Citation Nr: 22017261 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 12-31 679 DATE: March 24, 2022 ORDER Entitlement to service connection for an "other specified bipolar disorder" is granted. FINDING OF FACT An "other specified bipolar disorder" originated during active service. CONCLUSION OF LAW The criteria for service connection for "an other specified bipolar disorder" have been met. 38 U.S.C. §§ 1110, 1111, 1137, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 2009 to March 2010. In May 2015, the Veteran appeared at a Board of Veterans' Appeals (Board) videoconference hearing before a Veterans Law Judge. The hearing transcript is of record. In March 2020, the Board informed the Veteran that the Veterans Law Judge who conducted the May 2015 Board hearing was no longer employed by the Board, and he therefore had the right to another hearing before a different Veterans Law Judge. The Veteran was informed that if a response was not received within 30 days, the Board would assume that he did not wish an additional hearing. The Veteran did not respond to the Board's notice. Service connection for a Psychiatric Disability The Veteran asserts that service connection for a psychiatric disability is warranted as the claimed disability originated during active service. Service connection may be granted for recurrent disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. 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). A veteran who served after December 31, 1946, is presumed to be in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious and manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in the examination reports are to be considered as noted. 38 U.S.C. §§ 1111, 1137; 38 C.F.R. § 3.304. The presumption of soundness attaches only where there has been an induction examination in which the later complained-of disability was not detected. Bagby v. Derwinski, 1 Vet. App. 225 (1991). The term "noted" denotes only conditions that are recorded in the examination reports and a history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of the conditions. 38 C.F.R. § 3.304(b); Crowe v. Brown, 7 Vet. App. 238 (1994); Contant v. Principi, 17 Vet. App. 116 (2003). When no preexisting condition is noted upon entry into service, a veteran is presumed to have been found sound upon entry. The burden then falls on the Government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. If that burden is met, then the veteran is not entitled to service connection benefits. However, if the Government does not rebut the presumption of soundness, the claim is one for service connection. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Clear and unmistakable evidence means that the evidence "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Quinn v. Shinseki, 22 Vet. App. 390, 396. The report of the August 2009 physical examination for service entrance states that no psychiatric disability was identified. Therefore, the Veteran is entitled to the presumption of soundness as to a psychiatric disability. 38 U.S.C. § 1111; 38 C.F.R. § 3.304. It is next necessary to determine if the presumption of soundness is rebutted. Service treatment records show that the Veteran was seen for reports of depression and anxiety in December 2009. A January 2010 evaluation noted that the Veteran's reported symptoms were consistent with depressive and anxiety spectrum symptoms and a possible bipolar spectrum disorder. A January 2010 Entrance Physical Standards Board Proceedings report stated that the Veteran was diagnosed with a "not otherwise specified depressive disorder (EPTS by history)." The Entrance Physical Standards Board concluded that the diagnosed depressive disorder both existed prior to service and was not permanently aggravated during active service. The report of a November 2010 psychiatric examination conducted for the Department of Veterans Affairs (VA) states that the Veteran presented a history of psychiatric symptoms since February 2010 following an October 2009 fall during boot camp and a suicide attempt by cutting his wrist in March 2010. The Veteran was noted to be a reliable historian. The Veteran was diagnosed with a generalized anxiety disorder and a mood disorder. The examiner commented that the Veteran "indicates that he has developed anxiety and ongoing feelings of depression secondary to a fall that occurred during boot camp in October of 2009." The report of a November 2020 psychiatric examination conducted for VA states that the Veteran was diagnosed with an "other specified bipolar disorder." The examiner concluded that "the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness" and "the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness." The psychologist commented that, "while a single document, such as the 2010 DBQ exam by Dr. Biller might give appearance that the Veteran's mental health condition is attributed to an inservice event or illness, a review of the Veteran's total record does not support Veteran's claim of developing a mental health condition in service, or a claim for permanent aggravation" and "the issue of etiology aside, the Veteran's current condition and state of his diagnosed mental health condition is very similar, and, in some aspects, improved as a result of treatment, over where it was at the time of 2010 exam." (Continued on the next page) The November 2010 VA examination report states that the Veteran was a reliable historian; he reported that the diagnosed psychiatric disability was initially manifested during active service following an October 2009 fall during boot camp; and he attempted suicide during the month when he was discharged. The November 2020 psychiatric examination report acknowledges that the November 2010 VA examination "might give appearance that the Veteran's mental health condition is attributed to an inservice event or illness." Given such VA examination findings, the Board finds that the record does not encompass clear and unmistakable evidence establishing that a psychiatric disorder undebatably both existed prior to service entrance and was not aggravated by active service. Therefore, the presumption of soundness as to a psychiatric disability has not been rebutted. The Veteran has reported that he initially manifested a recurrent psychiatric disability during active service following an October 2009 fall during boot camp. The service treatment records reflect that the Veteran was initially treated for depressive symptoms during active service in December 2009. The Veteran has been diagnosed by VA examiners with a generalized anxiety disorder, a mood disorder, and an "other specified bipolar disorder." The record is in at least equipoise as to whether the diagnosed psychiatric disability originated during active service. Resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for an "other specified bipolar disorder" is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. J. T. HUTCHESON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Casula 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.