Citation Nr: 1400047 Decision Date: 01/02/14 Archive Date: 01/16/14 DOCKET NO. 10-33 907 ) 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 in order to reopen a claim of entitlement to service connection for bipolar disorder. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and bipolar disorder. REPRESENTATION Appellant represented by: Kenneth L. LaVan, Esq. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1966 to October 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In characterizing the issues on appeal, the Board recognizes that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In light of this holding, and the fact that the Veteran has claimed as well as been diagnosed with different psychiatric diagnoses, to include bipolar and PTSD, the issue with regard to entitlement to PTSD on the title page has been recharacterized, as listed above. A Board videoconference hearing was held in September 2013 before the undersigned Veterans Law Judge, and a copy of the hearing transcript has been added to the record. A review of the Virtual VA paperless claims processing system revealed nothing further pertinent to the present appeal. The issue of entitlement to service connection for an acquired psychiatric disorder, to include PTSD and bipolar 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 decision issued in April 2006, the RO denied the Veteran's claim of entitlement to service connection for bipolar disorder. 2. Evidence added to the record since the final April 2006 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD and bipolar disorder. CONCLUSIONS OF LAW 1. The April 2006 rating decision that denied the Veteran's claim of entitlement to service connection for bipolar disorder is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2013). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for bipolar disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA As the Board's decision to reopen the Veteran's claim of entitlement to service connection for bipolar disorder is completely favorable, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations with regard to this issue. The Veteran has been afforded a hearing before the Board. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires the hearing officer who chairs a hearing to explain the issues and suggest the submission of evidence that may have been overlooked. Here, the presiding Veterans Law Judge identified the issues to the Veteran and asked specific questions directed at identifying whether the Veteran had submitted new and material evidence to reopen his claim, and the Veteran volunteered his subjective symptoms, history of trauma, and theories of service connection. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the Board hearing. The hearing focused on the elements necessary to substantiate the claim on appeal, and the Veteran provided testimony relevant to those elements. As such, the Board finds that there is no prejudice in deciding the claim at this time and no further action pursuant to Bryant is necessary. Legal Criteria Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C.A. § 7105(b) and (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, and 20.302(a). Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). 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, the Secretary shall reopen the claim and review the former disposition of the claim. 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). The United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. 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). Background The Veteran contends that he currently suffers from bipolar disorder that is related to his military service. In particular, the Veteran testified at his September 2013 Board hearing that he never experienced psychiatric symptoms, nor was he diagnosed with a psychiatric disorder prior to service. The Veteran stated that he began experiencing symptoms of depression during the service and that, shortly after leaving in 1966, he began receiving treatment from a private provider. The Veteran further indicated that, during the early onset of his treatment, his doctor told him that his currently diagnosed bipolar disorder may have been brought on by PTSD from service. A review of the Veteran's service treatment records (STRs) showed an assessment of a personality disorder in August 1966 and indicated that the Veteran should be discharged as unfit for service. There was no discussion of any other psychiatric diagnoses, to include PTSD or bipolar disorder. A review of the Veteran's private treatment records and VA outpatient treatment records revealed that he has been diagnosed and treated for a bipolar disorder since June 1992. The Veteran was provided with a VA examination in March 2006. The examiner confirmed that the Veteran was diagnosed with bipolar disorder and noted the in-service finding of a personality disorder. The examiner opined that the Veteran's bipolar disorder was less likely than not related to his military service or the personality disorder diagnosed therein. The Veteran submitted lay statements in May 2010 from childhood friends who stated that they noticed personality changes in the Veteran upon his release from military service, to include moodiness, isolation, and withdrawal. Analysis In an April 2006 rating decision, the RO denied service connection for a bipolar disorder on the basis that the evidence did not show evidence of a psychiatric disorder in service or a nexus to his currently diagnosed bipolar disorder. The evidence considered at the time of the 2006 decision consisted of service treatment records, private treatment records from January 2001, VA outpatient treatment records from January 2000 to March 2006, a March 2006 VA examination, and the Veteran's statements. In April 2006, the Veteran was advised of the decision and his appellate rights. However, no further communication regarding his claim of entitlement to service connection for bipolar disorder was received until September 2009, when VA received his application to reopen such claim, which had then included the claim of PTSD as well. Therefore, the April 2006 rating decision is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2013). In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no evidence pertaining to the Veteran's claim for service connection for bipolar disorder was received prior to the expiration of the appeal period stemming from the April 2006 rating decision. See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). Evidence received since the April 2006 rating decision includes the aforementioned September 2009 claim, Social Security Administration (SSA) records, additional private treatment records from 1992 to present, VA outpatient treatment records from March 2006 to June 2010, lay statements from childhood friends dated May 2010, transcripts of an April 2013 Board hearing, and the Veteran's subsequent statements. Such evidence is new in that it was not previously of record. Additionally, the Board finds that such is material to the claim. In this regard, the statements of the Veteran and the statements made in the course of the September 2013 Board hearing provided indication that the Veteran may have developed a psychiatric disorder, PTSD, during service and his currently diagnosed bipolar disorder is secondarily related to it, a theory which had not previously been considered. Additionally, the Veteran's friends have provided new statements that he began to manifest problems with his psychiatric disorder immediately upon return from military service. Therefore, as the newly received evidence demonstrates a current disability, a possible in-service onset of symptoms, and a possible nexus based upon a possible early diagnosis by a private treatment provider, the Board finds that the evidence received since the April 2006 rating decision is neither cumulative nor redundant, and raises the possibility of substantiating the claim of service connection for bipolar disorder. See 38 C.F.R. § 3.156(a). Therefore, based on the foregoing reasons, the Board finds that new and material evidence has been received and, accordingly, the claim of entitlement to service connection for bipolar disorder is reopened. ORDER New and material evidence having been received, the claim of entitlement to service connection for a bipolar disorder is reopened. REMAND Having reopened the Veteran's claim for entitlement to service connection for bipolar disorder and in conjunction with his appealed claim for PTSD, VA has a duty to assist the Veteran in the development of the claim by obtaining any outstanding treatment records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2013). This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including records from Federal agencies, such as relevant SSA records. 38 C.F.R. § 3.159(c)(2); Golz v. Shinseki, 590 F.3d 1317, 1321-23 (Fed. Cir. 2010). The claims file indicates that the Veteran received treatment for his bipolar disorder at the VA Medical Center from January 2010 to April 2012 and that these records were inserted into the Veteran's electronic claims file in Virtual VA. However, a review of both the electronic and paper claims file does not show that these records have actually been attached. As such, a request to obtain these outstanding records must be achieved to associate them with the claims file as the treatment for a psychiatric disorder, to include bipolar disorder, may have direct bearing on the adjudication of the claim. Furthermore, the Veteran testified at his September 2013 Board hearing that he had begun receiving treatment from private mental health providers in 1966 after he left service. He also indicated that these records may contain information regarding diagnoses of bipolar disorder and PTSD as well as possible nexus opinions to military service. As such, attempts must also be made to obtain these records as well. Additionally, as this case must be remanded for the foregoing reasons, any recent treatment records, including VA records, should also be obtained. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2013); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disability on appeal. In particular, the VA outpatient treatment records indicated in the claims file dated January 2010 to April 2012 should be associated with record and attempts should be made to obtain the Veteran's private treatment records beginning in 1966. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. Appropriate efforts must be made to obtain all available VA treatment records. All attempts to procure records should be documented in the file. If the AMC cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. 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 paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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). 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. 2013). ______________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs