Citation Nr: 1306052	
Decision Date: 02/21/13    Archive Date: 02/27/13

DOCKET NO.  09-45 890	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES

1.  Whether new and material evidence has been presented to reopen a claim of service connection for bipolar disorder.

2.  Whether new and material evidence has been presented to reopen a claim of service connection for posttraumatic stress disorder.


WITNESSES AT HEARING ON APPEAL

Veteran and C.S.


ATTORNEY FOR THE BOARD

S. Coyle, Counsel



INTRODUCTION

Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket. 

The Veteran, who is the appellant, served on active duty from May 1994 to January 2000.     

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in April 2009 of a Department of Veterans Affairs (VA) Regional Office (RO).

In March 2010, the Board remanded the claims to afford the Veteran a hearing before the Board, which was subsequently held October 2010.  A copy of the hearing transcript has been associated with the file.  

The reopened claims of service connection for bipolar disorder and for posttraumatic stress disorder are REMANDED to the Department of Veterans Affairs Regional Office.


FINDINGS OF FACT

1.  In a rating decision in July 2007, the RO denied service connection for bipolar disorder; although the Veteran filed a notice of disagreement, initiating an appeal, he did not timely perfect the appeal, and no new evidence pertinent to the claim was received by VA within one year from the date that the RO mailed notice of the adverse determination to the Veteran.   

2.  The additional evidence since the final rating decision by the RO in July 2007 relates to an unestablished fact necessary to substantiate the claim of service connection for bipolar disorder.  

3.  In a rating decision in July 2007, the RO denied service connection for posttraumatic stress disorder; although the Veteran filed a notice of disagreement, initiating an appeal, he did not timely perfect the appeal, and no new evidence pertinent to the claim was received by VA within one year from the date that the RO mailed notice of the adverse determination to the Veteran.   

4.  The additional evidence since the final rating decision by the RO in July 2007 relates to an unestablished fact necessary to substantiate the claim of service connection for posttraumatic stress disorder.  


CONCLUSIONS OF LAW

1.  The rating decision in July 2007 by the RO, denying service connection for bipolar disorder, became final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.156(b) (2012).  

2.  The additional evidence presented since the rating decision in July 2007 is new and material, and the claims for service connection for bipolar disorder is reopened.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012).

3.  The rating decision in July 2007 by the RO, denying service connection for posttraumatic stress disorder, became final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.156(b) (2012).  

4.  The additional evidence presented since the rating decision in July 2007 is new and material, and the claims for service connection for posttraumatic stress disorder is reopened.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012).






The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim.

In light of the grant of the application to reopen the previously denied claims of service connection, further discussion here of VCAA compliance is not necessary.   

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

New and Material Evidence to Reopen

Procedural History and Evidence Previously Considered

In a rating decision in July 2007, the RO denied service connection for bipolar disorder, because a bipolar disorder was not shown in service and after service bipolar disorder was not related to an injury, disease, or event in service.

In a rating decision in July 2007, the RO denied service connection for posttraumatic stress disorder, because of the lack of a verifiable in-service stressor and after service posttraumatic stress disorder was not related to an injury, disease, or event in service.  

In July 2007, the RO notified the Veteran of the adverse determinations and of his procedural and appellate rights.  The Veteran filed a notice of disagreement in July 2007, and a statement of the case was issued in July 2008.  However, the Veteran did not file a timely substantive appeal, and the rating decision became final.  

As the Veteran did not perfect an appeal of the rating decision in July 2007 by the RO, denying service connection for bipolar disorder and for posttraumatic stress disorder, and as no new evidence pertinent to the claim was received by VA within one year from the date that the RO mailed notice of the adverse determination, the rating decision became final by operation of law, except the claims may be reopened if new and material evidence is presented.  38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.104, 3.156.

The evidence of record at the time of the rating decision in July 2007 is summarized as follows.

The service treatment records contain no complaint, finding, history, symptom, treatment, or diagnosis of a psychiatric abnormality or disorder.  

After service, VA records show that in February 2007, the Veteran was hospitalized for psychiatric symptoms.  There was no previous psychiatric history.  The diagnosis was bipolar disorder.  In March 2007, the Veteran's problems included posttraumatic stress disorder.  Neither bipolar disorder nor posttraumatic stress disorder was attributed to an injury, disease, or event in service.  

Current Claims to Reopen

In October 2008, the Veteran filed the current claims to reopen.  

As the Veteran's claims were received after the regulatory definition of new and material was amended in August 2001, the current regulatory definition of new and material evidence applies.

New evidence means existing evidence not previously submitted to agency decision makers.  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, although not its weight, is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).  The presumption of credibility is rebuttable when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion.  King v. Brown, 5 Vet. App. 19, 21 (1993).  

In determining whether the evidence is new and material, the specified basis for the last final disallowance must be considered.  Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).  Also, the law is to be interpreted to enable reopening of a claim, rather than to preclude it.  Shade v. Shinseki, 24 Vet. App. 110 (2010).

Additional Evidence and Analysis

The additional evidence presented since the rating decision in July 2007 consists in pertinent part of a statement of a VA physician, who has seen the Veteran since 2007.  The VA physician stated that the Veteran's diagnosis were bipolar disorder and posttraumatic stress disorder that have been present since 1999 when the Veteran returned from Kosovo.   

For the limited purpose of reopening the claims, the credibility of newly submitted evidence is presumed.  As the evidence relates to unestablished facts necessary to substantiate the claims, namely, that there is competent evidence of a psychiatric disorder since service related to service, and the lack of such evidence was the basis for the previous denial of the claims, the newly submitted evidence is new and material under 38 C.F.R. § 3.156.  The claims of service connection for bipolar disorder and posttraumatic stress disorder are reopened.


ORDER

As new and material evidence has been presented, the claim of service connection for bipolar disorder is reopened, and, to this extent only, the appeal is granted.  

As new and material evidence has been presented, the claim of service connection for posttraumatic stress disorder is reopened, and, to this extent only, the appeal is granted.  


REMAND

Before reaching the merits of the reopened claims, the record shows that on VA examination in February 2012 the VA examiner stated that the Veteran did not meet the diagnostic criteria for posttraumatic stress disorder.  The VA examiner did diagnose schizoaffective disorder, but did not offer an opinion on whether the disorder was related to service.  

Also, the Veteran stated that he was employed by the National Imagery and Mapping Agency, now known as the National Geospatial-Intelligence Agency (NGA), in the year after he was discharged from active service, but that he could not handle the responsibilities of the job because of his psychiatric symptoms.  

As the evidence of record does not contain sufficient evidence to decide the claims and as the record appears incomplete, further development under the duty to assist is needed.  

Accordingly, the case is REMANDED for the following action:

1.  Obtain VA treatment records since October 2011.  

2.  Ask the Veteran to submit or to authorize VA to obtain on his behalf personnel or medical records from the National Imagery and Mapping Agency, now known as the National Geospatial-Intelligence Agency (NGA), in the year after he was discharged from service.  

3.  Afford the Veteran a VA examination by a VA psychiatrist or psychologist, who has not previously examined the Veteran, to determine: 

 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 of less than 50 percent) that:

a).  The Veteran has PTSD due to the stress of holding intelligence briefings or due to fear of hostile military activity during the Kosovo conflict; or 

b).  The Veteran has a psychiatric disorder other than PTSD, namely, bipolar disorder or schizoaffective disorder, related to the stress or the Veteran working long hours, which included intelligence briefings, during the Kosovo conflict?

The Veteran's file must be made available to the VA examiner for review.  

4.  On completion of the development, adjudicate the claims.  If any benefit is denied,  then furnish the Veteran a supplemental statement of the case and return the case to the Board.   

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

The claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board 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. 2012).




______________________________________________
George E. Guido, Jr.
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs