Citation Nr: 21077181 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 17-19 099 DATE: December 28, 2021 ORDER The application to reopen the previously denied claim of entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), is granted. Entitlement to service connection for bipolar disorder is granted. FINDINGS OF FACT 1. In a June 2011 rating decision, the Regional Office (RO) denied the Veteran's claim for entitlement to service connection for PTSD; the Veteran did not timely initiate an appeal of that decision or submit new and material evidence within one year of notification. 2. Evidence added to the record since the June 2011 rating decision relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. 3. The evidence is at least evenly balanced as to whether the Veteran's bipolar disorder is related to service. CONCLUSIONS OF LAW 1. The June 2011 RO decision that denied service connection for a psychiatric disorder, to include PTSD, is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 3.156(b), 20.1103. 2. The criteria for reopening the claim of entitlement to service connection for a psychiatric disorder, to include PTSD, have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 3. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for bipolar disorder have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1970 to November 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which denied reopening of a previously denied claim for service connection for PTSD. In March 2015, the Veteran filed his notice of disagreement, was issued a statement of the case in March 2017, and in April 2017 perfected his appeal to the Board. In September 2021, the Veteran appeared at a virtual Board hearing before the undersigned Veterans Law Judge. A copy of the transcript is of record. New and Material In a June 2011 rating decision, the RO denied the Veteran's claim of entitlement to service connection for PTSD. The Veteran did not file a timely appeal or submit new and material evidence within a year of the rating decision as to the claim, thus the June 2011 rating decision became final. Generally, a claim which has been denied in an unappealed Agency of Original Jurisdiction (AOJ) decision is final and may not thereafter be reopened and allowed. 38 U.S.C.§ 7105 (c); 38 C.F.R. § 20.1100. One exception to this rule is that a previously denied claim may be reopened by submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R.§ 3.156. New and material evidence cannot be cumulative or 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). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. At the time of the June 2011 rating decision, evidence relevant to the claim included the Veteran's service treatment records from October 2, 1970 through November 19, 1970, a PTSD questionnaire, and a November 2010 statement from the Veteran. The Board notes that the RO denied service connection for PTSD but the Veteran's claim was more general, noting PTSD and symptoms of nightmares and rage. Thus, the prior denial encompassed a claim for any psychiatric disorder, as does the present application to reopen. Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (a claim should not be limited to the disorder as characterized by the Veteran but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim); Murphy v. Wilkie, 983 F.3d 1313 (Fed. Cir. 2020) (the Clemons lenient-claim-scope rule applies to requests to reopen). Evidence received since includes VA treatment records from March 2016 through February 2017, January 2017 private treatment records, and virtual Board hearing testimony. The evidence regarding the previously denied claim for service connection for a psychiatric disorder to include PTSD is not redundant of the record and raises a reasonable possibility of substantiating the claim as the treatment records provide evidence of a diagnosis of psychiatric disabilities. The evidence is thus new and material, and the claim for service connection for a psychiatric disorder to include PTSD is reopened. Service Connection September 2016 VA treatment records reflect that the Veteran has been diagnosed bipolar disorder, PTSD, and depression. As the record contains diagnoses for bipolar disorder, depression, and PTSD, the Board has expanded the issue on appeal to include all psychiatric disorders, to include PTSD and bipolar disorder, consistent with the holding in Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran testified that he witnessed 9 body bags being removed while he was standing in line. He stated that the corpsman with a body bag waved to him to put him in the body bag, and that he was then attacked by a sergeant who beat him in his stomach until he fell to the ground. He reported that he started to see a psychiatrist after this incident, and that he still sees the psychiatrist. He also reported that he has had to have two-thirds of his stomach removed after service, but that the medical records have not been located. The Veteran stated that prior to service he did not have any psychiatric issues. He said that he now sees dead bodies, has restless sleep, and cannot sleep for more than 30 minutes a day. The Veteran's service treatment records do not reflect treatment for, or complaints of a psychiatric disability. The Veteran submitted multiple statements regarding witnessing 9 bodies of fellow servicemembers being carried out while he was in his 3rd or 4th week of training which he states led to him suffering from hallucinations, nightmares, sleep disturbances, and other issues. An October 2010 letter from the National Archives and Records Administration revealed that they were unable to verify the incident relayed by the Veteran regarding the deaths of 9 servicemembers, and a June 2011 memorandum reflects that VA has insufficient information to send to the Joint Services Records Research Center to corroborate the incident. A January 2017 letter from the Veteran's private psychologist indicates that the Veteran has been receiving treatment for a depressive episode, PTSD, and features consistent with schizophrenia, with the psychologist finding that the precipitating trauma for his PTSD is witnessing body bags being removed from barracks while he was attending basic training. The psychologist also noted that the Veteran met the criteria for bipolar I disorder. Reading this opinion as a whole and in the context of the evidence of record, the psychologist explained why both the PTSD and bipolar disorder diagnoses are based on the incident in service involving the body bags. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). This opinion is therefore entitled to at least some probative weight. There is no contrary medical opinion in the evidence of record. With regard to bipolar disorder, there is no requirement that the in-service event be verified or corroborated. See Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010) (there are particular requirements for establishing service connection for PTSD in 38 C.F.R. § 3.304(f) that are separate from those for establishing service connection generally). Rather, lay testimony alone can satisfy the in-service disease or injury requirement if competent and credible. Washington v. Nicholson, 19 Vet. App. 362, 367 (2005). The Board finds that the Veteran's statements are competent and credible in this regard. The evidence is therefore at least evenly balanced as to whether the Veteran's bipolar disorder is related to the in-service incident he described. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for bipolar disorder is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Although the Board has granted service connection for bipolar disorder, the Veteran will be compensated for all psychiatric symptoms, as there is no evidence that any symptoms are attributable to the PTSD and not the bipolar disorder. See Howell v. Nicholson, 19 Vet. App. 535, 540 (2006); Mittleider v. West, 11 Vet. App. 181, 182 (1998) (VA must apply the benefit of the doubt doctrine and attribute the inseparable effects of a disability to the claimant's service-connected disability). Consequently, the board need not separately address the issue of entitlement to service connection for PTSD. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Maddox, 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.