Citation Nr: 20006435 Decision Date: 01/28/20 Archive Date: 01/27/20 DOCKET NO. 17-61 531 DATE: January 28, 2020 ORDER The petition to reopen the previously denied claim for service connection for a psychiatric disorder, other than posttraumatic stress disorder (PTSD), to include bipolar disorder and schizoaffective disorder, is granted. REMANDED Entitlement to service connection for a psychiatric disorder, to include schizoaffective disorder and bipolar disorder, is remanded. FINDINGS OF FACT 1. An unappealed October 2015 rating decision denied entitlement to service connection for schizoaffective disorder; new and material evidence was not received prior to expiration of the appeal period; subsequently received evidence includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim. 2. An unappealed October 2015 rating decision denied entitlement to service connection for bipolar disorder; new and material evidence was not received prior to expiration of the appeal period; subsequently received evidence includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim. CONCLUSIONS OF LAW 1. The October 2015 rating decision denying the claim for service connection for a schizoaffective disorder is final; and new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 20.1103. 2. The October 2015 rating decision denying the claim for service connection for a bipolar disorder is final; and new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1982 to October 1985. These matters come before the Board on appeal from an October 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). It is noted that a July 2019 rating decision granted service connection for posttraumatic stress disorder assigning a 70 percent rating effective from February 10, 2014. Whether new and material evidence has been received to reopen a previously denied claim for service connection for a psychiatric disorder, previously claimed as schizoaffective and bipolar disorder. The Board concludes that the October 2015 rating decision denying the claim for service connection for schizoaffective disorder and bipolar disorder is final; and new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 20.1103. A claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 C.F.R. § 3.156(a). A July 2014 rating decision originally denied service connection for schizoaffective disorder and bipolar disorder, finding that her claimed conditions had neither occurred in nor were caused by service. It was noted that service treatment records (STRs) did not contain complaints, treatment or diagnosis for these conditions. The evidence considered by the RO included the Veteran’s STRs and her application for disability compensation. The evidence did not show any psychiatric diagnosis at any time during service or since. VA notified the Veteran of this decision in a July 2014 letter and how to appeal. VA received no appeal or new and material evidence prior to expiration of the appeal period. Therefore, the July 2014 rating decision became final. 38 U.S.C. § 7105(b), (c); 38 C.F.R. §§ 3.160(d), 20.201, 20.302, 20.1103. In August 2014, the Veteran filed a claim to reopen her previously denied service connection claims for schizoaffective disorder and bipolar disorder, providing a statement that it resulted from her military sexual trauma (MST). A May 2015 rating decision reopened the claim of entitlement to service connection for schizoaffective disorder and bipolar disorder on the basis of her MST statement, but denied service connection. The evidence considered by the RO included the Veteran’s lay statements, including her MST statement, STRs and VA treatment records. VA notified the Veteran of this decision in May 2015 letter and how to appeal. VA received no appeal or new and material evidence prior to expiration of the appeal period. Therefore, the May 2015 rating decision became final. 38 U.S.C. § 7105(b), (c); 38 C.F.R. §§ 3.160(d), 20.201, 20.302, 20.1103. In July 2015, the Veteran filed a claim to reopen her previously denied service connection claims for schizoaffective disorder and bipolar disorder. An October 2015 rating decision denied reopening the claim of entitlement to service connection for schizoaffective disorder and bipolar disorder. The evidence considered by the RO included the Veteran’s lay statements, including her MST statement, STRs and VA treatment records. VA notified the Veteran of this decision in an October 2015 letter and how to appeal. VA received no appeal or new and material evidence prior to expiration of the appeal period. Therefore, the October 2015 rating decision became final. 38 U.S.C. § 7105(b), (c); 38 C.F.R. §§ 3.160(d), 20.201, 20.302, 20.1103. Thereafter, in October 2016, the Veteran filed a claim to reopen her previously denied claims for service connection for schizoaffective disorder and bipolar disorder. Evidence received since the October 2015 prior final disallowance includes both lay and medical evidence. Specifically, VA received additional VA treatment records and VA examinations and addendum. The newly submitted evidence establishes the presence of MST, and VA examinations indicates that the Veteran’s PTSD resulted from MST, her schizoaffective disorder and bipolar disorder are congenital, and that the Veteran’s psychiatric symptoms are variously attributable to PTSD, schizoaffective disorder and bipolar disorder. Service connection was granted for PTSD, but not schizoaffective disorder. The competent, credible evidence of MST coupled with the grant of service connection for PTSD has triggered VA’s duty to assist with regard to the schizoaffective and bipolar disorders. In this regard, the evidentiary record must be developed to ascertain whether schizoaffective and/or bipolar disorders are caused or aggravated by her now service-connected PTSD. Accordingly, the petition to reopen is granted. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder, to include schizoaffective disorder and bipolar disorder, is remanded. The Veteran asserts that her schizoaffective disorder and bipolar disorder were caused or aggravated by her PTSD and that she did not have a diagnosis of either prior to her in-service MST. See Form 9 (November 2017). To ensure that VA has met its duty to assist, remand is necessary. 38 C.F.R. § 3.159(c). First, there are outstanding treatment records. the Board notes that no VA treatment or private treatment records prior to May 2013 have been associated with the Veteran’s file. Also, the available records show that she underwent inpatient treatment at Lourdes in February 2013, when she was diagnosed with schizoaffective disorder, bipolar type, was diagnosed in Michigan in 2004 with manic depressive disorder and most recently was treated by Dr. P. at Four Rivers. See 38 U.S.C. § 5103A; Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016). Second, the medical evidence of record is insufficient to decide the appeal. The Veteran was afforded several VA examinations, including in June 2019 with an addendum medical opinion provided in July 2019 as well as a September 2019 VA PTSD examination, none of which provide the necessary medical findings. The June 2019 VA examination found that the Veteran’s MST stressor was supported by the available evidence and concluded that PTSD resulted from her in-service MST. The examiner found that the “schizoaffective disorder is an inherited, genetic condition.” In a July 2019 addendum, the examiner stated that bipolar disorder and schizoaffective disorder are both “genetic, inherited mental illnesses,” and that the “presence of a mental illness only increases the risk of experiencing traumatic stressors (it does not preclude it).” At the September 2019 VA PTSD examination, the examiner identified which symptoms were attributable to PTSD and schizoaffective disorder, including a finding that symptoms including depression, suspiciousness and chronic sleep impairment were attributable to both. It is noted that the presumption of soundness does not apply to congenital defects because such defects “are not diseases or injuries” within the meaning of 38 U.S.C. §§ 1110 and 1111. See 38 C.F.R. § 3.303(c); see also Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009) (holding that the presumption of soundness does not apply to congenital defects); Winn v. Brown, 8 Vet. App. 510, 516 (1996) (holding that a non-disease or non-injury entity such as a congenital defect is “not the type of disease- or injury-related defect to which the presumption of soundness can apply”). However, service connection may be granted for disability due to aggravation of a congenital or developmental abnormality from superimposed disease or injury in service. See Carpenter v. Brown, 8 Vet. App. 240, 245 (1995). VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (1990); see also 38 C.F.R. § 3.303(c). Hence, an opinion should be obtained addressing more thoroughly the nature of the Veteran’s diagnosed schizoaffective and bipolar disorders. Third, the record has reasonably raised the possibility that the Veteran’s schizoaffective disorder and bipolar disorder are aggravated by the Veteran’s service-connected PTSD. However, there are no medical opinions as to whether those conditions were aggravated by the Veteran’s PTSD. Accordingly, the matters are REMANDED for the following action: 1. Ask the Veteran if she wishes to continue her appeal of these matters in view of the grant of service connection for PTSD and the rating of mental disorders under the General Rating Formula, which precludes a separate rating for each diagnosed mental disorder. Only if there is no written response or an affirmative response to continue the appeal, the complete the following directives number 2-6. 2. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for her mental health problems since service discharge. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 3. Obtain the Veteran’s VA treatment records for the period prior to May 2013 and from April 2019 to the Present. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any mental disorder (other than PTSD) to include bipolar disorder and schizoaffective disorder. The examiner must opine on the following: (a.) As to schizoaffective disorder and bipolar disorder, opine on whether the disability is considered an acquired disease, a personality disorder, a congenital defect, or a congenital disease. Congenital defects are static in nature and incapable of improvement or deterioration, whereas congenital diseases are capable of progression. i. If it is considered an acquired disease, the examiner must opine whether the disorder is at least as likely as not (50 percent or greater probability) related to an in-service injury, event, or disease. ii. If it is considered a congenital disease, the examiner must opine as to whether the disability at least as likely as not was permanently aggravated beyond its normal progression by an in-service injury, event, or disease to include service-connected PTSD. iii. If it is considered a congenital defect, the examiner must opine whether any diagnosed psychiatric disability (other than PTSD), at least as likely as not superimposed on schizoaffective or bipolar disorder or during active service and resulted in additional disability (b.) Whether any psychiatric disorder found (other than PTSD) at least as likely as not had (50 percent or greater probability) (i) had its onset during active service or (ii) is otherwise related to an in-service injury, event, or disease, including the conceded MST stressor. (c.) Whether, to the extent that there is a psychosis, it at least as likely as manifested to a compensable degree within one year after service. (d.) Whether any psychiatric disorder found is at least as likely as not (i) proximately due to or (ii) aggravated by service-connected PTSD. 5. Ensure that the VA medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 6. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. M. Pesin 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.