Republic of Vietnam, neither DoD, nor VA, have conceded that herbicides were ever used in Japan, particularly at Okinawa where the Veteran was located. Furthermore, psychiatric disorders are not included under the list of diseases associated with exposure to herbicide agents. See 38 C.F.R. § 3.309 (e). The availability of presumptive service connection for a disability based on herbicide exposure does not preclude a Veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. 38 U.S.C. § 5107 (a). VA shall consider all information and medical and lay evidence of record. Where 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The question for the Board is whether the Veteran had a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran had a current diagnosis of an acquired psychiatric disorder, the preponderance of the evidence weighs against finding that the Veteran’s psychiatric disorder began during service or is otherwise related to an in-service injury, event, or disease. VA treatment records show the Veteran was not diagnosed with an acquired psychiatric disorder until 1999, decades after his separation from service. See, e.g., September 2020 VA Examination. While the Veteran is competent to report having experienced symptoms of nervousness, stress, and anxiety since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of an acquired psychiatric disorder. The issue is medically complex, as it requires interpretation of diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Further, the September 2020 VA examiner opined that the Veteran’s acquired psychiatric disorder is not at least as likely as not related to an in-service injury, event, or disease, including sexual trauma. The rationale was that the Veteran did not endorse or seek treatment for any mental health issues during his service. Furthermore, Service treatment records (STRs) were unremarkable for “markers” suggesting possible sexual trauma or military sexual trauma. The Veteran did not seek or pursue any mental health services within 12 months of his discharge from military service. Moreover, the Veteran did not meet the diagnostic criteria for posttraumatic stress disorder (PTSD) with delayed expression per the DSM. Additionally, there is no consistent report of ongoing mental health problems since military service, and therefore no nexus between the Veteran’s military service and current symptoms could be found. See September 2020 VA Examination. The September 2020 VA examiner also opined that it is less likely than not that the Veteran could be traumatized by hearing bombings in Vietnam while he was stationed in Okinawa because of the 1,500 mile plus distance between the two locations. The examiner also noted that the Veteran’s stressors appear to be in relation to his medical and mental condition, i.e., multiple myeloma, racing thoughts, dwelling on negative things, and worried about the future. See id. After considering the findings in their totality, the examiner opined that the reported stressors do not meet the stressor criterion per the DSM IV or DSM V. The diagnoses of depressive disorder and anxiety is subsumed under bipolar disorder with mixed features, which per the available evidence, had onset on or about 1999, decades after his discharge from military service. Therefore, it is less likely than not that there is a nexus between the Veteran’s current symptoms or diagnoses and his military service. 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). As for conflicting medical evidence, the records reveal that the Veteran experienced various psychosocial stressors while in service, to include his wife’s mental health issues, loss of a loved one while in service, and having to perform various military exercises that the Veteran perceived as scary or uncomfortable. See September 2020 VA Examination. However, the Veteran did not meet the stressor criterion per the DSM IV or DSM V. The conflicting evidence in terms of being on the Agent Orange registry and a possible diagnosis of PTSD is based on the Veteran reporting the he served in Vietnam and was exposed to Agent Orange. See id. Thus, the preponderance of the evidence supports a diagnosis of bipolar disorder with anxious distress, which is less likely then not incurred in or caused by the Veteran’s military service, as there is no consistent or continuous mental health treatment until decades later. Furthermore, based on the reasons and bases discussed, as the preponderance of the evidence is against the claim, and the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102 (2017); Gilbert, 1 Vet. App. at 53. Accordingly, service connection is not warranted for an acquired psychiatric disorder. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laura Cochran, 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.