Citation Nr: 21022350 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 11-05 403A DATE: April 15, 2021 ORDER Service connection for an acquired psychiatric disorder, previously claimed as bipolar disorder, but shown to be attention deficit disorder (ADHD) with secondary diagnoses of cocaine use disorder and depressive disorder is granted. FINDING OF FACT Clear and unmistakable evidence has not been shown to rebut a presumption of soundness, with probative evidence showing that a ADHD increased in severity during active service; and that diagnoses of cocaine use disorder and depressive disorder are secondary to the ADHD. CONCLUSION OF LAW The criteria for service connection for acquired psychiatric disorder of ADHD with secondary diagnoses of cocaine use disorder and depressive disorder have been satisfied. 38 U.S.C. §§ 1101, 1111, 1112, 1131, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1972 to August 1976 and from January 1978 to March 1983. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a June 2010 Rating Decision by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2015, the Board issued a decision that, among other things, denied the claim of entitlement to service connection for an acquired psychiatric disorder, that had previously been claimed as bipolar disorder. The appellant appealed that denial to the U. S. Court of Appeals for Veterans Claims (CAVC). In an August 2016 Memorandum Decision, the CAVC set aside the Board’s decision denying this claim and remanded it for further development and readjudication in compliance with directives specified. In furtherance of this, the Board in turn is remanding this claim to the Agency of Original Jurisdiction (AOJ). In the March 2015 decision, the Board also denied, as a separate issue, the Veteran’s claim of entitlement to service connection for posttraumatic stress disorder (PTSD). The August 2016 Memorandum Decision only set aside the Board’s decision as to the claim of entitlement to service connection for an acquired psychiatric disorder, previously claimed as bipolar disorder. Subsequently in July 2017 and again in March 2019, the RO remanded this matter for development of this appeal, now characterized as entitlement to service connection for an acquired psychiatric disorder, other than PTSD, previously claimed as bipolar disorder. Such development has been completed and this matter is returned for further adjudication. The Veteran testified at a hearing conducted by the undersigned Veterans Law Judge in September 2018, after he was notified that the Veterans Law Judge who he had testified before at a hearing May 2014 had left the Board. A transcript of the hearing has been associated with the Veteran’s VA claims file. Insert dates of service and jurisdictional information only where relevant to the adjudication of the issues on appeal. 1. Acquired psychiatric disorder, previously claimed as Bipolar Disorder The Veteran contends that service connection is warranted for a psychiatric disorder. At his September 2018 hearing, he testified that he had not wanted to be a policeman in the service but that this position was assigned to him during his first enlistment period. He obtained an associate degree during the period between his first and second enlistments and had training in computer repair. However, he was again assigned security and law enforcement duties in his second period of service. He reported having issues with attention deficit disorder and problems with math, and indicated this resulted in problems in his mind getting “scattered” at times. He confirmed that his overseas duty assignments included guarding nuclear weapons, which was a bit stressful. He indicated that he had been harassed at different times because he was not interested in his job and also indicated that there were times when he felt overwhelmed by his job duties. He also indicated that his self esteem suffered due to not receiving expected promotions. He further noted problems including harassment after an incident where he mishandled military equipment and indicated that this should be of record. He reported feeling depressed that he couldn’t keep things together. He described current issues with depression and anxiety and indicated that these were not issues prior to service. He testified that around 1988 he attended a learning center recommended by a psychiatric provider and was told he had attention deficit disorder. Transcript at pg. 2-10. A veteran is presumed to have been in sound condition when enrolled for service, except for any disease or injury noted at the time of enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before enrollment and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). When no pre-existing medical condition is noted upon entry into service, a Veteran is presumed to have been sound upon entry. 38 U.S.C. § 1111 (West 2014); Wagner, 370 F.3d at 1096 ; Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). If the presumption of soundness applies, the burden then shifts to the Government to rebut the presumption by clear and unmistakable evidence that the disability was both preexisting and not aggravated by service. Wagner, 370 F.3d at 1096 ; Bagby, 1 Vet. App. at 227. As further explained in Horn v. Shinseki: once the presumption of soundness applies, the burden of proof remains with the Secretary on both the preexistence and the aggravation prong; it never shifts back to the claimant. In particular, even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness... the burden is not on the claimant to show that his disability increased in severity; rather, it is on VA to establish by clear and unmistakable evidence that it did not or that any increase was due to the natural progress of the disease. 25 Vet. App. 231, 235 (2012). When defects are noted upon entry the presumption of soundness does not apply and the presumption of aggravation is for application. See Gilbert v. Shinseki, 26 Vet. App. 49 (2012). When there is a pre-existing disease or injury and an increase in severity in service, the presumption is that the disease will be considered to have been aggravated by active service, unless there is a specific finding that the increase in disability is due to its natural progression. 38 U.S.C. § 1153 (West 2014); 38 C.F.R. § 3.306 (a), (b) (2015). See also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); Cotant v. Principi, 17 Vet. App. 116, 123-30 (2003). In other words, when the disability increases in severity in service, the burden is on VA to rebut the presumption by showing by clear and unmistakable evidence that any increase during service was due to the natural progression of the disease or injury. 38 C.F.R. § 3.306 (b); Wagner v. Principi, 370 F.3d at 1096. Mere temporary or intermittent flare-ups of a preexisting injury or disease are insufficient to be considered aggravation unless the underlying condition, as contrasted to symptoms, is worsened. Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991). Additionally, 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; Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Service treatment records are unavailable for the Veteran’s first period of service from January 1972 to August 1976. Service Personnel records from his first period of service from January 1972 to August 1976 included performance reports showing that the Veteran worked as a base security policeman for the periods from January 1972 to November 1972 and November 1972 to June 1973,with high performance scores including adaptability to military life. Likewise, a performance report for the period from August 1973 to October 1973 indicated he was a Security Alert Team Member providing detection and deployment capabilities for protection of priority resources. He was described as performing well in this position, which requires an alert and knowledgeable individual who can make quick, error-free decisions. However, a November 1974 performance report was generally favorable but noted occasional difficulties in comprehension. A June 1975 performance report noted some difficulty in mastering new tasks but becomes quite dependable once he learns. He was somewhat limited in performing more difficult tasks in the presence of distractions. A March 1976 performance report was favorable overall, but noted some problems when distracted but generally he could be depended on to perform well even during difficult situations. Personnel records from his second period of service from January 1978 to March 1983 include a March 1978 document that noted issues with academic deficiency, and lack of confidence and imagination to grasp fundamental concepts and principles. He was noted to have been “washed back” twice. He was recommended learning in less demanding area. However, the records also include a performance report for a period from May 1978 to July 1978 where he performed all assigned duties in an exceptional manner and appeared to have all the qualities necessary to be an outstanding security policeman. A performance report for the period from October 1978 to December 1978 reported that he performed his assigned duties in a satisfactory manner. He was noted to be enrolled in off duty college course in CPR, Advanced First Aid and German Language. However, there was an incident in October 1979 which triggered a personnel action of proposed termination of NCO appointment and return to Airman status. This was due to substandard performance and damaged government properties. The Veteran’s response to the personnel action acknowledged damage to operating USAF truck without permit and damaging it. He denied leaving equipment unattended and also acknowledged trouble with passing standards and pistol training. In February 1979 he was recommended for promotion. An October 1979 record disclosed him to perform duties in satisfactory manner, but he required some guidance in areas of subordinate counseling. A March 1980 record disclosed that the Veteran required close supervision for maximum performance. He was noted to attend off duty college level classes. At times he demonstrated carelessness and lack of confidence. A September 1981 performance report for the period from June 1981 to September 1981 revealed he had difficulty performing duties. He was noted to have been counseled on repeated infractions ranging from minor errors of judgment to complete disregard for Air Force regs. Service treatment records from the Veteran’s second period of active service disclosed two episodes where he was seen in the mental health clinic, including one time in March 1978 when he was evaluated in the student mental health center and in April 1979 with a notation that separate records were kept. Otherwise, he was noted to have normal psychiatric findings on periodical examinations, including on enlistment in July 1977, flying examination in April 1979, periodic exam of March 1980 and separation examination in February 1983. An August 1978 medical statement showed no history of psychiatric problems, alcoholism or mental ailments requiring specialized treatment or prolonged hospitalization. His reports of medical history of May 1977 and February 1983 also were negative for complaints or history of any psychiatric issues. The report of a July 1988 private neurological evaluation addressing complaints including tinnitus, hearing loss, and right-hand clumsiness noted some findings of neurological abnormalities of the right hand, with muscle wasting and tremor noted. The history noted a C-section birth injury and he was thought to have an old infarct possibly from birth. An August 1988 electroencephalogram (EEG) for complaints of possible stroke after having awoken with a numb feeling in his head disclosed a normal awake EEG. See document marked VA Examination received 2/24/89. Social Security records included an August 1990 record showing the Veteran’s desire for a psychiatric referral, noting a history of a questionable stroke when he was in the womb. A September 1992 record noted a history of alcohol abuse and bipolar depression. From March 1997 to May 1997, the Veteran was admitted to the VA substance abuse treatment program (SATP) for drug and alcohol dependence. He reported a drug/alcohol problem since 1978. He has been drinking liquor up to a fifth per day. He also has been smoking cocaine. He was admitted to 90 day therapeutic domiciliary. Due to the Veteran’s bipolar disorder he tended to be quick tempered and easily provoked. He was discharged irregular due to disciplinary problems. He was diagnosed with drug dependence, cocaine, continuous, alcohol dependence and bipolar disorder. He was treated again in inpatient VA SATP for the same diagnoses from June 1998 to July 1998 and from July 1998 to September 1998. The report of a November 1998 VA psychiatric examination noted his history of service, with his first period of service primarily with the Security Police in Korea and the Netherlands. His second period of service was in North Dakota and Belgium with the Security Police. He was not in an active war zone and had no particular difficulties during service. Occupationally, post-service he was noted to have a pattern of taking jobs beneath his intellectual level and difficulty getting along with people. Since his discharge from the service he had been treated for substance abuse and psychiatric problems. He began abusing alcohol in 1987 and cocaine in 1994. His psychiatric history included a diagnosis of ADHD said to have onset in 1998. Additionally, he was diagnosed with bipolar disorder and put on Lithium in 1991. He also was noted to have been treated at the VA from March to June 1997 and from July 1998 to present at the VA SATP with the diagnoses of alcohol abuse, substance abuse, and bipolar disorder. Examination was significant for rapid and expansive speech, with tangential answers to questions. He admitted problems with anxiety and panic attacks since he was 12 years old. He had a longstanding problem with alcohol and most recently with cocaine. The diagnoses included alcohol abuse, cocaine abuse and bipolar disorder. No opinion was given as to the etiology of these diagnosed disorders. VA treatment records disclose that from 2000 through 2002 the Veteran received psychiatric and substance abuse treatment for diagnoses of bipolar disorder with alcohol abuse and cocaine abuse described as “episodic,” as well as episodic marijuana abuse in January 2000. An April 2000 record gave the same diagnosis of bipolar disorder with history of addiction to marijuana, cocaine and alcohol abuse. Records from March 2001 to January 2002 showed ongoing treatment for bipolar disorder with a history of drug and alcohol addiction. He had been diagnosed with a learning disability as a child and in a March 2001 record he described having a racing mind since he was a teenager. A January 2002 record noted that the was Veteran drinking daily and discussed problems with his roommate and issues with chronic drinking and indicated that he decided to come to grips with his drinking. In September 2002 the Veteran requested admission for his alcohol dependency and in October 2002 he was admitted to the substance abuse treatment unit (SATU). Among the treatment records in October 2002 it was suggested that his attention deficit disorder (ADD) was responsible for backing out of things as he is about to master them. He was treated for alcohol abuse and bipolar disorder. The November 2002 discharge summary continued to diagnose alcohol dependence and bipolar disorder. He continued with SATP and domiciliary VA treatment from November 2002 through March 2003 with a continued diagnosis of bipolar in addition to polysubstance abuse. VA treatment records showed that the Veteran was seen in July 2009 he was seen in mental health central intake for “depression and anxiety” and history of diagnosis of bipolar disorder. He also gave a history of anxiety attacks in childhood and young adulthood. He was diagnosed with Depressive disorder NOS due to lack of information, and probable alcohol abuse. Another July 2009 record noted that the Veteran was a poor historian and suggested that further evaluation was needed for clarifying his diagnosis. In August 2009 it was noted that he had been hospitalized for depression in 2006. In November 2009 and January 2010, he was diagnosed with depression and alcohol abuse NOS with a history of 13 prior rehabilitations. He was noted to have not served in combat. He reported his military experience included instances where he felt mistreated by superiors, he was not promoted, and his self-esteem was “destroyed.” The medical professional felt that the Veteran’s main problems were his substance abuse history and mood disorder/depressive disorder NOS, not PTSD. Following examination, the diagnosis was depression NOS and alcohol dependence NOS. He continued to carry a diagnosis of depressive disorder NOS and alcohol abuse in records in August 2010, September 2010 and November 2010. VA records show that while undergoing mental health treatment he enquired about possible ADHD testing in April 2011 and May 2011. He was diagnosed with depressive disorder NOS currently in remission and alcohol abuse. The May 2011 record advised him that his alcohol issues would need to be addressed before any testing would be meaningful. The report of an August 2017 VA mental disorders examination diagnosed major depressive disorder recurrent, moderate, in full remission. Following examination, which noted the Veteran to be a poor historian with thought processes that were intermittently illogical and tangential, he was found to meet the DSM 5 diagnostic criteria for a Major Depressive