Citation Nr: 21032401 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 15-14 379A DATE: May 27, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, including alcohol and drug abuse, is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's acquired psychiatric disorder 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 are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from July 1972 to July 1976. The Veteran died in May 2013. His surviving spouse is the substitute-claimant. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This appeal returns to the Board of Veterans Appeals (Board) after an April 2020 Board remand. The Board finds substantial compliance with the April 2020 Board remand directives. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) a currently diagnosed disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381F.3d1163, 1167 (Fed. Cir. 2004). Entitlement to service connection for an acquired psychiatric disorder, including alcohol and drug abuse The Veteran's representative contends that the Veteran's acquired psychiatric disorder started after a mess hall fight in 1974 where he was knocked out. The Veteran also reported he had suicidal ideations while in service and that he began his alcohol and drug abuse at that time. The record establishes that the Veteran was diagnosed with bipolar I disorder during the period of this appeal. He was also diagnosed with major depressive disorder (MDD). As such, the first element of a current diagnosed disability is met. The evidence similarly shows that the Veteran was involved in a mess hall fight and knocked out in October 1974. He was diagnosed with a cerebral concussion. As such, the second element of service connection, an in-service incurrence or aggravation of a disease or injury, is established, leaving before the Board the question of nexus between the claimed event and the current diagnosis. Turning to the medical nexus opinions of record, the preponderance of the evidence is against a medical nexus connecting the Veteran's diagnosed bipolar I disorder and the in-service altercation. Prior to reviewing the four medical opinions, the Board finds it helpful to review a chronology of in-service and post service events. A review of the Veteran's service records shows that the Veteran was convicted of violation of Article 113 of the Uniform Code of Military Justice (UCMJ), drunken or reckless operation of a vehicle, aircraft, or vessel in January 1973. The Veteran was also convicted of violation of Article 15 of the UCMJ, Commanding Officer's non-judicial punishment, in August 1974. In October 1974, the Veteran was involved in a fight resulting in a concussion, the claimed incident triggering the Veteran's acquired psychiatric disorder and alcohol abuse. The fight resulted in another Article 15 conviction and a conviction of violation of Article 91 of the UCMJ, insubordinate conduct towards an NCO. In January 1976 the Veteran was convicted for another violation of Article 91 of the UCMJ. The Board notes that there is no diagnosis of a mental health disorder in-service or within one year of service. Social Security Administration records showed that in August 2008, the Veteran reported suicidal ideations while in service. Post service, the Veteran reported having a history of polysubstance abuse which began in the service and has been abstinent since 1988. At a July 2008, neuropsychological evaluation, the Veteran stated he had been experiencing psychiatric symptoms of depression since a 2005 motor vehicle accident. At the time, he was diagnosed with depression, single episode due to somatic conditions status post of a second motor vehicle accident that occurred in February 2008. In April 2009 the Veteran was placed on an involuntary 72 mental health hold and diagnosed with MDD, recurrent severe with psychotic features and was to rule out bipolar disorder, depressed severe with psychotic features by a private physician. In April 2010 a private physician diagnosed the Veteran with Bipolar I Disorder. In October 2012 the Veteran was diagnosed with Bipolar Disorder with a history of suicidal ideations, chronic pain with narcotic dependence by the VA. At a January 2013, neuropsychological evaluation, the Veteran was diagnosed with major depressive disorder (MDD) and anxious in response to finding he has cirrhosis stage 4. Turning to the medical opinions. The two private opinions provide positive nexus opinions but are provided no probative weight because they do not account for the facts of record as discussed above and they do not provide the necessary reasons and bases for the Board to understand how the examiners arrived at their conclusions. Specifically, the October 2012 private physician reasoned that the Veteran refused to clean a building, was accused of inciting mutiny, and physical fighting. See October 2012 Private Opinion. While these are events that took place in-service and can be accounted for by the fight and UCMJ violations starting in October 1974, the examiner does not provide the reasons and bases for how they relate to or cause psychiatric conditions that was not diagnosed until decades after service. The examiner also does not account for or explain the January 1973 DUI conviction demonstrating alcohol abuse that preceded all of the listed events, including the October 1974 fight. Additionally, this opinion does not address the Veteran's post service diagnosis or that they are attributed to the intercurrent incidences, including the 2005 and 2008 motor vehicle accidents or the fact that the Veteran previously reported having symptoms since 2005, not service. Therefore, this private opinion is provided no probative weight regarding nexus. The second February 2013 private opinion provides no explanation as to why the Veteran's bipolar I disorder is service connected. The opinion only checks various symptoms under 70 percent requirements. See February 13, 2013 Private Opinion. The opinion relates alcohol abuse generally as a coping mechanism for emotional pain for psychiatric disorder generally. However, the opinion does not discuss the Veteran's specific facts and circumstance nor explain how the Veteran's post service diagnosis is related to an in-service event. The opinion does not address the Veteran's post service diagnosis or that they are attributed to the intercurrent incidences, including the 2005 and 2008 motor vehicle accidents or the fact that the Veteran previously reported having symptoms since 2005, not service. Therefore, this private opinion is provided no probative weight regarding nexus. The Board notes that the record also contains two VA opinions. However, the Board finds the October 2014 opinion is found inadequate for failing to address suicidal ideations in service. The October 2014 VA examiner explained that if the Veteran's current Bipolar Disorder had been caused by the head injury due to the fight that occurred in service, the evidence of behavior changes should have been evident after the incident. As identified above, the Veteran had an established history of alcohol abuse and non-conforming behavior prior to his October 1974 fight induced head injury. This is evidenced by the January 1973 conviction of violation of Article 113 of the UMCJ and the August 1974 Article 15. These events show that there was no change in the Veteran's behavior as would be expected due to an acquired psychiatric condition resulting from the fight induced concussion. The 1976 post-fight conviction of violation of Article 91 again shows that the Veteran's behavior was the same before and after the fight induced head injury. Therefore, the evidence does not support the narrative that the fight and resulting head injury were the trigger of the Veteran's psychiatric disorder that the Veteran used alcohol and drugs to cope with. In contrast, the September 2020 VA examination, the most probative examination of record, provides a negative nexus opinion. The September 2020 examination provides an in-depth review of the Veteran's record, including accounting for all the facts identified above. The examiner opined that the Veteran's Bipolar Disorder is less likely than not related to or aggravated by service. The examiner's opinion is based on the pertinent facts as discussed above, including no notations of any mental health issues in any the Veteran's service records, or within a year of separation, no consistent reporting of ongoing mental health problems since service, first diagnosis decades after separation, and attribution of the diagnosis to intercurrent events. Further, the Veterans post service reports are not consistent and attribute the Veteran's symptoms to starting in 2005, after a motor vehicle accident. Overall, there are no additional probative treatment records that would show that the Veteran's acquired psychiatric disorder is related to service. The Veteran has offered his own opinion on etiology, stating that he has a acquired psychiatric disorder that is causally related to his active service. The Board acknowledges that the Veteran is competent to describe his symptoms without any specialized knowledge or training. Layno v. Brown, 6 Vet. App. 465 (1994). However, as a layperson, the Veteran is not competent to diagnose his symptoms as a specific disease, nor is he competent to render a nexus opinion regarding the etiology of any current disorder; both of these determinations require medical expertise. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board affords more probative weight to the September 2020 VA examiner's opinions than the Veteran's own contentions, and there are no probative medical opinions to the contrary. Based on the foregoing reasons, the Board finds the preponderance of the evidence is against the claim. The benefit of the doubt rule does not apply in this case. See 38 U.S.C. § 5107(b). Therefore, the claim must be denied. Saudiee Brown Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Boushehri, Darjush M. 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.