Citation Nr: 21069932 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 18-28 407A DATE: November 22, 2021 ORDER As new and material evidence has been received, the claim for service connection for bipolar disorder is granted. Entitlement to service connection for bipolar disorder is granted. FINDINGS OF FACT 1. A May 2015 rating decision denied reopening of the claim for service connection for bipolar disorder. The Veteran was notified of his rights but did not appeal or submit new and material evidence during the applicable one-year appellate period. 2. The evidence associated with the claims file subsequent to the May 2015 rating decision was not previously of record and relates to a previously unestablished fact necessary to substantiate the claim of service connection for bipolar disorder. 3. Bipolar disorder is shown to be causally related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The May 2015 rating decision is final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence sufficient to reopen the claim of service connection for bipolar disorder has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for bipolar disorder have been met. 38 U.S.C. §§ 1101, 1111, 1131, 1132, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1981 to April 1984. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in November 2017 by a Department of Veterans Affairs (VA) Regional Office (RO). By way of background, in July 2019 the Board reopened the claim for service connection for bipolar disorder and then denied service connection on the merits. That month, the Veteran's attorney file a motion to vacate the decision, arguing that there was a pending extension request that had not been ruled on. As the record showed that a request for an extension of time had been received prior to the July 2019 decision, but not associated with the file until after its issuance, in August 2019 the Board vacated the July 2019 decision. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.904. The Board will now review the appeal de novo. New and Material Evidence Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. Id. New and material evidence received prior to the expiration of the appeal period following a decision, will be considered as having been filled in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). The definitions of the terms "new" and "material" for the purposes of this provision are the same as those discussed above. Voracek v. Nicholson, 421 F.3d 1299, 1304 (Fed. Cir. 2005). If evidence received during the appellate period following a decision is new and material, the claim will remain pending until VA issues another decision re-adjudicating the claim and addressing the new and material evidence. Bond v. Shinseki, 659 F.3d 1362, 136768 (Fed. Cir. 2011). New and material evidence is not required to reopen a claim when, at any time after VA issues a decision on a claim, VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim. 38 C.F.R. § 3.156(c). "Relevant" means service records that speak to a matter in issue or in dispute. Kisor v. Wilkie, 969 F.3d 1333, 134143 (Fed. Cir. 2020). In other words, to be relevant the new service department records must pertain to the basis of the prior final denial. Id. For the purposes of reopening a claim, newly submitted evidence is generally presumed to be credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is not required as to each previously unproven element of a claim in order to reopen. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Id. at 11718. 1. Reopening of service connection for bipolar disorder. The RO last denied reopening of the claim for service connection for bipolar disorder in May 2015. The Veteran was notified of the decision but did not submit a notice of disagreement. 38 C.F.R. §§ 20.200, 20.201, 20.302. No new and material evidence was associated with the file during the appellate period, and no new, relevant service department records have been associated with the file since the May 2015 decision. 38 C.F.R. § 3.156(b), (c); see Lang v. Wilkie, 971 F.3d 1348, 135355 (Fed. Cir. 2020). Therefore, the May 2015 decision is final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. The evidence of record in May 2015 consisted of service treatment records, VA treatment records, VA examination reports, and lay statements from the Veteran. The evidence of record failed to show that the bipolar disorder was causally related to the Veteran's service. Evidence received since the rating decision includes a July 2019 private medical opinion linking the Veteran's bipolar disorder to his period of service. There is no evidence the physician was not competent, and the opinion is presumed credible for the purposes of reopening. Justus, 3 Vet. App. at 513 The evidence provided by the Veteran is new as it was not previously submitted to agency decision makers and is material as it addresses the previously unestablished fact of a nexus between the current disability and service. It is not redundant and raises a reasonable possibility of substantiating the claim. Therefore, reopening of the claim for service connection for bipolar disorder is warranted. Service Connection Generally, to establish service connection a 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." Davidson v. Shinseki, 581 F.3d 1313, 131516 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 133637 (Fed. Cir. 2006). 2. Entitlement to service connection for bipolar disorder. Private treatment records and a July 2019 private psychiatric evaluation contain diagnoses of bipolar disorder. Concerning an in-service injury or disease, the Board initially notes that the medical evidence reflects that the Veteran was treated for anxiety in January 1980, prior to his enlistment. However, no psychiatric disability was noted on the Veteran's March 1981 enlistment examination and therefore the Veteran is presumed to have been sound upon entry. 38 U.S.C. §§ 1111, 1132, 1137; 38 C.F.R. § 3.304. The Veteran's service treatment records do not reflect a diagnosis of, or treatment for, bipolar disorder specifically or a psychiatric disability generally. However, the Veteran has consistently reported that he experienced psychiatric symptoms during service, and further that he was consistently under a great deal of stress while in the military. These statements are competent and there is no evidence they are not credible. As a current disability and an in-service injury have been shown, the dispositive question in this case is whether the bipolar disorder is causally related to the Veteran's service. Throughout the period on appeal, the Veteran has reported that he has experienced psychiatric symptoms since service. The Veteran is competent to report such symptoms, and there is no evidence that his statements are not credible. Jandreau, 492 F.3d 1372. As such, they are entitled to significant probative weight. Post-service treatment records reflect that the Veteran has been treated for psychiatric symptoms since at least April 1997, and records from the Social Security Administration (SSA) reflect that the Veteran reported issues with depression since the early 1980s. In support of his claim, the Veteran submitted a July 2019 private psychiatric opinion. The private physician stated that it was at least as likely as not that the Veteran's bipolar disorder was causally related to his period of service. In support of this opinion, the opining physician noted the Veteran's documented long-standing history of psychiatric treatment and the Veteran's own statements concerning the persistence of his symptoms. There is no evidence that the private physician is not competent or credible, and further the opinion is supported by citations to the medical evidence of record and the Veteran's lay statements. As such, the Board finds that it is entitled to significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). No other opinions are of record. Based on the foregoing, and in the interest of providing the Veteran with the full benefit of the doubt, the Board finds that the evidence of record shows that the current bipolar disorder is causally related to the Veteran's service. The Veteran has consistently reported experiencing psychiatric symptoms since service, SSA and private records reflect long-standing psychiatric treatment, and the July 2019 private physician opined that based on this evidence the bipolar disorder was likely related to service. As the evidence of record establishes a nexus, service connection for bipolar disorder on a direct basis is warranted. 38 C.F.R. § 3.102, 3.303. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Wendell, 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.