Disorder, recurrent, moderate, in full remission. This diagnosis was found to be related to his previous diagnosis of a Depressive Disorder NOS. He stated that he was not depressed at that time because he was compliant with his medication. He minimized the amount of alcohol he uses. The Veteran stated during his evaluation his military records show disciplinary problems. He reported having emotional scars from an inappropriate job. He stated he was “picked on” and “bullied,” which affected his self-esteem for years. The examiner stated that this case was difficult as there are no military records with which to verify any of the information that the Veteran presents and he is a poor historian. The examiner opined that there is no documentation because STRs from January 1972 to August 1976 are unavailable for review. This examiner did not address the lay evidence such as the service personnel records. In October 2019 a VA examination addendum was obtained that comprehensively reviewed and recited the medical and lay evidence, to include the service personnel records, with attention paid to the performance evaluations. Following this, the examiner gave an opinion that the record of evidence supports with 50 percent or greater probability that the Veteran’s ADHD was aggravated by service and that his subsequent Stimulant Use Disorder (Cocaine) was secondary to his ADHD. In addition, the examiner opined that the records demonstrate that the Veteran’s perception of harassment in service was likely his Command’s reaction to his ADHD symptoms that frequently impaired his performance. Performance evaluations also documented high praise for the Veteran’s persistence and dedication to learn and perform well. Thus, it is less likely than not that the Veteran was harassed in service. Finally, the examiner gave an opinion that it is less likely as not that the Veteran has a diagnosis of Bipolar Disorder; but rather it is at least as likely as not that the Veteran has a Major Depressive Disorder that is secondary to his ADHD. The October 2019 examiner gave a rationale that included a lengthy discussion of the evidence of record in the STRs, SPRs, post service records and medical treatise evidence to support a finding that ADHD reported to have been present in childhood was aggravated in service. Although service records from his 1972 - 1976 military service were not available, there is sufficient evidence in his second active duty service to substantiate the opinion that his ADHD was aggravated by service. The examiner also described how ADHD symptoms are often mistakenly assumed to be part of bipolar disorder, but also noted that research provides evidence that people with ADHD frequently develop substance abuse issues. The examiner also stated that research supports the comorbidity of ADHD and depression. The examiner cited to medical treatise evidence to support these opinions. Given the research on cocaine that documents use of cocaine to self-medicate symptoms of ADHD, the examiner stated that it is at least as likely as not that the Veteran’s Cocaine Abuse Disorder is secondary to his ADHD. Additionally, the examiner opined that it is at least as likely as not that the Veteran’s Major Depressive Disorder, recurrent, moderate is secondary to his ADHD. Given consideration of the above evidence and in spite of the fact that the STRs from the first period of service from January 1972 to August 1976 were not obtained, the other service treatment records from his second period of service and the service personnel records do not reflect any defects noted prior to service including on entrance examination in July 1977 prior to his second period of service. Thus, the presumption of soundness applies in this matter. Furthermore, the Board finds that there is clear and unmistakable evidence that the Veteran had a disorder of ADHD that preexisted service. Based on the medical evidence on file showing a treatment for symptoms of ADHD said to have begun in childhood, and the opinion of the October 2019 examiner, such constitutes clear and unmistakable evidence that ADHD preexisted service. Regarding the second prong in rebutting the presumption of soundness, 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 this case, the most probative evidence is the opinion of the October 2019 examiner which stated that the Veteran’s ADHD was aggravated beyond natural progression during service. This opinion was accompanied by adequate rationale. There is not shown to be evidence which directly rebuts this opinion. As such, VA has failed to meet its high burden of showing by clear and unmistakable evidence both that the Veteran had a psychiatric disorder which preexisted service and was not aggravated by such. Thus, the presumption of soundness has not been rebutted for the disability of ADHD. Given the above, the second element of service connection is met and entitlement to service connection based direct theories of entitlement not warranted. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Again, the Board accepts the opinion from the October 2019 VA examiner finding that a diagnosis of ADHD was aggravated by service. Additionally, the Board accepts the opinion from this same examiner finding that a diagnosis of cocaine abuse disorder is secondary to his ADHD and that it is at least as likely as not that the Veteran’s Major Depressive Disorder, recurrent, moderate is secondary to his ADHD. Again, the examiner’s opinions linking these disorders to his ADHD were accompanied by adequate rationale and there is not shown to be evidence directly contradicting such opinions. Accordingly, the Board finds that service connection for a psychiatric disorder of ADHD with secondary disorders of cocaine abuse disorder and Major Depressive Disorder is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Carol Eckart 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.