Citation Nr: 1007455 Decision Date: 03/01/10 Archive Date: 03/11/10 DOCKET NO. 08-15 869 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Whether new and material evidence sufficient to reopen a claim of entitlement to service connection for bipolar disorder has been submitted. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. J. Houbeck, Associate Counsel INTRODUCTION The Veteran had active, honorable service from August 1974 to August 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 Regional Office (RO) in North Little Rock, Arkansas rating decision, which declined to reopen the Veteran's claim for service connection for bipolar disorder due to the absence of new and material evidence. The Veteran had a videoconference hearing before the undersigned Veterans Law Judge in October 2009. A transcript of the proceeding has been associated with the claims file. In addition, the Board notes that the medical evidence indicates the Veteran has been diagnosed at various times with several mental disorders in addition to bipolar disorder, including depression NOS, schizoaffective disorder, and posttraumatic stress disorder. The United States Court of Appeals for Veterans Claims ("Court") has held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the Veteran's description of the claim, reported symptoms, and the other information of record, as the Veteran is seeking service connection for his symptoms as opposed to a specific diagnosed disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Unlike Clemons, however, this is not a case in which VA has failed to consider the issue of service connection for psychiatric disorders other than bipolar disorder. In this regard, the Board notes that, in November 2002, the RO determined that new and material evidence had not been received to reopen a claim of entitlement to service connection for a chronic psychiatric disorder. The decision was not appealed and became final. A subsequent August 2004 rating decision denied service connection for certain individual psychiatric disorders claimed by the Veteran, to include posttraumatic stress disorder, anti-social personality, seizure disorder, panic attacks, and manic depression, in addition to bipolar disorder. The Veteran also failed to appeal this decision and it became final. The Board notes multiple additional previous denials of service connection for various other psychiatric disorders that went unappealed and have become final. Furthermore, during the pendency of this appeal, the Veteran has specifically and consistently identified his claim as being an attempt to reopen the previously denied claim of service connection for bipolar disorder. As the issues of entitlement to service connection for a psychiatric disorder in general and specific claims of multiple other psychiatric disorders, to include posttraumatic stress disorder, anti-social personality, seizure disorder, panic attacks, nervous condition, anxiety, and manic depression, were the subject of multiple separate, unappealed decisions, the Board believes that this case is distinguishable from Clemons, and that the Board lacks jurisdiction to consider those issues. Consequently, the Board finds that the issue on appeal remains most appropriately characterized as being solely a claim to reopen the issue of entitlement to service connection for bipolar disorder. FINDINGS OF FACT 1. An unappealed August 2004 rating decision denied service connection for bipolar disorder; the Veteran initiated an appeal of the rating action and a statement of the case was issued in September 2005, however, the Veteran did not perfect an appeal with respect to the August 2004 rating decision. 2. Evidence received since the August 2004 rating decision does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The August 2004 rating decision that denied the claim for entitlement to service connection for a bipolar disorder is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2009). 2. Evidence received since the August 2004 rating decision is not new and material, and, therefore, the claim may not be reopened. 38 U.S.C.A. §§ 5108 (West 2002); 38 C.F.R. § 3.156 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim, the Veteran's Administration (VA) has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2009). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b) (2009); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. The VCAA letter dated in April 2007 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b)(1) (2009); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claim. This letter informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. For purposes of evaluating the Veteran's request to reopen his claim of entitlement to service connection, the Board observes that in Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that with regard to matters that involve a request to reopen a previously denied claim for service connection based upon the receipt of new and material evidence, in addition to providing notice of the evidence and information that is necessary to establish entitlement to service connection, VA must first notify a claimant of the evidence and information that is necessary to reopen the claim. To that end, the Court determined that in the context of a claim to reopen, the VCAA requires that VA must first review the bases for the prior denial of record, and then release a notice letter to the Veteran that explains the meaning of both "new" and "material" evidence, and also describes the particular type(s) of evidence necessary to substantiate any service connection elements that were found to be insufficiently shown at the time of the prior final VA denial. Id. The April 2007 letter informed the Veteran that his claim had been previously denied, and that new and material evidence was needed to substantiate the claim to reopen and described what would constitute such new and material evidence. The letter also specifically explained the basis of the prior denial on the merits, and directed the Veteran to submit any new and material evidence relating his bipolar disorder to military service and medical evidence establishing a link between his bipolar disorder and an injury, disease, or event in military service. This letter was fully compliant with the requirements set forth in Kent v. Nicholson. Id. The April 2007 letter explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the file. Private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The Board observes that the Veteran has referred to hospitalization records from 1975 while in service; however, the Veteran's service treatment records include the referenced treatment records, to include contemporaneous psychiatric evaluations related to that hospitalization, were already of record at the time of the August 2004 rating decision discussed below. The Board also notes that, until a claim is reopened, VA does not have a duty to provide a medical examination or obtain a medical opinion. See 38 C.F.R. § 3.159(c)(4)(C)(iii) (2009). New and Material Evidence The Veteran claims he has bipolar disorder as a result of his military service. Specifically, the Veteran contends that while riding in a vehicle he fell out and was struck on the head by the M-60 he was carrying. Thereafter, the Veteran contends he was hospitalized for five (5) days and diagnosed with bipolar disorder. Rating actions are final and binding based on evidence on file at the time the Veteran is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a) (2009). The Veteran has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement (NOD) with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C.A. § 7105(b) and (c) (West 2002); 38 C.F.R. §§ 3.160(d), 20.201, 20.302(a) (2009). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2009). In an August 2004 rating decision, the RO denied service connection for bipolar disorder. The Veteran filed a timely notice of disagreement (NOD) and a statement of the case was issued in September 2005. However, the Veteran did not file a substantive appeal or otherwise indicate a desire to appeal the decision to the Board. As no correspondence was received from the Veteran within the appeal period perfecting his appeal with respect to the issue of entitlement to service connection for bipolar disorder, therefore, the August 2004 rating decision is final. At the time of the August 2004 decision, the record included service treatment records showing treatment in May 1975 that was initially characterized as either a seizure disorder or an anxiety reaction. At that time, the Veteran indicated that he enjoyed his job as a typist, but that the imminent possibility of being returned to the field caused significant anxiety. The examiners determined that the Veteran's condition was possibly a psychophysiologic reaction. On further examination, however, no psychiatric problems were found. Based on an interview with the Veteran where he expressed a desire for a medical discharge due to physical problems he was referred for physical evaluation. A June 1975 psychiatric evaluation noted that the original seizure had been questionable and was more likely emotional than physical in nature. The examiner concluded that the Veteran's physical symptoms, including gastrointestinal and claimed seizure problems, were on an emotional basis and superimposed on a personality disorder. The Veteran was separated from the service in August 1977 and re-enlisted in April 1980, at which time no mental problems were reported by the Veteran or noted during the entrance examination. Prior to the August 2004 rating decision, the claims file also included VA and private treatment records showing treatment for various psychological problems, to include bipolar disorder. For example, treatment records from August 1996 indicate a diagnosis of bipolar affective disorder. That diagnosis was noted again in April 1998. In July 1999, the diagnosis was noted as bipolar affective disorder or a substance-induced mood disorder. In April and August 2001, the Veteran had a noted history of bipolar disorder, but that diagnosis was not confirmed at that time. A June 2004 VA treatment record noted a past medical history of bipolar disorder versus antisocial and polysubstance abuse. The claims file also included multiple statements from the Veteran. These statements included the Veteran's assertion that his psychological problems began after experiencing a seizure in May 1975 on the firing range. Potentially relevant evidence received since the August 2004 rating decision includes records from the Social Security Administration (SSA), VA outpatient records, and multiple statements from the Veteran, his representative, and fellow servicemembers or acquaintances. Except as provided in Section 5108 of this title, when the RO disallows a claim, the claim may not thereafter be reopened and allowed and a claim based on the same factual basis may not be considered. 38 U.S.C.A. § 7105 (West 2002). Under 38 U.S.C.A. § 5108, "[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim." 38 C.F.R. § 3.156(a), which defines "new and material evidence," was revised, effective August 29, 2001. The instant claim to reopen was filed after that date and the revised definition applies. Under the revised definition, "new evidence" means evidence not previously submitted to agency decision makers, and "material evidence" means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. The new and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Additionally, when determining whether the Veteran has submitted new and material evidence to reopen a claim, consideration must be given to all the evidence since the last final denial of the claim. Evans v. Brown, 9 Vet. App. 273 (1996). In Evans, the Court indicated that the newly presented evidence need not be probative of all the elements required to award the claim, but need only tend to prove each element that was a specified basis for the last disallowance. Id at 284. As noted above, the Veteran's claim for service connection for bipolar disorder was denied previously in an August 2004 rating decision. At that time, the RO acknowledged a history of bipolar disorder. Moreover, the RO found no evidence of a diagnosis of bipolar disorder while in service or a link between any current bipolar disorder and the Veteran's military service. Again, the Veteran claims he has a current diagnosis of bipolar disorder that was caused by some incident or event during military service. As noted, for evidence to be new and material in this matter, it would have to tend to link his current diagnosis of bipolar disorder to military service. The Board finds the evidence received since the August 2004 rating decision does not. The obtained SSA records include an August 1999 diagnosis of a personality disorder. The records also include VA treatment records from the 1990s, including a provisional December 1996 diagnosis of bipolar affective disorder, a March 1997 notation of a possible history of bipolar disorder, and a November 1997 diagnosis of bipolar affective disorder. A July 2007 treatment record notes among the Veteran's active problems as bipolar disorder not otherwise specified. The new records also include multiple similar buddy statements from fellow service members and other acquaintances. The fellow servicemember stated that the Veteran had anxiety problems during service due to the constant field duty the battalion was forced to perform. The other statements noted that the Veteran's bipolar disorder is an ongoing problem. The Veteran has offered similar statements. The Veteran also related, as described above, that he fell out of a vehicle, was struck by his M-60, and was treated for and diagnosed with bipolar disorder in the hospital. As noted, the medical evidence since August 2004 reflects that the Veteran has a current diagnosis of bipolar disorder. However, as noted in the August 2004 rating decision, the Veteran has an extensive history of bipolar disorder. The Board notes that none of the newly submitted evidence indicates that the Veteran's bipolar disorder is related to service. As noted, the Veteran had complaints of anxiety in service, but the May 1975 treatment record discussed above showed no evidence of current psychiatric problems. After the June 1975 psychiatric evaluation, which found emotional problems superimposed on a personality disorder, the Veteran served another twenty-six (26) months in the military and was honorably discharged. Moreover, the Veteran was re-admitted into the military in April 1980, with no evidence of psychiatric problems at that time. In any event, the service treatment records were already of record, and considered, in previous final RO decisions. As noted, none of the newly received evidence suggests a link between the Veteran's current bipolar disorder and his military service. Furthermore, the Board has considered the Veteran's lay assertions that his bipolar disorder was caused by his military service. In support of this contention, the Veteran reports that he was diagnosed with bipolar disorder after falling out of a truck and hitting his head with his M-60. However, the Board notes that the claims file at the time of the August 2004 denial reflected the contention that his disorder had its onset in service and included similar assertions. Thus, while the Veteran is certainly competent to report the date of onset of his symptomatology, such assertions are essentially cumulative of evidence already of record at the time of the last denial, and do not raise a reasonable possibility of substantiating the claim. The Board has considered whether the lay statements from the Veteran's fellow servicemember and acquaintances regarding his bipolar disorder constitute new and material evidence. The Board concludes they do not. The Board notes that the lay statements except for the fellow servicemembers simply state that the Veteran's bipolar disorder has been an ongoing problem. This information is cumulative of evidence in the claims file prior to August 2004 of continuing psychological problems, to include bipolar disorder. The fellow service member stated that the Veteran had anxiety reactions that were later diagnosed as bipolar disorder. The Board recognizes that lay persons are competent to report observed symptoms, such as anxious behavior. As noted, the Veteran himself reported such history on numerous occasions prior to the last final denial. In addition, complaints of anxiety are noted in his service treatment records, which also reflect that he underwent psychiatric evaluation at that time, but these records were already of record at the time of the last denial. Thus, while the fellow service member may be competent to describe observable symptoms, the Board finds the assertions of his fellow service member to be cumulative of previously received evidence. Furthermore, to the extent that the service member is offering his own opinion that the Veteran's in-service symptoms are related to his subsequently diagnosed bipolar disorder, the Board notes that, as a layperson, the fellow servicemember, is not competent to attribute symptoms he observed to a specific underlying psychiatric disorder. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Therefore, this is not a case in which the service member's lay belief that the Veteran had bipolar disorder in service can serve to establish the onset of a psychiatric disorder in service or to link any psychiatric disorder to the Veteran's service so as to constitute new and material evidence. See generally Espiritu v. Derwinski, 2 Vet. App. 492 (1992); Moray v. Brown, 5 Vet. App. 211 (1993). In short, the additional treatment records and lay statements of the Veteran and others either fail to relate to an unestablished fact necessary to substantiate the claim, or are essentially cumulative and redundant of the evidence of record at the time of the last prior final denial. Accordingly, the additional evidence received since August 2004 is not new and material and the claim may not be reopened. Until the Veteran meets his threshold burden of submitting new and material evidence sufficient to reopen his claim, the benefit of the doubt doctrine does not apply. Annoni v. Brown, 5 Vet. App. 463, 467 (1993); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER New and material evidence sufficient to reopen a claim of entitlement to service connection for bipolar disorder has not been received and, therefore, the claim is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs