Citation Nr: 20002941 Decision Date: 01/14/20 Archive Date: 01/13/20 DOCKET NO. 14-12 335 DATE: January 14, 2020 ORDER The application to reopen the claim for entitlement to service connection for bipolar disorder is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder, anxiety disorder, depression disorder, and schizophrenia, is remanded. Entitlement to service connection for sleep apnea, to include as secondary to an acquired psychiatric disorder is remanded. Entitlement to service connection for a gastrointestinal disability, to include as secondary to an acquired psychiatric disorder is remanded. Entitlement to service connection for erectile dysfunction, to include as secondary to an acquired psychiatric disorder is remanded. FINDINGS OF FACT 1. In a July 2006 rating decision, the RO denied service connection for bipolar disorder. The Veteran did not appeal that decision, and new and material evidence was not received within one year of its issuance. 2. The evidence received since the final July 2006 rating decision relates to an unestablished fact necessary to substantiate the claim of service connection for an acquired psychiatric disorder and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The July 2006 rating decision denying service connection for bipolar disorder is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2018). 2. New and material evidence has been received to warrant reopening the claim of service connection for an acquired psychiatric disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1971 to March 1972. This matter came to the Board of Veterans’ Appeals (Board) on appeal from a January 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2015, the Board remanded the matter for further evidentiary development. In an August 2018 decision, the Board denied reopening of the claim of entitlement to service connection for an acquired psychiatric disorder, and denied entitlement to service connection for sleep apnea, acid reflux, and sexual dysfunction. The Veteran appealed the Board’s August 2018 decision denying reopening the claim of entitlement to service connection for an acquired psychiatric disorder, and denying entitlement to service connection for sleep apnea, acid reflux, and sexual dysfunction to the United States Court of Appeals for Veterans Claims (Court). In August 2018, pursuant to a Joint Motion for Remand (JMR) filed by the Veteran’s attorney and VA, the Court issued an Order vacating the Board’s decision denying reopening the claim of entitlement to service connection for an acquired psychiatric disorder, and denying entitlement to service connection for sleep apnea, acid reflux, and sexual dysfunction, and remanded the matters to the Board for further action consistent with the terms of the JMR. A claim for service connection for migraine headaches was dismissed as abandoned. Although the Veteran’s August 2010 original compensation claim characterized the disability for which he was seeking compensation as “acid reflux.” The evidence of record shows that the Veteran suffers from gastrointestinal disabilities, including gastroesophageal reflux disease, hiatal hernia with reflux, heartburn, and acid reflux. When a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Therefore, the Board will recharacterize the Veteran’s acid reflux claim pursuant to Clemons, as one for entitlement to service connection for a gastrointestinal disability. 1. An Acquired Psychiatric Disorder The parties to the JMR found that the Board erred when it provided an inadequate statement of reasons and basis for its denial of the reopening of the Veteran’s claim for an acquired psychiatric disorder. Specifically, the Board did not consider whether the Veteran’s claimed condition was the same or a different condition than that claimed in his prior denied claim. The Veteran’s claim for service connection for bipolar disorder was previously denied by the RO in an unappealed July 2006 rating decision. In August 2010, the Veteran filed a claim for service connection for a mental disorder. In determining whether new and material evidence is required, the focus of the Board’s analysis must be on whether the evidence presented truly amounts to a new claim based upon distinctly diagnosed diseases or injuries or whether it is evidence tending to substantiate an element of a previously adjudicated matter. Velez v. Shinseki, 23 Vet. App. 199, 204 (2009) (quoting Boggs v. Peake, 520 F.3d 1330, 1337 (Fed. Cir. 2008)). As the symptoms that formed the basis of the claim that was previously denied are similar to those that form the basis of the present claim, the Board will address the matter as an application to reopen and recharacterize the reopened claim based on the current diagnoses. New and Material Evidence In general, decisions of the RO that are not appealed in the prescribed time period are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1100, 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence means 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). 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. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See 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. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, 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, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. As set forth above, in a July 2006 rating decision, the RO denied service connection for bipolar disorder, finding no evidence of a bipolar disorder diagnosis during military service. The Veteran was notified of his appellate rights in a July 2006 letter. He did not appeal the RO’s determination and no new and material evidence was received within a year of the issuance of the rating decision. He does not contend otherwise. Thus, the RO’s July 2006 rating decision is final and not subject to revision on the same factual basis. 38 U.S.C. § 7105(c); 38. C.F.R. §§ 3.104, 20.302, 20.1103. In this appeal, the Veteran seeks to reopen the previously denied claim of service connection for bipolar disorder. As noted above, despite the finality of a prior adverse decision, a claim will be reopened, and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108 38 C.F.R. § 3.156. Thus, the Board has reviewed the entire record, with particular attention to the additional evidence received since the last final rating decision in July 2006. The prior denial indicated that bipolar disorder was neither caused nor aggravated by service and noted the lack of a diagnosis of bipolar disorder in service. The new evidence includes private and VA clinical records documenting diagnoses and treatment for multiple psychiatric symptoms and disorders, including anxiety, depression, and schizophrenia. The Veteran’s service treatment records (STRs) shows treatment for anxiety in January 1972. Given the basis for the prior denial of the claim, and presuming the credibility of this evidence, the Board finds that this additional evidence is new and relates to unestablished facts necessary to substantiate the claim of service connection for bipolar disorder raises a reasonable possibility of substantiating the claim. Although the prior denial explicitly referenced only bipolar disorder, as there was evidence of other psychiatric disorders in the record at that time, the prior denial was broader than indicated in the RO’s characterization of the issue and the denial implicitly included multiple psychiatric disorders. Thus, the evidence in support of the application to reopen tends to substantiate an element of a previously adjudicated claim. Reopening of the claim is therefore warranted. REASONS FOR REMAND 1. An Acquired Psychiatric Disorder / Sleep Apnea The Veteran STRs reflect complaints and treatment for anxiety. Post-service clinical records reflect complaints, treatment, and diagnoses for an acquired psychiatric disorder, including anxiety. The evidence of record indicates that the Veteran has a current disability that may be associated with active service. As the Veteran has not been afforded a VA examination in connection with this claim, a remand for such an examination is warranted. McLendon v. Nicholson, 20 Vet. App. 79 (2006). With respect to the sleep apnea claim, the Veteran’s STRs are negative of complaints, treatment, and diagnosis of sleep apnea. Post-service clinical records show diagnosis of sleep apnea. The parties to the JMR found that the Veteran’s claim for sleep apnea was inextricably intertwined with his claim for an acquired psychiatric disorder, thus, the issue must be remanded as well. 2. Gastrointestinal Disability / Sexual Dysfunction The Veteran contends that his gastrointestinal disability and sexual dysfunction are due to his military service. In the alternative, the Veteran asserts that such conditions are secondary to an acquired psychiatric disorder. The parties to the JMR found that the Board decided service-connection claims for gastrointestinal disability and sexual dysfunction without an adequate medical opinion that addressed all the theories of service raised by the Veteran. Specifically, the Board failed to address the Veteran’s assertion that his gastrointestinal disability and sexual dysfunction were caused by Demerol treatment he received in service. In March 2018, the Veteran’s attorney argued that the Veteran received treatment for migraine headaches multiple times in service, which included Demerol, a drug known to have many side effects, including gastric upset and sexual dysfunction. The attorney cited reference material at https://www.rxlist.com/demerol-drug/patient-images-side-effects.htm, and contended that a remand was warrant for a VA examination. The Board agrees. The Veteran’s STRs show that in January 1972, the Veteran reported that he had been on Demerol medication. Post-service treatment records show complaints and treatment for gastroesophageal reflux disease, hiatal hernia with reflux, heartburn, acid reflux, and sexual dysfunction. As the evidence is insufficient for the Board to decide the claims, the Board must, pursuant to the instructions of the parties to the JMR, remand the matter to obtain adequate medical opinions for both conditions. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of any acquired psychiatric disorder. Access to records in the Veteran’s electronic VA claims files must be made available to the examiner for review in connection with the examination. The examiner should delineate all psychiatric disorders identified on examination. For each identified psychiatric disorder, the examiner should answer the following question: Is at least as likely as not (50 percent or greater probability) that any current acquired psychiatric disorder had its onset during service or is otherwise related to service, to include treatment for anxiety therein. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinion. A complete rationale for any opinion expressed should be provided. 2. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any sleep apnea disability. The claims file should be reviewed by the examiner. The examiner should answer the following question: Is at least as likely as not (50 percent or greater probability) that any current sleep apnea disability is related to service or is either (a) caused or (b) aggravated by an acquired psychiatric disorder. A complete rationale for any opinion expressed should be provided. 3. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of any gastrointestinal and sexual dysfunction disabilities. The claims file should be reviewed by the examiner. The examiner should answer the following questions: (a.) Is at least as likely as not (50 percent or greater probability) that any current gastrointestinal disability is related to service, to include the documented Demerol treatment in 1972, or is either (a) caused or (b) aggravated by an acquired psychiatric disorder. (b.) Is at least as likely as not (50 percent or greater probability) that any current sexual dysfunction is related to service, to include the documented Demerol treatment in 1972, or is either (a) caused or (b) aggravated by an acquired psychiatric disorder. The materials showing the side effects of Demerol, cited at https://www.rxlist.com/Demerol-drug/patient-images-side-effects.htm should be addressed. A complete rationale should accompany any opinion. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Walker, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.