Citation Nr: 1314974 Decision Date: 05/07/13 Archive Date: 05/15/13 DOCKET NO. 09-06 127 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Whether new and material evidence has been received sufficient to reopen a previously denied claim for service connection for an acquired psychiatric disorder, to include bipolar disorder and an anxiety disorder. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD E. Woodward Deutsch, Counsel INTRODUCTION The Veteran had active service from February 1974 to April 1977. This matter comes before the Board on appeal from a September 2008 rating decision of the Portland, Oregon, Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and his spouse testified in support of his appeal at a March 2011 hearing before the undersigned. A transcript of the hearing is of record. FINDINGS OF FACT 1. An unappealed May 1978 rating decision denied service connection for a personality disorder, claimed as psychoneurosis. 2. A subsequent July 2006 rating decision denied service connection for a personality disorder and an acquired psychiatric disorder, claimed as bipolar disorder and major depression. The Veteran filed a Notice of Disagreement with the July 2006 rating decision, but did not timely perfect an appeal. 3. The evidence received since the above rating decisions is new and material as it relates to an unestablished fact necessary to substantiate the Veteran's claim for service connection for an acquired psychiatric disorder. 4. The Veteran's currently diagnosed bipolar disorder and anxiety disorder had their onset during his active service. CONCLUSIONS OF LAW 1. The May 1978 rating decision that denied service connection for a personality disorder, claimed as psychoneurosis, is final. 38 U.S.C. § 4005(c) (1976); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1977). 2. The July 2006 rating decision that denied service connection for a personality disorder and an acquired psychiatric disorder, claimed as bipolar disorder and major depression, is final. 38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. § 20.1100 (2005). 3. The evidence received since the prior final rating decisions is both new and material; the claim of entitlement to service connection for an acquired psychiatric disorder is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 4. The criteria for establishing service connection for an acquired psychiatric disorder, diagnosed as bipolar disorder and an anxiety disorder, have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Reopened Claim The Veteran, in hearing testimony and other documents of record, contends that he suffers from bipolar disorder, an anxiety disorder, and related psychiatric symptomatology, which have persisted since service and therefore warrant service connection. Significantly, however, the record reflects that he previously filed claims for service connection for personality and acquired psychiatric disorders, which were denied in rating decisions that later became final. The first such rating action was issued by the Los Angeles, California, RO in May 1978. At that time, the pertinent evidence included service treatment records showing that, in May 1976, the Veteran had sought medical attention for complaints of depression and frustration. Also of record were VA medical reports, dated from December 21, 1977, to April 19, 1978, which revealed that the Veteran had been hospitalized for severe psychological stress following a suicide attempt. Notwithstanding evidence of in-service and post-service treatment, the May 1978 rating decision determined that service connection could not be established for the Veteran's mental health problems. In this regard, the May 1978 rating decision noted that, while the Veteran's symptoms had been found to comport with psychoneurosis, explosive personality disorder, and inadequate personality disorder, each of those diagnoses was tantamount to a developmental abnormality, rather than a recognized disability for VA benefits purposes. Consequently, service connection was denied. The Veteran did not file a Notice of Disagreement or otherwise signal an intent to appeal. As such, the May 1978 rating decision became final. 38 U.S.C. § 4005(c) (1976); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1977). Approximately 28 years later, after relocating to Oregon, the Veteran submitted a new claim for service connection for his mental health problems in December 2005. Contending that he now suffered from bipolar disorder and major depression, he supported his December 2005 claim with records of psychotherapy, which he had undergone at a community-based outpatient clinic in Eugene, Oregon. Significantly, those outpatient treatment records showed that the Veteran had been diagnosed with Axis I bipolar disorder in accordance with the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). The same diagnosis was contained in the report of an August 2005 VA general examination, which the Veteran also submitted in connection with his claim. Upon consideration of the above evidence, the July 2006 rating decision determined that the Veteran had a then-current disability for which service connection could be established and therefore reopened his previously denied claim. However, the July 2006 rating decision then reasoned that the medical evidence of record did not show that bipolar disorder, or any other currently diagnosed psychiatric disorder, was related to the Veteran's in-service psychiatric treatment or to any other aspect of his active duty. Consequently, service connection was again denied. The record thereafter shows that the Veteran submitted a timely Notice of Disagreement with the July 2006 rating action. In response, the RO issued a SOC, dated September 13, 2007. However, a timely Substantive Appeal was not received. See 38 C.F.R. § 20.302 (2012). Consequently, the July 2006 rating decision also became final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2005). It therefore follows that the Veteran's acquired psychiatric disorder claim may only be reopened through the submission of new and material evidence. 