Citation Nr: 18141179 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 16-03 299 DATE: October 9, 2018 ORDER Entitlement to service connection for a heart condition is denied. Entitlement to an effective date of January 30, 2013, for service-connected bipolar disorder is granted. REMANDED Entitlement to an initial evaluation in excess of 50 percent for service-connected bipolar disorder is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The record does not reflect a diagnosis of any heart condition. 2. The Veteran applied for service connection for psychiatric symptoms in December 1995; service connection was implicitly denied in an October 1999 rating decision. 3. The Veteran’s application for service connection for a mental disorder, which was received on January 30, 2013, was not developed until she applied again in January 2014, after which service connection was granted. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for a heart condition have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for establishing an effective date of January 30, 2013, for service-connected bipolar disorder have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.160, 3.303, 3.400, 4.130. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from April 1989 to October 1995. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Court has held that entitlement to TDIU is an element of all appeals of an increased evaluation when such claim is raised by the record or asserted by the Veteran. Rice v. Shinseki, 22 Vet. App. 447, 454-55 (2009). As the record reflects some evidence of unemployability, the Board will evaluate whether the Veteran is entitled to a TDIU as part of the appeal for an increased evaluation for bipolar disorder. 1. Entitlement to service connection for a heart condition Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also 38 C.F.R. § 3.303, Hickson v. West, 12 Vet. App. 247, 252-53 (1999). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran submitted a letter in January 2014 as an informal claim for a heart condition. She did not describe the nature of the heart condition or submit any medical documentation with this letter. A review of the record indicates complaints of occasional chest pain in May and July 2013 with a private physician. A May 2013 stress echocardiogram showed normal left ventricle function, and was negative for stress. There were no abnormalities noted in the shape or function of the Veteran’s heart, and no heart condition was diagnosed. The remainder of the Veteran’s records are silent as to any heart condition. As there is medical evidence of no abnormalities of the shape or function of the heart and no heart condition was diagnosed after testing via a stress echocardiogram, it is unclear if there is any current disability. Nonetheless, even if “chest pains”, which are noted in 2013, are considered to be a current disability under the holding in Saunders v. Wilkie, 886 F.3d 1356, 1363 (Fed. Cir. 2018), there is no competent evidence suggesting they are related to the Veteran’s military service. Accordingly, service connection for a heart condition is not warranted. 2. Entitlement to an effective date prior to January 31, 2014, for service-connected bipolar disorder Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2). Where a claim was submitted within one year of separation from service, the effective date of an award of service connection is the day following separation from service or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). The date of receipt is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). A pending claim is one that has not been finally adjudicated. 38 C.F.R. § 3.160(c); see also Adams v. Shinseki, 568 F.3d. 956, 960 (Fed. Cir. 2009). A claim can remain pending in the adjudication process for years if VA fails to act on it. See Norris v. West, 12 Vet. App. 413, 422 (1999); see also Ingram v. Nicholson, 21 Vet. App. 232, 249, 255 (2007) (recent Federal Circuit cases have not overruled the pending claim doctrine articulated in Norris). A claim that has not been finally adjudicated remains pending for purposes of determining the effective date for that disability. McGrath v. Gober, 14 Vet. App. 28, 35 (2000). Where a claim has been finally adjudicated and then reopened at a later date, the effective date of any subsequent award is the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2). If there is a prior final VA denial of the benefit sought, the effective date cannot be earlier than a subsequent claim to reopen. Leonard v. Principi, 17 Vet. App. 447 (2004); Sears v. Principi, 16 Vet. App. 244, 246-50 (2002). The Veteran separated from service on October 24, 1995. She filed an application for service connection for several issues, including a brief psychotic disorder with marked stressors, on December 15, 1995. The Veteran also later applied for service connection for a mental health disorder on January 30, 2013, which claim was not developed, and again on January 31, 2014; the September 2014 rating decision granted service connection for a bipolar disorder based on the January 2014 application. As claimants are not expected to know the exact diagnosis of their symptoms when applying for VA benefits, the Board finds that it would be appropriate to broaden the December 1995 application for brief psychotic disorder with marked stressors to include all psychiatric symptoms, including bipolar disorder symptoms. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Therefore, the initial December 1995 application is the same claim as the January 2013 and 2014 claims for a mental health disorder. A January 1996 rating decision adjudicated the claims the Veteran submitted in the December 1995 application, but deferred decisions on the psychiatric disorder claim and another service connection claim for a reaction to medication in order to obtain a VA examination. This was scheduled for a date in March 1996, but the Veteran failed to appear. No further development was completed on these two claims, until October 1999, when VA notified the Veteran that the claim for a reaction to medication was denied. The October 1999 rating decision referenced the fact that the Veteran had failed to report for the March 1996 VA examination, but only specifically addressed the reaction to medication claim. The accompanying codesheet is also silent as to the psychiatric disorder claim; it is not listed amongst the claims for which the Veteran was not service connected as of that decision, nor anywhere else on the codesheet. However, the claim for an adverse reaction to medication also encompassed psychiatric symptoms; the Veteran’s first psychiatric diagnosis in service was one of organic delusions secondary to medications. These claims are closely related, then, as they both describe psychiatric symptoms; they were filed on the same application, and the rating decision references the psychiatric treatment received during service. Therefore, the Board finds that the October 1999 rating decision includes an implicit denial of the December 1995 claim for brief psychiatric disorder with marked stressors. See Cogburn v. Shinseki, 24. Vet. App. 205, 212-13 (2010) (setting forth four factors to determine whether a claim was implicitly denied or remains pending). The Veteran did not file a notice of disagreement with the October 1999 rating decision, which became final. The next relevant application was filed in January 2013, when the Veteran submitted a letter as an informal claim for compensation benefits for a mental condition. The RO sent the Veteran a letter in March 2013 indicating that it was working on this claim. However, an October 2013 rating decision appeared to overlook the Veteran’s January 2013 letter, and noted that there was no intent to file a claim for a mental condition despite having been sent notice that the RO was working on this claim. The claim was not adjudicated or developed in any way. In January 2014, the Veteran submitted a second letter as an informal claim for compensation benefits, this time for a mental health condition. This claim was developed, and a September 2014 granted service connection for bipolar disorder, effect January 31, 2014, the date the Veteran’s second letter was received. As the Veteran clearly filed a claim for this condition in January 2013, the appropriate effective date for the grant of service connection is January 30, 2013, the date the first letter was received. REASONS FOR REMAND 1. Entitlement to an initial evaluation in excess of 50 percent for service-connected bipolar disorder is remanded. The Veteran was afforded a VA examination in conjunction with her service connection claim in August 2014, at which the examiner identified a diagnosis of bipolar I disorder with psychotic features, and no other diagnoses. The Veteran also submitted a private examination conducted in June 2016, at which the private psychiatrist identified the same singular diagnosis. The private psychiatrist identified anxiety as one of the Veteran’s symptoms, and described social anxiety and panic attacks, intense anxiety episodes, and anxiety distress features when summarizing the Veteran’s psychiatric symptoms. The Veteran’s Social Security Administration and private treatment records reflect a diagnosis of anxiety disorder separate from the bipolar disorder diagnosis, but neither examination of record addressed this diagnosis or described how any symptoms of the two disorders overlap, if at all. A remand is therefore necessary to obtain an examination confirming the anxiety disorder diagnosis and distinguishing the symptoms of the bipolar disorder from any symptoms manifesting from the anxiety disorder, if possible. 2. Entitlement to TDIU is remanded. The TDIU issue is intertwined with the above remanded issue and is also remanded at this time. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matter is REMANDED for the following action: Schedule the Veteran for an examination with an appropriate clinician to determine the current severity of the Veteran’s service-connected bipolar disorder. (Continued on the next page)   The examiner should diagnose any psychiatric disorders present in addition to bipolar disorder, such as the anxiety disorder noted in medical records. The examiner must indicate if the symptoms from each disorder can be clearly distinguished. If they can be distinguished, the examiner should indicate which symptoms are related to the service-connected bipolar disorder and which symptoms are related to the anxiety disorder. If the symptoms from each disorder cannot be clearly delineated, this must be stated. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Josey, Associate Counsel