Citation Nr: 1638431	
Decision Date: 09/28/16    Archive Date: 10/07/16

DOCKET NO.  12-15 354	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bipolar disorder.

2.  Entitlement to service connection for an acquired psychiatric disability, to include bipolar disorder, posttraumatic stress disorder (PTSD) and mood disorder.


REPRESENTATION

Appellant represented by:	Robert J. Osborne, Attorney


WITNESS AT HEARING ON APPEAL

Veteran



ATTORNEY FOR THE BOARD

Joseph R. Keselyak, Counsel


INTRODUCTION

The Veteran had active service from May 1980 to May 1982.

This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania.  Jurisdiction was later transferred the Pittsburgh Pennsylvania RO.

The Veteran was afforded a videoconference hearing before the Board in March 2014.  A transcript of the testimony offered at the hearing has been associated with the record.  

In May 2015, this matter was last before the Board.  At that time, the Board characterized the claim as one for service connection of an acquired psychiatric disability to include bipolar and mood disorders.  A review of the September 2010 rating decision reflects that the RO reopened the claim for service connection of bipolar disorder on the basis of a September 2010 VA examination, which was obtained in relation to the Veteran's claim for service connection of any psychiatric disability.  Here, with respect to the question of service connection for bipolar disorder, new and material evidence is necessary in order to advance the claim.  See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); Clemons v. Shinseki, 23 Vet. App. 1 (2009).

It is pertinent to note that the U. S. Court of Appeals for Veterans Claims held that separate theories in support of a claim for a particular disability are to be adjudicated under one claim.  See Robinson v. Mansfield, 21 Vet. App. 545, 550-51 (2008), citing, Bingham v. Principi, 421 F.3d. 1346, 1349 (Fed. Cir. 2005)

The RO reopened the claim for service connection of bipolar disorder.  However, despite any determination reached by the RO, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim.  See Barnett v. Brown, 83 F. 3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001); see also VAOPGCPREC 05-92.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The issue of entitlement to service connection for an acquired psychiatric disability, to include bipolar disorder, PTSD and mood disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  In an unappealed January 1994 rating decision, the RO denied the Veteran's claim for service connection of bipolar disorder. 

2.  In an unappealed June 1996 administrative decision, the AOJ declined to reopen the claim in the absence of new and material evidence. 

2.  Evidence received since the final June 1996 decision relates to an unestablished fact necessary to substantiate the claim for service connection for bipolar disorder and raises a reasonable possibility of substantiating it.


CONCLUSIONS OF LAW

1.  The RO's June 1996 disallowance of the claim to reopen the claim of entitlement to service connection of bipolar disorder is final.  38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.1103 (2015). 

2.  New and material evidence has been received since the final disallowance, and the claim of entitlement to service connection for bipolar disorder is reopened.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Considering the favorable outcome detailed below as to reopening of the Veteran's claims, VA's fulfillment of its duties to notify and assist need not be addressed at this time.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; Kent v. Nicholson, 20 Vet. App. 1 (2006).

A claimant may reopen a finally adjudicated claim by submitting new and material evidence.  38 U.S.C.A. §§ 5108, 7103, 7104, 7105; 38 C.F.R. §§ 3.156, 20.1100 (2015).  For claims received on or after August 29, 2001, 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 sustaining the claim.  38 C.F.R. § 3.156(a).  New and material evidence need not be received as to each previously unproven element of a claim in order to justify reopening thereof.  See Shade v. Shinseki, 24 Vet. App. 110, 120, (2010).

When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed.  The only exception would be where evidence presented is inherently incredible.  Justus v. Principi, 3 Vet. App. 510 (1992).  In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material.  If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened.  See Smith v. West, 12 Vet. App. 312, 314 (1999).  If it is determined that new and material evidence has been submitted, the claim must be reopened.  VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the Veteran in developing the facts necessary for his claim has been satisfied.  See Elkins v. West, 12 Vet. App. 209 (1999), but see 38 U.S.C.A. § 5103A (West 2002) (eliminates the concept of a well-grounded claim).

Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA.  In the absence of new and material evidence, the benefit-of-the-doubt rule does not apply.  See Annoni v. Brown, 5 Vet. App. 463, 467 (1993).

The appellant's claim for service connection of bipolar disorder was first denied in January 1994 on the grounds that bipolar disorder was neither shown in service, nor shown to be otherwise attributable thereto, noting the in-service assessment of a personality disorder, which is not generally subject to service connection.  38 C.F.R. §§ 3.303(c), 4.9, 4.127.  The AOJ also noted an absence of evidence indicating the manifestations of a psychosis within the first post-service year.  The Veteran did not appeal this determination.

As mentioned above, in a June 1996 administrative decision, the AOJ disallowed the Veteran's request to reopen the claim of entitlement to service connection of bipolar disorder.  The Veteran was notified of the need for the submission of evidence, particularly new and material evidence.  The Veteran did not submit any evidence, and did not appeal the disallowance.

VA next received a claim from the Veteran in July 2010.  He particularly sought service connection for any mental health condition associated with bipolar disorder.  VA obtained an examination in September 2010, as well as an addendum opinion dated in February 2016.  The evidence suggests that the Veteran had bipolar disorder prior to service, and that the disorder was aggravated therein.  New and material evidence need not be received as to each previously unproven element of a claim.  Shade, at 120.  Accordingly, as this evidence was not of record and relates to the unestablished finding of a nexus between the claimed condition and service, the claim is reopened as this is new and material evidence.  The underlying claim is addressed below in the remand section.

ORDER

New and material evidence has been received to reopen the claim of entitlement to service connection for bipolar disorder and the claim is reopened; to this extent only is the appeal granted. 


REMAND

VA examination in September 2010 resulted in diagnoses of polysubstance abuse and bipolar disorder, most recent episode depressed.  Also assessed was a personality disorder.  The examiner did not view the Veteran's service as aggravating any psychiatric condition, noting that he had symptoms prior to entrance.  Rather, the examiner found that there was a natural progression.  In rendering the opinion, the examiner also concluded that the Veteran had a pre-existing personality disorder, finding that the Veteran's service did not aggravate his "overall psychiatric condition," to include the personality disorder.  He noted that the Veteran displayed "problems" in service.

Of record is an April 2015 private psychiatric opinion from Dr. F.W.N.  In the opinion, Dr. N. diagnosed PTSD, which he concluded was the result of childhood physical abuse.  Dr. N. concluded, also, that PTSD was aggravated by the stressful nature of service.  

In May 2015, the Board remanded the matter to obtain an addendum to the September 2010 VA examination.  The Board sought to have the examiner specifically address the standards for addressing service connection of a psychiatric disability on the basis of aggravation, as well as direct service connection.  If PTSD was not assessed, the examiner was asked to address Dr. N.'s April 2015 opinion.  

In February 2016, the addendum was obtained, from the same examiner that conducted the September 2010 VA examination.  Once again a negative etiological opinion was rendered, with the examiner concluding that although the Veteran had symptoms of a mental health disorder prior to entering service, he found no stressor that would be sufficient to aggravate one.  He did not find that the Veteran showed signs of psychiatric instability in service, despite the earlier indication of problems therein.  The examiner did not address whether the Veteran had a psychiatric disability that clearly and undebatabely pre-existed service.  He noted that it was possible that the Veteran had PTSD due to his turbulent and violent history prior to service, but did not find any indication of aggravation of any disorder in service.  He did not comment on Dr. N.'s opinion. 

Every veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment, and was not aggravated by such service.  38 U.S.C.A. § 1111.  Regulation provides that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports,"  38 C.F.R. § 3.304(b), and that "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions"  38 C.F.R. § 3.304 (b)(1).

To rebut the presumption of sound condition for conditions not noted at entrance into service, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service.  VAOPGCPREC 3-03 (July 16, 2003), 70 Fed. Reg. 23027 (May 4, 2005); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004).

A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.  38 U.S.C.A. § 1153 (West 2014); 38 C.F.R. § 3.306 (2015); Green v. Derwinski, 1 Vet. App. 320 (1991).  Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service.  This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition.  Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service.  38 U.S.C.A. § 1153 (West 2014); 38 C.F.R. § 3.306 (2015).

