Citation Nr: 18155788 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 16-40 625 DATE: December 6, 2018 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for bipolar disorder. The appeal is granted to that extent only. New and material evidence has been received to reopen the claim of entitlement to service connection for major depressive disorder (depression). The appeal is granted to that extent only. Entitlement to service connection for generalized anxiety disorder is denied. Entitlement to service connection for depression is denied. REMANDED Entitlement to service connection for bipolar disorder is remanded. FINDINGS OF FACT 1. By an April 2008 rating decision, the Veteran’s claim of entitlement to service connection for bipolar disorder was denied. 2. Additional evidence has been received which is not cumulative or redundant of the evidence of record at the time of the April 2008 rating decision and relates to an unestablished fact necessary to substantiate the claim for service connection. 3. By an April 2008 rating decision, the Veteran’s claim of entitlement to service connection for depression was denied. 4. Additional evidence has been received which is not cumulative or redundant of the evidence of record at the time of the April 2008 rating decision and relates to an unestablished fact necessary to substantiate the claim for service connection. 5. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of generalized anxiety disorder. 6. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of depression. CONCLUSIONS OF LAW 1. The April 2008 rating decision denying service connection for bipolar disorder is final. 38 U.S.C. §§ 7104 (2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2017). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for bipolar disorder, and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The April 2008 rating decision denying service connection for depression is final. 38 U.S.C. §§ 7104 (2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2017). 4. New and material evidence has been received to reopen the claim of entitlement to service connection for depression, and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 5. The criteria for service connection for generalized anxiety disorder are not met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 6. The criteria for service connection for depression are not met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from October 1969 to February 1971. The Board notes that the Veteran’s claims of entitlement to service connection for tinnitus and posttraumatic stress disorder (PTSD) were granted in a May 2017 and May 2018 rating decision. As such, these issues are no longer on appeal and the Board does not have jurisdiction. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning "downstream" issues, such as the compensation level assigned for the disability and the effective date); see also 38 C.F.R. § 20.200 (2017). New and Material A claim may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Evidence is considered “new” if it was not previously submitted to agency decision makers. “Material” evidence is 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(a). In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the “credibility” of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence, and views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Evidence “raises a reasonable possibility of substantiating the claim,” if it would trigger VA’s duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). A. Bipolar Disorder In the April 2008 rating decision, the Veteran’s claim for service connection was denied based on the finding that the Veteran’s bipolar disorder was not caused by service. At the time of that decision the pertinent evidence of record included the Veteran’s personnel file from the service department, VA and private treatment records, statement in support of claim for service connection for PTSD, and VA examination dated October 2007. The evidence received since the April 2008 rating decision includes a VA examination dated October 2015. This evidence is new and material as it pertains to whether the Veteran’s bipolar disorder is related to his active service, which is an unsubstantiated fact that is necessary to substantiate the claim. Therefore, the claim is reopened. B. Depression In the April 2008 rating decision, the claim for service connection was denied based on the finding that the Veteran did not have a current diagnosis of depression. At the time of that decision the pertinent evidence of record included the personnel file from service department, VA and private treatment records, statement in support of claim for service connection for PTSD, and VA examination dated October 2007. The evidence received since the April 2008 rating decision includes a disability benefits questionnaire dated May 2018. This evidence is new and material as it pertains to whether the Veteran has a current diagnosis of depression, which is an unsubstantiated fact that is necessary to substantiate the claim. Therefore, the claim is reopened. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. “To establish a right to compensation for a present disability, 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. Shineski, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 1. Generalized Anxiety Disorder and Depression The Board concludes that the Veteran does not have a current diagnosis of generalized anxiety disorder or depression and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The Veteran attended several VA examinations during the appeal period; however, none of the VA examiners diagnosed the presence of an anxiety disorder or depression. In July 2015, the VA examiner diagnosed the Veteran with bipolar disorder in partial remission and reported that the Veteran did not have any other mental disorders. In May 2018, the Veteran attended another examination and the examiner reported diagnoses of PTSD and bipolar disorder with hypomania. The examiner concluded that the Veteran’s overall pattern of symptoms is not suggestive of a depressive disorder or of a separate anxiety disorder, but rather PTSD appears to the best explanation of his anxiety symptoms in the context of his bipolar disorder. At the September 2018 VA examination, the examiner reported a diagnosis of PTSD with no other mental disorders. Furthermore, review of the post-service treatment records does not reflect diagnoses of generalized anxiety disorder or depression. The records reflect complaints of anxiety and depression; however, the medical evidence indicates the Veteran’s complaints are secondary to his bipolar disorder. When making a decision, the Board must consider all the evidence of record, to include lay statements. 38 U.S.C. § § 5107(b), 7104(a); 38 C.F.R. § 3.303(a). To the extent that the Veteran contends that he suffers from generalized anxiety disorder and depression, the Board finds that he is not competent to render such diagnoses. While the Veteran is competent to describe his symptoms from which he suffers, determining the exact nature and diagnosis of his psychiatric symptoms requires medical knowledge or training which the Veteran is not shown to have. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Again, having carefully reviewed the record, the Board finds the evidence insufficient to establish a current disability for either generalized anxiety disorder or depression. Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability. Brammer v. Derwinski, 3 Vet. App. 223, 255 (1992). In the absence of proof of a present disability there can be no valid claim. Id. As such, the preponderance of the evidence is against the claim for entitlement to service connection for generalized anxiety disorder and depression. REASONS FOR REMAND Once VA undertakes the effort to provide an examination, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran underwent a VA examination in July 2015. The VA examiner opined that it is unlikely that the Veteran’s bipolar disorder is related to or caused by his reported military services or experiences; however, the examiner also reported that based on the Veteran’s self-report alone, it appears at least as likely as not that his bipolar disorder has been exacerbated by his military experiences. The VA examiner did not provide an adequate rationale explaining these conclusions. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Therefore, the opinions of the VA examiner are insufficient for adjudicative purposes. The Board notes the record also contains an opinion from Dr. J.T., who stated that it is less likely that the Veteran’s bipolar disorder is secondary to his military experiences. However, Dr. J.T.’s opinion is also inadequate as it does not provide a rationale. A mere conclusion without an underlying rationale is of no probative value. Miller v. West, 11 Vet. App. 345 (1998). As such, a remand is necessary for a medical opinion to determine the nature and etiology of the Veteran’s bipolar disorder. The matters are REMANDED for the following action: 1. Obtain updated VA and/or private treatment records to the extent possible. If such records are unavailable, the Veteran’s claim file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Obtain an addendum medical opinion from a VA psychiatrist or psychologist to determine the nature and etiology of bipolar disorder. Any medically indicated tests should be accomplished, and all pertinent symptomatology and findings must be reported in detail. The examiner should review the Veteran’s claims file, including a copy of this remand, and comment on the following questions: (a.) Is it at least as likely as not (50 percent probability or more) that bipolar disorder originated during or is otherwise etiologically related to the Veteran’s military service. (b.) Is it at least as likely as not (i.e., probability of 50 percent or higher) that bipolar disorder is proximately due to or the result of the Veteran’s service-connected PTSD? (c.) If the answer to (b) is negative, is it at least as likely as not that the bipolar disorder is aggravated (i.e., permanently or temporarily worsened) by the service-connected PTSD? (d.) If aggravation is found, the examiner should address the following medical issues: 1) the baseline manifestations of the disorder found prior to aggravation; and 2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected disorder. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for one. The term “aggravation” means a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms. The examiner should consider and address any lay statements of record. If there is a medical basis to support or doubt the history provided, the examiner should provide a fully reasoned explanation. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). In providing the requested opinions, the examiner is advised that the term "at least as likely as not" does not mean within the realm of possibility, but that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. (Continued on the next page)   If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. A. Prinsen, Associate Counsel