Citation Nr: 22017115 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 17-57 037 DATE: March 24, 2022 ORDER As new and material evidence has been received, the claim for entitlement to service connection for bipolar disorder is reopened, and to this extent only, the appeal is granted. REMANDED Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for bipolar disorder, to include as secondary to PTSD, is remanded. FINDINGS OF FACT 1. The October 2009 rating decision that denied entitlement to service connection for bipolar disorder was not appealed and became final. 2. Evidence received since the October 2009 rating decision raises a reasonable possibility of substantiating the underlying claim for service connection for bipolar disorder. CONCLUSIONS OF LAW 1. The October 2009 rating decision that denied entitlement to service connection for bipolar disorder is final. 38 U.S.C. § 7105; 38 C.F.R. § 19.52. 2. Evidence received since the October 2009 rating decision is new and material and the claim for entitlement to service connection for bipolar disorder is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1979 to August 1992. These matters are before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In her October 2017 substantive appeal, the Veteran requested to testify before a member of the Board. Subsequently, a virtual tele-hearing was scheduled for September 2021. However, in a September 2021 statement, the Veteran's representative withdrew the Veteran's hearing request. New and Material Evidence Rating actions are final and binding based on the evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105(b), (c); 38 C.F.R. §§ 3.160(d), 19.52, 20.201, 20.202, 20.203. VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998); see also Manio v. Derwinksi, 1 Vet. App. 140, 145 (1991). New evidence is evidence not previously submitted to agency decisionmakers. 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). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is a low one. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited 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. See id. at 117-18. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for bipolar disorder The last prior final denial for the claim for service connection for bipolar disorder was an October 2009 rating decision. It is final because the Veteran did not submit a notice of disagreement within one year of notification of the determination. 38 U.S.C. § 7105; 38 C.F.R. § 19.52. Therefore, the Board looks to the evidence received since October 2009 for new and material evidence. On her original June 2009 claim form, the Veteran sought entitlement to service connection for bipolar disorder as secondary to PTSD. In the October 2009 rating decision, the Veteran's claim was denied because she was not service-connected for PTSD. However, since October 2009, the Veteran has become service-connected for PTSD; entitlement was established effective February 12, 2015. As this evidence was not of record at the time of the October 2009 denial and it relates to an unestablished fact necessary to substantiate the Veteran's claim for service connection for bipolar disorder, the Board finds the evidence to be both new and material. 38 C.F.R. § 3.156(a); Shade, 24 Vet. App. at 117. Accordingly, the claim for entitlement to service connection for bipolar disorder is reopened. To this extent only, the claim is granted. REASONS FOR REMAND Unfortunately, the Veteran's claims must be remanded for further development. Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide these matters so that the Veteran is afforded every possible consideration. Entitlement to an initial rating in excess of 30 percent for PTSD is remanded. The Veteran contends that her symptoms of PTSD are more severe than reflected by the currently-assigned 30 percent rating. As an initial matter, the Board notes that subsequent to the issuance of the October 2017 statement of the case (SOC), VA treatment records pertinent to the Veteran's increased rating claim were associated with the claims file. However, the RO did not issue a supplemental statement of the case (SSOC) as required by 38 C.F.R. §§ 19.31, 19.37. As such, remand is required for the RO to readjudicate the claim, with specific consideration of any additional evidence received since the October 2017 SOC. Notwithstanding the need for an SSOC, the Board also finds that the Veteran's increased rating claim requires additional evidentiary development prior to appellate review. The Veteran was last afforded a VA examination to assess the severity of her PTSD in July 2017, nearly five years ago. However, more recent VA treatment records indicate that the Veteran has reported experiencing worsening psychiatric symptoms. See, e.g., January 10, 2018 Mental Health VASH Community Visit (CAPRI, rec'd January 23, 2018). The Board notes that where the evidence indicates that a service-connected disability has worsened since the last VA examination, and that examination is too remote to constitute a contemporaneous examination, a new examination is required. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Green v. Derwinski, 1 Vet. App. 121, 124 (1991); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). Amid evidence of a possible worsening of symptoms, and given the considerable length of time since her last VA examination, the Board finds that on remand, the Veteran should be afforded a new VA examination to assess the current severity of her PTSD. Entitlement to service connection for bipolar disorder, to include as secondary to PTSD, is remanded. The Veteran seeks service connection for bipolar disorder, which she contends was incurred in or caused by military service, to include as secondary to service-connected PTSD. The Veteran underwent a VA examination in July 2015. Upon examination, the VA examiner concluded that there is no clinical evidence that the Veteran's bipolar disorder was incurred in or due to military service. To support this conclusion, the examiner noted that the Veteran was not diagnosed with bipolar disorder until 2008 and that "given her family history of bipolar II disorder, it is likely that this disorder was present, but undiagnosed, during her military career." The Board finds the July 2015 opinion inadequate because the examiner did not use the correct legal standard ("at least as likely as not") when providing his etiology opinion, nor did he provide adequate rationale to support his conclusion. In this regard, the examiner did not consider pertinent lay and medical evidence of record as to an in-service onset or aggravation of bipolar disorder, to specifically include the Veteran's report on examination that she did not experience mood instability or other psychiatric symptomatology until her in-service sexual assault in 1980 and the June 1991 in-service diagnosis of intermittent explosive disorder. An opinion that is based on an incomplete or inaccurate review of the record and does not consider the Veteran's competent lay statements is inadequate. See Reonal v. Brown, 5 Vet. App. 458, 460 (1993); Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007); see also Smith v. Derwinski, 2 Vet. App. 137, 140 (1992). Once VA undertakes the effort to provide an examination or medical opinion when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for the purposes of the determination being made. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the above, the Board finds that remand is required to obtain a new VA examination and medical opinion before the Board can render an informed decision on the Veteran's claim. Douglas v. Shinseki, 23 Vet. App. 19, 26 (2009). The Board also notes that a medical opinion has not yet been obtained to address the Veteran's contention that her bipolar disorder may be caused or aggravated by service-connected PTSD. Such an opinion must be obtained on remand. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Accordingly, the matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to assess (1) the current severity of her service-connected PTSD; and (2) the nature and etiology of her bipolar disorder. The examiner must review the Veteran's claims file, to include a copy of this REMAND, and that review must be noted in the examination report. A complete history of symptoms should be elicited from the Veteran. Then, the VA examiner is asked to fully respond to the following: PTSD (a) Fully describe all symptomatology and functional deficits associated with the Veteran's PTSD and opine as to their severity. The Veteran's lay statements regarding her symptomology must be recorded and taken into consideration. The examiner should also comment on the Veteran's current level of social and occupational impairment due to her disability. Bipolar Disorder (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's bipolar disorder was incurred in or caused by an in-service injury, event, or illness? In responding to the above, the examiner must specifically address the Veteran's contention that her symptoms of mood instability began in service following an in-service sexual assault, as well as service treatment records showing that the Veteran first sought treatment for mental health symptoms in 1991 and was diagnosed with intermittent explosive disorder. (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's bipolar disorder was caused by her service-connected PTSD? (c) Is it at least as likely as not (50 percent or greater probability) that the Veteran's bipolar disorder was aggravated by (increased in severity beyond its natural progression) her service-connected PTSD? The examiner must provide separate responses to questions (b) and (c). In addressing the matter of aggravation, the examiner should note that it is not required that bipolar disorder is shown to be aggravated beyond its natural progression predominantly or permanently by the service-connected PTSD, but rather, whether there is any contributing degree of aggravation beyond natural progression by the service-connected disability. The examiner is advised that the Veteran is competent to report her medical history, including as to the onset and continuity of symptoms, and such reports must be acknowledged and considered in formulating any opinion. The examiner must provide a complete rationale for any opinions offered, citing to the examiner's own expertise, medical principals, and/or evidence in the Veteran's record, when necessary, to support the conclusion reached. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts), or by a deficiency in the record or the examiner (i.e., any additional facts are required, or the examiner does not have the needed knowledge or training). 2. Then, readjudicate the Veteran's claims. If any benefit sought on appeal remains denied, issue a SSOC and allow the Veteran an appropriate time for response. Then, return the case to the Board for further appellate review. J. NICHOLS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Melissa Barbee, 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.