A lack of aggravation during service can be shown by establishing by clear and unmistakable evidence either that there was no increase in disability, or that any increase in disability was due to the natural progression of the preexisting condition. 38 U.S.C.A. § 1153 (West 2014); 38 C.F.R. § 3.306 (2015); Wagner, 370 F.3d at 1096; Horn v. Shinseki, 25 Vet. App. 231, 235 (2012).  The Veteran "need not produce any evidence of aggravation in order to prevail"; instead, the burden is on the VA to identify affirmative evidence demonstrating that there was no aggravation.  Horn, 25 Vet. App. at 235.  The burden is not met by finding that the record contains insufficient evidence of aggravation.  Id.

The Board also notes that the evidence suggests that the Veteran had a personality disorder that existed prior to entry.  However, congenital or developmental defects such as personality disorders are not diseases or injuries within the meaning of applicable legislation, and therefore service connection for them is generally precluded by regulation.  38 C.F.R. §§ 3.303(c), 4.9, 4.127.  This is because defects are defined as "structural or inherent abnormalities or conditions which are more or less stationary in nature."  VAOPGCPREC 82-90.

In fact, congenital or developmental "defects: such as personality disorder and mental deficiency automatically rebut the presumption of soundness and are, therefore, considered to have pre-existed service.  38 C.F.R. §§ 3.303(c), 4.9; see also Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009).  However, additional disability resulting from a mental disorder superimposed upon, and aggravating, a personality disorder may be service-connected.  38 C.F.R. § 4.127.

Once VA provides an examination, it must be adequate or VA must notify the Veteran why one will not or cannot be provided.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  An examination is adequate if it "takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one." Barr, 21 Vet. App. at 311 (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)).  Moreover, an examination must be based upon consideration of the Veteran's prior medical history and examinations.  Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007).  The Secretary has an affirmative duty to gather the evidence necessary to render an informed decision on a claim.  Douglas v. Shinseki, 23 Vet. App. 19 (2009).

Here, the VA examiner's February 2016 opinion is not responsive to the Board's request.  At issue, is whether the Veteran had any psychiatric disability, to include bipolar disorder, PTSD and/or a mood disorder that existed prior to service, clearly and unmistakably.  If so, the question is whether the disorder was clearly and unmistakably not aggravated, i.e. worsened by service.  Here, the examiner did not address these standards.  The standards relating to personality disorders have also not been clearly addressed.  Accordingly, the reports are returned.  38 C.F.R. § 4.2.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Schedule the Veteran for a VA examination to determine the etiology of his claimed psychiatric disabilities.  The claims file, including this remand, must be reviewed by the examiner and such review must be noted in the examination report.

The examiner should identify all psychiatric disorders found on examination, as well as present during the course of the claim and appeal, i.e. since July 2010, including any personality disorders.

For each diagnosed psychiatric disorder, the examiner is to provide the following opinions:


Is it at least as likely as not (a 50 percent probability or more) that any diagnosed psychiatric disorder had its onset during military service or is otherwise etiologically related to such service?

For all diagnosed personality disorders, the examiner should provide an opinion to the following:

Is it at least as likely as not (a 50 percent probability or more) that that any current acquired psychiatric disorder was superimposed upon the personality disorder during active service?

If, and only if, the examiner believes that, for any assessed psychiatric disorder, excluding any personality disorder, it pre-existed active service, the examiner is asked provide an opinion on the following: (1) Whether there is clear and unmistakable evidence that the disorder pre-existed service and (2) Whether there is clear and unmistakable evidence that the disorder was not aggravated by service.

The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached.  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.  

Clear and unmistakable evidence means evidence that is undebatable or that cannot be mistaken or misunderstood.  A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease

If an opinion cannot be provided without resort to speculation, the examiner should provide reasons why this is so and state whether the inability to provide the needed opinion is due to the limits of medical knowledge of missing evidence.

2.  Then, after conducting any additional indicated development, readjudicate the claim currently on appeal.  If any benefit sought on appeal remains denied, issue a Supplemental Statement of the Case to the Veteran and his attorney and provide them an appropriate period of time to respond before this case is returned to the Board.

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 2014).



______________________________________________
K. J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs