Citation Nr: 1644613 Decision Date: 11/28/16 Archive Date: 12/09/16 DOCKET NO. 13-08 962 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for bipolar disorder. 2. Entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder or depression as secondary to service-connected herniated nucleus pulposus at L5-S1. 3. Entitlement to service connection for motor and sensory deficits of the bilateral lower extremities, to include as secondary to service-connected herniated nucleus pulposus at L5-S1. 4. Entitlement to service connection for diabetes mellitus. 5. Entitlement to an evaluation in excess of 40 percent for herniated nucleus pulposus at L5-S1. 6. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Avery M. Schonland, Associate Counsel INTRODUCTION The Veteran had active service from October 1983 to February 1987 and from September 1987 to November 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2011 and August 2012 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In July 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board notes that the RO characterized an issue as entitlement to service connection for bipolar disorder. However, in light of the Veteran's assertions and the evidence of record, the Board has recharacterized that issue more broadly. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6, 8 (2009) (holding that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by a claimant's description of the claim, reported symptoms, and the other information of record). This appeal was processed using the Virtual VA and the Veterans Benefits Management System (VBMS) electronic claims processing systems. The issues of entitlement to service connection for an acquired psychiatric disorder and for motor and sensory deficits of the bilateral lower extremities and to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. The claim for service connection for bipolar disorder was previously considered and denied by the RO in a November 1999 rating decision. The Veteran was informed of the decision and of his appellate rights, but did not appeal or submit new and material evidence within one year of that decision. 2. The evidence received since the November 1999 rating decision is not cumulative or redundant of the evidence of record at the time of the prior denial and relates to an unestablished fact necessary to substantiate the claim for service connection of an acquired psychiatric disorder. 3. During the July 2016 hearing, prior to the promulgation of a decision in the appeal, the Veteran and his representative indicated that they wanted to withdraw the appeal for the issue of entitlement to service connection for diabetes mellitus. 4. During the July 2016 hearing, prior to the promulgation of a decision in the appeal, the Veteran and his representative indicated that they wanted to withdraw the appeal for the issue of entitlement to an increased evaluation for herniated nucleus pulposus at L5-S1. CONCLUSIONS OF LAW 1. The November 1999 rating decision denying service connection for bipolar disorder is final. 38 U.S.C.A. §§ 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.302, 20.1103 (1999). 2. The evidence received since the November 1999 denial is new and material, and the claim for service connection for bipolar disorder is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2016). 3. The criteria for withdrawal of an appeal by the Veteran have been met for the issue of entitlement to service connection for diabetes mellitus. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2016). 4. The criteria for withdrawal of an appeal by the Veteran have been met for the issue of entitlement an evaluation in excess of 40 percent for service-connected herniated nucleus pulposus at L5-S1. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material Evidence The Veteran previously filed a claim for service connection for bipolar disorder as secondary to his service-connected lumbar spine disability in April 1999, which the RO denied in a November 1999 rating decision. In that decision, the RO noted that the Veteran's service treatment records were negative for any evidence of a mental condition and that he was first diagnosed with bipolar disorder in 1998. There was no evidence relating the current disorder to his military service or to his service-connected herniated nucleus pulposus at L5-S1. The RO notified the Veteran of the November 1999 rating decision, but he did not file a notice of disagreement or submit new and material evidence within one year of receiving notice of the decision. Therefore, the November 1999 rating decision is final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.156, 3.160(d), 20.200, 20.302, 20.1103 (1999). The Veteran subsequently filed an application to reopen the claim in February 2011. Since the November 1999 rating decision, the Veteran submitted research from the National Institutes of Health relating spinal cord injuries and emotional disorders. As previously noted, the RO had denied the initial April 1999 claim, in part, due to a finding that the Veteran's bipolar disorder was not related to his service-connected herniated nucleus pulposus at L5-S1. As such, this additional evidence relates to a previously unestablished fact necessary to substantiate the claim. For purposes of reopening a claim, the credibility of newly submitted evidence is also generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Therefore, the Board finds that new and material evidence has been received to reopen the Veteran's claim for service connection for an acquired psychiatric disorder. 38 C.F.R. § 3.156; see also Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). II. Diabetes Mellitus and Herniated Nucleus Pulposus at L5-S1 The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105(d)(5). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204(a). Withdrawal may be made by the appellant or by his authorized representative in writing or on the record at a hearing. 38 C.F.R. § 20.204(a), 38 C.F.R. § 20.204(b)(1). In the present case, the Veteran and his representative withdrew the issues of entitlement to service connection for diabetes mellitus and to an increased evaluation for herniated nucleus pulposus at L5-S1 on the record at the July 2016 hearing. Therefore, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review these issues, and they are dismissed. ORDER New and material evidence having been submitted, the claim of entitlement to service connection for bipolar disorder is reopened, and to this extent only, the appeal is granted. The issue of entitlement to service connection for diabetes mellitus is dismissed. The issue of entitlement to an increased evaluation for herniated nucleus pulposus at L5-S1 is dismissed. REMAND The Social Security Administration (SSA) records indicate that the Veteran received VA treatment in 2002, 2003, 2009, and 2010. However, the claims file only includes records for VA treatment of mental health issues in 2010 and 2011. At the July 2016 hearing, the Veteran also testified as to VA treatment for mental health issues as well as his back and lower extremities since his 1988 separation from service. Therefore, it appears that there may be outstanding VA treatment records. In addition, the Veteran submitted VA Form 21-4142s in October 2011 for treatment records from the Vista Treatment Center, Edgewood Treatment Center, and St. Anthony's Medical Center. The RO obtained records from St. Anthony's Medical Center; however, it does not appear that records have been obtained from the Edgewood Treatment Center or the Vista Treatment Center records. Therefore, the AOJ should request any outstanding, relevant private medical records. Moreover, as noted above, the Veteran has submitted evidence suggesting a relationship between emotional disorders and spinal cord injuries. The VA treatment records document ongoing treatment for depression, and private treatment records reveal a diagnosis for bipolar disorder. He is also service-connected for a herniated nucleus pulposus at L5-S1. Similarly, the service treatment records, private treatment records, and VA examination reports reflect longstanding neurological problems with his lower extremities. Therefore, the Board finds that a VA examinations and medical opinions are needed to determine the nature and etiology of any acquired psychiatric disorder and motor and sensory deficits of the bilateral lower extremities that may be present. In addition, the Veteran testified as to his participation in vocational rehabilitation training through the VA. However, the claims file does not include the vocational rehabilitation records. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his lower extremities and an acquired psychiatric disorder. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. A specific request should be made for records from the Edgewood Treatment Center and Vista Treatment Center. The AOJ should also secure any outstanding VA treatment records, to include all records for treatment prior to March 2010 and for treatment since April 2011. 2. The AOJ should secure any available vocational rehabilitation records. 3. After completing the foregoing development, the AOJ should afford the Veteran a VA examination for the purpose of determining the nature and etiology of any psychiatric disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a clinical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify all current psychiatric disorders. For each diagnosis identified, the examiner should state whether it is at least as likely as not that the disorder manifested service or is otherwise related thereto. In rendering this opinion, the examiner should consider the Veteran's July 2016 testimony that his mental health problems began during service following his in-service back injury. The examiner should also state whether it is at least as likely as not that any current psychiatric disorder was either caused by or aggravated by the Veteran's service-connected for herniated nucleus pulposus at L5-S1. In rendering this opinion, the examiner should consider the medical literature submitted by the Veteran in July 2016 as well as the Dr. D.P.'s July 1997 treatment note (included in the SSA records received in June 1999) indicating that psychiatric problems may be associated with his service-connected back injury. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. After completing the foregoing development, the AOJ should afford the Veteran a VA examination for the purpose of determining the nature and etiology of any motor and sensory deficits of the bilateral lower extremities. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay assertions. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a clinical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should state whether it is at least as likely as not that the Veteran currently has motor or sensory deficits of the bilateral lower extremities that began during service or are otherwise related thereto. The examiner should also state whether it is at least as likely as not that any current disorder was either caused by or aggravated by the Veteran's service-connected for herniated nucleus pulposus at L5-S1. In rendering this opinion, the examiner should consider the Veteran's July 2016 testimony that his motor and sensory deficits of the bilateral lower extremities began during service following his in-service back injury. The examiner should also note that the service treatment records note sharp pain in both legs, radicular symptoms, and decreased sensation of the lower extremities and radicular symptoms in April 1988. The August 1989 VA examination report documents a diagnosis of sciatica, and the March 1995 VA examination report reflects a diagnosis of radiculopathy. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 5. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. This may include ordering a social and industrial survey to ascertain the impact of the Veteran's service-connected disabilities on his ability to work, or referral to the Director of Compensation and Pension Services for consideration of extra-schedular TDIU under 38 C.F.R. § 4.16 (b). 6. When the requested development has been completed, the AOJ should review the case on the basis of additional evidence. If any benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further 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 2014). ______________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs