Citation Nr: 1801269	
Decision Date: 01/09/18    Archive Date: 01/19/18

DOCKET NO.  17-07 231	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York


THE ISSUES

1.  Whether new and material evidence has been received to reopen the issue of entitlement to service connection for a low back disorder. 

2.  Whether new and material evidence has been received to reopen the issue of entitlement to service connection for a psychiatric disorder, to include depression, anxiety, and bipolar disorder. 

3.  Entitlement to a total disability rating based on individual unemployability (TDIU).  


REPRESENTATION

Veteran represented by:	Allen Gumpenberger, Agent




ATTORNEY FOR THE BOARD

Steve Ginski, Associate Counsel


INTRODUCTION

The Veteran served on active duty from May 1977 to May 1980.  The Veteran served in the Army National Guard for an unverified period thereafter.  This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2014 and December 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York.

This appeal was processed using the Veterans Benefits Management System (VBMS) and the Legacy Content Manager (LCM) system.  LCM contains documents that are either duplicative of the evidence in the VBMS electronic claims file or not relevant to the issue on appeal.

In the final November 2006 rating decision, the RO denied service connection for "anxiety/depression."  However, the RO also found no nexus between diagnosed bipolar disorder and any incident or event from the Veteran's military service.  The RO in its previous, final November 2006 rating decision was comprehensive and adjudicated both service connection for anxiety/depression and for bipolar disorder. See Velez v. Shinseki, 23 Vet. App. 199, 204 (2009) (noting that when determining whether a new and material evidence analysis is required for a disorder, the focus of VA's analysis must be on whether the new evidence presented truly amounts to a new claim "based upon distinctly diagnosed diseases or injuries," or whether the evidence substantiates an element of the previously adjudicated matter).  Thus, a new and material evidence analysis should apply to bipolar disorder, anxiety, and depression, as there was a previous, final adjudication for all disorders.


This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The issues of whether new and material evidence has been received to reopen the issue of entitlement to service connection for a low back disorder, entitlement to service connection for a psychiatric disorder, and entitlement to a TDIU, 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 a November 2006 rating decision, the RO denied service connection for depression/anxiety and bipolar disorder.  The Veteran did not appeal or submit new and material evidence within the one-year period thereafter. 

2.  Evidence received since November 2006 rating decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the underlying claim of entitlement to service connection for a psychiatric disorder, to include depression, anxiety, and bipolar disorder.


CONCLUSIONS OF LAW

1.  The November 2006 rating decision, which denied service connection for anxiety, depression, and bipolar disorder, is final.  38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.201, 20.302, 20.1103 (2017).

2.  The evidence received since the November 2006 rating decision is new and material as to the claim for service connection for a psychiatric depression, anxiety, and bipolar disorder, and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final.  38 U.S.C.A. §§ 7104, 7105 (West 2014); 38 C.F.R. §§ 3.104, 20.1100, 20.1103 (2017).  A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim.  38 U.S.C.A. § 5108 (West 2014).

Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial.  Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001).  As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance.  Evans v. Brown, 9 Vet. App. 273, 285-86 (1996).
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 (2017).  For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992). 

The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low.  Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist or consideration of a new theory of entitlement.  Shade, 24 Vet. App. at 117-18. 

Additionally, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.  38 C.F.R. § 3.156(b).  Furthermore, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring new and material evidence.  38 C.F.R. § 3.156(c)(1).  A claim is not reconsidered, however, where VA could not have obtained the records when it initially decided the claim because the records did not exist at that time, or because the claimant failed to provide sufficient information to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or any other official source.  38 C.F.R. § 3.156(c)(2).

To establish service connection, a Veteran must show:  (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called nexus requirement.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).  

In a November 2006 rating decision, the RO denied service connection for depression, anxiety, and bipolar disorder because it found that there was no link between the claimed disorders and the Veteran's military service.  The Veteran did not appeal that decision nor submit new and material evidence within one year.  The rating decision is thus final based on the evidence then of record.  See 38 U.S.C. 
§ 7105(c); 38 C.F.R. § 20.1103.

The evidence of record at the time of the November 2006 decision includes the Veteran's service treatment records, VA treatment records, and the Veteran's statements.  The VA treatment records show that the Veteran had a history of anxiety and depression but that he also had a present diagnosis of bipolar disorder.  In his January 2006 claim, the Veteran reported that he was very depressed when he left the Army in 1980.  The VA treatment records document continued treatment for substance abuse and bipolar disorder.  Further, VA treatment records such as a treatment note from June 2002 show diagnoses of a history of depression and anxiety. 

Evidence submitted after the 2006 decision includes 1) updated VA treatment records; 2) the Veteran and his representative's statements; and 3) a November 2016 VA examination with a December 2016 addendum opinion.  The VA examiner diagnosed bipolar II disorder, depressed.  The examiner suggested that diagnosed bipolar disorder with depressive features is caused by the Veteran's service, but the Board finds that it is not clear that the examiner was providing a favorable nexus opinion.  The examiner also opined that the depressive aspect of the Veteran's bipolar disorder was aggravated by his low back disorder.  In a May 2017 statement, the Veteran's representative contended that the Veteran's psychiatric disorder was caused by his low back disorder.  

The Board finds that new and material evidence has been presented.  The evidence is new because it was not previously submitted to VA.  The evidence is material because it relates to unestablished facts necessary to establish the claim - evidence of a nexus between the Veteran's service and his diagnosed bipolar disorder.  See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167.  Additionally, the evidence is neither cumulative nor redundant as that evidence was not of record at the time of the prior denial.  See 38 C.F.R. § 3.156(a).  Further, new evidence is to be presumed credible for purposes of deciding whether a previously denied claim may be reopened.  Justus, 3 Vet. App. at 513.  Moreover, when considering the new evidence in conjunction with the evidence already of record, combined with VA assistance including an examination, it raises a reasonable possibility of substantiating the claim.  Shade, 24 Vet. App. at 117.  Accordingly, for all of the above reasons, the Veteran's claim of entitlement to service connection for a psychiatric disorder is reopened.   


ORDER

New and material evidence having been received, the request to reopen a claim of entitlement to service connection for a psychiatric disorder, to include bipolar disorder, depression, and anxiety is granted.


REMAND

Regarding the Veteran's claim to reopen a claim of entitlement to service connection for a low back disorder, the Board defers its determination of whether new and material evidence has been received to reopen a claim of entitlement to service connection for a low back injury pending further development.  In a September 1985 claim of entitlement to service connection, the Veteran reported that on June 30, 1985, during an activity with the Army National Guard, he fell off a truck and injured his back.  A VA hospital summary dated in September 1985 notes that the Veteran underwent a lumbar myelogram in August and left L5-S1 lumbar laminotomy and discectomy one week later, in September 1985, for a back injury sustained after the Veteran fell off a truck while the Veteran was on active duty in the National Guard.  In his September 1985 claim, the Veteran reported that he did not report the back injury during his service period with the Army National Guard, only seeking treatment two weeks later.  

Efforts have been made to ascertain whether any Line of Duty determination paperwork is available from the Veteran's purported fall in June 1985.  A September 2006 response from the NPRC shows that no Line of Duty determination was found in the service medical records that were forwarded to VA.  In March 2016, an NPRC response shows that all service medical records were submitted to VA in response to another inquiry regarding that portion of the Veteran's service in the Army National Guard.  However, the Veteran has explained that he did not report the back injury during the period of service with the Army National Guard the injury purportedly occurred in.  This suggests there would not be a Line of Duty Determination.  But the Veteran has alleged that he injured his back on June 30, 1985 and a September 1985 VA hospital summary corroborates that Veteran's reports.  Additionally, VA verified that the Veteran served in the Army National Guard until January 1986.  Service personnel records show that the Veteran served as a unit clerk with the New York Army National Guard from April 1984 until October 1985.  Accordingly, on remand, verification of all periods of ACDUTRA and/or INACDUTRA should be accomplished, and any outstanding service treatment records corresponding to those periods should be obtained.

The Board is remanding this issue prior to consideration of new and material evidence because the records sought on remand are official service department records that existed but were not associated with the claims file when VA first decided the claim.  Thus, if obtained on remand, this claim would be reconsidered rather than reopened. See 38 C.F.R. § 3.156(c)(1).  In his initial September 1985 claim, the Veteran clearly noted that he was injured on June 30, 1985.  Therefore, the Board finds that remand is appropriate to further develop this matter prior to consideration of whether new and material evidence has been submitted.  

Next, remand is required for the Veteran's claim of entitlement to service connection for a psychiatric disorder for an adequate examination.  Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  Additionally, a medical opinion should address the appropriate theories of entitlement.  Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007).  

As noted above, a VA examination was conducted in November 2016.  The examiner diagnosed bipolar disorder and opined that it was at least as likely as not that the condition was related to the Veteran's service.  However, no accompanying rationale was provided for this opinion, and the Board is unable to ascertain why the examiner provided this opinion because he did not identify any aspect of service that he was connecting to the Veteran's bipolar disorder.  Therefore, the opinion is inadequate for adjudication purposes.  The opinion noting that bipolar disorder was aggravated by the Veteran's claimed low back disability is adequate, and the opinion on remand need not readdress this matter.  Additionally, the examiner did not address if the anxiety and depression still existed and if so, if those disorders were related to service. Therefore, the Board finds that remand is appropriate to obtain an adequate opinion.  

Last, the TDIU claim cannot be addressed until all pending service connection claims are adjudicated, as the outcome of any of those claims could affect entitlement to TDIU.  Harris v. Derwinski, 1 Vet.App. 180 (1991) (noting that the Board decision was premature where an inextricably intertwined claim was undecided and pending before VA).  Following development and adjudication of all pending service connection claims, the claim for TDIU must be readjudicated.

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.  Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment.  If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file.  Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile.  The non-existence or unavailability of such records must be verified and this should be documented for the record.  Required notice must be provided to the Veteran and his or her representative.  

2.  Undertake appropriate action to attempt to verify all of the Veteran's periods of ACDUTRA and INACDUTRA with the Air Force National Guard, to include the precise dates of each.  Specific attempts must be made to verify periods of ACDUTRA and INACDUTRA in 1985.  If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative.

3.  After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his claimed psychiatric disorder, to include bipolar disorder.  The entire claims file should be made available to and be reviewed by the examiner.  Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis.  An explanation for all opinions expressed must be provided.  

First, the examiner must determine all present psychiatric diagnoses of record.  If depression, anxiety, and/or bipolar disorder is not diagnosed, an explanation must be provided as they have been previously diagnosed.

The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that each currently diagnosed psychiatric disorder, including bipolar disorder, had onset in, or is otherwise related to, the Veteran's military service.  


4.  Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim.  38 C.F.R. §§ 3.158, 3.655 (2017).  In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address.  It must also be indicated whether any notice that was sent was returned as undeliverable.

5.  Ensure compliance with the directives of this remand.  If a report is deficient in any manner, implement corrective procedures.  Stegall v. West, 11 Vet. App. 268, 271 (1998). 

6.  After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated.  If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative.  After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.

The Veteran 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).




______________________________________________
K. MILLIKAN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs