Citation Nr: 1806839	
Decision Date: 02/02/18    Archive Date: 02/14/18

DOCKET NO.  14-02 000	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to service connection for an acquired psychiatric disorder, to include bipolar I disorder and unspecified depressive disorder, to include as secondary to service-connected trigeminy.  


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

B. G. LeMoine, Associate Attorney
INTRODUCTION

The Veteran served on active duty from August 2001 to October 2009.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.  The Veteran's claims file is currently under the jurisdiction of the Houston, Texas RO.

For the purposes of clarity, the Board will discuss the procedural history of this case:  The January 2010 rating decision granted service connection for bilateral tinea pedis as noncompensable effective October 31, 2009; granted service connection for trigeminy as noncompensable effective October 31, 2009; denied entitlement to a 10 percent evaluation based upon multiple, noncompensable, service-connected disabilities; denied service connection for the purpose of establishing eligibility to treatment; denied entitlement to service connection for sleep apnea; denied entitlement to service connection for left shoulder condition; denied entitlement service connection for left ankle condition; denied entitlement to service connection for lower back condition; denied service connection for dermatitis; and denied service connection for condition to account for subclinical hypothyroidism.  

In July 2010, the Veteran submitted a notice of disagreement (NOD) to the January 2010 rating decision for entitlement to a 10 percent evaluation based upon multiple, noncompensable, service-connected disabilities; entitlement to service connection for the purpose of establishing eligibility to treatment; entitlement to service connection for sleep apnea; entitlement to service connection for bipolar I disorder; entitlement to service connection for left shoulder condition; entitlement service connection for left ankle condition; entitlement to service connection for lower back condition; entitlement to a compensable initial rating for bilateral tinea pedis; and entitlement to an initial compensable rating for trigeminy.  

Thereafter, the RO issued a statement of the case (SOC) as to these issues on December 11, 2013.  
On a VA Form 9, Appeal to Board of Veterans' Appeals, dated January 21, 2014, the Veteran indicated that he had read the statement of the case, and was appealing only the issue of entitlement to service connection for bipolar I disorder.

The Veteran later submitted another VA Form 9, dated April 22, 2014.  On that VA Form 9, the Veteran indicated he wanted to appeal all of the issues listed on the SOC.  

A VA Form 21-6789, Deferred Rating, dated in June 2016 indicates that a decision review officer reviewed the VA Form 9 received in April 2014, and concluded that it did not constitute a timely substantive appeal.

Because the Veteran has not initiated an appeal of that determination by filing a timely notice of disagreement, the Board does not have jurisdiction to review it.  As such, the Board finds that a timely substantive appeal was only received as to entitlement to service connection for bipolar I disorder.  The other issues listed on the NOD are not before the Board at this time.  See 38 C.F.R. §§ 20.200, 20.302 (b).       

The Veteran initially submitted a claim for entitlement to service connection for bipolar I disorder.  See VA Form 21-526, Veteran's Application for Compensation and/or Pension, received September 2009.  The medical evidence of record includes diagnoses for psychiatric disabilities other than bipolar I disorder.  Although the Veteran sought service connection only for bipolar I disorder, a claim "cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any mental disability that may be reasonably encompassed."  Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009).  In essence, a veteran does not file a claim to receive benefits for a particular psychiatric diagnosis that is named on a claims form, such as bipolar I disorder, but instead makes a general claim for compensation for the difficulties posed by the mental condition.  Id.  Accordingly, the Board has reframed the issue on appeal, as shown on the title page.

Additionally, in Schroeder v. West, 212 F. 3d 1265, 1271 (Fed. Cir. 2000), the Federal Circuit held that VA has an obligation to explore all legal theories, including those unknown to the Veteran, by which the Veteran can obtain the benefit sought.  Accordingly, the Veteran's appeal as to service connection for an acquired psychiatric disorder, to include bipolar I disorder has been expanded to include entitlement to service connection under the theory of secondary service connection, and has been characterized as stated on the title page.  See Roberson v. Principi, 251 F. 3d 1378, 1384 (2001); Moody v. Principi, 360 F. 3d 1306, 1310 (Fed. Cir. 2004).   

In September 2016, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is associated with the claims file.


FINDING OF FACT

The probative evidence of record is at least at relative equipoise as to whether the Veteran's unspecified depressive disorder is proximately due to or a result of his service-connected trigeminy.  


CONCLUSION OF LAW

The criteria for entitlement to service connection for unspecified depressive disorder, as secondary to service-connected trigeminy, have been met.  38 U.S.C. §§ 1131, 5107 (b) (2012); 38 C.F.R. § 3.102, 3.303, 3.310 (2017).     


REASONS AND BASIS FOR FINDING AND CONCLUSION

The Veteran seeks entitlement to service connection for an acquired psychiatric disability.  Generally, to establish service connection for a disability, the 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.  Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004).  See also 38 C.F.R. § 3.303.

A disability which is proximately due to, or chronically aggravated by, a service-connected disease or injury shall be service connected.  When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.  38 C.F.R. § 3.310 (a).

The Veteran contends that he has an acquired psychiatric disability due to his service-connected heart condition.  The Veteran was provided a VA examination in October 2016.  The VA examination reflects a diagnosis of bipolar I disorder and unspecified depressive disorder.  Accordingly, there is evidence of a current diagnosis of bipolar I disorder and unspecified depressive disorder, and the issue remaining for consideration is whether the Veteran's acquired psychiatric disorder is secondary to the service-connected trigeminy.  

In that regard, the October 2016 VA examiner opined that the Veteran's claimed condition is at least as likely as not proximately due to or the result of the Veteran's service-connected condition.  As rationale, the October 2016 VA examiner stated that the Veteran appeared to be a reliable historian and that he reported onset of bipolar disorder in 2009.  The examiner further explained that the Veteran was later diagnosed with heart disease which exacerbated the depressive symptoms thus warranting a separate and distinct diagnosis.  The examiner further explained that depression is common among individuals with heart disease. 

The Board finds that the October 2016 VA examination to be probative in showing that the Veteran's unspecified depressive disorder is caused by his service-connected trigeminy.  The VA examiner reviewed the Veteran's record, interviewed the Veteran and conducted an in-person examination and his conclusions are consistent with the Veteran's treatment records.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion is derives from a factually accurate, fully articulated, and soundly reasoned opinion); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000).     

This finding does not suggest that all of the Veteran's problems are associated with this condition.  The nature and extent of the problem is not before the Board.  In any event, the Board finds that the probative evidence of record is at least at relative equipoise as to whether the Veteran's unspecified depressive disorder is proximately due to or the result of his service-connected trigeminy.  Therefore, any remaining doubt must be resolved in the Veteran's favor, and the Board concludes that entitlement to service connection for an unspecified depressive disorder, as secondarily caused by or proximately due to the service-connected trigeminy, is warranted.  38 U.S.C. § 5107 (b); 38 C.F.R. § 3.310 (a); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 

VA's Duty to Notify and Assist

With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

ORDER

Entitlement to service connection for unspecified depressive disorder, as secondary to service-connected trigeminy, is granted.  



JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs