Citation Nr: A25035016 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 221108-293088 DATE: April 16, 2025 ORDER Entitlement to service connection for unspecified bipolar and related disorder is granted. REMANDED Entitlement to service connection for headaches, including as secondary to tinnitus, is remanded. FINDING OF FACT The evidence of record is at least in approximate balance that the Veteran's unspecified bipolar and related disorder had its onset during service or is otherwise related to active-duty service. CONCLUSION OF LAW The criteria for service connection for unspecified bipolar and related disorder have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1998 to September 2006. In November 2022, the Board of Veterans' Appeals (Board) received a VA Form 10182, Decision Review Request: Board Appeal electing the Direct Review docket to review an August 2022 Higher Level Review (HLR) decision by the Department of Veterans Affairs (VA) Regional Office (RO). 38 C.F.R. § 3.2500(a). Therefore, the Board may only consider the evidence of record at the time of the May 2022 and March 2022 rating decisions. 38?C.F.R. § 20.301. Evidence was added to the claims file during a period of time when new evidence was not allowed. As the Board is deciding the claims of unspecified bipolar and related disorder and headaches, it may not consider this evidence in its decision. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. However, because the Board is remanding the claim of entitlement to service connection for headaches, any evidence the Board could not consider will be considered by the RO in the adjudication of that claim. 38 C.F.R. § 3.103 (c)(2)(ii). As an initial matter, the Board notes that the November 2022, VA Form 10182, Notice of Disagreement, also included the claims for service connection for erectile dysfunction, service connection for lumbar spine condition, and service connection for bilateral hearing loss. However, the Veteran had previously submitted a VA Form 10182 in August 2022, in which he had already contested his entitlement to service connection for erectile dysfunction and service connection for lumbar spine condition. As such, those claims were addressed by an October 2024 Board decision. Regarding the Veteran's request for service connection for bilateral hearing loss, that appeal was untimely and will not be considered in this decision. Entitlement to service connection for acquired psychiatric disorder The Veteran contends his acquired psychiatric disorder is due to his Survival, Evasion, Resistance, and Escape (SERE) training, which was then exacerbated by being stationed on an aircraft carrier. See February 2022 VA Form 21-4138, Statement in Support of Claim and December 2018 VA Form 21-526EZ, Fully Developed Claim. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(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." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The August 2022 HLR rating decision made the favorable findings that the Veteran was diagnosed with unspecified bipolar and related disorder. As such the Board finds the first Shedden element has been met. There are no records of treatments or diagnosis of any acquired psychiatric disorders in the Veteran's service treatment records (STRs). Nonetheless, an absence of contemporaneous records documenting in-service complaints or treatments is not fatal to a claim for service connection. Savage v. Gober, 10 Vet. App. 488 (1997). The Veteran's post-service records reflect he was seen as early as April 2016 for acquired psychiatric disorders. The Veteran reported that he had not been able to maintain employment since his release from active duty. See April 2016 Corpus Christi OPC notes. In March 2022, the Veteran was afforded a VA examination. The examiner diagnosed the Veteran with unspecified bipolar and related disorder. The Veteran stated he suffered from separation anxiety, chronic depression, sleep deprivation, and suicidal ideation in 2003 from SERE school. In 2004, the Veteran stated he reported feeling confined and depressed on the aircraft carrier. In addition, the Veteran stated he sought out mental health treatment once but "everybody recommended [him] not to continue" as this would cause him to lose his pilot flying status. The examiner opined the Veteran's acquired psychiatric disorder was at least as likely as not incurred in or caused by his service. The examiner explained that the Veteran's job was confirmed as an aviator and SERE school was noted as required for aviators. The examiner found the Veteran reported symptoms related to losing his aviator status and SERE school in service, that coupled with his statements noting mental health issues and treatment since military service for his mood and sleep issues, and the VA records noting mental health symptoms of depression and Bipolar Disorder, make it at least as likely as not his acquired psychiatric disorder incurred in or was caused by his confinement during training events and duties during service. The Board finds the VA examiner's opinion probative as they considered the Veteran's relevant history, medical records, military file, and lay statements. See Guerrier v. Brown, 4 Vet. App. 467, 470-71 (1993) (noting that the credibility and weight of the opinions are within the province of the adjudicator); see also Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion). Therefore, the second and third Shedden elements have been met. Thus, based on the evidence presented, the Board finds that the Veteran's unspecified bipolar and related disorder is due to his in-service SERE school and subsequent confinement to an aircraft carrier. As such, service connection is warranted and the Board resolves all doubt in the Veteran's favor and finds that service connection for an acquired psychiatric disability is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for headaches, including as secondary to tinnitus The Veteran contends he is entitled to service connection for headaches including as secondary to his service-connected tinnitus. See December 2021 VA Form 21-4138, Statement in Support of Claim and December 2021 VA Form 21-526EZ, Fully Developed Claim. Service connection may be granted for a disability resulting from injury or disease that was incurred in, or aggravated by, military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease diagnosed after a Veteran's 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). To substantiate a claim of service connection, there must be evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Service connection may also be established on a secondary basis for a disability that is due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Service connection for a disability can be granted on a secondary basis if a Veteran has a (1) current disability; (2) a separate disability already subject to service connection; and (3) the first disability is due to or the result of or is aggravated by the service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310. Per the favorable findings in the August 2022 HLR rating decision, the Veteran was diagnosed with headaches, headaches are a chronic disease which can be presumptively service connected, and the Veteran is service connected for tinnitus. The Board thus finds that the current disability element and separate service-connected disability element of secondary service connection have been established. Allen at 439; 38 C.F.R. § 3.310. Therefore, the question before the Board is whether the Veteran's headaches are due to or the result of, or is aggravated by, any of the Veteran's service-connected disabilities. VA's duty to assist includes conducting a thorough and comprehensive medical examination. 38 U.S.C. § 5103A (d)(2). The Board is required to ensure that medical opinions are made on the basis of sufficient facts or data and the application of reliable medical principles. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). A medical opinion is adequate if it is based upon consideration of the Veteran's prior medical history and describes the Veteran's condition in sufficient detail so as to allow the Board to make a fully informed evaluation. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); see also Ardison v. Brown, 6 Vet. App. 405, 407 (1994). This requires the opinion to "contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Here, in December 2021, the Veteran was afforded a VA examination. The Veteran expressed his headaches were due to his tinnitus, they occurred four to five times a week, and he had sensitivity to light, nausea and vertigo. The examiner stated that "[a]ccording to Mayo clinic: [a] primary headache is caused by overactivity of or problems with pain-sensitive structures in your head. A primary headache isn't a symptom of an underlying disease. A secondary headache is a symptom of a disease that can activate the pain-sensitive nerves of the head. Any number of conditions, varying greatly in severity, may cause secondary headaches." The examiner found a nexus has not been established based on the lack of evidence to support the claim. Thus, the examiner opined the Veteran's headaches were less likely than not proximately due to or the result of the Veteran's tinnitus. The Board finds the December 2021 VA opinion inadequate. The service connection opinion is based solely on the lack of records, there is no explanation for the examiner's rationale, nor does it address any of the lay statements in the case. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) (the absence of documented treatment in service or thereafter is not fatal to a service connection claim); Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (noting that a VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the Veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence"); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes to provide an examination, it must provide an adequate one); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008) (requiring the Board to ensure that medical opinions are made on the basis of sufficient facts or data and the application of reliable medical principles). In addition, the December 2021 VA opinion was inadequate as it failed to address all of the Veteran's theories of entitlement and additionally, whether the Veteran's tinnitus, could have aggravated the Veteran's headaches or whether the Veteran's headaches could have been caused directly by his service. See El-Amin v. Shinseki, 26 Vet. App. 136 (2013) (the Court vacated a Board decision where a VA examiner did not specifically opine as to whether a disability was aggravated by a service-connected disability.) Thus, a remand is warranted to correct these pre-decisional duty to assist errors. The matter is REMANDED for the following actions: Obtain an addendum medical opinion from an appropriate clinician to determine the nature and etiology of the Veteran's headaches. The entire claims file must be reviewed by the examiner. The examiner is asked to address: (a.) Whether the Veteran's headaches were incurred in, caused by, or etiologically related to his active service? (b.) Whether the Veteran's headaches are due to his service-connected tinnitus? (c.) Whether the Veteran's headaches have been aggravated by his service-connected tinnitus? The examiner is reminded that causation and aggravation are separate and distinct concepts and require separate rationales. The examiner should provide specific evidence of record to support any conclusions, such as references from this Veteran's relevant medical history or medical literature. In formulating any opinion, the examiner must address the Veteran's lay statements, and any other medical opinions submitted by the Veteran. DUSTIN L. WARE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Simons 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.