Citation Nr: 1015658 Decision Date: 04/29/10 Archive Date: 05/06/10 DOCKET NO. 07-15 992 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim for service connection for an acquired psychiatric disorder, to include bipolar disorder. 2. Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Veteran represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. M. Schaefer, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1988 to May 1992 and from July 1993 to August 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in May 2005 by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In March 2010, the Veteran testified at a hearing before the undersigned, via video-conference. A transcript of the hearing is associated with the claims file. The Board notes that the Veteran's appeal was certified as entitlement to service connection for bipolar disorder only; however, as the Veteran's treatment records reflect multiple diagnoses have been associated with his symptoms, the Board has broadened the claim to encompass all acquired psychiatric disorders. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). The issue of entitlement to service connection for an acquired psychiatric disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In a final rating decision issued in February 2003, the RO denied a claim service connection for bipolar disorder. 2. Evidence added to the record since the prior final denial in February 2003 is neither cumulative nor redundant of the evidence of record at that time and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW The February 2003 decision is final; new and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION As the Board's decision herein to reopen the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder is a full grant of the benefits sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), enacted November 9, 2000 (codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002) and the implementing regulations. The Veteran contends that he currently suffers from an acquired psychiatric disorder, to include bipolar disorder, that either first manifested in or was aggravated by military service. Thus, he contends that service connection is warranted for an acquired psychiatric disorder. In a February 2003 rating decision, the RO considered the service treatment records, post-service VA treatment records, and a July 2004 private psychiatric evaluation for the Social Security Administration (SSA). Based on this information, the RO found that the Veteran's acquired psychiatric disorder, to include bipolar disorder was not shown to be related to the Veteran's military service. Accordingly, the RO denied the Veteran's claim of entitlement to service connection for bipolar disorder. The Veteran failed to timely perfect an appeal of this decision. The next communication from him with regard to this claim was a December 2004 statement submitted by his representative, along with VA mental health treatment records. Thus, the February 2003 decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2002) [(2009)]. Generally, a claim which has been denied in an unappealed or final RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. The Veteran filed his claim to reopen in December 2004; thus, the definition of new and material evidence applicable to the claim is as follows: New evidence means existing evidence not previously submitted to agency decisionmakers. 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. 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. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Since the final February 2003 rating decision, the Veteran has submitted additional VA treatment records and a May 2007 letter by his treating psychiatrist, Dr. GP. The Board determines that the treatment records are both cumulative and redundant of the previously submitted evidence as they merely reiterate diagnoses already of record. However, the letter from Dr. GP is both new and material. In this letter, Dr. GP indicated that his review of the Veteran's service treatment records indicated that aggravation of the Veteran's bipolar disorder warranted further consideration. Thus, this letter is neither cumulative nor redundant of the evidence of record in February 2003, but it raises a reasonable possibility of substantiating the Veteran's claim by addressing the question of a nexus to service, which was an element missing from the original service connection claim. Therefore, the Board concludes that evidence added to the record since the February 2003 denial is both new and material and that the requirements to reopen the claim of entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder, have been met. Therefore, the claim to reopen a previously denied claim seeking service connection for an acquired psychiatric disorder is granted. ORDER New and material evidence having been received, the claim to reopen the claim of entitlement to service connection for an acquired psychiatric disorder is granted. REMAND In light of the reopening of the Veteran's service connection claim above, the Board determines that a remand is necessary for further development of the claim. First, the Board observes that there are outstanding, relevant records that need to be obtained prior to further adjudication of the claim. In this regard, the Board notes that the record shows that the Veteran receives frequent treatment from the Hines VA Medical Center (VAMC). The most recent treatment record is dated in April 2008. Therefore, the Board determines that a remand is necessary so that any outstanding VA treatment records from the Hines VAMC can be added to the claims file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file). Additionally, the record shows that the Veteran is in receipt of Supplemental Security Income (SSI) from the SSA. As the payment of SSI is in part due to disability and the record reflects that the Veteran's employment has been hindered by his psychiatric symptoms, the Board finds that the records associated with the application and grant of the SSI benefits are likely relevant to the Veteran's claim. Therefore, the Board also determines that a remand is required so that the records related to the Veteran's SSI benefits may be associated with the claims file. Murincsak v. Derwinski, 2 Vet. App. 363, 373 (1992); see also Quartuccio v. Principi, 16 Vet. App. 183, 187-188 (2002); Baker v. West, 11 Vet. App. 163, 169 (1998). Additionally, the Board finds that a VA examination to ascertain the existence and etiology of the Veteran's acquired psychiatric disorder can be scheduled. The record reflects that the Veteran was treated for attention-deficit hyperactivity disorder (ADHD) in 1974, 1975, and 1976, prior to entry into service. His service treatment records are generally devoid of reference to psychological or nervous complaints, but the Board observes that an April 1994 service treatment record discloses that the Veteran sought assistance because he was having nightmares, which were apparently severe enough to warrant seeking treatment. After service, the first documented treatment occurred in January 1996, and the diagnosis assigned was ADHD with Ritalin and Prozac prescribed. Subsequently, the Veteran carried several Axis I diagnoses including, but not limited to, bipolar affective disorder, depressive disorder not otherwise specified, schizoaffective disorder, and polysubstance abuse. Finally, in a May 2007 letter, the Veteran's treating psychiatrist stated that he had reviewed the Veteran's service treatment records and concluded that, given that the Veteran was prescribed Prozac, a strong antidepressant within temporal proximity to his service, whether his bipolar disorder was at least aggravated by his active duty naval service warranted further consideration. In light of these facts, the Board determines that the Veteran should be afforded a VA psychological examination to assess whether it is at least as likely as not that the Veteran's current psychiatric disorder was incurred during service or is the result of aggravation during service of the ADHD diagnosed and treated before service. 38 C.F.R. § 3.159; see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Obtain all VA treatment records from the Hines VAMC dated from April 2008 onward. 2. Request all documents related to the application and grant of SSI benefits from the SSA. 3. All requests and responses with respect to the above actions, positive and negative, should be associated with the claims file. 4. Schedule the Veteran for a VA psychological examination in order to assess the existence and etiology of his claimed acquired psychiatric disorder. The claims file should be made available for review, and the examination report should reflect that such review occurred. Upon a review of the record and examination of the Veteran, the examiner should respond to the following: a. Identify all currently manifested psychiatric disorders. b. Whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that any acquired psychiatric disorder currently diagnosed is causally or etiologically related to the Veteran's military service, to include in-service aggravation of any psychiatric disorder documented to have existed prior to service, to include ADHD? A rationale for any opinion advanced should be provided. The examiner should also state what sources were consulted in forming the opinion. 5. After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated, to include all evidence received since the September 2009 supplemental statement of the case. If the claim remains denied, the Veteran and his representative should be issued another supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs