Citation Nr: 1626979	
Decision Date: 07/07/16    Archive Date: 07/14/16

DOCKET NO.  10-04 421A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1. Whether new and material evidence has been received with respect to entitlement to service connection for a bipolar disorder. 

2. Entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder.

3. Entitlement to service connection for residuals of a head injury.

4. Entitlement to a rating in excess of 10 percent for residuals of right wrist navicular fracture.

5. Entitlement to an initial rating in excess of 10 percent for right median nerve carpal tunnel syndrome.


REPRESENTATION

Appellant represented by:	Christopher Loiacono, Agent

ATTORNEY FOR THE BOARD

A.P. Armstrong, Associate Counsel


INTRODUCTION

The Veteran served on active duty from August 1977 to December 1979.

These matters come before the Board of Veterans' Appeals (Board) on appeal from August 2008, September 2009, and April 2012 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan.  

The Veteran requested a hearing with a Board member.  A hearing was scheduled, and the Veteran failed to appear.  Prior to the hearing, on March 19, 2016, VA sent notice of the hearing to the Veteran's last address of record.  The notice letter was returned to VA as undeliverable.  Indeed, in on a VA Form 9 dated in May 2012, the Veteran provided his address and this is the address where VA mailed notice of the Board hearing.  Additionally, notice was also sent to the Veteran's representative and the Veteran has not notified VA that he has a new mailing address.

The issues of service connection for an acquired psychiatric disorder and head injury and increased ratings for right wrist fracture and carpal tunnel are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  In an unappealed February 2004 rating decision, the RO denied the claim for service connection for bipolar disorder, no new and material evidence was received within one year of that decision, but new and material evidence was received since.

2.  Additional evidence received since the RO's February 2004 decision is new and relates to an unestablished fact necessary to substantiate the claim of service connection for a bipolar disorder.


CONCLUSIONS OF LAW

1.  The February 2004 RO denial of service connection for bipolar disorder became final, but new and material evidence has been received sufficient to reopen the previously denied claim.  38 U.S.C.A. §§ 5108, 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103 (2015).

2.  New and material evidence has been received since the February 2004 RO decision that denied entitlement to service connection for spondylosis and degenerative disc disease of the cervical spine.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

As this case reopens the claim for a psychiatric disorder and remands the other claims, the Veteran could not be prejudiced and discussion of compliance with the Veterans Claims Assistance Act is not necessary.

Where a claim has been finally adjudicated, new and material evidence is required in order to reopen the previously denied claim.  See 38 U.S.C.A. §5108; 38 C.F.R. §3.156(a).  New evidence is that which was not previously submitted to agency decision makers.  Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is necessary to substantiate the claim.  38 C.F.R. § 3.156(a).  For the purpose of reopening, evidence received is generally presumed credible.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).  There is a low threshold for finding new evidence raises a reasonable possibility of substantiating a claim.  Shade v. Shinseki, 24 Vet. App. 110, 118 (2010).

The RO denied service connection for bipolar disorder in a February 2004 rating decision.  A December 2003 VA examination report reflects Axis I diagnoses of, among other things, substance-induced mood disorder - depressed, bipolar disorder, by history, and intermittent explosive disorder, NOS.  The RO found no evidence that the condition occurred in active service.  The Veteran was notified of his appellate rights, but he did not appeal, contact the VA, or provide new evidence for his hepatitis and vision loss claims until more than one year after the decision.  Therefore, the February 2004 rating decision became final.  See 38 U.S.C.A. § 7105(c); Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011); 38 C.F.R. § 3.104.

The evidence at the time of the February 2004 raring decision included service records, treatment records, statements from the Veteran, and a VA examination.  Service records showed psychiatric treatment for an overdose and wrist slashing and a subsequent discharge.  The 2004 VA examiner found that the Veteran's primary psychiatric disability appeared to be substance abuse disorder and his suicide attempts in service were also noted to be under the influence of heavy drug usage.  

Since the denial, the Veteran submitted an October 2012 private mental health evaluation with a medical opinion and VA obtained a new examination and opinion.  The private provider opined that the Veteran's psychiatric disability is at least as likely as not related to service given the onset of illness and the usual stressors of military service.  The private opinion addresses a fact necessary to substantiate the claim: a connection to service.  As such, the private opinion is new and material evidence and the claim is reopened.  See 38 U.S.C.A. §5108; 38 C.F.R. §3.156(a). 



ORDER

The petition to reopen the issue of entitlement to service connection for a bipolar disorder is granted.


REMAND

The bipolar disorder has been reopened and it will be analyzed on the merits.  In light of this, the Board finds that, based on the relevant evidence of record and guiding legal principals, the issue needs to be broadened when considering the merits.  See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (stating that, overall, the scope of the claim will be based on a sympathetic assessment of "the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim").

For the psychiatric claim, the Board finds that a new medical opinion would be helpful.  The private provider did not discuss the Veteran's family mental health history or personal history with substance abuse in his opinion.  The VA examiner's opinion was negative, finding that bipolar disorder existed prior to service and was aggravated by substance abuse.  However, the VA examiner's opinion relied on the inaccurate premise that there was no record of suicide attempts in service.  Instead, service treatment records from October 1979 discuss an overdose and November 1979 discuss a slashed wrist.       

Additional development is needed for the remaining claims.  The record shows that the Veteran was granted Social Security benefits beginning in December 2014.  It is unclear which disorders SSA based their decision.  As such, the AOJ should obtain any Social Security records as they are potentially relevant.  

Additionally, updated VA treatment records should be associated with the record.  See Sullivan v. McDonald, 815 F.3d 786, 792 (Fed. Cir. 2016) (finding that because § 3.159(c)(3) expanded the VA's duty to assist to include obtaining VA medical records without consideration of their relevance).
Accordingly, the case is REMANDED for the following actions:

1. Obtain and associate with the claims file any outstanding VA treatment records.

2. Obtain and associate with the claims file the Veteran's records from the Social Security Administration, to include the decision and supporting medical/lay evidence.

3. Then, schedule the Veteran for a mental health examination to determine the etiology of the Veteran's psychiatric disorder(s) and forward the claims file to the examiner to provide an opinion on the following:

a. Identify all current psychiatric diagnoses, including personality disorders.  In identifying all current psychiatric diagnoses, please consider medical and lay evidence dated both prior to and since the filing of the January 2009 claim for service connection for bipolar disorder.  Please note that although the Veteran may not meet the criteria for a diagnosis at the present time, diagnoses made prior to and since the date of claim filing meet the criteria for a "current" diagnosis.  For any diagnoses of record which cannot be validated or confirmed, please explain why such diagnoses cannot be confirmed.

b. Is there clear and unmistakable evidence that the Veteran had bipolar disorder prior to his entrance into active service in August 1977?

c. If so, is the evidence clear and unmistakable that the Veteran's bipolar disorder was not aggravated beyond the natural progression by service?

d. If the answer to a or b above is "no," is any current mental health disability, including bipolar disorder, at least as likely as not related to the Veteran's service, to include beginning during service (from August 1977 to December 1979)?

The claims file should be made available to and be reviewed by the examiner to become familiar with the Veteran's pertinent medical history.  Consider all lay and medical evidence, including October and November 1979 service treatment records and the October 2012 private evaluation.  Provide a comprehensive rationale for all opinions expressed.

If the requested opinion cannot be provided without resort to speculation, court cases require the examiner explain why the opinion cannot be offered, and state whether the inability is due to the absence of evidence or to the limits of scientific or medical knowledge.

4. Issue a supplemental statement of the case with consideration of all pertinent evidence, to include a review of the new evidence of record.  Return the appeal to the Board if otherwise in order.


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).


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 2014).



______________________________________________
PAUL SORISIO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs