Citation Nr: 1637393 Decision Date: 09/23/16 Archive Date: 09/30/16 DOCKET NO. 12-21 922 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder and schizophrenia, paranoid type; and, if so, whether service connection for an acquired psychiatric disorder is warranted. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Christopher M. Collins, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1972 to January 1973. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Board notes that in the May 2011 rating decision, the RO denied service connection for schizophrenia, paranoid type, and acknowledged that the Veteran was also claiming entitlement to service connection for bipolar disorder. A review of the claims file reveals that the Veteran has been diagnosed with both conditions at various times in the past. Therefore, as reflected on the front page of this decision, the Board will consider the Veteran's claim to be for service connection for an acquired psychiatric disorder, to include both schizophrenia, paranoid type, and bipolar disorder. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009). The reopened appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. FINDINGS OF FACT 1. In a final decision dated in November 1985, the Board denied the Veteran's claim of service connection for schizophrenia. 2. Evidence received since the unappealed November 1985 Board decision relates to an unestablished fact necessary to substantiate the claim of service connection for an acquired psychiatric disorder, to include bipolar disorder and schizophrenia, paranoid type, and raises a reasonable possibility of substantiating such claim. CONCLUSION OF LAW New and material evidence has been received, and the claim of service connection for an acquired psychiatric disorder, to include bipolar disorder and schizophrenia, paranoid type, may be reopened. 38 U.S.C.A. §§ 5108, 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 3.156 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, enlarged VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. As the Board's decision to reopen the claims of service connection for an acquired psychiatric disorder, to include bipolar disorder and schizophrenia, paranoid type, is favorable to the Veteran, no further action is required to comply with the VCAA as to this issue. Analysis The RO denied the Veteran's initial claim of entitlement to service claim for schizophrenia in a rating decision dated in December 1984. In support thereof, the RO found that he had his acquired psychiatric disorder prior to service and that the condition was not aggravated beyond its natural progression by service. In a January 1985 letter, the Veteran was notified of the decision. Following his submission of a February 1985 notice of disagreement, the RO continued the denial in a March 1985 statement of the case. Thereafter, the Veteran appealed the matter to the Board via a VA Form 9 submitted in April 1984. Subsequently, the Board issued a November 1985 decision wherein it continued the denial of the claim on the grounds that the psychiatric condition preexisted service and the evidence showed that the Veteran fully recovered from his psychotic breakdown while still in service. The Board decision became final at the time it was issued in November 1985. 38 U.S.C.A. § 7104 (b) (West 2014), 38 C.F.R. § 20.1100 (2015). The November 1985 Board decision may only be reopened if new and material evidence is received. 38 U.S.C.A. § 5108. "New evidence" is defined as existing evidence not previously submitted to agency decision makers; "material evidence" is defined as 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 most recent 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). For the singular purpose of determining whether new and material evidence has been submitted that is sufficient to reopen a claim, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). This presumption does not extend to the weight of the evidence, however. Id. The presumption of credibility is rebuttable when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19, 21 (1993). The United States Court of Appeals for Veterans Claims (the Court) has endorsed a low threshold standard for reopening a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). As the Court stated in Shade, when making a determination whether the submitted evidence meets the definition of new and material evidence, the Board should consider whether the evidence could, if the claim was reopened, reasonably result in substantiation of the claim, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. The evidence received since the November 1985 Board decision consists of post-service treatment records, both from VA and from private sources, as well as personal statements submitted by the Veteran. VA treatment records show a diagnosis of bipolar disorder from at least June 2010 and continued treatment for same. On a June 2010 psychiatry initial evaluation note, the Veteran reported experiencing his first nervous breakdown while in service, which he attributed to the stress from his duties coupled with the news that his mother had committed suicide. Private treatment records received since the November 1985 Board decision include treatment records from Knox Community Hospital and from Ohio State University Medical Center, which together show continued treatment for an acquired psychiatric disorder variously characterized as bipolar disorder and schizophrenia. On a