Citation Nr: 22043167 Decision Date: 07/29/22 Archive Date: 07/29/22 DOCKET NO. 18-54 458 DATE: July 29, 2022 ORDER New and material evidence has not been received sufficient to reopen the claim for service connection for bipolar disorder. New and material evidence has not been received sufficient to reopen the claim for service connection for depression. New and material evidence has not been received sufficient to reopen the claim for service connection for anxiety. FINDINGS OF FACT 1. A May 2013 rating decision denied service connection for bipolar disorder, depression, and anxiety; the Veteran did not appeal that rating action. 2. The evidence received since the May 2013 rating decision is cumulative of facts already in the record. CONCLUSIONS OF LAW 1. New and material evidence sufficient to reopen the claim of service connection for bipolar disorder have not been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. New and material evidence sufficient to reopen the claim of service connection for depression have not been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. New and material evidence sufficient to reopen the claim of service connection for anxiety have not been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 2008 to January 2009. This matter comes before the Board of Veterans' Appeals (Board) from an April 2015 rating decision from the Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned in a December 2021 Board hearing. The transcript is of the record. New and Material Evidence In general, unappealed rating decisions are final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302(a), 20.1103. A claim denied in a final rating decision is reopened with new and material evidence. 38 U.S.C. § 5108. New evidence is that not previously available. Material evidence is that which, itself or with the previous evidence, relates to an unestablished fact necessary to substantiate the claim. New and material evidence cannot be cumulative or redundant of the previous evidence, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). When deciding as to whether received evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). 1. Whether new and material evidence was received to reopen the claim for service connection for bipolar disorder 2. Whether new and material evidence was received to reopen the claim for service connection for depression 3. Whether new and material evidence was received to reopen the claim for service connection for anxiety The Veteran contends that sufficient evidence has been submitted to open her claim for bipolar disorder, depression, and anxiety. In this case, an unappealed May 2013 rating action denied service connection for bipolar disorder, depression, and anxiety. The Veteran did not appeal the rating decision within the one-year period to do so, and the rating action is therefore final. Evidence of record at the time of the May 2013 rating decision included: 1) a July 2010 report of mental status evaluation diagnosing the Veteran with bipolar I disorder precluding her from military service; 2) private medical records from February 2010 showing a history of hallucinations, depression, and suicidal ideation; 3) Veteran lay statements recalling a history of depression, hearing voices, and hallucinations; and 4) a private psychological evaluation from November 2011 diagnosing the Veteran with schizophrenia, paranoid type with psychotic features and obsessive compulsive disorder. The previously considered records also included service personnel records showing the Veteran was referred for mental health evaluation. The record shows that the Veteran's service treatment records are not available. Specifically, an April 2015 Notification letter informed the Veteran that her records were not with Records Management Center nor her Reserve Unit. The VA advised the Veteran to submit statements from military medical personnel, lay statements, or medical evidence from hospitals. Under such circumstances, VA has a heightened duty to explain its findings and conclusions and to consider carefully the benefit of the doubt rule. Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). The Board's analysis of the claims is undertaken with this duty in mind. The cited case law does not lower the legal standard for proving a claim of service connection but rather increases the Board's obligation to evaluate and discuss in its decision all the evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). The Board finds that the VA's heightened duty to assist has been satisfied. Evidence submitted since the May 2013 rating action includes duplicates of the military personnel records; a duplicative submission of November 2011 private psychological evaluation; lay statements from a friend and previous partner, who resided with the Veteran, described observing a loss of appetite, insomnia, panic attacks, picking at her skin, and serious depression; lay statements from a long-term friend describing unsteady employment, lack of sleep, and withdrawn behavior; private treatment records reaffirming a bipolar I diagnosis and dates of mental health sessions; lay statements from the Veteran's mother reporting the Veteran's thoughts while in bootcamp and her unstable employment post service; and 4) Veteran testimony at a December 2021 Board hearing discussing her diagnoses, treatment, and current symptoms. (Continued on the next page) The Board finds that new and material evidence has not been presented. Some of the evidence, such as the military personnel records, are not new because they were of record and considered in May 2013. The other evidence is new because it was not previously submitted to the VA. However, the evidence is not material as it is cumulative evidence of the Veteran's bipolar I diagnosis and mental health treatment previously considered in the May 2013 rating decision. When considering the new evidence in conjunction with the evidence already of record, it does not raise a reasonable possibility of substantiating the claim but rather is only cumulative of facts already considered in May 2013 and which does not otherwise implicates the duty to assist. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The evidence does not suggest an in-service injury, event, or occurrence nor does it suggest a nexus between the Veteran's psychiatric disabilities and service. See 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Thus, the new evidence submitted perpetuates established facts of the record at the time of the prior RO denials in May 2013, April 2015, October 015. See 38 C.F.R. § 3.156(a). Accordingly, for all the above reasons, the Veteran's claims are not reopened. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Clevenger, Gordanna A. 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.