Citation Nr: 21041770 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 11-00 433 DATE: July 10, 2021 ORDER Entitlement to service connection for a psychiatric disorder, to include depressive disorder, anxiety disorder, and bipolar disorder, is denied. FINDING OF FACT The Veteran's psychiatric disorder did not have its onset in service and is not otherwise related to service. CONCLUSION OF LAW The criteria for service connection for a psychiatric disorder, to include depressive disorder, anxiety disorder, and bipolar disorder, have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from December 1977 to December 1980. This matter comes before the Board of Veterans' Appeals (Board) from an August 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing held in October 2013. A transcript of that hearing is of record. This matter was previously denied by the Board in a May 2017 decision, which found that the presumption of soundness had been rebutted, as the Veteran's psychiatric disorder pre-existed his military service and was not aggravated by service. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In April 2019, the Court rendered a Memorandum Decision, which vacated the May 2017 Board decision and remanded the issue for readjudication. The Court specifically reversed the Board's prior finding that the presumption of soundness had been rebutted, and directed the Board to enter a finding that the presumption of soundness applies and has not been rebutted, meaning that the Veteran's psychiatric disorder was not found to pre-exist service and was not aggravate by service. In November 2019, the Board remanded the Veteran's claim for an opinion addressing the evidence of record showing in-service events/incidents and whether they relate or are otherwise connected to the Veteran's currently diagnosed psychiatric disorder(s). In November 2020, the Board again remanded the matter to acquire an addendum opinion that recognized the directives of the Memorandum Decision. There has been substantial compliance with the remand directives and the matter is again before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). In April 2021, the Veteran was informed that the Veterans Law Judge who held the October 2013 hearing was no longer employed at the Board and was given the opportunity to have another Board hearing. The Veteran was told that he should inform the Board within 30 days if he wanted a new hearing and that if the Veteran did not respond, the Board would assume he did not want another hearing. As there has been no response from the Veteran, the Board finds he does not want another hearing, and there is no hearing request pending at the present time. Thus, the Board proceeds with review of the appeal. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 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). When an issue is raised as to whether the disorder claimed by the Veteran pre-existed service, the governing law provides that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities or disorders noted at the time of examination, acceptance, and enrollment into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that (1) an injury or disease existed before acceptance and enrollment into service (2) and was not aggravated by such service. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). As noted above, the Court has already directed a finding that the Veteran's psychiatric disorder did not pre-exist service and that the presumption of soundness was not rebutted. Thus, the Board finds the presumption of soundness applies, and the issue before the Board is whether the current psychiatric disorder had its onset in service or is otherwise related to service. At the October 2013 videoconference hearing, the Veteran testified that his mental health condition is something he has dealt with ever since service. The Veteran asserted that his mental health issues began when he was in boot camp, and his mother passed away. The Veteran testified that he was unaware of the services that were provided at that time, so he went back to training. However, the Veteran notes that he dealt with a lot of separation anxiety and that he had anxiety while trying to adjust to being in the military. It was discussed at the hearing that the Veteran's military personnel records indicate that he had multiple incidents of disciplinary actions throughout 1979, including unauthorized absences and disobeying a superior officer. The Veteran attributed this behavior to his mother's passing and to having trouble associating with the other servicemembers and people of authority. The Veteran also testified that he had trouble adjusting post-service and that he abused substances as a means of coping. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of service connection for a psychiatric disorder. The reasons follow. The Veteran has a present psychiatric disorder, as he has been diagnosed with bipolar disorder on recent VA examination. He has also been diagnosed with , to depressive disorder and anxiety disorder. Thus, the first element of a service-connection claim is met. However, the evidence of record does not establish a nexus between the Veteran's current psychiatric disorder and an in-service disease or injury. The Veteran received a normal clinical psychiatric evaluation on entrance examination in November 1977. He denied any history of psychiatric symptoms. The Veteran's personnel records indicate numerous disciplinary issues during service, which eventually led to the Veteran's discharge, including multiple unauthorized absences and disobeying orders. On separation examination in November 1980, the Veteran again received a normal clinical psychological evaluation. He reported having had or currently having "nervous trouble of any sort." However, the Veteran's service treatment records are otherwise silent for any psychiatric complaints or issues. He was not diagnosed with a psychiatric disorder during service. Following service discharge, the record does not show that the Veteran received mental health treatment and was not diagnosed with a psychiatric disorder for more than a decade. VA treatment records from the late 1990s indicate a history of substance abuse, including alcohol and crack cocaine use. In 2003, the Veteran reported symptoms of chronic anxiety and he was assessed with major depressive disorder and generalized anxiety disorder. The Veteran has received continued treatment for psychiatric and substance abuse issues since that time. The Veteran was hospitalized at VA from November 2004 to March 2005 for the alcohol and drug residential treatment program. There, the Veteran talked about his service, where he reported receiving "a general under honorable discharge due to having a lot of fights." The examiner documented the Veteran "denies any lasting effects from his military service." A February 2007 VA treatment record notes that the Veteran had been getting into fights, with five to six fights occurring in the prior six months. A February 2007 VA treatment record also reported that the Veteran tried to commit suicide with a pistol when he was 15 years old, but that the trigger was jammed. Additionally, the Veteran reported beginning to drink alcohol at the age of 14. An August 2009 private treatment record notes depressed mood and anxiety. The Veteran reported that he experienced trauma, with the traumatic event being the loss of his mother. The Veteran reported having continued consideration of suicide. A January 2010 VA treatment record notes continued use of medication, a history of suicide attempts when intoxicated, and a current diagnosis of depression, NOS, generalized anxiety disorder, substance dependence, and a history of substance-induced mood disorder. The Veteran denied having any family history of suicide. VA treatment records from January 2010, November 2010, and December 2010 note that the Veteran did not have suicidal ideations, was abstinent from substances of abuse, identified goals for recovery, and has a positive relationship with his girlfriend and her family. Treatment records reflect that the Veteran was first diagnosed with bipolar disorder in December 2010, following a November 2010 hospital admission for suicidal ideation. A February 2011 VA treatment record notes a brief hospitalization for detoxification. May 2011 VA treatment records note signs of substances abuse once again and mood disorder with mood fluctuations that seem to be situational, but no suicidal ideations. VA treatment records from July 2011, August 2011, and September 2011 note a positive mood but situational anxiety and depression due to his stay in a shelter, homelessness, unemployment, and financial difficulties. An April 2012 VA treatment record noted stability, as the Veteran was no longer homeless and reported working, he had no suicidal ideations, and his substance abuse was in remission. September 2013 VA treatment records noted some continued anxiety, but indicated that the Veteran was generally coping reasonably well and not abusing substances. A March 2014 VA treatment record indicates that the Veteran was in positive spirits, interested in applying for educational support, was anxious and depressed situationally (to include a recent breakup with his fiancé), and his substance abuse was in remission. On VA examination in the same month, the examiner noted a current diagnosis of depressive disorder, NOS, and anxiety disorder, NOS. The Veteran reported medication use as treatment, which has been helpful for his mood symptoms. The examiner found the Veteran to be motivated to maintain sobriety and found that the Veteran appeared to be coping appropriately with ongoing stressors. It was noted that the Veteran did not begin to receive mental health treatment for more than 20 years following service. VA treatment records from 2015 and 2016 note that the Veteran continued to face stressors, including a domestic abuse charge, but that he was coping well, was awaiting financial assistance for education, and that his substance abuse continued to be in remission. Following the November 2019 Board remand, the Veteran was provided a VA examination for assessment of the etiology of his psychiatric disorder in January 2020. Another examination and an addendum opinion were provided in January 2021, subsequent to the November 2020 Board remand, as the Board found that the examiner had not complied with the remand directives. The Veteran was assessed with bipolar disorder; alcohol use disorder, in sustained remission; cocaine use disorder, in sustained remission; and cannabis use disorder, in sustained remission. The examiner stated that the Veteran's diagnoses were clinically associated with each other, but that all current symptoms were due to bipolar disorder, due to the sustained remission of his substance use disorders. The Veteran reported a general improvement in all of his mental health symptoms in the prior year. He acknowledged that it takes a significant amount of effort to manage his mental health. The Veteran also reported the presence of mental health symptoms prior to service that he was not willing to acknowledge at the time. The examiner found the Veteran did not appear to meet criteria for diagnoses of anxiety disorder, depressive disorder, or attention deficit hyperactivity disorder at the time. The examiner stated that anxiety, depression, and concentration issues were considered symptoms of his bipolar disorder and separate diagnoses were not warranted. The examiner opined that the Veteran's diagnosed psychiatric disorders were less likely than not related to service. In her rationale, the examiner acknowledged that, although the Veteran reported the presence of mental health symptoms prior to service, including suicidal ideation at the age of 15, the Veteran was presumed sound upon entry into service. The examiner stated that service treatment records show a single report of "nervous troubles" in 1980 while in service, but that the Veteran did not have mental health or substance abuse treatment during the service. The examiner noted the Veteran had reported the onset of substance abuse disorder after service and stated that he abused substances to self-medicate his mental health symptoms. The examiner stated that bipolar disorder is generally considered to be caused by genetic factors with periods of high stress. The examiner noted that the Veteran had numerous disciplinary actions resulting in early discharge from service, and experienced the death of his mother and nervous troubles during service. The examiner explained that despite these incidents, there was no diagnosed mental health condition or treatment for mental health conditions or substance abuse diagnoses documented during service. The examiner stated that receiving disciplinary infractions is not necessarily indicative of a mental health diagnosis. Thus, the examiner found that the psychiatric disorder that developed years after service was not related to the Veteran's service, to include the incidents that occurred therein. This opinion is supported by the evidence, as the service treatment records do not show that the Veteran was diagnosed with a psychiatric disorder, and his psychiatric evaluation at service discharge was normal. When he was seen by VA in March 1996, more than 15 years following service discharge, he reported having depression on occasion but had no formal treatment history. When seen in February 1998, he was looking for work and was homeless. He described feeling depressed and anxious, and the examiner noted that the Veteran attributed these feelings to his homeless situation. When seen by VA in November 2003, he reported serving for three years and receiving an honorable discharge. He reported no in-service incident. He also described having chronic anxiety that had been going on for three of four years. When hospitalized in November 2004 for drug dependence, he reported serving in the Marines from 1977 to 1980 and received a general under honorable discharge due to having a lot of fights and specifically denied "any lasting effects from his military service." Thus, while the Veteran sought treatment for his drug abuse and psychiatric symptoms more than 15 years following service discharge, he did not report the onset of such symptoms as being related to service, to include incidents that occurred during service. Rather, he reported contemporaneous situations indicative of situational stressors. These facts support the January 2021 examiner's finding that the Veteran's psychiatric disorder occurred many years after service and was not related to service. The opinion of the January 2021 VA examiner is highly probative, as she is an expert who was able to personally examine the Veteran on two occasions, reviewed evidence of record, and provided a rationale for her conclusions. The VA examiner indicated that bipolar disorder is predominantly caused by genetic factors during periods of high stress. However, the Veteran was not diagnosed with bipolar disorder until approximately 30 years following his discharge from service, in the month following an inpatient admission for suicidal ideation, despite receiving substantial and recurrent treatment in the years leading up to the diagnosis. The Veteran reported a range of psychiatric symptoms both before and after service, but received normal clinical psychiatric evaluations both at the time of entry and separation from service. On one occasion prior to discharge, the Veteran reported a history of experiencing nervous trouble; however, the Veteran did not seek or receive treatment for mental health symptoms. Thereafter, the Veteran did not receive mental health treatment for more than 15 years, following many years of substance abuse. During hospitalization from November 2004 to March 2005, the Veteran denied any lasting effects from his military service. These findings do not show that the onset of a psychiatric disorder was incurred in or is otherwise related to his active military service. While the Veteran is competent to report symptoms that he experienced in service and since service, he is not competent to directly link a current psychiatric disorder to service, as medical expertise is required. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's own opinion is nonprobative evidence. At the present time, there is no competent evidence that the Veteran's current psychiatric disorders, variously diagnosis, to include bipolar disorder, had its onset in service or is otherwise related to service to weigh against the January 2021 medical opinion. For all the reasons stated herein, the preponderance of the evidence is against an award of service connection for a psychiatric disorder, to include depressive disorder, anxiety disorder, and bipolar disorder. Accordingly, the benefit of the doubt doctrine is not for application, and the Veteran's claim for service connection is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Wonderling, 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.