Citation Nr: 1338083 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 13-27 008 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for an acquired psychiatric disorder, to include depression and bipolar disorder. 2. Entitlement to service connection for an acquired psychiatric disorder, to include depression and bipolar disorder. REPRESENTATION Veteran represented by: Edward M. Farmer, Attorney ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from August 1983 to March 1984, February 8, 1991, to March 10, 1991, and from June 1, 2004, to July 20, 2004. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in in St. Petersburg, Florida, which declined to reopen the Veteran's claim of entitlement to service connection for bipolar disorder and depression. The United States Court of Appeals for Veterans Claims (Court) has recently held that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. See Clemons v. Shinseki, 23 Vet App 1 (2009). In this case, the Board has considered the Veteran's claim for all possible psychiatric disorders as reflected on the first page. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The Board has reviewed the documents in both the paper claims file and the electronic claims file. The issue of entitlement to service connection for an acquired psychiatric disorder, to include depression and bipolar disorder, is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. In an October 2009 rating decision, the RO declined to reopen the Veteran's claim for service connection for bipolar disorder and depression; the Veteran did not appeal this determination within one year of being notified. 2. Presuming its credibility, evidence received since the October 2009 rating decision raises a reasonable possibility of substantiating the claim of service connection for an acquired psychiatric disorder. CONCLUSIONS OF LAW 1. The October 2009 RO decision that declined to reopen the claim for service connection for depression and bipolar disorder is final. 38 U.S.C.A § 7105 (c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2009). 2. New and material evidence has been received sufficient to reopen the claim of service connection for an acquired psychiatric disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). This law eliminated the concept of a well-grounded claim, redefined the obligations of VA with respect to the duty to assist, and imposed on VA certain notification requirements. Without deciding whether the notice and development requirements of VCAA have been satisfied in the present case, it is the Board's conclusion that the VCAA does not preclude the Board from adjudicating the Veteran's claim. This is so because the Board is taking action favorable to the Veteran on the issue of whether new and material evidence has been received to reopen the claim for service connection and a decision at this point poses no risk of prejudice to him. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Claim to Reopen In the June 2012 rating decision, the RO determined that new and material evidence sufficient to reopen the previously denied claim for service connection for depression and bipolar disorder had been received. Although the RO reopened the previously denied claim, it denied the underlying de novo issue of service connection. Although the RO has reopened the previously denied claim for service connection for depression and bipolar disorder, the Board is required to address this particular issue (e.g., the new and material claim) in the first instance. The Board has the jurisdiction to address a new and material issue and to reach the underlying de novo claim. If the Board determines that new and material evidence has not been received, the adjudication of the particular claim ends, and further analysis is neither required nor permitted. Any decision that the RO may have made with regard to a new and material claim is irrelevant. Barnett v. Brown, 83 F. 3d 1380, 1383-1384 (Fed. Cir. 1996), aff'g 8 Vet. App. 1 (1995). See also Jackson v. Principi, 265 F. 3d 1366, 1369 (2001) (holding that the statutes make clear that the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the previous action denying the claim was appealed to the Board). Thus, despite the fact that in the present case the RO has already determined that new and material evidence sufficient to reopen the Veteran's previously denied claim for depression and bipolar disorder has been received, the Board will proceed, in the following decision, to adjudicate this new and material issue in the first instance. In a September 2007 rating decision, the RO denied service connection for depression and bipolar disorder. Subsequently, in an October 2009 rating decision, the RO declined to reopen the claim for service connection. A finally adjudicated claim is an application which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. Accordingly, the Board finds that the October 2009 decision is final because the Veteran did not file a timely appeal. See 38 U.S.C.A § 7105 (c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2009). The claim of entitlement to service connection for an acquired psychiatric disorder may be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108 (West 2002); Manio v. Derwinski, 1 Vet. App. 140 (1991). The Veteran filed this application to reopen his claim in March 2012. Under the applicable provisions, new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the 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) (2013). In this regard, in the case of Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court clarified that the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Specifically, the Court stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. The relevant evidence before VA at the time of the prior final decision consisted of service and post-service treatment records. Service treatment records included a January 1987 Report of Medical History in which the Veteran indicated having/having had depression or excessive worry. He added that he was treated at a depression clinic and took medication for "a chemical imbalance depression, not a mental condition." The accompanying examination report showed that the examiner found no psychological or emotional problems on evaluation. Additionally, notations of depression were noted on an April 2003 retention examination report. Additionally, both private and VA treatment records following service showed extensive treatment for an acquired psychiatric disorder. In denying service connection for depression and bipolar disorder in the September 2007 rating decision, the RO noted that the Veteran had a long history of depression that was unrelated to his active duty or active duty for training and determined that the disorder did not occur during nor caused by active duty or active duty for training. Thereafter, in the October 2009 rating decision, the RO declined to reopen the claim for service connection finding that new and material evidence had not been received demonstrating that the Veteran's bipolar disorder and depression were aggravated by his service. The additional evidence included treatment records from June to July 2004 showing that on evaluation for fitness for duty the Veteran was intoxicated, and depressive disorder was noted. Additionally, treatment records noted that the Veteran had a 25 year history of bipolar disorder and having being diagnosed with bipolar disorder at age 14 with treatment with Lithium. To reopen the claim, the new evidence must show that the Veteran has an acquired psychiatric disorder was incurred in or aggravated by service. Since the final rating decision, the pertinent evidence of record includes records from a private facility showing hospitalization for recurrent major depression and bipolar disorder in October 2004, several months following his June to July 2004 active service. Additionally, the Veteran has indicated that he was not psychiatrically stable at the time of his discharge as demonstrated by his multiple hospitalizations within the following year, and that the stress of active duty exacerbated and aggravated his disorder. The Board finds that the Veteran is competent to testify as to his symptoms as they are capable of lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). Furthermore, for the limited purpose of establishing whether new and material evidence has been submitted, the evidence is to be presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Because the Court has set forth a low threshold to reopen claims, the Board finds that based on the Veteran's competent assertions combined with VA assistance, there is a reasonable possibility of substantiating the claim. See Shade, supra. In sum, the Board finds that new and material evidence has been received, as it was not previously of record and raises a reasonable possibility of substantiating the claim of service connection for an acquired psychiatric disorder. Accordingly, the claim is reopened. ORDER New and material evidence having been received, the application to reopen a claim for service connection for an acquired psychiatric disorder is granted. REMAND VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion only when it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A (d) (West 2002); 38 C.F.R. § 3.159(c) (4) (2013). See also Robinette v. Brown, 8 Vet. App. 69, 76 (1995). As noted above, the Veteran essentially asserts that his pre-existing psychiatric disorder was aggravated by active service, specifically his service from June to July 2004 and that he was not psychiatrically stable when he was discharged in July 2004. The Veteran's psychiatric disorders were noted prior, during, and following active service. Therefore, the Veteran must be provided an examination to determine the nature and etiology of any current disorder, to specifically determine whether any pre-existing disorder was aggravated by service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (recognizing that 38 C.F.R. § 3.159(c) (4) presents a low threshold for the requirement that evidence indicates that the claimed disability may be associated with in-service injuries for the purposes of a VA examination). Accordingly, the case is REMANDED for the following actions: 1. Arrange for the Veteran to undergo a VA examination to determine the nature and etiology of any current acquired psychiatric disorder. The claims folder must be thoroughly reviewed by the examiner in connection with the examination, and a complete history should be elicited directly from the Veteran. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. The examiner should diagnose all acquired psychiatric disorders, and should then respond to the following inquiries: a. Did the Veteran's current acquired psychiatric disorders, clearly and unmistakably exist prior to any period of active duty service; if so, is it clear and unmistakable that the pre-existing disorder did not permanently increase in severity (beyond the natural progression of such a disability) during the Veteran's military service? b. If any of the current acquired psychiatric disorders is not found to have preexisted service, is it at least as likely as not (a 50 percent probability or more) that the disorder(s) had its onset in service, or is otherwise related to the Veteran's military service? The rationale for all opinions expressed must also be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. If the examiner cannot provide an opinion without resorting to mere speculation, he or she should state such and provide rationale for that non- opinion. 2. Then, after ensuring any other necessary development has been completed, readjudicate the Veteran's claim. If action remains adverse to the Veteran, provide the Veteran and his Agent with a supplemental statement of the case and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board. 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. 2012). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs