Citation Nr: 1400083 Decision Date: 01/02/14 Archive Date: 01/16/14 DOCKET NO. 12-15 048 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder and/or antisocial personality disorder (hereinafter "acquired psychiatric disorder"). 2. Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Veteran represented by: Kentucky Department of Veterans Affairs ATTORNEY FOR THE BOARD A. Nigam, Counsel INTRODUCTION The Veteran served on active duty from February 1995 to February 1999, and had service in the Kentucky Air National Guard from January 2002 to February 2003. This matter initially came before the Board of Veterans' Appeals (hereinafter "Board") on appeal from a December 2010 rating decision issued by the Department of Veterans Affairs (hereinafter "VA") Regional Office (hereinafter "RO") in Louisville, Kentucky, which denied a request to reopen the claim of entitlement to service connection for bipolar disorder. Recent case law mandates that a claim for a mental health disability 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. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). Given the holding in Clemons, the Board has recharacterized the matter to the broader issue of service connection for an acquired psychiatric disability, to include bipolar disorder and/or antisocial personality disorder, as is reflected on the cover page. In his VA Form 9, Appeal to Board of Veterans' Appeals (hereinafter "VA Form 9), received in May 2012, the Veteran requested to appear at a videoconference hearing before a Veterans Law Judge (hereinafter "VLJ"). However, in a statement received in July 2013 he cancelled his hearing request. Thus, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704 (2013). In evaluating this case, the Board has not only reviewed the physical claims file, but has also reviewed Virtual VA to ensure a complete assessment of the evidence. Additional, pertinent medical evidence was added to Virtual VA in May 2012, which was considered in a February 2013 supplemental statement of the case (hereinafter "SSOC"). Moreover, in July 2013, the Veteran submitted a waiver of RO consideration of this evidence, which the Board accepts for inclusion into the record. See 38 C.F.R. §§ 20.800, 20.1304 (2013). The issue of entitlement to service connection for an acquired psychiatric disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (hereinafter "AMC"), in Washington, DC. FINDINGS OF FACT 1. The Veteran's claim for service connection for bipolar disorder was denied by an unappealed rating decision in July 2009, of which the Veteran was advised in July 2009. 2. The evidence received since the July 2009 rating decision relates to an unestablished fact necessary to substantiate the claim for bipolar disorder and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The unappealed July 2009 rating decision, which the claim for service connection for bipolar, is final. 38 U.S.C.A. § 7105(b), (c) (West 2002); 38 C.F.R. §§ 3.158, 3.160(d), 20.201, 20.302, 20.1103 (2013). 2. New and material evidence has been received, and the claim for service connection for bipolar disorder is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Assist and Notify The Board has considered the Veterans Claims Assistance Act of 2000 (hereinafter "VCAA") and its implementing regulations. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In this decision the Board reopens the claim for service connection for bipolar disorder. Since the Board is reopening the claim, there is no need to discuss whether there has been compliance with Kent v. Nicholson, 20 Vet. App. 1 (2006), in terms of notifying the Veteran of the evidence necessary to substantiate the element or elements of his claim that were found insufficient in the previous denial. Kent, 20 Vet. App. at 10-11; see also VA Gen. Couns. Mem., para. 2, 3 (June 14, 2006) (wherein VA's Office of General Counsel issued informal guidance interpreting Kent as requiring the notice to specifically identify the kind of evidence that would overcome the prior deficiency rather than simply stating the evidence must relate to the stated basis of the prior denial). This is because the Board is reopening the claim irrespective of any Kent concerns. Under this circumstance, there is no prejudice to the Veteran in adjudicating the application to reopen without further discussion of VA's duties to notify and assist. Bernard v. Brown, 4 Vet. App. 384 (1993). The Merits of the Claim-New and Material Evidence The law provides that service connection may be granted for disability resulting from 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 (2013). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). The Veteran is seeking to reopen his claim for service connection for an acquired psychiatric disorder. In the December 2010 rating decision on appeal, the RO denied the Veteran's request to reopen this claim. The Board presently reopens the claim and the Veteran is not prejudiced by such action. In a July 2009 rating decision, the RO denied entitlement to service connection for bipolar disorder on the basis that bipolar disorder neither occurred in nor was caused by service; nor was it manifested within one year following discharge from service. The July 2009 rating decision is final but may be reopened upon receipt of new and material evidence. See 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. §§ 20.1100, 20.1103 (2013). At the time of this denial, the pertinent evidence of record included the Veteran's service treatment records, and VA and private treatment records, along with the Veteran's written statements. Evidence submitted since the July 2009 rating decision, includes written statements from the Veteran, Social Security Administration (hereinafter "SSA") records, VA treatment records, a VA examination report and medical opinion, and medical opinions from the two VA practitioners who have treated the Veteran for his acquired psychiatric disorder. The Veteran sought to reopen his claim in September 2010. Despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is furnished with respect to the claim which has been disallowed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). For purposes of the present appeal, 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. 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). See also Evans v. Brown, 9 Vet. App. 273, 283 (1996). Section 3.156(a) "must be read as creating a low threshold," and "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). "[T]he phrase 'raise a reasonable possibility of substantiating the claim' does not create a third element for new and material evidence." Id. at 10. Instead, it is intended to guide VA adjudicators in "determining whether submitted evidence meets the new and material requirements." Id. However, "[f]or reopening, 38 U.S.C. § 5103A(a) does not require VA to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim." Id. at n.7. The Board has thoroughly reviewed the evidence associated with the claims file subsequent to the July 2009 rating decision and finds that this evidence constitutes new and material evidence which is sufficient to reopen the previously denied claim for service connection. The majority of this evidence is new, in that it was not previously of record. In this regard, VA examination report and VA practitioner's opinions show the Veteran's true psychiatric diagnosis is uncertain. Moreover, the VA practitioners have linked the Veteran's psychiatric disorder to an in-service heart surgery. Finally, the Veteran has presented various written statements in support of his claim, which have included description of the development of his acquired psychiatric disability and associated symptomatology, and his contention that this disability is related to the in-service heart surgery. The Board must presume the credibility of this evidence for the purpose of determining whether it constitutes new and material evidence needed to reopen the claims and may not assess its probative weight in relation or comparison to other evidence for reopening purposes. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The Veteran is competent to describe observable symptoms of his claimed acquired psychiatric disorder. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). Therefore, the newly received evidence pertains to elements of the claim that were previously found to be lacking. Furthermore, as will be discussed below, the evidence triggers VA's duty to provide examination. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Board finds the lay evidence presented by the Veteran, along with SSA and VA treatment records showing current treatment for various acquired psychiatric disorders, and the VA examination report and VA practitioners' opinions, to generally provide more information concerning the circumstances surrounding the onset and etiology of his claimed acquired psychiatric disorder, see Hodge v. West, 115 F.3d 1356, 1363 (Fed. Cir. 1998), and thus are material in that they relate to previously unestablished facts that tend to substantiate the Veteran's claim. For these reasons, the Board finds that the additional evidence received since the July 2009 rating decision warrants a reopening of the Veteran's claim of service connection for bipolar disorder, as it is new and material evidence within the meaning of 38 C.F.R. § 3.156(a). ORDER New and material evidence has been received to reopen a claim for entitlement to service connection for bipolar disorder and, to that extent only, the claim to reopen is granted. REMAND As noted, the Veteran asserts that he currently has an acquired psychiatric disorder that gave rise during a period of his active service. Alternatively, he has alleged that his acquired psychiatric disorder was caused or aggravated by an in-service heart surgery. The service treatment records show that on Report of Medical Examination for the purpose of enlistment, dated in June 1994, the examining physician observed that the Veteran had multiple self-inflected cigarette burns. These records also indicate that the Veteran underwent a catheter oblation in March 1998 for paroxysmal supraventricular tachycardia. He was treated in behavioral sciences in June 1998 where he complained of increased fatigue and increased concurrent psychosocial stressors. It was noted that he had undergone a recent surgery, and that he displayed neurovascular symptoms on examination. He was observed to be confident and aggressive with respect to recent family stressors, and was positive for homicidal ideation, though he denied it. The Veteran underwent a VA examination in February 2012, wherein the examiner determined that it was less likely than not that the Veteran's claimed bipolar disorder was incurred in or caused by his military service. The examiner explained that the service treatment records were without findings of any mental health diagnosis in service or for the years immediately following separation from service. The examiner observed that the Veteran had been diagnosed with bipolar disorder in the more recent past, but there was no evidence of symptoms of bipolar disorder during the examination. The examiner opined that the Veteran was adjudged to meet all diagnostic criteria for antisocial personality disorder. The examiner failed to address the June 1994 Report of Medical Examination findings of self-inflicted cigarette burns; the March 1998 heart surgery; and the June 1998 behavioral sciences treatment in the examination report. In June 2013, a former VA adult psychiatric nurse practitioner, "D.C.," who had treated the Veteran for 4 years, provided a medical opinion. D.C. noted that the Veteran had been formally diagnosed with bipolar disorder in 2005, and that on service entrance examination, he displayed self-inflicted weeping burns. D.C. also noted that the in-service heart surgery caused the Veteran to be depressed, and that it was a well-known fact that "an individual after cardiac surgery becomes depressed." D.C. also noted that the Veteran was sent to the behavioral sciences clinic in June 1998. D.C. concluded that it was more likely than not that the Veteran's cardiac surgery exacerbated the Veteran's bipolar disorder. Also in June 2013, the Veteran's VA clinical psychologist, "Dr. W.," provided a medical opinion, wherein it was noted that she treated the Veteran since 2009 for a number of issues, including severe mood swings secondary to a diagnosis of Bipolar I Disorder. The examiner noted that the disorder was developed throughout the Veteran's life but may have been aggravated by the March 1998 heart surgery. The Board finds that the etiology of the Veteran's acquired psychiatric disorder remains unclear because various opinions show conflicting opinions as to whether or not he has a diagnosis of bipolar disorder; and whether or not any such bipolar disorder preexisted service and was aggravated by service, to include an in-service heart surgery, or was otherwise related to an incident of service. Thus, a clarifying medical opinion must be obtained. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should request a VA supplemental medical opinion by an appropriate examiner to determine the nature and etiology of any current acquired psychiatric disorder. If, after review of the clinical record, the examiner finds it necessary to perform further examination of the Veteran, another examination should be ordered. A copy of this remand and all relevant medical records should be made available to the examiner, to include any pertinent records in the Virtual VA Folder. The examiner is asked to confirm whether paper and/or electronic records were available for review. After reviewing the record, and considering the Veteran's contentions, the examiner should address the following questions: (a) Whether it is at least as likely as not that the findings of self-inflicted cigarette burns, shown on Report of Examination for the purpose of enlistment in June 1994, is indicative of a pre-existing acquired psychiatric disorder, and if so, if it was aggravated beyond its normal progression during the Veteran's active service period, to include by the in-service heart surgery? Heart surgery during service is conceded. If the examiner finds that the cigarette burns do not reflect symptoms of an acquired psychiatric disorder that pre-existed the Veteran's service, a full and complete explanation must be provided for any finding that the Veteran had normal psychiatric findings on service entrance and discuss the June 2013 medical opinions of the VA practitioners. (b) If the Veteran's acquired psychiatric disorder did not pre-exist service, is it at least as likely as not that any current acquired psychiatric disorder is related to the conceded heart surgery sustained during the Veteran's military service or otherwise related to service? The examiner should review the entire record, including the Veteran's service treatment records, post-service records, and lay testimony, and provide a complete rationale for all opinions offered. If an opinion cannot be expressed without resort to speculation, discuss why such is the case. In this regard, indicate whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the etiology of the disability at issue or because of some other reason. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. Note: "Aggravation" of a preexisting disability refers to an identifiable, incremental, permanent worsening of the underlying condition, as contrasted with temporary or intermittent flare-ups of symptomatology. 2. Following completion of the foregoing, the RO/AMC must review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. In particular, the AMC/RO must determine whether the examiner has responded to all questions posed. If not, the report must be returned for corrective action. 38 C.F.R. § 4.2 (2013). 3. After completion of the above and any additional development deemed necessary, the RO/AMC must review the issue on appeal. All applicable laws and regulations should be considered. If any benefit sought remains denied, the Veteran and his representative should be furnished an SSOC and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. 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). ______________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs