Citation Nr: 21004387 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 17-67 643 DATE: January 27, 2021 ORDER The application to reopen the claim of entitlement to service connection for bipolar disorder is granted. Entitlement to service connection for schizoaffective disorder, bipolar type, is granted. Entitlement to service connection for migraine headaches is granted. Entitlement to service connection for Parkinson’s disease is denied. REMANDED Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. In February 2015, the RO denied service connection for bipolar disorder. 2. Evidence received since the February 2015 rating decision relates to an unestablished fact necessary to substantiate the claim for bipolar disorder. 3. Schizoaffective disorder, bipolar type is due to service. 4. Migraine headaches were caused by the Veteran’s service-connected schizoaffective disorder, bipolar type. 5. The Veteran does not have Parkinson’s disease. CONCLUSIONS OF LAW 1. . The February 2015 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103 2. New and material evidence has been received to reopen the claim for bipolar disorder and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. Schizoaffective disorder, bipolar type, was incurred in service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 4. Migraine headaches are proximately due to a service-connected disease. 38 C.F.R. § 3.310. 5. Parkinson’s disease was not incurred in or aggravated by service. 38 U.S.C. §§ 1110; 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1964 to July 1968. In May 2019, the Board denied reopening the claims of entitlement to service connection for multiple acquired psychiatric disorders and entitlement to service connection for migraine headaches and sleep apnea. In August 2020, the United States Court of Appeals for Veterans Claims (CAVC or the Court) vacated that Board decision in a Joint Motion for Partial Remand. The reason for remand was a March 2019 Disability Benefits Questionnaire was not considered when determining whether to reopen a claim for service connection for bipolar disorder. The claims for service connection for sleep apnea and headache disorder were found to be inextricably intertwined and remanded as well. (The claim for Parkinson’s disease had been separately remanded by the Board in May 2019 and has returned to the Board). New and Material Evidence A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 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). Evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000). In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the United States Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold. The evidence that is considered in determining whether new and material evidence has been submitted is that evidence received by VA since the last final disallowance of the Veteran’s claim on any basis. See Evans v. Brown, 9 Vet. App. 273 (1996). Regardless of whether the RO reopened a claim, it is a jurisdictional requirement that the Board reach its own determination as to whether new and material evidence has been presented. The Board is required to consider the issue of finality prior to any consideration on the merits. 38 U.S.C. §§ 5108, 7104(b); see Barnett v. Brown, 8 Vet. App. 1 (1995). 1. Bipolar disorder In an unappealed February 2015 rating decision, the RO denied service connection for bipolar disorder. The Veteran was provided notice of the denials, but no notice of disagreement or new and material evidence was submitted within one year and the decision became final.A variety of acquired psychiatric claims were all denied because there was no nexus between any current disability and service. Also, there was no psychosis noted within the first post-service year. The Court found no error in the determinations of finality made in the Board’s decision dated in May 2019, instead noting that the Board did not consider a private March 2019 Disability Benefits Questionnaire (DBQ) in its determining whether to reopen the previously denied claim for service connection. Given the Court did not find any error with the finding of finality, there is no reason to further address the issue of finality. The March 2019 DBQ found that the Veteran’s acquired psychiatric disability (schizoaffective disorder, bipolar type) symptoms started in service. Previously, the claim was denied because there was no showing of nexus. Based upon the low threshold set by Shade, the above evidence is new and material and the claim is reopened. Service Connection Service connection may be established for disability resulting from personal injury or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. To establish a right to compensation for a present disability, a Veteran must show: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); see also Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511–12 (1995). For a medical opinion (i.e., medical evidence) to be given weight, it must be: (1) based upon sufficient facts or data; (2) the product of reliable principles and methods; and (3) the result of principles and methods reliably applied to the facts. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 2. Bipolar disorder A June 1968 separation examination noted a normal psychiatric clinical evaluation. For clinical evaluation of the skin, neither abnormal nor normal is noted on the examination report. The Veteran was admitted to a hospital for about a week in October and November 1968 with generalized itching symptoms (pruritus) for the past two to three years. The treating doctor noted that the Veteran was tense and mild sedation was recommended. He was placed on valium and diagnosed with anxiety reaction with secondary pruritus. A May 1969 VA examination found that the Veteran had anxiety reaction, with pertinent history listed as nervous condition. The Veteran reported being under psychiatric care by a Navy psychiatrist in 1967 and had symptoms of insomnia, itchiness, and preoccupation with his nerves. Diagnosis was anxiety reaction manifested by anxiousness, insomnia, and itching, with severity being moderate to severe with moderate to severe impairment. Non-VA treatment records indicate that the Veteran was assessed with symptoms of depression and anxiety, probability of obsessive-compulsive disorder, probability of somatization disorder, for the first time in September 1988. A 2001 treatment note indicates that the Veteran was reported to have been repeatedly losing jobs due to psychiatric difficulties and having been in psychiatric treatment since 1972, with five hospitalizations. A July 1992 treatment note indicates the Veteran was found to be bipolar in 1987. An early VA treatment record is dated in July 2001 and indicates that the Veteran was manic-depressive, with a six-month history of headaches as well. The Veteran had a history of psychiatric hospitalizations, fear of psychotropic medication, and was noted to be a poor medical historian. A June 2011 VA mental health treatment note reported delusional thinking, dissociative symptoms, anxiety, and memory concerns. DSM diagnosis was bipolar disorder; delusional disorder, mixed type; and anxiety disorder. Bipolar disorder was consistently found after this. A September 2013 VA PTSD examination found PTSD and bipolar disorder, type 1. The examiner was unable to give an opinion regarding etiology, noting the medical records contain documentation of severe physical abuse from a variety of individuals, so severe that he required hospitalizations on multiple occasions, and he was under care of a psychiatrist for multiple personality disorders. The record is silent for any psychiatric care or counseling prior to the military. The examiner reported he was not able to determine whether the traumatic military experiences exacerbated his psychopathology to the point where it could no longer be contained. The examiner stated that he was unfortunately unable to define etiologies, as the case was very complicated. The private DBQ dated in March 2019 diagnosed schizoaffective disorder, bipolar type. The DBQ and accompanying opinion, were by K.F.B., Doctor of Psychology. She noted that the Veteran as a poor historian and was actively psychotic at the time of the interview. He reported a traumatic childhood, but reported he was a pretty good overall prior to military service. The Veteran’s wife, who he married prior to service, confirmed that he was happy, social, and easy-going prior to enlistment. The Veteran reported he began to experience what he termed black outs in service and his wife reported he experienced significant mood swings with anger at that time. He began abusing alcohol to cope with the pressures of service. Review of the 1969 records show anxiety reaction, but Dr. B. found it was likely paranoia and was consistent with the Veteran’s report that his superior officer required him to see a mental health professional in service in order to calm down. She also found that the Veteran reported symptoms such as grandiose and bizarre delusions that were consistent with schizoaffective disorder. The rest of the opinion notes a long history of psychological documented problems back to 1969. Finally, Dr. K.F.B. noted that prodromal symptoms began in service and the Veteran continued to experience these symptoms since service. The Board finds that entitlement to service connection for schizoaffective disorder, bipolar type, is warranted. Immediately after service, what was identified as a symptom (itching) of anxiety reaction started two to three years prior in service. Physical manifestations of a mental disorder are suggested elsewhere in the record, with at least one report of a possible somatoform disorder. Although the Veteran was not noted to have any psychiatric symptoms at separation, there was no medical history taken, so there is no report of any history of itchiness at separation. Additionally, on the separation examination, the area for clinical evaluation of the skin is blank, noting neither abnormal nor normal. There is no reason to not give weight to the private DBQ. Finally, although the current schizoaffective disorder symptoms manifested in service, under 38 C.F.R. § 3.384, the term psychosis includes schizoaffective disorder. The Veteran was discharged or released in July 1968 and the current schizoaffective disorder is evident, according to K.F.B., in 1969 (referring to the May 1969 examination findings). The Board grants service connection for the disability as diagnosed in the private DBQ, as the author of this opinion had access to the entirety of the evidence of record for review and provided a detailed opinion of symptoms and etiology. Further, the Veteran did not challenge, and the Court found no error in the denial of reopening for PTSD, anxiety reaction, sleep disturbance, panic attacks, or traumatic brain injury, only vacating the issue of reopening the claim for service connection for bipolar disorder. Therefore, the disorder is granted as schizoaffective disorder, bipolar type. 3. Migraine Headaches In addition to direct service connection, secondary service connection is warranted for disability which is proximately due to or the result of 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). Any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice connected disease or injury will be service connected. 38 C.F.R. § 3.310(b). A private opinion (DBQ) dated in May 2019 noted that the Veteran reported when psychiatric symptoms are particularly bothering him, he develops migraine headaches. The Veteran has reported in VA treatment records that when his psychiatric symptoms intensify, he also develops headaches. In December 2012, Dr. T.C.C., a VA clinical psychologist, listed headaches as a physical symptom of bipolar disorder. Given these documents are the only medical evidence on the matter and there is no evidence to suggest headaches are not due to service-connected acquired psychiatric disorder, entitlement to service connection for migraine headaches is granted as due to service-connected schizoaffective disorder, bipolar type. 4. Parkinson's disease The National Defense Authorization Act for Fiscal Year 2021 has added three disorders to the list of diseases presumptively associated with herbicide agent exposure. Specifically, it amended 38 U.S.C. § 1116(a)(2) to include parkinsonism, bladder cancer, and hypothyroidism. Herbicide agent exposure has been established for the Veteran. An August 2012 VA treatment record indicates that the Veteran believed he had Parkinson’s due to problems with thought (thinking difficulties and having no memories), but the VA staff psychiatrist who composed the note did not report any finding of Parkinson’s disease and the Veteran reported having never been diagnosed with Parkinson’s. A December 2019 VA examination failed to show Parkinson’s disease. The examiner further indicated that there is no evidence in the VA records of any history of a Parkinson’s disease diagnosis. There were no physical examination findings on the evaluation consistent with Parkinson’s and no objective evidence warranting a finding of a Parkinson’s diagnosis. The Board has considered the Veteran’s lay statements reporting that he has Parkinson’s disease. Although the Veteran is competent to relate what he experiences through his senses, he is not competent as a lay person to find that he has Parkinson’s disease or that his claimed memory problems are due to Parkinson’s disease. The lay assertions are therefore afforded less probative weight than the VA examination report and the medical records. The Board gives more probative weight to the more competent VA medical evidence. Therefore, the preponderance of the evidence is against the claim for entitlement for service connection. The benefit-of-the-doubt doctrine is therefore not applicable. The new addition to the statute is also not applicable, as the Veteran has not been found to have parkinsonism. REASONS FOR REMAND Dr. M.B. submitted an opinion stating that bipolar disorder more likely than not caused and permanently aggravated sleep apnea. The rationale provided noted that the Veteran could not use a CPAP machine due to claustrophobia, and cited an article noting an association between psychiatric disorders and sleep apnea. Review of both the private and VA examination do not show claustrophobia as a symptom of a psychiatric disorder. There is almost no mention of claustrophobia in treatment records, except for one January 2008 note. Additionally, the article noting an association does not establish a causal relationship. Although this opinion’s rationale does not fully support the opinion, the evidence does indicate an association and there is not sufficient evidence to make a decision. A VA examination is necessary here, as a VA examination has not been undertaken. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of sleep apnea. The examiner is asked whether sleep apnea is due to or the result of or aggravated by a service-connected acquired psychiatric disorder. All opinions should contain a rationale. If there is aggravation, a baseline should be provided. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Yoffe, 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.