Citation Nr: 21013620 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 17-03 098 DATE: March 10, 2021 REMANDED Entitlement to service connection for a bipolar disorder is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. REASONS FOR REMAND The Veteran served active duty in the Unites States Army from January 1987 to December 1989. He also served with the Army National Guard from January 2008 to May 2008, and had a period of active duty for training (ACDUTRA). This matter is before the Board of Veterans’ Appeals (Board) on appeal from a December 2010 and October 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that in a January 2019 decision, the Board recharacterized and combined the claims for service connection for depression, anxiety, and PTSD. The issue has now been characterized as service connection for an acquired psychiatric disorder. In that same decision, the Board denied the request to reopen the claims based on a lack of new and material evidence. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2020 decision, the Court set aside the Board’s January 2019 decision and remanded the matters for readjudication. The Court found the Board did not address an incomplete VA Form 9 contained in the claims file, specifically, whether it was submitted timely and constituted a valid appeal. In its decision, the Board also did not address the Veteran’s assertion that he never received the statement of the case (SOC) mailed to him. The Board also notes that additional evidence has been associated with the claims file since the RO’s last adjudication of the claims. Initially, the Board will address whether a decision that previously denied the claims of service connection for a bipolar disorder, anxiety and depression, and PTSD are final such that new and material evidence is required to reopen the claims to address them on the merits. In general, rating decisions that are not timely appealed or for which new and material evidence is not received within one year of the rating decision are final. See 38 U.S.C. § 7105; 38 C.F.R. § 3.156(b), 20.200, 20.201, 20.302, 20.1103. In a December 2010 rating decision, the claims were denied on the merits. In November 2011, the Veteran submitted a notice of disagreement with the decision. Following, in July 2014, the RO issued a SOC for the matters, and provided a copy to the Veteran and the Veteran’s assumed representative of record, The American Legion. However, the Board notes that, at the time, the American Legion’s representation of the Veteran had ended. Notably, there was another agent on record, Taylor Holbrook, that had also withdrawn representation in February 2014, months prior to the issuance of the SOC. Therefore, at the time the SOC was issued, the Veteran was unrepresented. The Board also notes that the SOC was returned as undeliverable. In October 2014, the Veteran updated his mailing address and requested that the SOC be sent to him at his new address. The SOC was sent to the Veteran in December 2014 by way of a response to a Privacy Act/Freedom of Information Act response. The Board notes that there is an undated and incomplete VA Form 9 of record that only contains the Veteran’s name and social security. Assumingly, this was sent in response to the SOC that was mailed in December 2014 as the Veteran has argued he never received the originally mailed SOC. As there is no date on the form, it is not possible to determine if the form was received timely after the Veteran received the SOC in December 2014. Following receipt of the form, the RO never contacted the Veteran to inform him that it was incomplete and could not be processed. Subsequently, the Veteran filed a supplemental claim in June 2015, which led to the October 2015 decision (previously indicated as on appeal). At the time of the filing, the Veteran had secured another private representative. Nevertheless, a claimant has a right to notice of an adverse decision. See 38 C.F.R. § 3.103(b). Because there was insufficient notice of the December 2014 SOC, the Board finds that the December 2010 decision did not become final and the claims remain pending. See Ingram v. Nicholson, 21 Vet. App. 232 (2007). Therefore, the claims do not require new and material evidence to reopen and they are addressed on the merits below. As will be discussed below, remand is necessary for further development before the claims can be decided. The Veteran contends he began experiencing depression in 1990, within a year of separation, due to the death of his mother. Initially, the Board notes that a September 1990 report of medical examination related to the Veteran’s first period of service shows that his psychiatric state was normal. However, in a September 1990 report of medical history, the Veteran reported experiencing depression and excessive worry. In April 2008, at the beginning of another period of service, the Veteran was diagnosed with depressive disorder and involuntarily separated from service. Post service treatment records show the Veteran has been diagnosed with a bipolar disorder II, an unspecified personality disorder, an adjustment disorder, major depressive disorder, depression and anxiety, a major neurocognitive disorder, unspecified mood disorder, and a dysthymic disorder with a history of attempted suicide. See VA treatment records. The Veteran was afforded a VA examination in August 2010. At that time, the examiner noted the Veteran was diagnosed with an adjustment disorder combined with depression, anxiety, and avoidant traits. He indicated that while the Veteran had psychiatric symptoms due to psychological situations, it was difficult to establish service connection for his disorder as it started as a child and had worsened due to social economic conditions. The examiner also found the Veteran did not have a diagnosis of bipolar disorder. In an October 2010 opinion, the examiner noted that the Veteran had psychiatric issues while in training for active duty. He also noted the Veteran had trouble keeping up and was involuntarily separated in early 2008. He stated that it was difficult to determine if the Veteran’s disorder was aggravated beyond natural progression by the military service as his periods of service were not clear. Ultimately, the examiner found that the disorder was not aggravated during service as the loss of several family members and other factors occurred following his discharge from the Army. However, it was aggravated by his service in the National Guard as he was hospitalized during the first or second week and discharged thereafter. In a June 2014 VA examination report, the examiner noted the Veteran did not meet the criteria for PTSD. The examiner found that the condition, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service injury, illness, or event. However, the examiner diagnosed the Veteran with an unspecified personality disorder and provided an opinion for such. As will be discussed below, he used an incorrect standard as the clear and unmistakable standard is not applicable to personality disorders. The Board notes that the presumption of soundness applies in this case as a psychiatric disorder was not noted during the enlistment examination. The presumption applies to all the Veteran’s diagnosed mental disorders except an unspecified personality disorder. The presumption of soundness does not apply to congenital defects, including personality disorders, because such defects are not diseases or injuries within the meaning of 38 U.S.C. §§ 1110 and 1111. See Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009) (citing 38 C.F.R. § 3.303 (c), Terry v. Principi, 340 F.3d 1378, 1385-86 (Fed. Cir. 2003) (holding that the presumption of soundness does not apply to congenital defects), and Winn v. Brown, 8 Vet. App. 510, 516 (1996) (holding that a non-disease or non-injury entity such as a congenital defect is “not the type of disease- or injury-related defect to which the presumption of soundness can apply”)). Therefore, if the Veteran is found to have a personality disorder by the examiner, an opinion is necessary to specifically address whether the personality disorder was subjected to a superimposed disease or injury in service that resulted in additional disability. See VAOPGCPREC 82-90 (1990) (cited at 55 Fed. Reg. 45,711 ) (Oct. 30, 1990) (service connection may not be granted for defects of congenital, developmental or familial origin, unless the defect was subject to a superimposed disease or injury); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995). Lastly, a review of the medical opinions of record reveals the examiners did not address all of the Veteran’s diagnosed psychiatric disorders and whether he was misdiagnosed or if they had resolved. For all these reasons, remand is necessary to obtain a medical examination that addresses all of the Veteran’s psychiatric disorders, and a medical opinion to determine whether they are related to his active military service. The matters are REMANDED for the following action: 1. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any psychiatric disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. (a) The examiner should identify all current psychiatric disorders. If any previously diagnosed psychiatric disorders are not found on examination, the examiner should address whether they were misdiagnosed or have resolved. The Veteran has been previously diagnosed with a bipolar disorder II, an unspecified personality disorder, an adjustment disorder, major depressive disorder, depression and anxiety, a major neurocognitive disorder, unspecified mood disorder, and a dysthymic disorder with a history of attempted suicide. (b) For any diagnosis identified other than a personality disorder and PTSD, the examiner should state whether it is at least as likely as not that the disorder manifested in or is otherwise causally or etiologically related to the Veteran’s military service, to include any symptomatology and events therein. In rendering this opinion, he or she should address whether any in-service symptoms were indicative of a psychiatric disorder other than a personality disorder. The Board notes that in a September 1990 report of medical history the Veteran reported experiencing depression and excessive worry. The examiner should also consider and address that the Veteran was hospitalized during training and involuntarily discharger from service in 2008 because of psychiatric problems. (c) If the Veteran is diagnosed with a personality disorder, the examiner should address whether there was a superimposed disease or injury in service that resulted in additional disability. (d) With respect to PTSD, the AOJ should provide the examiner with a summary of any verified in-service stressors, and the examiner must be instructed that only these events and any personal assault that the examiner determines to have occurred during service may be considered for the purpose of determining whether exposure to an in-service stressor has resulted in PTSD. The examiner should comment on whether the Veteran exhibited any behavioral changes during service that are reflective of the occurrence of an in-service personal assault. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history [,]” 38 C.F.R. § 4.1, copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.M. Walker 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.