Citation Nr: 21072603 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 18-54 153 DATE: December 3, 2021 ORDER New and material evidence having been received, the claim of service connection for an acquired psychiatric disorder is reopened. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include unspecified depressive disorder. is remanded. FINDINGS OF FACT 1. In an unappealed January 2000 decision, the RO denied the claims of service connection for an acquired psychiatric disorder. 2. Evidence received since the January 2000 rating decision is not duplicative of evidence previously submitted and considered on the merits, and the evidence, by itself or when considered with previous evidence of record, relates to unestablished facts necessary to substantiate the claims of service connection for an acquired psychiatric disorder. CONCLUSIONS OF LAW 1. The January 2000 rating decision denying service connection for an acquired psychiatric disorder is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. 2. New and material evidence sufficient to reopen the claim of service connection for an acquired psychiatric disorder has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1991 to June 1996. This matter comes to the Board of Veterans' Appeals (the Board) on appeal from a May 2017 rating decision of a VA regional office (RO). The Veteran received a hearing before the undersigned Veterans Law Judge in August 2021. A transcript of this hearing is of record. At the outset, the Board acknowledges that testimony was taken on the issues of service connection for fibromyalgia and obstructive sleep apnea (OSA). Such was a regrettable error on the part of the Board. A review of the record clearly establishes that the Veteran limited in scope of his appeal when filed his substantive appeal with respect to a November 2018 statement of the case. See November 2018 VA Form 9. The matter was then certified for appeal in May 2019. No action was taken by VA in the intervening time period that would have led the Veteran to believe that the issues of service connection for fibromyalgia and OSA remained on appeal. See Percy v. Shinseki, 23 Vet. App. 37, 42-45 (2009). The Board apologizes for the confusion this may have caused. Additionally, as to the Veteran's asserted psychiatric disabilities, the Board notes that it has recharacterized issues on appeal to better reflect the arguments and diagnoses raised by the record. In that regard, the Veteran's current appeal stems from a claim for service connection for depression. However, medical records document diagnoses for conditions including depression, anxiety, unspecified depressive disorder, and bipolar disorder. The Veteran has also previously claimed service connection for bipolar disorder. Per the Court, the scope of a mental health disability includes any disability that may reasonably be encompassed by a Veteran's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009). Given the above, the Board has recharacterized the claim for depression on appeal to be that of service connection for any acquired psychiatric disorder That said, as will be discussed below, the RO has previously finally denied a claim for bipolar disorder in January 2000. The May 2017 rating decision did not address the issue of whether new and material evidence had been received to reopen the previously denied claim for an acquired psychiatric disability. However, the Board is obligated by 38 U.S.C. §§ 5108, 7104(b) to address whether new and material evidence has been submitted prior to addressing the merits of the claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The issue on appeal has been recharacterized accordingly. Finally, the Board recognizes that testimony was not specifically taken as to the elements necessary to substantiate a claim for new and material evidence. As the claim is being reopened (fully granted), any procedural error is deemed harmless. New and Material Evidence 1. Whether new and material evidence has been received to reopen the claim of service connection for an acquired psychiatric disorder. 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. 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). A January 2000 rating decision denied service connection for bipolar disorder. The RO determined, in essence, that the Veteran failed to provide evidence of nexus. The Veteran neither appealed the decision nor sought reconsideration and new and material evidence was not received within one year. The decision therefore became final. Evidence added to the record since the January 2000 rating decision includes hearing testimony, treatment records, and rating decisions. A May 2017 rating decision granted service connection for TBI and associated residuals. On Board hearing the Veteran testified that his psychiatric symptoms coincided with his in-service traumatic brain injuries (TBI) and/or were secondary to that injury. Treatment medical records are suggestive that the Veteran's psychiatric symptomology might be related to his in-service head injuries. The collective evidence is new, because it was not of record at the time of the rating decision, and material, because it suggests a nexus between the Veteran's claimed disability and his service and/or service-connected disabilities. The evidence received is presumed credible, is neither cumulative nor redundant of the evidence of record, and raises a reasonable possibility of substantiating the claims. As such, the claim must be reopened. REASONS FOR REMAND 2. Entitlement to service connection for an acquired psychiatric disorder. The Veteran asserts that his psychiatric disorders are etiologically related to his service and/or his service-connected disabilities -most notably as a residual of his TBI. Treatment medical records are suggestive that the disabilities might be related. Currently, the claims file is negative for a secondary service connection opinion addressing the etiology of the Veteran's psychiatric disability in relation to his TBI and the above relevant records. On remand, such an opinion must be obtained. Additionally, an addendum opinion is required to address the question of preexisting disability. In April 2017. an examiner opined that the Veteran suffered from pre-existing depression which was not aggravated beyond its natural progression by service. The examiner indicated that as the Veteran failed to seek mental health treatment for "over 12 months" after service separation his condition was not aggravated by service. The examiner also indicated that the condition was not aggravated by service as the Veteran denied symptoms on Medical Board examination. This opinion is inadequate. First, U.S. Court of Appeals for Veterans Claims (Court) has held that a medical opinion which relies upon the absence of post-service medical treatment is inadequate. Rather, the continuity of symptoms, not treatment, is the salient issue in establishing chronicity. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Dalton v. Nicholson, 21 Vet. App. 23 (2007). Second, VA treatment records from 2001 indicate the Veteran began out-patient mental health care for bipolar disorder in at least 1997, which is within a year of separation. Finally, an October 2015 Report of Medical History prepared at the time of the Veteran's Medical Board physical examination, notes the Veteran experiencing depression and excessive worry. Importantly, the drafting physician appears to characterize his symptoms as occasional, therefore still present. Given the above, an addendum is required. On remand, the RO should ensure that all relevant out-patient treatment records, associated with initial post-service mental health care are associated with the claims file. The matter is REMANDED for the following action: 1. Obtain all outstanding private and VA treatment records. Notably, January 2001 VA treatment records document the Veteran receiving outpatient treatment for his bipolar disorder beginning in 1997. These records should be obtained. Any records deemed unavailable must be documented as such in the file and the Veteran and his representative must be informed. 2. Obtain an addendum opinion from the examiner responsible for the April 2017 psychiatric VA examination report. If the same examiner is not available, the request should be forwarded to an appropriate clinician. The Veteran's claims file must be made available to the examiner. After reviewing the claims file, with any necessary examination and testing, the examiner should provide the following opinions. (a.) Identify all psychiatric disabilities diagnosed during the period on appeal. (b.) Based upon the medical and lay evidence of record, is there clear and unmistakable evidence (such that reasonable minds could not differ) that any diagnosed acquired psychiatric disorder preexisted active-duty service? (c.) If you determine that any acquired psychiatric disorder clearly and unmistakably preexisted service, was it clearly and unmistakably not aggravated (i.e., not permanently worsened beyond the natural progression of the disease) during service? (d.) If it is found that there is clear and unmistakable evidence that any acquired psychiatric disorder existed prior to service AND that there is clear and unmistakable evidence that the condition was not aggravated by service, please clearly indicate the basis/evidence supporting your conclusions. Note, an April 2017 VA examiner opined that the Veteran's depression preexisted service but was not aggravated beyond natural progression as the record lacked evidence of treatment within a year of separation and the Veteran denied symptoms on Medical Board examination. This opinion is inadequate as it relies upon the absence of post-service medical treatment without consideration of lay reports of symptomatology. The opinion also fails to address treatment records which document the Veteran receiving mental health care for a bipolar condition in at least 1997. The opinion also does not address the Veteran reporting excessive worry and depression (described as occasional) on Report of Medical History October 1995 in conjunction with his Medical Board. (e.) If the Veteran's acquired psychiatric disorder did not preexist service OR it was not aggravated by service, please then opine as to whether it is at least as likely as not (i.e. a probability of 50 percent or more) that the Veteran's current acquired psychiatric disorder is etiologically related to his active duty service? (f.) Is it at least as likely as not (a 50 percent or greater probability) that any diagnosed psychiatric disorder is etiologically related to his reports of in-service mental health treatment and/or head injuries? (g.) Is it at least as likely as not (a 50 percent or greater probability) that any of the Veteran's diagnosed psychiatric disabilities were aggravated (underwent any incremental increase in disability or any additional impairment of earning capacity, regardless of its permanence) by any of his service-connected disabilities, to include his TBI? Note, June 2017 VA treatment medical records appear to indicate that the Veteran's TBI and mental health disabilities have overlapping symptoms. The examiner must provide a rationale for the opinions provided. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. L. Burroughs, 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.