Citation Nr: 21023415 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 13-08 628 DATE: April 20, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder and depression, is denied. FINDING OF FACT The preponderance of the evidence is against finding that an acquired psychiatric disorder, to include bipolar disorder and depression, began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include bipolar disorder and depression, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(f). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1973 to October 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The matter was most recently before the Board in August 2020, at which time it was remanded for further development, to include obtaining outstanding treatment records and an addendum opinion. The Board is satisfied that the prior remand directives have been complied with. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection The Veteran seeks service connection for an acquired psychiatric disorder, to include bipolar disorder and depression, which he alleges is related to a head injury during military service. For the reasons discussed below, the Board finds that the Veteran’s bipolar disorder and depression did not begin during active service, or is otherwise related to an in-service injury or disease. Therefore, service connection is not warranted. VA law provides that, for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, or other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation, except if the disability is a result of the veteran’s own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. §§ 1110, 1131. Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Saunders v. Wilkie, 886 F.3d 1356 (2018); 38 C.F.R. § 3.303(a). For certain chronic diseases, such as psychosis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The enumerated diseases include psychoses, but do not include PTSD or any other psychiatric or mental disorder that has been diagnosed in this case. As such, there is no presumption of service connection for any of the conditions at issue. See 38 C.F.R. § 3.384. Generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. See Barr v. Shinseki, 21 Vet. App. 303, 308 (2007). A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir 2007). Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. Lay statements are not competent evidence regarding diagnosis or etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n. 4 (‘sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer’); 38 C.F.R. § 3.159(a)(2). After the evidence has been assembled, it is the Board’s responsibility to evaluate the entire record. 38 U.S.C. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), Gilbert, 1 Vet. App at 54. Turning to the evidence of record, service treatment records (STRs) do not contain complaints, treatment, or diagnosis pertinent to the claimed psychiatric disorder. A September 1973 service entrance examination endorses a “normal” psychiatric clinical evaluation. In April 1976, the Veteran denied any prior history of head injury and hospitalization. At his service separation examination in September 1976, the clinical evaluation did not indicate any abnormalities of the head, face, neck, scalp, spine. No psychiatric abnormalities were noted. Post service treatment records from December 1978 show that the Veteran was in a motor vehicle accident. The vehicle was traveling at 80-90 miles per hour, it flipped, and the Veteran was thrown it. The accident report from the State of Colorado confirmed that the driver was ejected from the vehicle and received “minor injuries.” Multiple episodes of loss of consciousness occurred. Imaging studies revealed that the intravenous pyelogram (x-ray of the urinary tract), cervical spine, thoracic spine, skull, chest, and pelvis were normal. The Veteran was diagnosed with a possible basilar skull fracture and discharged. Records then show that in 1983, the Veteran reported a suicide plan after his wife left him. In 1984, the Veteran stole his sister’s gun and robbed a bank and was criminally charged thereafter. The Veteran underwent a psychiatric evaluation in September 1984 and was diagnosed with “borderline personality disorder and when especially stressed becomes paranoid psychotic” and “alcohol dependence.” An October 1984 psychiatric evaluation found the Veteran to be “mildly depressed, remorseful” and diagnosed him with adjustment disorder with anxious mood. In February 1986, the Veteran was diagnosed with dependent personality disorder with passive-aggressive features, and alcohol abuse. VA treatment records from June 1989 reveal claims made by the Veteran that he had incurred head trauma in 1974 while in basic training. The Veteran reported hitting a beam while running. During a December 1992 VA examination, the Veteran claimed that the December 1978 motor vehicle accident resulted in him being paralyzed from the neck down for one year. This “paralysis” claim is in direct conflict with the actual treatment records from December 1978 and the accident report from the State of Colorado. VA treatment records from September 1999 indicate the Veteran was hospitalized for bipolar manic episode with delusional ideations regarding military experience. The Veteran claimed he was exposed to Agent Orange and that it was all over his gloves. The evidence shows the Veteran did not serve in the country of Vietnam. The Veteran’s psychologist stated in October 1999 that the Veteran “tends to become very emotionally involved in situations with intense feelings of depression and anger that interfere with accurate perception and adaptive behavior.” The Veteran was diagnosed with bipolar disorder. In October 2003, the Veteran was admitted to the hospital for a manic/dissociative episode where he lost the ability to move his body. He was placed on medication and discharged. A February 2005 Mental Health Triage note records the Veteran’s report that he was working on the Nike Hercules Missile crew while in service. He claimed that during a training exercise he ran into a building without his helmet and cracked his head open. He reported he was in a coma following the incident. In a statement made in April 2006, the Veteran alleged that during training in 1973 a hand grenade went off in a foxhole which resulted in a skull fracture. VA treatment records then show that in August 2009, the Veteran was hospitalized for over two weeks with suicidal ideations; at that time, he was diagnosed with bipolar disorder and marijuana abuse. The Veteran underwent a VA examination in February 2019, the report of which noted that the Veteran claimed that the alleged 1974 head injury, which subsequently led to hospitalization for a coma, was responsible for his current condition. In the alternative, the Veteran claimed that the head injury from the December 1978 motor vehicle accident was responsible for his current condition. He was unable to identify which head injury would have been responsible for his bipolar diagnosis. Upon review of the record and examination of the Veteran, the examiner opined that the Veteran’s bipolar disorder was less likely than not incurred in or caused by either the in-service claimed head injury or head injury from the motor vehicle accident. As rationale for that opinion, the examiner noted that the Veteran was first diagnosed with bipolar disorder in 2009 and stated that it was less likely than not that either head injury would be responsible for his symptoms 30 years later. The examiner explained that if a head injury were responsible, the Veteran would have had symptoms immediately after the injury. The examiner then pointed out that VA publications regarding traumatic brain injury (TBI) conclude that persistent symptoms following mild TBI often appear to be associated with factors that are not the direct physiological effect of the TBI event, such as psychiatric symptom burden, pain issues, and/or situational factors. Pursuant to the terms of a December 2019 remand, an addendum medical opinion was obtained that same month. The examiner reviewed that claims folder, to include the Veteran’s lay statements and indications of psychiatric problems beginning in 1983. Upon review of this evidence, the examiner opined that the Veteran’s currently diagnosed bipolar disorder is less likely than not related to service. The rationale was that the Veteran has had depression on and off since his service and the depression does not appear to be continuous since his service. Moreover, it was opined that there have been identifiable events in his life that appear to be causally related to his depressive episodes, such as his sexual encounter with another man, wearing women’s clothing, and his divorce. An October 2020 VA examination report noted review of the claims file and medical records, recounted the Veteran’s complaints and history, and included a physical examination of the Veteran. At the time of that examiner, the Veteran reported homelessness, depressed mood, anxiety, chronic sleep impairment, impaired judgement, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances (including work or a work like setting), and impaired impulse control (such as unprovoked irritability with periods of violence). There was a diagnosis of bipolar disorder. The examiner found that the Veteran met the diagnosis of bipolar disorder and medical records indicated he had carried this diagnosis since 1999. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that the Veteran denied any psychiatric symptoms while in the military and did not report any such symptoms until 10 years after the alleged head injury in service. The examiner also noted that in 1983, the Veteran reported a suicide plan after his wife left him and in 1984, the Veteran stole his sister’s gun and robbed a bank. Although the Veteran attributes the 1983 and 1984 “unusual behavior” to his military related head injury, the examiner stated, “it is unlikely that a head injury 10 years prior with no noticeable cognitive residuals would have caused his behavior… It is more likely that this behavior was due to a manic episode or substance intoxication.” Based on the records not containing psychiatric symptoms until a decade after the alleged head injury, the examiner opined that the Veteran’s bipolar disorder is less likely than not caused by his reported in-service injury. An additional opinion was obtained in November 2020. First, the examiner opined that it is less likely than not that the Veteran’s bipolar disorder was related to any in-service injury, event, or disease. The examiner relied upon the fact that there were no mental health issues noted in the records until 10 years after the alleged in-service head injury. The examiner also pointed out that it was in 1983, seven years post military, when the Veteran reported being depressed because his wife left him. The examiner emphasized that this was the first record of any mental health issues. The examiner also opined that it is less likely than not that the Veteran’s mental health issues (diagnosed as bipolar disorder) manifested during or within one year of service. The examiner again pointed out that there is no record of any mental health treatment until 1983, seven years post-military service and noted that the Veteran was first not in fact diagnosed with bipolar disorder until 1993, 33 years post military service. After a review of all of the evidence, the Board finds that the criteria for service connection for an acquired psychiatric disorder are not met. While the Veteran has been diagnosed with bipolar disorder, it has not been linked to active duty service. In order to attain service connection for this impairment, the evidence of record must establish a connection between the Veteran's mental health condition and an in-service injury, event, or disease. In this regard, the Board finds the November 2020 VA examiner’s opinion is the most probative evidence of record. The opinion is competent and probative medical evidence because it is factually accurate and supported by an adequate rationale. The VA examiner was informed of the pertinent evidence, reviewed the Veteran’s claims file, and fully articulated the opinion in the report. The examiner found that the bipolar disorder was not related to any in-service injury, event, or disease because the first report of mental health symptoms, to include depressed moods, was in 1983 – seven years post military. Likewise, the examiner found the bipolar disorder did not manifest during or within one year of service because the first diagnosis of bipolar disorder was in 1993 – 33 years post military. There are no credible and competent medical opinions or lay evidence that purports to relate a current acquired psychiatric disorder to service. The only evidence weighing in favor of the claim comes from the Veteran’s assertions that his psychiatric disability is related to service. While the Veteran is competent to report some symptoms of a psychiatric disability experienced at any time, he is not competent to opine on whether there is a link between the current psychiatric disability and the claimed in-service stressor. Such a conclusion regarding causation requires specific, highly specialized, medical knowledge and training regarding the unseen and complex processes of the development of a psychiatric disability, and knowledge of the multiple potential etiologies of his psychiatric disability, which he is not shown to possess. Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (holding that a claimant without medical expertise cannot be expected to precisely delineate the diagnosis of his mental illness); see Waters v. Shinseki, 601 F.3d 1274, 1277 1278 (Fed. Cir. 2010) (concluding that a veteran’s lay belief that his schizophrenia and anti-psychotic drugs to treat it had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue). The Veteran has not shown he has the requisite medical expertise to render an opinion as to whether the Veteran's current psychiatric disability is related to service. Thus, his statements purporting to link the current psychiatric disability to service are assigned no probative value. For all the reasons set forth above, the evidence fails to show that a psychiatric disability is related to service. As the preponderance of the evidence is against the claim; there is no doubt to be resolved. Service connection is not warranted for a psychiatric disability. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. KRISTIN E. NEILSON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.M. Edwards, 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.