Citation Nr: 18152510 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 16-35 871 DATE: November 23, 2018 ORDER New and material evidence having been received, the appeal to reopen a claim of entitlement to service connection for a bipolar disorder (previously claimed as explosive personality disorder) is granted. REMANDED Entitlement to service connection for migraine headaches is remanded. Entitlement to service connection for a bipolar disorder (previously claimed as explosive personality disorder) is remanded. FINDINGS OF FACT 1. A June 1985 rating decision denied the Veteran entitlement to service connection for an explosive personality disorder; the Veteran did not appeal this determination or submit new and material evidence within one year. 2. Evidence received since the June 1985 rating decision that denied service connection for an explosive personality disorder is new and material in that it is not cumulative, was not previously considered by decision makers, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The June 1985 rating decision denying service connection for an explosive personality disorder is final. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 2. New and material evidence has been received since the June 1985 decision, and the Veteran’s claim for service connection for a bipolar disorder (previously claimed as an explosive personality disorder) is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1972 to February 1973. This case is before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision of the Montgomery, Alabama Department of Veterans Affairs (VA) Regional Office (RO). This April 2015 rating decision denied the Veteran’s claim for entitlement to service connection for migraine headaches, and reopened and denied entitlement to service connection for a bipolar disorder. Although the RO reopened the Veteran’s claim for a bipolar disorder in this April 2015 rating decision, the Board must determine independently whether reopening is warranted in order to establish that it has jurisdiction of this claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). New and Material Evidence 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. To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285 (1996). 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. Id. at 117-18. In the June 1985 rating decision, the RO denied the Veteran’s claim for service connection for explosive personality disorder because it was deemed a “constitutional and developmental abnormality” and thus could not be service connected. The Veteran was notified of this decision, but he did not appeal it or submit new and material evidence within the one-year appeal period. Therefore, the June 1985 rating decision became final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. The evidence of record at the time of the June 1985 rating decision was limited to the Veteran’s service treatment records (STRs). These document that the Veteran was psychiatrically evaluated in October and November 1972, at which time he was found to have “an obsessive compulsive personality” but no other pertinent psychiatric pathology. A subsequent evaluation in January 1973 reflects a diagnosis of explosive personality disorder manifested by violent outbursts and contains a recommendation that the Veteran be separated from service. The evidence received since the June 1985 rating decision includes the April 2015 VA psychiatric examination reflecting a current diagnosis of bipolar disorder. The April 2015 VA examiner also opined that the symptoms the Veteran exhibited in service were related to a bipolar disorder, and not an “explosive personality disorder.” The Board finds that this evidence was not of record at the time of the June 1985 rating decision, relates to an unestablished fact necessary to substantiate the underlying claim, and raises a reasonable possibility of substantiating that claim. Accordingly, the Board finds that new and material evidence has been received and the claim is reopened. REASONS FOR REMAND The Veteran’s claim for service connection for migraine headaches, and the reopened claim for service connection for bipolar disorder, require additional development, as there is evidence indicating that both the migraine headache disorder and the bipolar disorder pre-existed the Veteran’s active duty service. A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 C.F.R § 3.304(b). The Veteran was evaluated as psychiatrically and neurologically normal on his January 1972 entrance examination. Thus, the presumption of soundness attaches, and the burden is on VA to rebut the presumption. To rebut the presumption, VA must show both that the condition clearly and unmistakably existed prior to service, and that the condition clearly and unmistakably was not aggravated during service. Regarding the Veteran’s migraine headaches, his 1972 separation examination reflects a “[h]istory of migraine headaches, severe,” since 1969, indicating that this condition existed prior to service. Subsequent VA treatment records note a longstanding history of migraines and contain a current diagnosis of migraine headaches. In light of the evidence suggesting that the migraines identified in service have continued to the present, and considering the STRs noting a pre-service onset of migraine headaches, the Board finds that a VA examination is necessary to provide an opinion as to the nature, etiology, and onset of any current headache disorder. With regard to the Veteran’s bipolar disorder, the Board finds that the April 2015 VA psychiatric evaluation is inadequate to decide the claim. As noted above, the VA examiner diagnosed a bipolar disorder and further found that the Veteran’s in-service psychiatric manifestations were more appropriately attributed to this condition as opposed to any personality disorder. Nevertheless, the VA examiner put forth a negative opinion, finding that the Veteran’s psychiatric disorder “[was] less likely as not . . . caused by military service.” The examiner explained that the evidence indicated “the Veteran ha[d] problems in psychosocial functioning prior to the military.” However, in situations where the presumption of soundness attaches, the determination as to pre-existence of the medical condition requires clear and unmistakable evidence. Furthermore, even if pre-existence is established, a determination as to aggravation must also be made by the examiner. As such, the Board finds that the Veteran must be afforded a new VA mental health examination for an opinion that utilizes the appropriate evidentiary standard. The matters are REMANDED for the following actions: 1. Obtain all outstanding VA treatment records dated from August 2016 forward and associate them with the claims file. 2. Send a letter to the Veteran requesting him to identify any relevant outstanding private treatment records and any other relevant evidence pertaining to his claim. The Veteran should be invited to submit this evidence himself or to request VA to obtain it on his behalf. Authorized release forms (VA Form 21-4142) should be provided for this purpose. If the Veteran properly fills out and returns any authorized release forms for private records identified by him, reasonable efforts should be made to obtain such records and associate them with the claims file. At least two such efforts should be made unless it is clear that a second effort would be futile. If attempts to obtain any records identified by the Veteran are not successful, he must be notified of this fact and all efforts to obtain them must be documented and associated with the claims file. 3. After the above development is completed, afford the Veteran an appropriate VA examination to determine the nature and etiology of his headaches. The entire claims file must be made available to and be reviewed by the examiner. All necessary tests should be completed. An explanation for all opinions expressed must be provided. The examiner must provide the following opinion: a) Is there clear and unmistakable evidence (i.e. obvious, manifest, and undebatable evidence) that any headache disability existed prior to the Veteran’s entry onto active duty in March 1972? In providing this opinion, the examiner should acknowledge and address the March 1972 enlistment examination report wherein the Veteran was presumed sound. b) If the answer to the above question is “yes,” is there clear and unmistakable evidence (i.e. obvious, manifest, and undebatable evidence) that any pre-existing headache disability was not aggravated by service beyond its natural progression? c) If the answer to either of the above questions is “no,” is it at least as likely or not (50 percent probability or more) that the Veteran’s headache disability is related to his active duty service? The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. 4. Thereafter, schedule the Veteran for an appropriate VA mental health examination. The Veteran’s claims file must be made available to and reviewed by the examiner in conjunction with the examination. The examiner must provide opinions on the following: a) First, the examiner should identify all psychiatric disorders found to be present, i.e., bipolar disorder, schizophrenia, adjustment disorder, depressive disorder, etc. b) For each psychiatric disorder diagnosed, is there clear and unmistakable evidence (i.e. obvious, manifest, and undebatable evidence) that it existed prior to the Veteran’s entry onto active duty in March 1972? In providing this opinion, the examiner should acknowledge and address the March 1972 enlistment examination report wherein the Veteran was presumed sound, as well as the November 1972 psychiatric evaluation wherein the psychiatrist determined that the Veteran had “no medical or psychiatric condition.” c) For each psychiatric disorder diagnosed, if the above answer is “yes,” is there clear and unmistakable evidence (i.e. obvious, manifest, and undebatable evidence) that it was not aggravated by service beyond its natural progression? d) For each psychiatric disorder diagnosed, if the answer to either of the above questions is “no,” is it is at least likely or not (50 percent probability or more) related to the Veteran’s service? The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Griffin, Associate Counsel