Citation Nr: 18145714 Decision Date: 10/30/18 Archive Date: 10/29/18 DOCKET NO. 15-15 283 DATE: October 30, 2018 ORDER Entitlement to service connection for depression disorder is granted. As new and material evidence has been received, a previously denied claim for service connection for a thyroid disorder is reopened. REMANDED Entitlement to service connection for a thyroid disorder is remanded. FINDINGS OF FACT 1. The competent medical evidence indicates that the Veteran’s depressive disorder is a component of her already service-connected psychiatric disability. 2. In a September 2005 decision, the Board denied the Veteran’s claim for service connection for thyroid condition as there was clear and unmistakable evidence that it existed prior to service and was not aggravated beyond the natural progression of the disease by her period of service. 3. The additional evidence associated with the record since the September 2005 Board decision is neither cumulative nor redundant, and relates to an unestablished fact (increase of thyroid condition) that raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The criteria for an award of service connection for depressive disorder, as a component of the Veteran’s service-connected psychiatric disability, have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.156(b), 3.400. 2. The Board’s September 2005 decision which denied service connection for thyroid condition is final; new and material evidence has been submitted to reopen the claim of entitlement to service connection for thyroid disorder. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.1104. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from July 1973 to July 1976. Service Connection Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304. 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). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). 1. Entitlement to service connection for depression disorder The Veteran seeks entitlement to service connection for her depressive disorder. She believes that her depressive disorder is a result of her thyroid condition. VA treatment records show that the Veteran has a current diagnosis of major depressive disorder. See March 2010 VA initial mental health evaluation record. It is noted that service connection is already in effect for the Veteran’s bipolar disability. The rating criteria for all psychiatric disabilities are governed by one uniform general rating formula, found under 38 C.F.R. § 4.130. The Court has held that when the symptoms of a service-connected disability and a nonservice-connected disability cannot be differentiated, all symptoms must be attributed to the service-connected disability for evaluation purposes. Mittleider v. West, 11 Vet. App. 181, 182 (1998). In this case, the record contains no competent medical evidence that distinguishes the Veteran’s specific symptoms as relating only to her bipolar disability or as relating only to her other psychiatric diagnosis. Rather, the competent medical evidence demonstrates that the Veteran’s depressive disorder complaints have been considered as a component of her bipolar disability. The Veteran’s service treatment records show that she complained of depressed mood in service, and after her separation from service, she continued to complain of depressed mood which later supported her diagnosis of service-related bipolar. See November 1973 service treatment record, November 1976 post-service psychiatric evaluation, and December 1983 private treatment records. Subsequent post-service treatment records continue to show complaints of depressed moods, as well as diagnosis of depressive disorder and bipolar disorder. See December 1986 VA psychiatric examination report, December 1994 Social Security Administration psychiatric evaluation, June 1994 private medical statement, and August 1996 private medical statement. In a July 1999 VA psychiatric examination report, the VA examiner noted that the Veteran reported a long history of depressed mood, and her complaints of depressed mood were considered a component of the diagnosed bipolar disability. Thus, her depressive disorder symptoms are already for consideration in evaluating the service-connected bipolar disability. The Board has considered the Veteran’s assertion that she suffers from depression disorder as a result of her thyroid condition. However, as noted in a February 2005 VA medical opinion report, the Veteran complained of depressed mood, even when her thyroid was evaluated as normal. The Board finds that a remand to seek clarification as to which symptoms may or may not be attributed to the bipolar as opposed to a current thyroid condition would not serve a useful purpose. As noted above, the Veteran’s depressive symptoms have consistently been considered a component of her bipolar disability. In this case, the Board will resolve doubt and award service connection for depressive disorder, for which treatment first occurred in service. Accordingly, the Board will award service connection for depressive disorder, to be hyphenated together with the bipolar disability rating; rules against pyramiding prohibit assignment of a separate rating percentage. 38 C.F.R. § 4.14. 2. Whether new and material evidence has been received to reopen a previously denied claim for service connection for a thyroid disorder VA law provides that a claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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 substantiating the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). The Court has held that the credibility of evidence must be presumed for the purpose of deciding whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The United States Court of Appeals for the Federal Circuit has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000). When making a determination as to whether received evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Board previously considered and denied the Veteran’s claim for service connection for a thyroid disorder in a September 2005 decision. In particular, the Board found that there was clear and unmistakable evidence that the Veteran’s thyroid disorder existed prior to service and there was clear and unmistakable error that it was not aggravated by her period of service. The Veteran did not file an appeal to the U.S. Court of Appeals for Veterans Claims, nor did she submit a motion for reconsideration, vacatur, or revision based on clear and unmistakable error. As such, the September 2005 Board decision became final. See 38 U.S.C. § 7104; 38 C.F.R. §§ 20.1100, 20.1104. The Veteran later submitted a claim for service connection for a thyroid disorder in March 2010. The RO reopened, but denied the claim, in an April 2011 rating decision. The evidence obtained since the September 2005 Board decision includes VA and private treatment records that show an increase in the Veteran’s thyroid disorder, which ultimately lead to her undergoing a total thyroidectomy surgery in October 2014. In addition, VA obtained a January 2015 VA medical opinion that addressed the etiology of the Veteran’s thyroid disorder. Such evidence was not considered at the time of the September 2005 Board decision and relates to a previously unestablished fact. Therefore, the Board finds that new and material evidence has been received in order to reopen the Veteran’s claim for service connection for a thyroid disorder. 38 C.F.R. § 3.156 (a). However, as will be explained below, the Board is of the opinion that further development is necessary before the merits of the Veteran’s claim can be addressed. REASONS FOR REMAND 1. Entitlement to service connection for a thyroid disorder is remanded. The Veteran seeks entitlement to service connection for a thyroid disorder. The Veteran contends that her pre-existing thyroid disorder was aggravated by her period of service. The Veteran believes that her thyroid disorder worsened as a result of her period of service when military medical providers discontinued her thyroid medication, which was later restarted after her separation from service. Medical opinions have been obtained that address the issues of whether the Veteran’s thyroid disorder pre-existed service and was aggravated by her period of service. See February 2005 and January 2015 VA medical opinion reports. The Board notes that the competent evidence of record suggests a relationship between the Veteran’s thyroid disorder and her service-connected bipolar disability, to include medication (Lithium) use to treat her bipolar disability. Post-service treatment records show that the Veteran required thyroid laboratory tests in conjunction with her intake of Lithium medication. In addition, an August 1996 private medical opinion noted an interaction, and possible aggravation, between bipolar disorder and thyroid disorder. A medical opinion is needed to address whether the Veteran’s thyroid disorder was proximately caused or aggravated by her service-connected bipolar disorder, to include medication (Lithium) used to treat her disability. The matters are REMANDED for the following action: 1. Contact the Veteran and send her a notice letter which provides an explanation as to the elements necessary to substantiate a claim under the theory of secondary service connection. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s thyroid disorder is at least as likely as not proximately due to service-connected disability/aggravated beyond its natural progression by service-connected bipolar disability, to include medications, (e.g. Lithium) used to treat her disability. N. RIPPEL Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Murray, Counsel