Citation Nr: A21017349 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 200515-84221 DATE: October 27, 2021 ORDER An effective date of September 5, 2014, but no earlier, for the award of service connection for service connection for bipolar disorder is granted, subject to the laws and regulations governing the award of monetary benefits. Service connection for an acquired psychiatric condition, to include other specified trauma and stressor-related disorder, is granted. FINDINGS OF FACT 1. In a final rating decision issued in May 2005, the Agency of Original Jurisdiction (AOJ) denied service connection for bipolar disorder. 2. Following the issuance of the final May 2005 decision, VA first received the Veteran's formal application to reopen the claim of service connection for bipolar disorder on September 25, 2014, an informal claim was received on September 5, 2014. 3. Resolving reasonable doubt in the Veteran's favor, his acquired psychiatric condition, to include other specified trauma and stressor-related disorder, is at least as likely as not related to his military service. CONCLUSIONS OF LAW 1. The May 2005 rating decision that denied the service connection claim for bipolar disorder is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 20.302, 20.1103. 2. The criteria for an effective date of September 5, 2014, for the award of service connection for bipolar disorder is met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.400. 3. The criteria for service connection for an acquired psychiatric condition, to include other specified trauma and stressor-related disorder, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1969 to May 1971, November 1990 to April 1991, October 2001 to October 2002 and June 2005 to August 2006. This issue comes before the Board on appeal from a March 2020 rating decision. By way of background, in January 2020, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of his request for service connection for PTSD as well as an earlier effective date for bipolar disorder most recently addressed in a March 2019 rating decision. In March 2020, the agency of original jurisdiction (AOJ) issued the supplemental claim decision on appeal, which found that new and relevant evidence had been received for the Veteran's claim for service connection for PTSD and denied the claim based on the evidence of record at the time of that decision. The Veteran's request for an earlier effective date was denied. In the May 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the AOJ decision on appeal. 38 C.F.R. § 20.301. Earlier Effective Date for Bipolar Disorder The Veteran seeks an earlier effective date for his award of service-connected bipolar disorder. Specifically, he asserts that it should be granted back to 2007 when he indicates he filed a claim for benefits. The statutory and regulatory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110 and 38 § 3.400. Unless specifically provided otherwise, the effective date of an award based on a claim reopened after final adjudication "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C. § 5110(a). Relevant to the instant case, under 38 C.F.R. § 3.400(q)(1)(ii) the effective date based on new and material evidence other than service department records received after the final disallowance is the date of receipt of the new claim or the date entitlement arose, whichever is later. Under 38 C.F.R. § 3.400(r), the effective date based on a reopened claim is the date of receipt of the claim or the date entitlement arose, whichever is later. Sears v. Principi, 16 Vet. App. 244 (2002). A claim for VA benefits, whether formal or informal, must be in writing and must identify the benefit sought. 38 U.S.C. § 5101; 38 C.F.R. §§ 3.1(p), 3.151, 3.155; Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999); Lalonde v. West, 12 Vet. App. 377 (1999). Prior to March 24, 2015, any communication or action indicating intent to apply for one or more benefits under the laws administered by VA, was considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155(a). While the VA should broadly interpret submissions from a veteran, it is not required to conjure up claims not specifically raised. Brannon v. West, 12 Vet. App. 32 (1998). By way of background, VA received the Veteran's first claim for service connection for bipolar disorder on December 6, 2004. In a May 2005 rating decision, AOJ considered the Veteran's service treatment records and VA examination report but ultimately found the evidence did not demonstrate that the Veteran's condition was neither occurred nor was caused by service. Thus, service connection for bipolar disorder was not granted. Five days later, the Veteran was advised of the decision and his appellate rights to his address of record. The Veteran sent in a handwritten letter, received by the VA on May 5, 2006, indicating that he sought to appeal the following issues in the most recent rating decision: COPD, arthritis of the knee, and hearing loss. No mention was made of bipolar disorder or a desire to appeal that portion of the decision. Within the next year, no correspondence was received to indicate that the Veteran sought to appeal the AOJ's decision to deny service connection for bipolar disorder. As such, the May 2005 rating decision denying service connection for bipolar disorder became final. Further, per the law in effect at the time, no new and material evidence was physically or constructively associated with the record within one year of the issuance of such decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104 (a), 3.160(d), 3.156(b), 20.302, 20.1103. On September 5, 2014, the Veteran wrote a statement indicating that he was filing an informal claim to preserve his effective date for benefits while he obtained the evidence he needed. On September 25, 2014, the Veteran filed a VA Form 21-526b Supplemental Claim for Compensation, seeking service connection for PTSD. The Veteran underwent a VA examination in May 2014 where he was not diagnosed with PTSD but was diagnosed with bipolar disorder. A July 2015 rating decision denied service connection for PTSD and confirmed and continued the previous denial of service connection for mental health condition to include bipolar disorder (also claimed as PTSD). The Veteran timely filed a Notice of Disagreement in the legacy system and in July 2018, the Veteran opted into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a Rapid Appeals Modernization Program (RAMP) election form and selecting the higher-level review (HLR) lane. The agency of original jurisdiction (AOJ) issued a RAMP HLR decision in March 2019. The AOJ granted the Veteran's claim for service connection for bipolar disorder and assigned an effective date of December 19, 2018. This decision also confirmed and continued the denial of PTSD. In January 2020, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of his request for service connection for PTSD as well as an earlier effective date for bipolar disorder most recently addressed in a March 2019 rating decision. In March 2020, the agency of original jurisdiction (AOJ) issued the supplemental claim decision on appeal, which found that new and relevant evidence had been received for the Veteran's claim for service connection for PTSD and denied the claim based on the evidence of record at the time of that decision. The Veteran's request for an earlier effective date was denied. As noted above, the effective date of an award based on a claim reopened after final adjudication "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C. § 5110(a). Here, it is clear that the Veteran's formal claim for service connection for bipolar disorder was received on September 25, 2014, which synched with the informal claim that had been received on September 5, 2014. The date currently being used as an effective date is the date of the Veteran's informal conference for this matter. An effective date prior to September 5, 2014 is not warranted as there is no evidence that the Veteran filed a claim for benefits prior to this date. Though the Veteran indicates that he filed a claim in 2007, there is no evidence of that claim being received. Upon review, Board finds there is no document of record that can be construed as a formal or informal claim for service connection for an acquired psychiatric disability that was received after the issuance of the May 2005 rating decision and prior to the receipt of his application to reopen in September 2014. In this regard, a claim for VA benefits, whether formal or informal, must be in writing and must identify the benefit sought. 38 U.S.C. § 5101; 38 C.F.R. §§ 3.1(p), 3.151, 3.155; Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999); Lalonde v. West, 12 Vet. App. 377 (1999). Consequently, an effective date of September 5, 2014, but no earlier, for the award of service connection for bipolar disorder is warranted. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Service Connection for PTSD The Veteran seeks service connection for posttraumatic stress disorder (PTSD) which he asserts is the result of his experiences during his deployments in Saudi Arabia and Kuwait. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In May 2015, the Veteran was afforded a VA examination where he was diagnosed with bipolar I disorder (moderate). The examiner indicated that there was no current pathology to support a diagnosis of PTSD. The Veteran reported a stressor that occurred during Desert Storm in Saudi Arabia when he reportedly experienced scud missiles flying over his camp. The Veteran reported that he constantly worried about his subordinates and his daughter, who was deployed in the same unit. In January 2019, the Veteran was afforded an additional VA examination where he was diagnosed with bipolar I disorder (moderate) and other specified trauma and stressor-related disorder. The examiner indicated that there was no current pathology to support a diagnosis of PTSD. The Veteran reported three stressors. The first involving an instance in Saudi Arabia where a scud missile missed the building the Veteran was in and wiped out another. The second involving being in the desert at night at a base camp when scud missiles were flying overhead. The third involving an experience in Kuwait where the Veteran reports being constantly on alert due to bomb threats. The examiner noted although his symptoms and problems do not meet the criteria for PTSD, it does appear to meet the criteria for a diagnosis of other specified trauma-and stressor-related disorder because the Veteran did experience some degree of stress as related to his service in Kuwait and in Saudi Arabia. VA treatment records contain conflicting evidence as to whether the Veteran has been diagnosed with PTSD. For example, an August 2014 treatment note indicates that the Veteran reported a long standing history of PTSD symptoms. No official diagnosis was provided at this visit. An October 2015 treatment note indicates that the Veteran underwent a PTSD assessment and met all requirements for Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), except for Criteria D. As a result, he was diagnosed with Other Specified Trauma/Stressor Related disorder (subthreshold PTSD). August 2016 and October 2019 VA treatment notes indicate negative PTSD screens. A July 2019 treatment note reports a positive PTSD screen. However, a positive PTSD screening test is not a diagnosis in accordance with 38 C.F.R. § 4.125. The only medical evidence indicating a diagnosis of PTSD is a June 2018 letter from the Veteran's private physician, Dr. Larty, who diagnosed him with bipolar affective disorder, PTSD, and anxiety disorder. Dr. Larty did not indicate what version of the DSM was used to make these diagnoses. He did indicate that these PTSD symptoms began due to, and even during, the Veteran's active service in the military. While the Veteran specifically seeks service connection for PTSD there is not sufficient credible evidence to indicate a diagnosis of PTSD. Both the May 2016 and January 2019 C&P examinations did not diagnosis the Veteran with PTSD. While his private physician, Dr. Larty indicated a diagnosis of PTSD, there was minimal evidence as to how this diagnosis was made and what criteria the Veteran met. Additionally, without knowing what version of the DSM was used to render this diagnosis, it is unclear whether it meets the criteria in 38 C.F.R. § 4.125. The only other suggestion of a diagnosis of PTSD comes from the Veteran's lay statements. To the extent that the Veteran has contended that he has PTSD, he has not shown that he has specialized training sufficient to diagnose an acquired psychiatric disorder or determine its etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, while the Veteran is competent to report his observable symptoms, the diagnosis of PTSD is not capable of lay observation, and requires medical expertise to determine. Accordingly, his opinion as to whether a disability existed and the etiology of such is not competent medical evidence. As a result, service connection for PTSD cannot be granted since there is not sufficient evidence to show a diagnosis of PTSD and meet the current disability requirement. See Shedden, 381 F.3d at 1166-67. Of note, while the fear of hostile military or terrorist activity may form the basis of a stressor used to support a PTSD diagnosis, the diagnosis must be rendered by a VA psychiatrist or psychologist. 38 C.F.R. § 3.304. As such, Dr. Larty could not rely on that fact alone to support his diagnosis, but rather would have needed to identify a corroborated stressor, which he did not do. See id. The Board concludes, however, that the Veteran does have a current disability of other specified trauma/stressor related disorder that is related to his in-service experiences in Saudi Arabia and Kuwait. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.304. The January 2019 VA examination as well as an October 2015 VA treatment note do show the Veteran has a current diagnosis of other specified trauma/stressor related disorder. The January 2019 examiner based this diagnosis on the Veteran's stressful experiences during service in Kuwait and in Saudi Arabia. (Continued on the next page) Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current other specified trauma/stressor related disorder is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for other specified trauma/stressor related disorder is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jennifer M. Narvaez, 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.