Citation Nr: 21015164 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 13-18 559A DATE: March 16, 2021 ORDER Service connection for an acquired psychiatric disorder, to include paranoid schizophrenia and bipolar disorder, is denied. FINDING OF FACT 1. The presumption of soundness at entry into service is rebutted by clear and unmistakable evidence that the Veteran’s acquired psychiatric disorder, to include paranoid schizophrenia and bipolar disorder, preexisted and was not aggravated by his term of active service from August 1968 to August 1971. CONCLUSION OF LAW 1. The criteria for service connection for an acquired psychiatric disorder, to include paranoid schizophrenia and bipolar disorder, have not been met. 38 U.S.C. §§ 1110, 1111, 1131, 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 August 1968 to August 1971, including in the Republic of Korea. As noted in the September 2020 Board remand, the Veteran has a separate period of service from June 1978 to March 1979. The Veteran was discharged from that term of service under other than honorable conditions, and therefore, consideration of service connection for disability arising during that period is barred by law. See August 2016 Administrative Decision. This case is before the Board of Veterans’ Appeals (Board) on appeal from a March 2012 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that rating decision, the RO denied entitlement to service connection or depression and anxiety disorder. The Veteran timely appealed that rating decision, and in June 2018, May 2019, and September 2020 decisions, the Board remanded the case for further development and adjudicative action. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military, naval or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). 1. Entitlement to service connection for an acquired psychiatric disorder, to include paranoid schizophrenia and bipolar disorder The Veteran contends that he has an acquired psychiatric disorder, to include paranoid schizophrenia and bipolar disorder (variously referred to as psychiatric disorder herein), that is related to service. Specifically, he asserts that his psychiatric disorder was aggravated by service in Korea, when he was “constantly [in] fear for my life,” and reported seeing a Korean child shot to death during approximately the winter of 1969. See March 2012 NOD; see also July 2013 VA Form 9 (stating his belief that his mental health disorder was aggravated by seeing “children killed while picking brass” shell casings from 105mm Howitzer artillery). Prior to service, in November 1966, the Veteran was admitted to a state psychiatric hospital after he was arrested for frightening small children with a toy pistol. When he was arrested, he told bizarre stories and behaved abnormally. He was diagnosed with personality trait disturbance and emotionally unstable personality, but was noted to be legally competent. He was discharged in January 1967. Shortly after discharge from the hospital, he was admitted to a psychiatric hospital in Manteno, Illinois for approximately one month in early 1967. See August 1977 private history and physical examination record. A May 1968 pre-induction examination shows no significant medical history. An August 1971 separation examination shows that the Veteran denied depression or excessive worry, and no psychiatric conditions were noted. Service Treatment Records (STRs) are silent for any complaints of, treatment for, or diagnosis of a psychiatric disorder or mental symptoms of any kind. In an August 1977 application for compensation, the Veteran reported psychiatric treatment at Anna State Hospital in 1966, and at Manteno psychiatric facility in 1967. He reported that he was treated in October 1968, 1970, and 1971 during service. He reported that he was then treated beginning in May 1977 for psychiatry. At an August 1977 private history and physical examination, the Veteran reported no problems of a psychological nature in service. He reported the 1966 and 1967 psychiatric admissions, and reported that while he was in the military, he had no problems of a psychiatric nature. He was diagnosed as schizophrenic, paranoid type; the treating physician ruled out manic depressive disorder. The Veteran was admitted in September 1977 to a state psychiatric facility, with delusional behavior, hallucinations, and having destroyed furniture at his mother’s home. He told the treating physician that he was James Bond, and believed that he had come to the hospital in a time capsule from France. Moods swings were from irrational to rational. He was admitted in a disturbed state and immediately transferred to the psychiatric ward. He was argumentative, disruptive, and physically abusive. This was his third admission to the facility. See private discharge summary dated October 1977. He was discharged in November 1977, with a final diagnosis of schizophrenia, paranoid type with grandiose ideation and emotional instability. A November 1977 VA hospital summary admission note shows that the Veteran had another psychiatric hospitalization beginning in mid-November 1977. He reported that he began to experience psychiatric symptoms in July of 1977, when he quit a job that he had held for six years. He was again noted as irritable and argumentative, as well as “delusional,” and admitted to auditory hallucinations. He was prescribed several medications in early November 1977 and was supervised until his discharge in late-December 1977. In June 1986, the Veteran was admitted with for psychiatric care. he was severely anxious and in a “somewhat psychotic state.” he reported stress at work. The attending physician noted that the Veteran’s history was noncontributory other than a “questionable” history of psychotic episode eight years prior. In July 1986, the Veteran was referred by a private doctor for psychiatric evaluation and recommendation. He underwent a mental status examination which revealed sad mood and depressed affect. He was diagnosed with bipolar depression. In September 1987, the Veteran was admitted to a private psychiatric care unit for hearing voices. Also in September 1987, he was admitted to Anna State hospital after being arrested for speeding “with the excuse of being in pursuit of an escaped inmate.” He made murder threats against his personal physician and girlfriend was his emotional state varied between calm and highly agitated. He was diagnosed with bipolar affective disorder, manic with psychotic behavior. An early December 2000 private history and physical note shows that the Veteran was referred for admission for acute manic psychosis. He was noted as suffering from bipolar illness, and numerous phone calls had been received from his family physician to his place of work to treat manic episodes. Another December 2000 private discharge summary shows that the Veteran was hospitalized with manic behavior, very agitated, delusional, and paranoid. He thought that he was working for the CIA and for the correctional system. He had a “very manic episode” and had previously been seen several times as an outpatient. He was noted as paranoid. He was diagnosed with bipolar illness, manic with psychotic features; a personality disorder non-specified; and a history of hypothyroidism, hypertension, and psychosocial stressors were noted The Veteran was seen consistently at VA mental health facilities from 2001 – 2015 for treatment of his diagnosed bipolar disorder, including medication and symptom management. See generally, VA treatment records dated January 2000 through January 2015. The Veteran had a VA mental disorders examination in September 2011. The examiner noted his diagnosis of bipolar disorder, conducted an in-person interview, and reviewed the claims file. The examiner discussed the Veteran’s pre-service history, but did not acknowledge the pre-service psychiatric admissions. Additionally, the Veteran specifically denied any pre-military personal history of psychiatric problems or treatment. The Veteran reported that after his period of service from 1978-1979, he became depressed because of the state of discharge. See September 2011 VA examination report Disability Benefits Questionnaire (DBQ), p. 8. He reported that he was a “mole” for the federal government during service, and denied any mental health services during service. The examiner opined that it was less likely than not, based on the medical records, clinical interview, and medical literature, that the bipolar disorder was due to or aggravated by the Veteran’s service time. However, the opinion appears directed towards the second term of service from June 1978 to March 1979; specifically, because she noted that the Veteran’s court-martial after going absent without leave (AWOL) during that term was not related to the current bipolar disorder. The Veteran had another VA examination in February 2019. The examiner noted that while the Veteran meets the criteria for Bipolar I disorder, there was “no evidence this diagnosis is related to his time in service.” Thus, “there is no nexus between military service and [bipolar disorder],” and therefore the disorder was less likely than not incurred in or caused by service. The Veteran reported that he previously experienced symptoms of both mania and depression, but reported a currently stable mood without significant emotional distress. The examiner reviewed the Veteran’s e-folder, and conducted an in-person interview. The examiner discussed the Veteran’s relevant pre-service social/marital/family history, but there is no indication that the examiner reviewed any of the evidence showing the Veteran’s pre-service psychiatric admissions or episodes. Moreover, the examiner specifically acknowledged the Veteran’s denial of any pre-service mental health symptoms. The Veteran specifically denied “any mental health symptoms during the time of service.” The examiner also noted the Veteran’s report of a “history of mental health treatment including hospitalizations that apparently began in [the] early 2000’s.” In January 2021, a VA examiner conducted a records review for the purpose of clarifying whether the bipolar disorder was caused by, incurred in, or aggravated by service. The examiner reviewed the Veteran’s e-folder, and listed the relevant evidence including: (i) the Veteran’s terms of service from August 1968 to August 1971, and from June 1978 to March 1979; (ii) the November 1966 and June 1967 psychiatric hospital admission notes; (iii) the September 1977 psychiatric admission note with diagnosis of schizophrenia, paranoid type; (iv) a November 1977 admission note to with diagnosis of schizophrenia, paranoid type; (v) October 1987 discharge summary with diagnosis of bipolar affective disorder, manic with psychotic behavior; (vi) the September 2011 and February 2019 VA examination report DBQs; and (vii) the September 2020 Board Remand. The January 2021 examiner opined that the bipolar disorder was less likely than not incurred in or caused by service. In support of the opinion, the examiner cited “no evidence that the Veteran’s mental disorder (currently diagnosed as bipolar disorder, previously diagnosed as schizophrenia) was caused by military service.” The examiner cited the entrance and separation examinations from May 1968 and August 1971 showing no mental health complaints, but also acknowledged the pre-service records showing psychiatric admission in 1966 and 1967. The examiner then cited the June 1978 entrance examination as silent for mental health treatment, but a January 1979 separation examination showing “marked ‘depression or excessive worry.’” The examiner found it “clear that he had mental health treatment prior to service for symptoms similar to those he has currently. As such, his bipolar disorder did not start in service.” Concerning aggravation, the examiner found no “evidence showing a permanent aggravation of mental disorder symptoms due to an event or circumstance in service.” The examiner elaborated to express some level of surprise at how the Veteran’s pre-service symptoms were severe enough to require hospitalization, yet the Veteran made it through two years of service without behavioral problems: she found it “unclear how an individual with symptoms severe enough to warrant two psychiatric hospitalizations for psychosis prior to service was able to enlist and remain in service for two years without any evidence in the record of problematic behavior,” and “even more unclear how he was able to re-enlist given that he was also hospitalized between enlistments.” The examiner determined that the “Veteran’s symptoms of psychosis, which in his case and as is typical for his diagnoses, are chronic, with onset in the late teens or early 20s.” This finding is consistent with her finding of an onset prior to the term of service from August 1968 to August 1971. The nature of the symptoms was noted as “normally persist[ing] over the individual’s lifetime, often with periods of decompensation and/or improvement depending upon a host of factors and treatment.” Then, the examiner determined that “[g]iven the available evidence, it does not appear that his mental disorder symptoms were permanently aggravated by military service.” See January 2021 VA Medical Opinion DBQ, p. 3. Turning to whether the elements of service connection are met, while the Veteran specifically contends that the bipolar disorder was aggravated by service, the Board also considers service connection on a direct basis. In this case, the record contains three medical opinions relevant to whether the psychiatric disorder was caused by or incurred in service: the September 2011, February 2019, and January 2021 VA examiners’ opinions. However, for the following reasons, the first two opinions carry no probative value. First, the September 2011 VA examiner addressed only the June 1978 to March 1979 period of service. The Veteran is statutorily barred from entitlement to service connection for a disability caused by or incurred in the June 1978 to March 1979 term of service, and the opinion does not address his prior term of service; thus, the opinion carries no probative weight concerning whether the bipolar disorder was caused by, or incurred in, the August 1968 to August 1971 term of service. Second, based on the DBQ prepared and the opinion provided, the February 2019 examiner appears to have ignored, or not reviewed, any medical records outside of the entrance and separation examination reports. Simply put, even a brief review of the medical records would show that the Veteran was admitted for psychotic episodes twice prior to entering service, as well as on numerous occasions between 1977 and 2000. Moreover, the record contains thousands of pages of records showing the Veteran’s various appointments and visits for medication management, outpatient therapy, and other, psychiatric-related purposes; instead, the examiner appears to have based the opinion on the Veteran’s own reports concerning the history of the disorder. While the Veteran is certainly capable to report his observations concerning the onset and symptomatology, the medical treatment records provide a much more thorough picture of the bipolar disorder history than do the Veteran’s scattered descriptions of his treatment over the last fifty years. Lastly, the examiner provided no rationale in support of the opinion. For those reasons, the February 2019 examiner’s opinion also carries no probative value towards resolving the issue of whether the bipolar disorder was caused by, incurred in, or aggravated by the August 1968 to August 1971 term of service. On the other hand, the January 2021 VA examiner opined that the psychiatric disorder is less likely than not caused by or incurred in service. The opinion is clearly worded and was formed after consulting the STRs and subsequent treatment records. Then, the examiner applied her medical expertise concerning the nature and pathology of the Veteran’s current psychiatric disorder, and, with consideration for the pre-service medical records, STRs, post-service treatment records, and the reports from the prior VA examinations, determined that the disorder pre-existed service. The examiner’s conclusion reflects that the psychiatric disorder did not begin, and was not caused by, his period of active service from August 1968 to August 1971. The opinion is founded upon an accurate factual basis, and the record is silent as to evidence which disputes the finding. For those reasons, the opinion carries significant probative value concerning whether the disability was caused or incurred in service. As so, the weight of the probative evidence is against finding that service connection for an acquired psychiatric disorder, to include paranoid schizophrenia and bipolar disorder, is warranted on a direct basis; specifically, because the disability did not have an in-service onset and was not otherwise caused by service. There is no reasonable doubt to resolve in the Veteran’s favor, and service connection on a direct basis is denied. However, service connection may also be warranted if the Veteran’s acquired psychiatric disorder, which pre-existed service, was aggravated by service. Determining whether the pre-existing psychiatric disorder was aggravated by service requires a separate analysis from a “normal,” direct, service connection claim. In all cases, a Veteran is presumed to have been in sound health upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § §§ 1111; 38 C.F.R. § § 3.304 (b). In other words, “[w]hen no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry.” Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Significantly, however, “[i]n order to invoke the presumption of soundness, a claimant must show that he or she suffered from a disease or injury while in service.” Horn v. Shinseki, 25 Vet. App. 231, 236 (2012); see also Holton v. Shinseki, 557 F.3d 1362, 1367 (Fed. Cir. 2009) (explaining that the application of the presumption of sound condition does not “relieve the veteran of the burden of showing that the veteran suffered from a disease or injury while in service”). If the presumption of soundness applies, the burden then shifts to “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.” Wagner, 370 F.3d at 1096. Accordingly, once the presumption of soundness applies, the burden of proof remains with the government on both the preexistence and the aggravation prong; it never shifts back to the claimant. This burden must be met by “affirmative evidence” demonstrating that there was no aggravation. See id. Clear and unmistakable evidence means evidence that “cannot be misinterpreted and misunderstood, i.e., it is undebatable.” Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009) (quoting Vanerson v. West, 12 Vet. App. 254, 258-59 (1999)). Whether evidence of preexistence meets the clear and unmistakable standard is ultimately a legal question to be answered by the Board. 38 C.F.R. § 3.100 (a) (delegating the Secretary’s authority “to make findings and decisions...as to the entitlement of claimants to benefits” to, inter alia, VA “adjudicative personnel”). Here, the Veteran’s August 1968 entrance examination report is silent as to any indication of a pre-existing psychiatric disorder. Accordingly, the burden shifts to the government to prove by clear and unmistakable evidence that the psychiatric disorder, now diagnosed as bipolar disorder, both (i) pre-existed service and (ii) was not aggravated by service. Concerning the first prong of the aggravation analysis, the January 2021 examiner’s opinion is particularly relevant. Specifically, the examiner found that the disorder pre-existed service. As set out above, the opinion was formed after consulting the STRs and post-service medical records. The examiner applied her medical expertise concerning the nature and pathology of the Veteran’s current psychiatric disorder to the medical records, and determined that the disorder pre-existed service. The opinion is clear and is formed upon an accurate factual basis. Moreover, the opinion is supported by the pre-service psychiatric admission notes from 1966 and 1967 which show the same symptoms, according to the January 2021, as are currently manifested. For those reasons, the January 2021 examiner’s opinion provides clear and unmistakable evidence to show that the acquired psychiatric condition pre-existed the Veteran’s term of service from August 1968 – August 1971. As noted above, though, rebutting the presumption of soundness is a two-part analysis, and it is government’s burden to show that the condition was also clearly and unmistakably not aggravated during service. That is, “VA may not rest on the notion that the record contains insufficient evidence of aggravation. Instead, in order to fully rebut the presumption of soundness, VA must rely on affirmative evidence to prove that there was no aggravation.” Horn, 25 Vet. App. at 236. Thus, the dispositive issue becomes whether the record shows, clearly and unmistakably, that the psychiatric disorder was not aggravated in service. Initially, the September 2011 and February 2019 VA examiners’ opinions carry no probative weight on the issue—for the same reasons that the opinions carry no probative weight as to the issue of entitlement