Citation Nr: 21042672 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 17-07 183 DATE: July 13, 2021 ORDER Entitlement to service connection for bipolar disorder is granted. REMANDED Entitlement to a compensable disability rating for bilateral hearing loss prior to December 23, 2020; and in excess of 10 percent, thereafter, is remanded. FINDING OF FACT The preponderance of the evidence supports a finding that the Veteran's bipolar disorder was incurred during the Veteran's period of active service. CONCLUSION OF LAW The criteria for entitlement to service connection for bipolar disorder are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1976 to January 1980. In a February 2015 rating decision, the VA Regional Office (RO) granted service connection for bilateral hearing loss. A noncompensable rating was assigned, effective July 30, 2014. The Veteran filed a notice of disagreement (NOD) with the assigned rating in October 2015. Subsequent to the Veteran's appeal, the RO granted a 10 percent rating for bilateral hearing loss, effective December 23, 2020 in an April 2021 rating decision. This grant, however, did not represent a total grant of benefits sought for the entire period on appeal; accordingly, the Veteran's claim for a higher initial disability rating for his bilateral hearing loss remains pending before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The Board notes the Veteran's appeal was certified to the Board in March 2017. In December 2020, more than 90 days after the case was certified to the Board, the Veteran submitted a VA Form 21-22a appointing Monica Irelan Karas as his new representative before VA. As the matter on appeal was certified to the Board in March 2017, the Veteran's request for a new representative is beyond 90 days after certification. 38 C.F.R. § 20.1305 (designated 20.1304 prior to January 18, 2019) requires a showing of good cause for a change in representation in excess of 90 days after the certification of the appeal to the Board. The Board finds that no good cause has been shown to change representation, and, that the proper representation before the Board is James S. Trieschmann. 1. Entitlement to service connection for bipolar disorder The Veteran seeks service connection for bipolar disorder that he alleges had onset related to a head injury that he suffered during his period of active service. See September 2015 NOD. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304. In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entire record. A layperson is competent to report on the onset and continuity of current symptomatology based on personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if the layperson: (1) is competent to identify the medical condition, (2) is reporting a contemporaneous medical diagnosis, or (3) is describing symptoms that support a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, at 1376-77 (Fed. Cir. 2007). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See Caluza v. Brown, 7 Vet. App. 498 (1995). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded. The Veteran's service treatment records indicate that psychiatric impairment was not noted at entry to active service. In August 1978, was for symptoms of dizziness, weakness and headaches it was reported that the Veteran had been seen three months prior for similar symptoms of "not feeling right." An assessment of Depression vs possible sequelae of viral meningitis was provided. Later that month, an assessment of Depression was made, and the Veteran was started on medication at that time. In September 1978, the Veteran was seen for "nerves" with his wife. His wife reported that the Veteran "became violent." Veteran reported "feeling bad all over." His wife reported that he that had has been "edgy, withdrawn, and negative" for at least two weeks. The Veteran's medication was changed. The following week, the Veteran and his wife were seen again. The wife noted some improvement, but Veteran reported feeling the same and stated that it is "difficult to act normally." In August 2014, the Veteran underwent a VA psychiatric evaluation. The examiner diagnosed the Veteran with unspecified bipolar disorder. The Veteran reported that he had been psychiatrically hospitalized in Charlotte, North Carolina in 2001 after he tried to kill himself with Imitrex when he was going through a divorce and that he subsequently attended outpatient treatment for depression in Charlotte, North Carolina from 2001 to 2003. He stated that he did not receive any mental health treatment again until 2006, when he began going to the VA Clinic in Rock Hill, South Carolina. The examiner opined that the Veteran's bipolar was less likely than not due to his service-connected migraines. In September 2019, the Veteran underwent another VA psychiatric evaluation. The Veteran reported that he became depressed when his grandfather died during service and he was unable to return home for his funeral. The examiner noted that the Veteran's service treatment records (STRs) indicate that the Veteran was seen for depression while in service in 1978 and was reported to have violent, edgy, withdrawn and negative behavior during this time by his wife. The examiner opined that the Veteran's claimed condition was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that based upon review of the record that the Veteran had no mental health issues prior to military service and that he now has clear symptoms of bipolar disorder, which meet the DSM criteria for the disorder. The examiner opined that based upon the current exam including clinical interview, behavioral observations and psychological screening results, it is at least as likely as not that the Veteran's Bipolar I Disorder was incurred in, or caused by, the report of being violent, edgy, negative and withdrawn while in service. After review of the evidence of record, the Board finds that the evidence establishes that the Veteran has a diagnosis of bipolar disorder that at least as likely as not was incurred during the Veteran's period of active service. The finds the opinion provided by the September 2019 examiner to be probative regarding the etiology of the Veteran's diagnosed bipolar disorder. The opinion that the Veteran's condition had onset during his period of service around the period that he was reported to be depressed, withdrawn, and violent is uncontradicted in the evidence of record. Specifically, the Board notes that the 2014 VA examiner did not opine regarding direct service connection, but rather only discussed whether the Veteran's bipolar disorder was due to his service-connected headaches. The Board finds the September 2017 examiner to be competent and credible, and as the report was based on accurate facts and objective examinations, the Board finds this opinion is entitled to significant probative weight as to the etiology of the Veteran's disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Thus, the Board finds that the evidence is at the very least in equipoise as to whether the Veteran's bipolar disorder was incurred in the Veteran's period of active service. As a result, the Board finds that the criteria for entitlement to service connection for bipolar disorder have been met. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS FOR REMAND 1. Entitlement to a compensable disability rating for bilateral hearing loss prior to December 23, 2020; and in excess of 10 percent, thereafter, is remanded. The record reflects that the Agency of Original Jurisdiction (AOJ) issued a Statement of the Case (SOC) regarding the issue of entitlement to a higher initial rating for bilateral hearing loss in January 2017. Subsequently, the RO obtained a new VA examination to assess the severity of the Veteran's bilateral hearing loss in April 2021. This evidence is pertinent to the issue on appeal. The VA examination report is VA-generated evidence not submitted by the Veteran or his representative and the automatic waiver provision of 38 U.S.C. § 7105 (e) does not apply. Further, waiver of a Supplemental Statement of the Case (SSOC) is only applicable to evidence submitted by the Veteran or his representative. See 38 C.F.R. § 20.1305. As such, the claim must be remanded so that an SSOC addressing the additional VA-generated evidence may be issued. See 38 C.F.R. §§ 19.31, 19.37. The matters are REMANDED for the following action: Review all evidence associated with the record since the January 2017 SOC, including the April 2021 VA examination report. Then, readjudicate the Veteran's claim on appeal. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.M. Johnson, 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.