Citation Nr: 24017751 Decision Date: 04/25/24 Archive Date: 04/25/24 DOCKET NO. 19-32 758A DATE: April 25, 2024 ORDER New and material evidence having been submitted, the claim for service connection for bipolar disorder is reopened. Entitlement to service connection for bipolar disorder is granted. FINDINGS OF FACT 1. The claim for service connection for bipolar disorder was previously considered and denied in a September 2009 rating decision. The Veteran did not appeal the decision or submit new and material evidence within one year of that decision. 2. The claim for service connection for bipolar disorder was considered and denied again in an October 2015 rating decision. The Veteran did not appeal the decision or submit new and material evidence within one year of that decision. 3. Evidence has been received since the October 2015 rating decision that is new, relates to unestablished facts, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for bipolar disorder. 4. The evidence of record establishes that the Veteran has a current diagnosis of bipolar disorder that is related to his military service. CONCLUSIONS OF LAW 1. The September 2009 rating decision denying service connection for bipolar disorder is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.201, 20.302, 20.1103. 2. The October 2015 rating decision denying service connection for bipolar disorder is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.201, 20.302, 20.1103. 3. The evidence received since the October 2015 rating decision is new and material as to the claims for service connection for bipolar disorder, and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 4. The criteria for service connection for bipolar disorder have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from December 1997 to January 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2018 rating decision issued by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In September 2023, the Veteran testified in a hearing before the Board. A transcript of the hearing has been associated with the claims file. New and Material Evidence In order to reopen a claim which has been denied by a final decision, a claimant must present new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (regardless of action taken by the AOJ, the Board must determine whether new and material evidence has been received subsequent to an unappealed AOJ denial). New and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with the previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For the purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The United States Court of Appeals for Veterans Claim (Court) has held that 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). Furthermore, 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, to include by triggering the Secretary's duty to assist. Id. at 118. Here, the AOJ previously considered and denied the Veteran's March 2009 claim for service connection for bipolar disorder in a September 2009 rating decision. The Veteran contends that this rating decision never became final because a timely Notice of Disagreement (NOD) was filed, and VA failed to provide a statement of the case (SOC). See September 2023 Board Hearing Transcript. The Veteran argues that such Notice of Disagreement is found in a May 2010 VA Form 21-22a, wherein the Veteran appoints a private attorney "to be used in every way possible to overturn my denial of benefits." However, this is insufficient as a notice of disagreement. The form is clearly prescribed for the appointment of an attorney and the statement is explicitly related to the scope of his attorney's representation. To that end, the Board notes that while special wording is not required for a submission to constitute a valid NOD, it must (1) express disagreement with a specific determination of the agency of original jurisdiction (AOJ); (2) be filed in writing; (3) be filed with the (AOJ); (4) be filed within one year after the date of mailing of notice of the RO decision; (5) be filed by the claimant or the claimant's authorized representative; and (6) express a desire for Board review. 38 U.S.C. § 7105 (b); 38 C.F.R. § 20.201 (in effect prior to March 24, 2015); Gallegos v. Principi, 283 F.3d 1309 (Fed. Cir. 2002). VA is "liberal in determining what constitutes a Notice of Disagreement." Palmer v. Nicholson, 21 Vet. App. 434, 437 (2007); however, the Veteran's May 2010 Form 21-22a does not reflect disagreement with the adjudicative determination and desire for appellate review, which is required for a document to be considered an NOD. Indeed, the Form 21-22a did not identify a specific determination of the AOJ that the Veteran was expressing disagreement with. The Veteran did not specify which issue or even which rating decision that he was referring to. Moreover, the Veteran's attorney at the time submitted a records request dated nearly a year later, in August 2010. VA received the request on August 23, 2010, and responded with correspondence dated September 3, 2010, that a Privacy Act/Freedom of Information Act (FOIA) request was received. On September 23, 2010, the Veteran's attorney requested a copy of the Veteran's entire file via facsimile. The Veteran's attorney was provided with the complete claims file on September 26, 2010. Thus, the Veteran and his attorney would have had the opportunity to review the file and discover that there was no correspondence from the AOJ acknowledging receipt of an NOD. In addition, the Veteran submitted a claim for bipolar disorder in May 2015, which was considered and denied in an October 2015 rating decision. The Veteran was notified of the decision and his appellate rights in October 2015; however, he did not submit a notice of disagreement or new and material evidence within one year of notification. Thus, the October 2015 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.302, 20.1103. Accordingly, even if the Veteran's initial March 2009 claim was pending, the October 2015 rating decision provided a clear adjudication of a subsequent claim for the same disability. This decision clearly asserted why the Veteran's claim was denied. See, e.g, Munro v. Shinseki, 616 F.3d 1293, 199 (Fed. Cir. 2010); Ingram v. Nicholson, 21 Vet. App. 232, 243 (2007). Given this interim adjudication, the Veteran's claim could not have remained pending since March 2009. The evidence received since the October 2015 rating decision includes the Veteran's Board hearing testimony in September 2023, including testimony from a licensed professional counselor as a witness. Such testimony was not previously considered by the AOJ and relates to an unestablished fact necessary to substantiate the claim. Specifically, the evidence relates to a nexus between the Veteran's current bipolar disorder and his time in service. Therefore, the Board finds that new and material evidence has been received in order to reopen the claim for service connection for bipolar disorder. 38 C.F.R. § 3.156(a). Service Connection Service connection is warranted where the evidence of record establishes that an injury or disease resulting in disability was incurred in active military service or, if preexisting, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, to establish service connection, there must be evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See, e.g., Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after service discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776, 781 (Fed. Cir. 2021) (the claimant is entitled to the benefit-of-the-doubt when competing evidence is in "approximate balance" or "nearly equal"; exact equipoise is not required to trigger the favorable benefit-of-the-doubt rule). The Veteran contends his bipolar disorder began in service. See September 2023 Board Hearing Transcript, July 2019 VA Form 21-4138, Statement in Support of Claim. The Veteran's service treatment records (STRs) do not show any diagnosis of bipolar disorder. The Veteran submitted a letter from a VA Staff Physician with his initial claim in April 2009. Therein, the VA physician stated that the Veteran attended treatment appointments and his most current diagnoses included "Bipolar Affective [Disorder], Manic." VA treatment records in April 2009 and June 2009 corroborate this letter and diagnosis. The Board finds that evidence of record supports a finding of a current disability of bipolar disorder, satisfying the first element required for service connection. Regarding an in-service event or incurrence, the Veteran contends that his bipolar disorder manifested in service, shown through his conduct. Examples include drinking heavily and regularly, cyclical sleep problems, and legal misconduct including evading police and numerous speeding tickets. See May 2009 Correspondence. A March 2002 Screening completed in service noted that the Veteran had been driving under the influence in December 2001 and was scheduled to attend an alcohol impact class. During the September 2023 Board hearing, S.C., a licensed professional counselor, provided testimony regarding the Veteran's bipolar disorder. S.C. testified that it is at least as likely as not that the Veteran's "self-reported alcohol use during active duty as corroborated by the single reference to a DUI and alcohol rehab in the service medical records was a manifestation of the claimed bipolar disorder. I base this opinion on the fact that he repeatedly stated that the significant alcohol use and the decreased need for sleep manifested contemporaneously with his presence in field medical school and both continued to increase thereafter. The diagnostic and statistical manual also notes the risk for substance use associated with bipolar conditions." See September 2023 Board Hearing Transcript. S.C. further stated "[n]ext, it is my professional opinion that it is more likely than not . . . that the currently diagnosed condition had its onset during active duty." The DSM-V notes that the mean age at onset of the first manic, hypomanic, or major depressive episode is approximately 18 years for bipolar I disorder. The Veteran entered active duty approximately 10 weeks after turning 18 and he reports that his drinking and sleep related issues began to manifest while he was in his military occupational school which would've been sometime later that year. So, his stated onset of his symptoms is totally consistent with the DSM-V." The Board affords substantial probative weight to S.C.'s testimony. His opinion was based on an accurate review of the claims file, fully addressed the etiology of the Veteran's bipolar disorder, and considered the medical and lay evidence of record. The opinion is also supported by a clear and adequate rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As such, the Board finds that the in-service incurrence and nexus elements of service connection are met. Accordingly, entitlement to service connection for bipolar disorder is granted. J. SAIKH Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Saul, P. 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.