to service connection on a direct basis. Specifically, the September 2011 VA examiner addressed the Veteran’s second term of service, from 1978-1979, which is not relevant to the issue at hand. The February 2019 examiner’s opinion was formed without addressing the plethora of available medical records. When an opinion is not supported by an adequate rationale, the opinion carries no probative value—on the issue of whether the acquired psychiatric disorder, claimed as bipolar disorder, was aggravated by the Veteran’s service from August 1968 to August 1971, that is again the case. However, the January 2021 examiner’s opinion is particularly relevant on the issue. As set out above, the examiner indicated that the bipolar disorder was not aggravated in service—specifically, that there was no “evidence showing a permanent aggravation” of mental health symptoms due to service. This finding is supported by the STRs from the August 1968 to August 1971 term of service, which are silent as to any complaints, treatment, or diagnosis of a psychiatric disorder. However, the analysis is not based solely on the absence of evidence of aggravation during service, but rather, the examiner also discussed the nature of the disorder. Specifically, and although the examiner did not find that the disorder improved during service, her analysis makes clear that while the disorder is expected to worsened and improve throughout the course of the Veteran’s life, there is no indication of any worsening during the August 1968 to August 1971 term of service. The opinion is supported by the Veteran’s own denial of depression or excessive worry, or any other psychiatric conditions, at his August 1971 separation examination. Then again, at his February 2019 VA examination, he specifically denied any mental health symptoms during service. Further, the record reflects that the Veteran was first seen for psychiatric treatment in August 1977, approximately six years after the August 1971 separation from. Based on the Veteran’s repeated willingness to seek psychiatric treatment, it is reasonable to infer that if a worsening had occurred prior to August 1977—including during service—there would be some indication, whether in the medical records or by the Veteran’s own reporting, that the disorder worsened in service. In this case, there is – he believes that his psychiatric disorder worsened while stationed in Korea, when he was “constantly [in] fear for [his] life” and reported seeing a Korean child shot to death. See March 2012 NOD; see also July 2013 VA Form 9. While he reported in his August 1977 Application for Compensation that he had been treated for psychiatric symptoms during service, there is no evidence to support that claim; and, his later statements conflict with the assertion. Moreover, the treatment records from the 1970s – 2000s show no indication that any of his treatment was related to an incident in service; and, there are no statements from the Veteran during that period in which he linked his psychiatric disorder to events in service, including in Korea. Rather, he was mostly seen for erratic behavior that often involved delusions; the Veteran did not mention any of the in-service incidents. In fact, at the September 2011 VA examination he related his disability not to his first term of service, but to feeling “depressed” due to the nature of his discharge following his second period of service. Simply put, the examiner’s finding of no aggravation in service is supported by the weight of the probative evidence in the record. In sum, while the Veteran now asserts that his psychiatric disorder was aggravated by service, (i) he stated on numerous occasions, including at the time of discharge, that he did not have any mental health symptoms/psychiatric conditions during service; (ii) STRs are silent as to any complaints, treatment, or diagnosis of a psychiatric disorder, and he later specifically denied any psychiatric complaints, symptoms, or diagnosis during service; (iii) he was not seen for psychiatric care until approximately six years after his August 1971 separation; (iv) he did not assert a link from the psychiatric disorder to service until many decades after his August 1971 separation from service; and (v) he indicated at the September 2011 examination that he believed the psychiatric disorder, now diagnosed as bipolar disorder, was related to “depression” following his discharge from his second term of service. In light of this evidence, the presumption of soundness has been rebutted by clear and unmistakable evidence that the Veteran’s acquired psychiatric disorder, to include paranoid schizophrenia and bipolar disorder, (i) pre-existed service, and (ii) was not aggravated by service. For those reasons, entitlement to service connection for an acquired psychiatric disorder, to include paranoid schizophrenia and bipolar disorder, is not warranted on the basis of in-service aggravation of a pre-existing disability. The claim for entitlement to an acquired psychiatric disorder, to include paranoid schizophrenia and bipolar disorder, to include as aggravated by the Veteran’s term of active duty from August 1968 to August 1971, is denied. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. KAYS HUKILL 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.