38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. § 20.1100 (2012). The Board recognizes that the RO has already determined that such evidence is of record in its decision to reopen and deny the Veteran's claim on the merits. Notwithstanding the RO's actions, the Board must make its own inquiry as to whether new and material evidence has been received as this will determine whether it has jurisdiction to adjudicate the underlying service connection claim de novo. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). To reopen a claim, new and material evidence must be presented or secured. 38 U.S.C.A. § 5108 (West 2002). "The Board does not have jurisdiction to consider [the previously-adjudicated claim] unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find." See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). When determining whether a claim should be reopened, the credibility of the newly-submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). "New" evidence is defined as 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. See 38 C.F.R. § 3.156(a) (2012); see Shade v. Shinseki, 24 Vet. App. 110, 118 (2010) (finding that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim is a component of the question of what is new and material evidence). The Veteran has supported his petition to reopen his service-connection claim by directing the Board's attention to additional VA medical reports, dated from October 2006 to July 2008, which document ongoing treatment for bipolar disorder and related symptoms. He also has submitted an April 2008 written statement from a VA nurse practitioner, whom the Veteran has identified as a specialist in mental health. Board Hearing Tr. at 10. In that written statement, the nurse practitioner confirms the Veteran's diagnosis of bipolar disorder type I and observes that he has been hospitalized for mental illness on multiple occasions, including "a short time after his discharge from military service in 1977," and then "for one month in 2004." See April 2008 VA Nurse Practitioner Statement. Other medical evidence, which was not considered in prior adjudications of the claim, consists of treatment reports from a private psychiatrist, "Dr. H.R.S.," who indicated that he had treated the Veteran for bipolar disorder and an anxiety disorder "with elements of Posttraumatic Stress Disorder, Panic Disorder and Social Anxiety Disorder." Significantly, that private treating psychiatrist has appended his treatment reports with a June 2011 letter in which he expressly acknowledges the repeated hospitalizations necessitated by the Veteran's bipolar disorder and observes that this condition "has been present and emerging throughout his adult life." See June 2011 Statement of Dr. H.R.S. The psychiatrist further opines that the "[e]arly presentations of emotional dysfunction that [the Veteran] displayed during [his] military years would seem consistent with [the] initial presentations of the bipolar disorder [and] the anxiety disorder" that are currently present. Id. The Board observes that, as licensed mental health care providers, both the VA nurse practitioner and the private psychiatrist are qualified to address the nature and etiology of the Veteran's bipolar disorder, anxiety disorder, and related symptoms. See Black v. Brown, 10 Vet. App. 279, 284 (1997). Moreover, the Board presumes those health care providers to be credible for the purpose of determining whether their statements are new and material. Justus, 3 Vet. App. at 513. In addition to clinical observations, the Veteran has offered his own impressions of his long-standing mental health problems. Specifically, he has reported that such problems began in service and immediately worsened thereafter, necessitating extensive VA inpatient treatment during the initial year following his release from service. Board Hearing Tr. at 6-7. The Veteran has further maintained that, while those problems were initially found to comport with a diagnosis of personality disorder, they were also symptomatic of the bipolar disorder that was diagnosed several decades later. Board Hearing Tr. at 9. The long-time spouse of the Veteran also has attested to his persistent mental health problems. See generally August 2006 Spouse's Statement; Board Hearing Tr. at 7-9. She has reported witnessing the Veteran's bouts of depression when they were first married in April 1976, while he was still on active duty. Board Hearing Tr. at 7-8. Tellingly, she also has indicated that, during the initial year of their marriage, the Veteran told her that he had undergone a mental health screening, but had essentially been told by Army counselors that "there [was] nothing going on" with him. Board Hearing Tr. at 8. The Veteran's spouse has further testified that the symptoms he exhibited in service, and immediately upon release, were similar to those he later manifested, only less severe. Board Hearing Tr. at 9. While a lay person, the Veteran is competent to testify as to his current and historic mental health symptoms, which he has personally experienced. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). His spouse is likewise competent to testify as to her first-hand impressions of those long-standing symptoms. Id. She is also competent to offer her personal recollection of in-service treatment, which the Veteran told her he had received. Id. Moreover, both parties' impressions are presumed credible for the limited purpose of reopening the Veteran's claim. Justus, 3 Vet. App. at 513. Similarly competent and credible, for the purpose of 38 U.S.C.A. § 5108 review, is a signed affidavit from an Army chaplain who purportedly counseled the Veteran during his active service. In that affidavit, which was signed and dated October 5, 1976, but not entered into evidence until August 2008, the chaplain referenced an incident in which the Veteran had allegedly put blood in his urine. While disavowing any personal recollection of the incident, the chaplain characterized it as a "cry for help" that warranted further "medical or psychological" treatment. See October 5, 1976, Chaplain Affidavit. The Board finds that the above clinical and lay evidence is new to the extent that it was not previously considered by VA adjudicators. That evidence is also material as it pertains to an unestablished fact necessary to substantiate the Veteran's claim. Specifically, the treatment reports and statements from the VA nurse practitioner and Dr. H.R.S. collectively suggest that the Veteran's current bipolar and anxiety disorders, and his underlying mental health symptoms, are causally related to his active service. As noted previously, that nexus element was the particular criterion found lacking in the previous final denial of his service-connection claim. As such, the Board finds that the new evidence detailed above relates to a specific fact (nexus) that was not established at the time of the last final adjudication and is therefore material and sufficient to reopen the Veteran's claim. However, the Board's analysis does not end here as it must now consider the merits of whether service connection is warranted for any acquired psychiatric disorder currently present. II. Service Connection Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). In general, to establish service connection for an acquired psychiatric disorder there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In addition to the above criteria, which generally govern claims for direct service connection, the Board recognizes that specific evidentiary requirements apply to claims for service connection for PTSD. 38 C.F.R. § 3.304(f) (2012). However, while in this case a private psychiatrist has treated the Veteran for "elements of" PTSD associated with his diagnosed anxiety disorder, a full multi-axial DSM-IV PTSD diagnosis is not currently of record. Accordingly, the Veteran does not meet the threshold requirement for service connection for that particular psychiatric disorder. Id. (noting that the first criterion for service connection for PTSD is evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), i.e., a diagnosis which conforms to the criteria set forth in the DSM-IV). In any event, the Veteran has offered no intimation, either in writing or testimony before the Board, that he is currently seeking VA benefits for PTSD. Therefore, the Board finds that the specific provisions of 38 C.F.R. § 3.304(f) are not for application and will instead confine its analysis to the general Hickson elements. The first Hickson element has been satisfied, as the Veteran's VA and private treatment records reflect that he has current DSM-IV Axis I diagnoses of bipolar disorder and an anxiety disorder. While the Veteran also has been assessed with personality disorder, not otherwise specified, such a disorder is not considered a disease or injury for VA benefits purposes. See 38 C.F.R. § 4.127 (2012). Indeed, that was the basis for the RO's initial denial of his service-connection claim. The Board acknowledges that an alternative path to service connection arises when an acquired psychiatric disorder is incurred in service and later superimposes upon a preexisting personality disorder. 38 C.F.R. §§ 3.303(c), 4.9, 4.127; see VAOPGCPREC 82- 90, 55 Fed. Reg. 45,711 (July 18, 1990); Carpenter v. Brown, 8 Vet. App. 240 (1995). However, no such theory of entitlement has been alleged or demonstrated in the instant case. Accordingly, the Board will continue its review of the Veteran's appeal under a theory of direct service connection in accordance with the three-part Hickson test. Turning to the second Hickson element, the Veteran's service treatment records reflect that he sought medical attention in May 1976 for symptoms of depression and frustration. Accordingly, the second Hickson element has been satisfied. The third and final inquiry is whether a causal relationship exists between one or more of the Veteran's current acquired psychiatric disorders and his active service. See Hickson, 12 Vet. App. at 253. In an effort to establish the requisite nexus, the Veteran has submitted a June 2011 letter from his private psychiatrist, Dr. H.R.S. As discussed in the preceding section, Dr. H.R.S.'s letter not only confirms the Veteran's Axis I diagnoses of bipolar disorder, type I, and an anxiety disorder, but also describes his decades-long struggle with the disabling effects of those conditions and his related mental health problems. Most significantly, for purposes of this appeal, the private psychiatrist's letter emphasizes that the Veteran's current bipolar disorder has been "present and emerging throughout his adult life," and that the "emotional dysfunction . . . displayed during [his] military years" was consistent with "initial presentations of the bipolar disorder and anxiety disorder," which exist presently. The June 2011 letter then indicates that the Veteran suffers from "chronic and permanent" psychiatric disability, which has warranted periodic hospitalization and ongoing medication and psychotherapy. Finally, that letter states that, while such treatment has enabled the Veteran to achieve "some stabilization of [his] symptoms, his chances for "restitution to a more effective level of functioning would seem limited." See June 2011 Statement of Dr. H.R.S. Through the foregoing, detailed assessment, the private psychiatrist has effectively denoted a direct causal nexus between the Veteran's current diagnoses of bipolar disorder and anxiety disorder and his military service. Moreover, the Board considers that clinician's opinion to be both probative and persuasive evidence in support of the Veteran's appeal. See generally Gabrielson v. Brown, 7 Vet. App. 36 (1994) (noting that the credibility and weight to be attached to medical opinions are within the province of the Board as adjudicator). The Board recognizes that the private psychiatrist does not appear to have based his positive nexus opinion on a review of the Veteran's claims file. However, such review is not a strict prerequisite for medical opinions, particularly those rendered by private clinicians. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Moreover, even without access to the entire evidentiary record, the private psychiatrist has demonstrated a familiarity with the salient facts of this case. Indeed, while acknowledging a personal treating relationship that began in September 2008, Dr. H.R.S. has displayed an in-depth understanding of the Veteran's much longer history of mental health problems. That history, as described by the psychiatrist, includes the Veteran's in-service "emotional dysfunction," his numerous post-service psychiatric hospitalizations, and his permanent need for medication and psychotherapy to achieve a limited level of social functioning. The Board considers that clinician's description highly probative as it effectively summarizes the Veteran's overall psychiatric disability picture and links his current mental health problems to service, thus allowing the Board to make a fully informed decision on the underlying medical issue. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); see also Nieves-Rodriguez, 22 Vet. App. at 304 (noting that the probative value of a medical opinion comes from whether it is factually accurate and fully articulated, not from the mere fact that the claims file was reviewed). Additionally, the Board considers it significant that Dr. H.R.S. is not only a licensed physician but also has specialized training in the psychiatric disorders at issue on appeal. His documented clinical expertise further bolsters the overall evidentiary weight of his opinion. See Guerrieri, 4 Vet. App. at 470-71; see also Black v. Brown, 10 Vet. App. 279, 284 (1997) (in determining the weight assigned to this evidence, the Board also looks at factors such as the health care provider's knowledge and skill in analyzing the medical data). Moreover, there are no countervailing medical opinions of record. Further, while mindful that Dr. H.R.S.'s letter does not expressly address the pertinent lay evidence of record, the Board nevertheless finds that opinion to be in concert with such evidence, which includes the current arguments presented by the Veteran and his spouse, as well as the historic impressions offered by the Army chaplain. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007)). As noted previously, both the Veteran and his spouse of more than 35 years are competent to offer eyewitness accounts of the mental health problems he has exhibited since service. Moreover, the Board considers their observations credible insofar as they are internally consistent and uncontroverted by the remaining record. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony); see also Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). Similarly, the Board finds the Army chaplain's personal impressions of the Veteran's in-service behavior to constitute competent, uncontested, and credible evidence regarding his mental status as a soldier. Such probative lay evidence collectively establishes a continuity of psychiatric symptomatology emanating from service. The Board acknowledges that this is no longer a valid substitute for nexus in claims, such as the one at issue, which involve diseases not expressly identified as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a)). However, while no longer a sufficient stand-alone basis for establishing nexus, continuity of symptomatology is a factor for consideration in determining whether such a causal relationship exists. See 38 C.F.R. § 3.303 (2012). Thus, the fact that the June 2011 private psychiatrist tacitly acknowledged that factor, by noting that the Veteran's bipolar and anxiety disorder symptoms had begun in service and continued throughout his adult life, further enhances the probative nature of that clinician's findings. Accordingly, given the positive nexus opinion rendered by Dr. H.R.S., the competent and credible statements and testimony proffered by the Veteran, his spouse, and the Army chaplain, and the lack of any countervailing evidence of similar probative weight, the Board finds the overall record is sufficient to establish a causal nexus between the Veteran's currently diagnosed bipolar disorder and anxiety disorder and the mental health problems he displayed in service. The third and final Hickson requirement is therefore satisfied and service connection for an acquired psychiatric disorder, diagnosed as bipolar disorder and anxiety disorder, is warranted. ORDER New and material evidence having been received, the claim of entitlement to service connection for an acquired psychiatric disorder is reopened. Service connection for an acquired psychiatric disorder, diagnosed as bipolar disorder and anxiety disorder, is granted. ____________________________________________ DONNIE R. HACHEY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs