Citation Nr: 21032503 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 14-42 116 DATE: May 27, 2021 REMANDED Entitlement to service connection for a psychiatric disability is remanded. Entitlement to service connection for an alcohol abuse disorder, to include as secondary to a psychiatric disability is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1974 to August 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). These issues were previously remanded by the Board in May 2018, December 2019, and August 2020. As will be discussed in further detail below, the matter must once again be remanded for further development. At the time of the August 2020 remand, the Board noted that the Veteran's representative had asserted that the February 2020 VA medical opinion failed to properly address the question of direct service connection. The Board further observed that required efforts had not been made to obtain additional pertinent records. First, the Veteran's DD-214, Certificate of Discharge, listed his character of discharge as General, due to misconduct. The DD-214 also noted the Veteran had undergone a reduction in rank. The Board indicated that the Veteran and his representative asserted that the Veteran's pattern of behavior during service was indicative of an undiagnosed psychiatric disability. Nevertheless, the Veteran's service personnel records, which would have reflected any personnel or disciplinary actions taken against him, were not of record. The Board directed that the Veteran be scheduled for a VA examination to determine the etiology of the Veteran's current psychiatric disorder and its relationship, if any, to his period of service. In conjunction with the Board remand, the Veteran's service personnel records and Social Security records were obtained, and the Veteran was afforded a VA teleconference examination. At the time of the March 2021 examination, the Veteran was diagnosed as having bipolar disorder and alcohol use disorder in sustained remission. The examiner stated that based on available medical records, as well as the Telehealth videoconference dated December 10, 2020 by the examiner, which included the Veteran's self-report, it was less likely than not that the claimed condition of a mood disorder clearly and unmistakably existed prior to the Veteran's active duty service. She noted that although medical records, which were based on the Veteran's self-report, indicated that the Veteran might have exhibited some possible mental health symptoms prior to military, and reportedly saw a counselor from junior high school through high school, there was no record as to the nature of the counseling, and the Veteran was unable to provide any further details. In addition, there were no available medical records that indicated any pre-existing formal diagnosis of a mental disorder. Therefore, she was unable to unequivocally state that a mood disorder clearly and unmistakably existed prior to service. She indicated that the following medical record corroborated her opinion:-Medical Opinion DBQ dated 02/07/2020, authored by J. S., Psy.D. "After review of the Veteran's medical records, it is not clear that the Veteran had a mental health issue prior to service. The Veteran's entrance exam indicates no mental health issues prior to service; he was able to maintain entry into service for 12 years prior to getting kicked out due to alcohol issues; the only notes I was able to find indicating previous issues to the service are notes that include the self-report from the veteran. There are no documents, that I could find, confirming his prior mental health issues and thus, according to his entrance exam he was deemed fit for duty upon entry into the service." The examiner then opined that it was less likely than not that the claimed condition was incurred in or caused by the claimed inservice injury, event, or illness. The examiner indicated that based on available medical records, as well as the Telehealth videoconference dated December 10, 2020, which included the Veteran's self-report, it was less likely than not that the Veteran's diagnosis of Bipolar I Disorder had its clinical onset during service or was due to an event or incident of the Veteran's period of active service. She observed that the Veteran did not receive any mental health treatment in the military. Furthermore, there were no medical records from his time in the military that supported an onset of his acquired psychiatric disability in the military. The Veteran reported having some "manic behaviors...risky behaviors" in the military that included spending excessive amounts of money on "equipment and cameras", as well as having some hypersexual and impulsive behaviors. She indicated that although these self-reported symptoms may be consistent with a diagnosis of an acquired psychiatric disability, they were insufficient, in and of themselves, to make an evidence-based opinion that the Veteran's Bipolar I Disorder had its clinical onset during service given the paucity of evidence from his available medical records. As to the claimed alcohol condition, the examiner stated that based on available medical records, as well as the Telehealth videoconference dated December 10, 2020, which included the Veteran's self-report, there was an alcohol disorder that did clearly and unmistakably exist prior to service; therefore, it less likely had its clinical onset during service or was due to an event or incident of the Veteran's period of active service. The examiner further opined that there was insufficient available medical evidence to support that the Veteran's alcohol abuse was aggravated by his mood disorder. The examiner indicated that based on the following medical record which reported that the Veteran's alcohol use entailed binging, both before and during his military service, as well as his self-report to this examiner at the Telehealth videoconference, it was less likely than not that the Veteran's alcohol abuse was aggravated by his mood disorder. The aforementioned medical record was as follows: -Mental Disorders DBQ dated 08/23/2012, authored by L. J., Ph.D., Diagnosis: Mood Disorder NOS; Alcohol Dependence, in full sustained remission. Pre-military: Veteran started drinking alcohol around age 13 or 14. Veteran acknowledged binge drinking at this time, which continued on into his military career. In regard to the self-report by the Veteran to the March 2021 examiner, he conveyed that his alcohol use in the military entailed "...a beer bust every Friday", which suggested a continuation of the social aspect of his alcohol use that had transpired prior to his military service. There was no available medical evidence that supported the idea that the Veteran's alcohol abuse was aggravated by his mood disorder. The Board observes that Service Personnel Records obtained in conjunction with the August 2020 remand, revealed several instances of detrimental conduct, including aggravated battery and absence without leave, resulting in a finding of Pattern of Misconduct and ultimately a character of discharge as General, due to misconduct. In his May 2021 written argument, the Veteran's attorney indicated that in asserting that the Veteran's self-report of symptoms was insufficient, the examiner was essentially making an improper credibility determination of the Veteran's reports. Attorney Berry indicated that it was not the examiner's role to determine if the record corroborated the Veteran's account of his symptoms. Attorney Berry further stated that the VA examiner when listing the evidence reviewed, noted a January 29, 2020 summary written by D. G., M.D., which stated "Reported manic episodes include impulsive buying and gambling, alcohol use, racing thoughts..."The examiner also noted the July 17, 1986 STR report of depression and 'excessive worry.' Attorney Berry stated that the VA examiner even conceded that these symptoms" may be consistent" with the Veteran's current diagnosis, but found without adequate reasoning, that these reports were inadequate without corroboration by medical records. Attorney Berry indicated that this reasoning was inadequate. He noted that a veteran's lay reports of his own symptoms can be sufficient on their own without corroborating medical records. Additionally, failure to seek treatment was not considered negative evidence, unless treatment would have been required for that condition or injury. No indication was made by the VA examiner that the Veteran would necessarily have required treatment for this condition. He stated that to the contrary, the Veteran's own lay statement indicated that he would 'self-medicate' with alcohol. Thus, the examiner's requirement that additional documentation corroborate the Veteran's lay reports was an attempt to hold the Veteran to an evidentiary standard unsupported in law or regulation. Attorney Berry further noted that the Board's latest August 2020 remand directed the VARO to obtain service personnel records which might corroborate the Veteran's discharge due to a pattern of misconduct. Attorney Berry indicated that it did not appear that the VA examiner reviewed any such records as only the Veteran's DD214 was listed. He stated that this called into question whether the VARO had substantially complied with the Board's prior remand order. Attorney Berry requested that the Board resolve any remaining reasonable doubt in the Veteran's favor and grant service connection for his acquired psychiatric disorder and alcohol use disorders. In the alternative, Attorney Berry asked that the Board remand this issue to the VARO with express instructions to obtain a new medical opinion which appropriately addressed his lay statements regarding manic behavior in-service as well as his in-service reports of depression, and provided an adequate medical opinion on these issues. The Board is in agreement that an addendum opinion is in order with regard to the Veteran's claims. The examiner did not address the findings in the service personnel records as it related to the detrimental conduct noted above or as to the finding of a Pattern of Misconduct in service which led to the Veteran's character of discharge as General, due to misconduct. The Veteran's checking of the 'yes" boxes with regard to the question of whether he had had or was having depression or excessive worry on nervous trouble of any sort on his July 1986 report of medical history also needs to discussed and addressed. Moreover, the examiner noted the Veteran's reports of having some "manic behaviors...risky behaviors" in the military that included spending excessive amounts of money on "equipment and cameras", as well as having some hypersexual and impulsive behaviors. She also stated that although these self-reported symptoms may be consistent with a diagnosis of an acquired psychiatric disability, they were insufficient, in and of themselves, to make an evidence-based opinion that the Veteran's Bipolar I Disorder had its clinical onset during service given the paucity of evidence from his available medical records. She did not provide any basis for this reasoning. The examiner should provide a basis for a finding that the Veteran's reports of impulsive behavior, while noted by the examiner to be consistent with a diagnosis of an acquired psychiatric disorder were insufficient in and of themselves, to make an evidence-based opinion that the Veteran's Bipolar I Disorder had its clinical onset during service given the paucity of evidence from his available medical records. The matter is REMANDED for the following action: 1. If available, return the claims folder to the March 2021 VA examiner for further clarification with regard to the opinions rendered. Following a review of the entire claims folder, the examiner is once again asked to render the following opinions: Is it at least as likely as not (50 percent probability or greater) that any acquired psychiatric disability had its clinical onset during service or is due to an event or incident of the Veteran's period of active service? Is it at least as likely as not (50 percent or greater probability) that the Veteran's alcohol abuse was (1) caused by or (2) aggravated by his mood disorder. If the examiner finds that that the Veteran's alcohol abuse was aggravated by his mood disorder, the examiner should quantify the degree of aggravation? When rendering the above opinions, the examiner the examiner must address and discuss the Veteran's checking of the "yes" boxes with regard to the question of whether he had had or was having depression or excessive worry or nervous trouble of any sort on his July 1986 report of medical history. The examiner must also address and discuss the findings in the service personnel records as it relates to the detrimental conduct of aggravated battery and AWOL and the finding of a Pattern of Misconduct in service which led to the Veteran's character of discharge as General, due to misconduct. The examiner is further requested to consider and address statements from the Veteran regarding the onset and continuity of symptomatology since service. Dalton v. Nicholson, 21 Vet. App. 23 (2007). The examiner must provide detailed rationale with regard to the Veteran's reports of manic episodes including impulsive buying and gambling, alcohol use, racing thoughts, and her conceding that these symptoms" may be consistent" with the Veteran's current diagnosis, and yet finding that these reports were inadequate without corroboration by medical records. Complete detailed rationale is requested for each opinion that is rendered. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. S. Kelly, 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.