Citation Nr: 23010489 Decision Date: 02/21/23 Archive Date: 02/21/23 DOCKET NO. 15-01 085 DATE: February 21, 2023 ORDER Entitlement to service connection for bipolar disorder is granted. REMANDED Entitlement to service connection for cannabis-use disorder, to include as secondary to bipolar disorder, is remanded. FINDING OF FACT The Veteran suffers from bipolar disorder that had its onset during active-duty service. CONCLUSION OF LAW The criteria for service connection for bipolar disorder have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from August 1971 to August 1974. The Veteran died in August 2020. The Appellant is the Veteran's spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision that denied service connection for multiple conditions, including bipolar disorder. The Veteran testified before the undersigned Veterans Law Judge in June 2018. In August 2018, the Board remanded several matters to obtain new VA examinations. In February 2021, after the Veteran's death, the Board denied service connection for all issues. The Appellant then filed an appeal to the Court of Appeals for Veterans Claims (the Court). Pursuant a November 2021 Joint Motion for Partial Remand, the Court vacated portions of the February 2021 decision that denied claims for entitlement to service connection for a back disability, bilateral hearing loss, a bilateral groin lymph node disability, and an acquired psychiatric disorder. In correspondence dated December 1, 2022, the Appellant's representative, on behalf of the Appellant, withdrew all claims except that for service connection for an acquired psychiatric disorder. The Appellant also waived any right to AOJ consideration of new evidence. Entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R.§ 3.303. Service connection requires competent evidence showing: (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 (nexus). Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disease manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). The Appellant asserts that the Veteran suffered from bipolar disorder that had its onset during service. At the time of his death, the Veteran was diagnosed with multiple psychiatric disabilities, including bipolar disorder. In a June 2014 statement, the Veteran explained that he developed this disorder after being imprisoned when he was found "sleeping on watch." At his hearing, he explained further that he was confined without food or water and threatened with violence. At that time, he was certain that he was going to be shot for his offenses. Indeed, the record shows that, following this incident, the Veteran's behavior declined markedly, as the Veteran was repeatedly disciplined for failing to appear at his appointed place of duty and willfully disobeying orders. Shortly after service, the Veteran was dismissed from an automotive repair class for lack of attendance and failing to pay tuition. At a May 2019 VA examination, the examiner concluded that it is less likely than not that the Veteran met the diagnostic criteria for any of his currently diagnosed psychiatric conditions during active duty or within one year of discharge. He noted that the Veteran was involved in numerous disciplinary infractions during his active-duty service; but he explained that it would be speculative to say those stemmed from any psychiatric illnesses, as the Veteran's service treatment records were silent for mental health-related diagnoses or treatments. In the November 2021 Joint Motion for Partial Remand, the parties agreed that this examination was inadequate to decide the claim because the examiner relied on an inaccurate factual premise; specifically, that the Veteran was first diagnosed with a mental health disorder in 1998. Indeed, the record shows that he was first diagnosed with a mental health condition as early as 1987 with treatment dating as far back as 1986. Accordingly, the Appellant submitted a December 2022 private opinion explaining in robust detail the development of the Veteran's mental health difficulties. She identified the Veteran's primary disability as bipolar disorder based on the fact that he was repeatedly hospitalized for mixed symptoms of mania with irritability, aggression, paranoid delusions and depression. She also noted that the Veteran's service treatment records confirm that he was disciplined for sleeping at his post in November 1972 and that his behavior declined precipitously following this event both during service, as the Veteran repeatedly disobeyed orders, and shortly after service, when the Veteran failed to attend various educational programs. After thorough review of the Veteran's history and the claims file, the examiner concluded that the Veteran's abrupt and steep performance decline in service was more likely than not markers of his bipolar disorder and, thus, this disorder more likely than not manifested during active-duty service. With regard to the fact that the Veteran did not receive any treatment prior to 1986, the examiner explained that the Veteran appears to have had very little insight into the nature and severity of his condition during and in the years after service, and he likely did not realize he required any treatment. His behavioral and performance changes are much better indicators of his mental state. In assessing the probative weight given to a medical opinion, the Board must consider whether it is (1) based on sufficient facts or data, (2) the product of reliable principles and methods, and (3) the result of principals and methods reliably applied to the facts. Nieves-Rodriquez v. Peake, 22 Vet. App. 295 (2008). The Board finds the December 2022 opinion probative. It is based on an extremely thorough review of the file, and it provides a robust rationale that draws from the specific facts of the Veteran's service and mental health history. Based on the foregoing, the Board finds that the evidence weighs persuasively in favor of the Veteran's claim. Service connection for bipolar disorder is granted. As a final point, the November 2021 Joint Motion for Partial Remand required the Board to address whether the scope of the Veteran's claim includes a claim for post-traumatic stress disorder (PTSD). The Board finds that it does not. Although there are a few treatment notes that refer to PTSD symptoms or include PTSD as a diagnosis, the record contains three medical opinions regarding the Veteran's mental disability, none of which identifies a PTSD diagnosis. This includes the May 2019 and December 2022 opinions described above, as well as an April 2014 VA examination taken for pension purposes. Notably, the thorough December 2022 opinion, which the Board found probative as to the diagnosis and etiology of the Veteran's condition, did not discuss PTSD, except to briefly note that it was included in the Veteran's medical history. Furthermore, the Veteran has never asserted that he has PTSD. REASONS FOR REMAND Entitlement to service connection for cannabis-use disorder, to include as secondary to bipolar disorder, is remanded. The November 2021 Joint Motion for Partial Remand required the Board to evaluate whether the Veteran was entitled to "secondarily service-connected compensation" for his cannabis-use disorder. Indeed, at his April 2014 VA examination for his psychotic disorder that was service-connected for pension purposes, the Veteran was diagnosed with cannabis-use disorder. The examiner noted that it is "secondary to his psychotic disorder diagnosis." The December 2022 examiner noted that the Veteran had co-morbid but secondary substance use disorders that complicated his presentation and diagnosis because it was not always clear to what degree his use contributed to his presentation at any given moment. It appeared to her that he was more likely to be diagnosed with primary psychotic disorders or hospitalized when binge drinking or using a more significant amount of marijuana. She explained that cannabis use is believed to worsen the occurrence of manic symptoms in those diagnosed with bipolar disorder. It remains unclear whether the Veteran's cannabis-use disorder was caused by or aggravated by his now service-connected bipolar disorder. A remand is required to obtain a medical opinion in this regard. The matters are REMANDED for the following action: Obtain a medical opinion from an appropriate clinician regarding whether the Veteran's cannabis-use disorder is at least as likely as not proximately due to his service-connected bipolar disorder or aggravated beyond its natural progression thereby. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board F. J. Carmack, 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.