March 1998 hospital discharge summary from Knox Community Hospital the Veteran reported that he had a long history of emotional illness that began in 1972 when he was first admitted to a psychiatric hospital following his mother's suicide. He was diagnosed with bipolar affective disorder, manic, severe with psychotic features. Thereafter, on a November 2000 emergency room report, it was noted that the Veteran related a history of anxiety disorder. He was diagnosed with bipolar disorder with generalized anxiety disorder. On the Veteran's June 2011 notice of disagreement, he asserted that he did not have any history of psychiatric problems prior to entering service and first manifested his psychiatric condition while in service. The postservice medical records, coupled with the Veteran's assertion that his psychiatric condition first manifested while in service, constitutes new and material evidence because together they provide support for a finding that the Veteran's acquired psychiatric disorder was aggravated by service as it did not manifest until after the Veteran entered service. As the evidence relates to an unestablished fact necessary to substantiate the Veteran's claim, the claim of service connection for an acquired psychiatric disorder is reopened. ORDER The appeal to reopen a claim of service connection for an acquired psychiatric disorder, to include bipolar disorder and schizophrenia, paranoid type is reopened; to this extent only, the appeal is granted. REMAND Before the Board makes a determination as to the Veteran's entitlement to service connection for an acquired psychiatric condition, further development of the record is necessary. The Veteran's August 1972 service entrance examination revealed no mental health problems, but he was treated for a nervous breakdown with symptoms of hallucinations in November 1972, less than two months after entering service. The Veteran's case was reviewed by a medical review board in January 1973 for a determination on whether he should be discharged for medical reasons. The medical review board diagnosed him with latent schizophrenia and found that the condition was a character disorder that existed prior to service, with an approximate date of origin in childhood. It was noted that the Veteran began exhibiting signs of anxiety and nervousness in December 1971 following the suicide of his mother. The medical board also determined that the condition was not aggravated by active duty, on the grounds that the Veteran's decompensation while in service necessitated hospitalization that resulted in a full recovery. The medical board reviewer concluded by stating that there was a good chance that the Veteran would decompensate psychiatrically if he were to remain subject to the stresses of military life. The Board based its November 1985 decision to deny the claim of entitlement to service connection for an acquired psychiatric disorder on the medical board's determination that the Veteran's condition preexisted service and was not aggravated by service. During the pendency of the Veteran's appeal of his original claim, he was never afforded a VA medical examination to evaluate whether he had an acquired psychiatric disorder that was aggravated beyond its natural course by his service. It is therefore necessary for a VA medical examiner to review the Veteran's claims file and provide an opinion as to whether the Veteran's diagnosed acquired psychiatric disorder was aggravated by service. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (finding that VA has a duty to provide a veteran with a medical examination to substantiate his/her claim of service connection if they provide credible evidence of a disability that may be associated with service). Accordingly, the case is REMANDED for the following action: 1. Furnish the Veteran with a 38 C.F.R. § 3.159(b) letter addressing his reopened claim and take any necessary follow-up action to obtain reported relevant medical records, if any, pursuant to 38 C.F.R. § 3.159(c). 2. After completion of the forgoing, schedule the Veteran for a VA psychiatric examination addressing the etiology of the Veteran's acquired psychiatric disorder, to include bipolar disorder and schizophrenia, paranoid type. The entire claims file, to include a complete copy of this REMAND, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions relating to any symptoms of his acquired psychiatric disorder. Based upon the claims file review, the history presented by the Veteran, and the examination results, the examiner is requested to provide an opinion as to whether the acquired psychiatric disorder clearly and unmistakably preexisted service, and clear and unmistakably did not worsen beyond natural progression during service. If the disorder is not found to have clearly and unmistakably preexisted service, an opinion must be rendered as to whether such disorder is at least as likely as not (a 50 percent or greater probability) etiologically related to service. The examiner should set forth all examination findings, along with the complete rationale for the conclusions reached. 3. After completion of the foregoing, readjudicate the claim. If any benefit sought on appeal remains denied, furnish the Veteran with a Supplemental Statement of the Case and afford him the appropriate time period for response. Then, return the case 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 2014). ______________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs