Citation Nr: 1104590 Decision Date: 02/04/11 Archive Date: 02/14/11 DOCKET NO. 09-22 521 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for an acquired psychiatric disorder, to include post traumatic stress disorder (PTSD). 2. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for an acquired psychiatric disorder, to include bipolar affective disorder, also claimed as schizophrenia. ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran had active service from January 1986 to January 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California that denied the Veteran's application to reopen her previously denied claims of entitlement to service connection for PTSD and bipolar affective disorder. In this case, the Board notes that in June 2003, the RO denied entitlement to service connection for PTSD and bipolar affective disorder. The Veteran did not file a notice of disagreement with decision and it became final. As such, before reaching the merits of the Veteran's psychiatric claims, the Board must rule on the matter of reopening the claims. That is, the Board has a jurisdictional responsibility to consider whether it is proper for the claim to be reopened. See Jackson v. Principi, 265 F.3d 1366 at 1369 (Fed. Cir. 2001); see also Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). In this case, the Board notes that the Veteran has been diagnosed with bipolar disorder I, most recent episode manic, severe with psychotic features, and a history of PTSD. The United States Court of Appeals for Veterans Claims (Court) has held that claims for service connection for one psychiatric disorder encompasses claims for service connection for all psychiatric disabilities. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). Therefore, the Board has characterized the issues as set forth above. The reopened issues of entitlement to service connection for an acquired psychiatric disorder, to include PTSD and bipolar affective disorder are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In a June 2003 rating action, the RO denied the Veteran's claims of entitlement to service connection for PTSD and bipolar affective disorder; the Veteran did appeal the determinations and they became final. 2. Evidence received subsequent to the June 2003 rating action, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claims, and raises a reasonable possibility of substantiating the claims. CONCLUSIONS OF LAW 1. The June 2003 rating action that denied service connection for PTSD and bipolar affective disorder is final. 38 U.S.C.A. §7105(c) (West 2002); 38 C.F.R. § 3.104, 20.302, 20.1103 (2002). 2. The evidence received subsequent to the June 2003 rating action is new and material; the claims for service connection for PTSD and bipolar affective disorder are reopened. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108, 7105 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.303, 20.1103 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA. As a preliminary matter, the Board is required to address the Veterans Claims Assistance Act of 2000 ("VCAA") that became law in November 2000. The VCAA provides, among other things, that VA will make reasonable efforts to notify a claimant of the relevant evidence necessary to substantiate a claim for benefits under laws administered by VA. The VCAA also requires VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. In terms of the Veteran's new and material claim, the Veteran must be provided with notice regarding the information needed to reopen a previously denied claim for PTSD. See Kent v. Nicholson, 20 Vet. App. 1 (2006). In this case, however, as the Board has decided to reopen the Veteran's claims of entitlement to service connection for acquired psychiatric disorders, to include PTSD and bipolar affective disorder, no further discussion of the Veterans Claims Assistance Act of 2000 and the implementing regulations is required at this point. Any error related to the VCAA solely with regard to the Veteran's application to reopen is moot. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Kent v. Nicholson, 20 Vet. App. 1 (2006). II. New and Material Evidence The RO denied entitlement to service connection for PTSD and bipolar affective disorder in June 2003. The Veteran did not file a notice of disagreement with respect to this decision and it became final. In the June 2003 decision, the RO found that there was no evidence of treatment for PTSD in service, and no evidence of the Veteran's alleged personal assault in service. The RO found evidence of marital problems in service and a diagnosis of anxiety; however, there was no evidence of bipolar disorder in service. The evidence added to the Veteran's claims file since June 2003 consists of private and VA treatment records, lay statements from two of the Veteran's fellow servicemen and friends, various correspondence between the Veteran and other individuals, and the Veteran's statements in support of her claims. The treatment records indicate continued treatment for bipolar disorder and a past history of PTSD. The lay statements indicate that the Veteran may have been physically assaulted by her then husband while she was in the service and that the Veteran's husband had been arrested for domestic abuse at that time. One of the lay statements also indicated that the writer saw bruises on the Veteran's upper arms in service and that the Veteran was seen at the mental health clinic in service as a result of domestic abuse. The Veteran also reported that her current psychiatric disorders are related to the domestic abuse that she suffered in the service. As a general rule, a claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to a claim that is final. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means 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). When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). In order for the evidence to be sufficient to reopen a previously denied claim, the evidence must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. The Board may then proceed to the merits of the claim on the basis of all of the evidence of record. The evidence submitted since June 2003 consists of private and VA treatment records, lay statements from two of the Veteran's friends, various correspondence between the Veteran and other individuals, and the Veteran's statements in support of her claims. This evidence is new in that the majority of the medical records, and the lay statements and statements of the Veteran had not previously been submitted. These records indicate a current diagnosis of bipolar disorder and a past history of PTSD and also contain eye witness testimony from a fellow serviceman that the Veteran had been the victim of domestic violence in the service. It is noted once again that the credibility of this evidence is presumed for the limited purpose of reopening the claim. Accordingly, the Board finds that because this evidence addresses an element of the Veteran's claims that was not present in June 2003 it is considered to be material. This new evidence, when considered by itself or in conjunction with the evidence previously of record, relates to unestablished facts necessary to substantiate the Veteran's claims and is not cumulative or redundant in nature. Therefore, the evidence is considered to be both new and material and the claims are reopened. 38 C.F.R. § 3.156(a). ORDER The claim of entitlement to service connection for PTSD is reopened, and to this extent only, the appeal is granted. The claim of entitlement to service connection for bipolar affective disorder is reopened, and to this extent only, the appeal is granted. REMAND A review of the record discloses that additional development is necessary prior to further appellate review. Although further delay is regrettable, the Board finds that the record as it stands is currently inadequate for the purpose of rendering a fully informed decision as to the Veteran's claims. Where the record before the Board is inadequate to render a fully informed decision, a remand is required in order to fulfill VA's statutory duty to assist the Veteran to develop the facts pertinent to the claim. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). First, with respect to the Veteran's PTSD claim, the Board notes that service connection for PTSD requires (i) medical evidence establishing a diagnosis of the condition, (ii) credible supporting evidence that the claimed in-service stressor occurred, and (iii) a link, established by medical evidence, between current symptomatology and the claimed in-service stressor, is required. See 38 C.F.R. § 3.304(f). In Patton v. West, 12 Vet. App. 272 (1999), the United States Court of Appeals for Veterans Claims (Court) held that special consideration must be given to claims for PTSD based on personal assault. In particular, the Court held that the provisions in M21-1, Part III, 5.14(c), which address PTSD claims based on personal assault are substantive rules which are the equivalent of VA regulations and must be considered. See also YR v. West, 11 Vet. App. 393, 398-99 (1998). For claims involving service connection for PTSD due to personal assault, VA regulations provide, in pertinent part, as follows: (4) If a post-traumatic stress disorder claim is based on in- service personal assault, evidence from sources other than the Veteran's service records may corroborate the Veteran's account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. VA will not deny a post- traumatic stress disorder claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the Veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. 38 C.F.R. § 3.304(f). The Veteran was provided VCAA notice letters dated in November 2007 and January 2008. However, neither of these letters adequately gave notice of the types of evidence described in 38 C.F.R. § 3.304(f). Upon remand, the Veteran should advised of the pertinent regulations for PTSD based on a personal assault and be afforded ample opportunity to provide evidence from "other" sources to substantiate the claim. See Patton v. West, 12 Vet. App. 272 (1999). Second, a review of the Veteran's claims file indicates that the Veteran may have been receiving disability benefits from the Social Security Administration since approximately 2001. A copy of the decision and underlying documentation related to this award, however, has not been associated with the Veteran's claims file. This matter must therefore be remanded and, upon remand, the RO should contact the Social Security Administration and take all necessary attempts to obtain all records related to this award. 38 C.F.R. § 3.159. See also 38 C.F.R. § 3.159(c)(2) (when attempting to obtain records in the custody of a Federal department or agency, including the Social Security Administration, VA must make as many requests as are necessary to obtain relevant records; VA will end its efforts to obtain records from a Federal department or agency only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile). Next, the Board notes that the Veteran's treatment records indicate continued treatment for bipolar disorder and a past history of PTSD. The lay statements indicate that the Veteran may have been physically assaulted by her then husband while she was in the service and that the Veteran's husband had been arrested for domestic abuse at that time. One of the lay statements also indicated that the writer saw bruises on the Veteran's upper arms in service and that the Veteran was seen at the mental health clinic in service as a result of domestic abuse. The Veteran also reported that her current psychiatric disorders are related to the domestic abuse that she suffered in the service. Based on the foregoing, the Board finds that the Veteran should be afforded a VA examination in connection with her claims. In this regard, the Board notes that the Veteran competent to report her symptoms, and continued symptomatology since service. Layno v. Brown, 6 Vet.App. 465, 469-70 (1994). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addition, VA should take into consideration all information and lay or medical evidence to determine whether such evidence indicated that the disability or symptoms may be associated with the Veteran's service. 38 U.S.C.A. § 5103A; see McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) ("indication" that the disability may be associated with service establishes a low threshold); Haas v. Shinseki, 22 Vet. App. 385-89 (2009) ("low threshold" was satisfied by statements that disabilities began in 1980). Finally, the Veteran's claims file should be updated with any outstanding medical records related to her claimed conditions. Specifically, the Veteran's records indicate that the she received treatment from Dr. M. Geillinger-Tess from May 2004 until July 2007, and August 2008, and is currently being treated by Dr. H. Henderson. A January 2008 letter from the RO indicated that records from these physicians had been requested, but the claims file does not contain more than one or two reports from these physicians. In addition, the claims file indicates that the Veteran has received treatment at the San Diego VA Medical Center. All records from this facility should be associated with the Veteran's claims file. In this regard, the Board notes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered to be constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). VA must obtain outstanding VA and private records. See 38 U.S.C.A. § 5103A(b-c); 38 C.F.R. § 3.159(c). Accordingly, the case is REMANDED for the following action: 1. Provide proper notice under 38 C.F.R. § 3.304(f) with respect to the Veteran's claim for PTSD based on in-service personal assault. 2. Take appropriate steps to contact the Veteran and request that she identify all VA and non-VA health care providers, other than those already associated with the claims file, that have treated her since service for her claimed psychiatric disabilities. This should specifically include all treatment records from the San Diego VA Medical Center, and records of the Veteran's treatment with Dr. H. Henderson dated since service, and records of the Veteran's treatment with Dr. M. Geillinger- Tess, dated from May 2004 until July 2007, and August 2008. The aid of the Veteran in securing these records, to include providing necessary authorization(s), should be enlisted, as needed. If any requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file, and the Veteran should be informed in writing. The Veteran may submit medical records directly to VA. 3. The RO should request, directly from the SSA, complete copies of any disability determination(s) it has made concerning the Veteran, as well as copies of the medical records that served as the basis for any such decision(s). All attempts to fulfill this development must be documented in the claims file. If the search for any such records yields negative results, that fact should be clearly noted, with the RO either documenting for the file that such records do not exist or that further efforts to obtain them would be futile, and the Veteran should be informed in writing. 4. After the above development has been completed, schedule the Veteran for an appropriate VA examination in order to determine the nature and etiology of any acquired psychiatric disorder, to include PTSD and bipolar disorder. The claims file and a separate copy of this remand must be provided to the examiner for review in conjunction with the examination, the receipt of which should be acknowledged in the examination report. Any evaluations, studies, and tests deemed necessary by the examiner should be conducted. The examiner should first determine whether the Veteran currently has an acquired psychiatric disorder, to include PTSD and bipolar disorder, according to the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) criteria. If the Veteran is diagnosed with PTSD, the examiner should specify the stressor(s) that provided the basis of the diagnosis. If the Veteran is diagnosed with an acquired psychiatric disorder in addition to, or other than, PTSD, the examiner should provide an opinion as to whether it is likely, unlikely, or at least as likely as not that any currently diagnosed acquired psychiatric disorder, other than PTSD, is related to the Veteran's military service. The examiner should specifically comment on the February and March 2008 lay statements submitted in support of the Veteran's claim, as well as the Veteran's service treatment records and other evidence submitted by the Veteran, including all submitted correspondence. In offering any opinion, the examiner must consider the Veteran's lay statements regarding the incurrence of her claimed disorders and the continuity of symptomatology. The rationale for any opinion offered should be provided. 5. After completion of the foregoing and undertaking any further development deemed warranted by the record, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of the examination requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the Veteran is hereby placed on notice that, pursuant to 38 C.F.R. § 3.655, failure to cooperate by attending a requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). 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). ______________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs