Citation Nr: 21031132 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 17-57 359 DATE: May 20, 2021 ORDER New and material evidence having been received; the claim of entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder, recurrent manic depression and affective disorder, is reopened. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder, recurrent manic depression and affective disorder, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The claim for service connection for an acquired psychiatric disorder was denied in an unappealed November 2006 rating decision. 2. Evidence submitted since the November 2006 rating decision includes information that was not previously considered by VA and that establishes a fact necessary to substantiate the claim for service connection for an acquired psychiatric disorder, and therefore creates a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The November 2006 rating decision that denied entitlement to service connection for an acquired psychiatric disorder is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302(a), 20.1103. 2. New and material evidence has been received since the November 2006 rating decision and the requirements to reopen the claim of entitlement to service connection for an acquired psychiatric disorder have been met. 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 1972 to May 1974 and October 1979 to September 1981. This matter is before the Board of Veterans' Appeals (Board) on appeal from January 2015 (acquired psychiatric disorder) and December 2015 (TDIU) rating decisions by a Department of Veterans Affairs Regional Office (RO). In January 2021, the Veteran testified at a virtual Board hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. New and Material The Veteran's claim for service connection for an acquired psychiatric disorder was originally denied in a June 2003 rating decision. The claim was denied based on findings contained in an April 2003 VA examination, which determined that no psychiatric disorder was diagnosed during service, and that any personality disorder present predated service. In addition, the rating decision noted that no psychiatric treatment was sought until 1995. Thereafter, a July 2003 rating decision confirmed and continued the denial of the claim. More recently, a November 2006 rating decision denied the claim on the basis that new and material evidence had not been received. As with the June 2003 rating decision, the November 2006 rating decision denied the claim on the basis that the service treatment records (STRs) did not evidence any treatment for a psychiatric disorder during service, and that the first evidence of a diagnosed psychiatric disorder was dated in 1995. The Veteran was notified of the decisions above. However, as he did not file a notice of disagreement with the decisions, and new and material evidence was not received within one year of notice of those decisions, they are final. VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of an appellant. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New evidence is evidence not previously submitted to agency decision makers. 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. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last 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). Evidence added to the claims file since the November 2006 rating decision includes private treatment records received in March 2017. Those records include a December 1991 medical record showing the Veteran was admitted to a hospital for psychiatric treatment. A discharge summary noted diagnoses for recurrent manic depression, alcohol dependency and dependent personality. The Veteran self-admitted himself for alcohol dependency treatment, and reported prior alcohol treatment approximately 10 years prior. The record additionally noted treatment for depression at a VA hospital in 1988, at which time it was thought he had manic depression. Additionally, in an April 2017 letter from the Veteran's VA treating psychiatrist, it was noted that she had been treating him since October 2014 on a regular basis. In addition, she noted that the STRs provided ample evidence of alcohol use disorder, personality disorder and depression/anxiety. While she noted that there was no mention of obvious manic or hypomanic features in the STRs, she did state that many individuals manifested a pre-diagnostic syndrome of bipolar disorder in depressive episodes, anxiety disorders, conduct disorders, substance use disorders and other conditions. Accordingly, Dr. Shay stated that "it seems very likely that [the Veteran's] symptoms in 1981 represented a bipolar depression, but it was not diagnosed as such at the time." Lastly, Dr. Shay stated that that she did not think she was "able to address the question [of etiology] without resorting to speculation and general psychiatric knowledge." The Board finds this evidence raises a reasonable possibility of substantiating the claim of entitlement to service connection for an acquired psychiatric disorder. Accordingly, the petition to reopen that claim is granted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see Shade, 24 Vet. App. 110. REASONS FOR REMAND 1. Acquired Psychiatric Disorder Initially, the Board notes that it is unclear whether all of the Veteran's VA medical records have been obtained. In this regard, the Board notes that a November 2014 VA memorandum requested the Veteran's VA medical records dated from January 1992 to November 1996. A December 2014 letter noted that a thorough review of VA systems revealed no records responsive to the request. A report issued in December 2014 noted that the current status of the request was "Other - No Record." Additionally, an October 2017 VA Form 27-0820, Report of General Information shows that a DRO official certified that relevant VA medical records at the St. Louis VA medical center from January 1992 to November 1996 did not exist. However, a December 1991 hospital discharge summary related to psychiatric treatment notes the Veteran had received prior treatment for depression at a VA hospital in 1988. See Private Treatment Records Received March 2017. During his January 2021 Board hearing, the Veteran testified that he did not remember when he began to receive VA medical treatment. Additionally, in an April 2017 letter, the Veteran's VA treating psychiatrist noted she had treated the Veteran on a regular basis since October 2014. However, the most recent VA medical record associated with the claims file is dated in November 2019. Accordingly, efforts should be made to obtain all outstanding VA medical records dating from 1981 to the present. The Board additionally finds that a VA examination is necessary to adequately adjudicate the issue on appeal. In this regard, the Veteran underwent a VA examination in April 2003. The examiner noted a diagnosis for affective disorder with mixed depression and anxiety. The Veteran reported having been diagnosed with bipolar disorder in approximately 1995. He further reported that he began drinking heavily after his discharge from his first period of active duty service, and that his drinking increased prior to his second period of service. The examiner noted a May 1981 STR indicating treatment for alcohol abuse 4 years prior, which was found to indicate treatment during a period of time the Veteran was not on active duty. In addition, the examiner noted that the Veteran was very vague about the years between his periods of active duty service. Accordingly, the examiner concluded that the psychiatric disorder predated service and further found no evidence of a psychiatric disorder during service. Accordingly, the examiner found no evidence that the psychiatric disorder was present during service, or was caused by or exacerbated by service. As noted by the VA examiner, evidence between the Veteran's periods of active duty service is vague. The only record cited by the VA examiner in support of his conclusion was a May 1981 STRs showing the Veteran reported having abused alcohol in the past and that he had undergone treatment for alcohol abuse approximately 4 years prior. However, there is no evidence or any lay statements noting any diagnosis or treatment for a psychiatric disorder prior to either period of active duty service. Accordingly, the Board finds that the presumption of soundness has not been rebutted and that another VA examination should be obtained. 2. TDIU Lastly, the claim for a TDIU is inextricably intertwined. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Hence, a remand of this matter is warranted, as well. The matters are REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, request all VA treatment records not already associated with the file from the Veteran's VA treatment facilities, including all VA treatment records dating from 1981 to the present, and all private treatment records from the Veteran not already associated with the file. 2. Then, schedule the Veteran for a VA examination with an examiner to address the claim for an acquired psychiatric disorder. The examiner should provide the following information: (a) Provide a full multiaxial diagnosis. (b) With respect to any psychiatric disorder found upon examination or identified during a review of the claims folder, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that each such psychiatric disability is etiologically related to service. The examiner is advised that a psychiatric disorder has not been found to have preexisted the Veteran's second period of active duty service. The examiner is asked to consider the October 1979 enlistment examination noting a normal psychiatric evaluation, the in-service treatment for alcohol abuse, and the August 1981 separation examination noting a history of depression and excessive worry since May 1981. The examiner is further asked to consider the April 2017 letter from Dr. Shay and the Veteran's lay statements. The examiner should review pertinent documents in the Veteran's claims file in connection with the examination. All indicated studies should be completed. Reasons should be provided for any opinion rendered. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. 3. Then, the AOJ must readjudicate the claims, including the claim for a TDIU. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Lamb, 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.