Citation Nr: 18156098 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 15-11 182 DATE: December 7, 2018 ORDER The request to reopen the claim of service connection for an acquired psychiatric disability, to include cyclothymic disorder, bipolar disorder, attention deficit hyperactivity disorder (ADHD), anxiety, polysubstance abuse, and schizoaffective disorder, is granted. REMANDED Entitlement to service connection for an acquired psychiatric disability, to include cyclothymic disorder, bipolar disorder, ADHD, anxiety, polysubstance abuse, and schizoaffective disorder, is remanded. REFERRED The issue of right knee and lumbar spine disabilities were raised in November 2001, July 2002, and August 2002 private treatment records and are referred to the Agency of Original Jurisdiction (AOJ) for adjudication. FINDINGS OF FACT 1. A September 2003 rating decision denied service connection for cyclothymic disorder. The Veteran did not appeal the decision and he did not submit additional evidence within a year after the decision. Therefore, the decision is final. 2. Evidence received since the September 2003 rating decision is relevant and probative as to the issues of service connection for an acquired psychiatric disability, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The September 2003 rating decision is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. The evidence received since the September 2003 rating decision, which denied service connection for cyclothymic disorder, is new and material, and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1999 to October 2000. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision by the Department of Veterans Affairs (VA). The board notes that the Veteran’s May 2012 claim is a claim to reopen, rather than a new claim, because diagnoses of multiple psychiatric disabilities, to include bipolar disorder, were of record prior to the September 2003 rating decision. In April 2015, the Veteran requested a hearing by live videoconference, but a travel board hearing was scheduled for October 19, 2018. Further, while the VA noted the hearing was cancelled by the Veteran because was in prison, the record does not contain any correspondence indicating that he cancelled the hearing. Accordingly, a request for clarification of the hearing request was mailed to the Veteran and his representative on October 10, 2018. However, the Veteran and his representative failed to respond. As such, the Veteran’s request for a hearing is considered withdrawn. 38 C.F.R. § 20.704. Evidence in the record suggests that the Veteran has been diagnosed with multiple psychiatric disabilities; therefore, the Board will broadly construe the issues as a claim for service connection for an acquired psychiatric disability however diagnosed. Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009). NEW AND MATERIAL EVIDENCE Request to reopen the claim for service connection for cyclothymic disorder. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105 (2012). However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108 (2012). “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(a) (2017). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold. Specifically, 38 C.F.R. § 3.156(a) creates a low threshold, and the phrase “raising a reasonable possibility of substantiating the claim” enables, rather than precludes, reopening. See Shade v. Shinseki, 24 Vet. App. 110 (2010). In this case, the claim for cyclothymic disorder was initially denied in a September 2003 rating decision on the basis that there was no nexus to service. The Veteran was informed of the decision but he did not appeal or submit new and material evidence within a year of the decision, and the decision therefore became final. Since the September 2003 denial, the Veteran has put forth new statements regarding his acquired psychiatric disability. Specifically, he reported that in July 2000 he became very stressed out, “flipped out” on his parents over the phone, was placed on suicide watch, and disobeyed orders from his commander; was diagnosed with adjustment disorder and questionable cyclothymic disorder in-service; was confined in the Marine Corps brig at Camp Lejeune for 3 months; was court martialed and discharged due to his psychiatric disability; was able to maintain employment prior to his enlistment in the Army, but it wasn't until after his service that he was unable to maintain gainful employment; and since 2003 has received Social Security disability benefits due to his psychiatric disability. See October 2012 Statement in Support of Claim. Essentially, the Veteran contends that his psychiatric disability has rendered him unable to maintain gainful employment since active service. This evidence is clearly “new,” because it postdates the September 2003 rating decision, and is also “material,” because it raises a reasonable possibility of curing evidentiary defects which existed at the time of the prior denial, a lack of a nexus. Consequently, the claim of service connection for cyclothymic disorder may be reopened. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disability. The Board finds that further development is necessary to comply with VA’s duty to assist the Veteran to obtain evidence needed to substantiate his claim. 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). Initially, the Board notes that the Veteran reported that he received in-service treatment from the Robinson Mental Health Clinic at Fort Bragg, North Carlina between June 1999 and September 1999; was hospitalized twice at private hospitals (Baldpate Hospital in 2001 and Whidden Hospital in 2006); and has received Social Security disability benefits for his psychiatric disability since 2003. On remand, the AOJ should attempt to obtain any such service treatment (STRs), Social Security Administration (SSA), and private treatment records relevant to the Veteran’s appeal. See November 2007 private treatment records; October 2012 Statement in Support of Claim; November 2016 Request Pertaining to Military Records. Further, the Veteran contends, as described above, that his acquired psychiatric disability is related to his active service. See October 2012 Statement in Support of Claim. In this regard, July 2000 service treatment records (STRs) reflect a diagnosis of questionable cyclothymic disorder with complaints of mania, depression, anger issues, and homicidal ideations. VA and private treatment records show multiple diagnoses, to include cyclothymic and bipolar disorder with symptoms that persisted since active service (July 2001, June 2002, November 2002, June 2003, August 2003, February 2004, July 2004, November 2007, July 2010, April 2011, November 2012). Notably, while the August 2003 VA examiner diagnosed the Veteran with cyclothymic disorder, he did not provide an opinion. As such, a new VA examination is necessary. The matters are REMANDED for the following action: 1. The AOJ should obtain copies of any outstanding service treatment records, to include records from Robinson Mental Health Clinic, Fort Bragg, North Carolina (from June 1999 to September 1999). Document all requests for information as well as all responses in the claim file. 2. The AOJ should obtain copies of VA treatment records for the Veteran’s disabilities from August 2003 to the present. 3. The AOJ should request directly from the SSA all records, including determinations and medical records, regarding any claim for disability benefits. All attempts to fulfill this development should be documented in the claim file. If the records are unavailable, it should so be noted on the record and the reason for unavailability should be provided. 4. The AOJ should obtain, if possible, records of all private evaluations and treatment the Veteran has received for his psychiatric disability, to include hospitalizations at Baldpate Hospital in 2001 and Whidden hospital in 2006. The Veteran must assist in the matter by identifying his private healthcare providers and by submitting releases for VA to obtain any private records identified. If any private records identified are not received pursuant to the AOJ’s request, the Veteran should be so notified and advised that it is ultimately his responsibility to ensure that any available private records are received. 5. After the above development (1) through (4) is completed, the AOJ should arrange for VA examinations of the Veteran in adherence with VA’s guidelines for examinations of incarcerated Veterans to determine the nature and likely cause of any psychiatric disability. The AOJ should exhaust all efforts, to include arranging for the Veteran to be escorted to a VA medical facility for examination or being examined at the prison by contract examiners, VHA personnel, prison medical providers at VA expense, or fee-basis providers contracted by VHA. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please identify, by diagnosis, all psychiatric disabilities present during the appeal period (from May 2012). In so doing, it should be noted that the record contains diagnosis of bipolar disorder. (b.) For each psychiatric disability diagnosed, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran’s military service? Please explain why. The examiner should address the Veteran’s statements that, as described above, his psychiatric disability incurred in service and he has experienced symptoms since active service, to include the inability to maintain gainful employment. (Continued on the next page)   6. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Roe, Associate Counsel