BVA9415737 DOCKET NO. 92-07 381 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUE Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for a psychiatric disorder. REPRESENTATION Appellant represented by: Guam Office of Veterans Affairs ATTORNEY FOR THE BOARD Thomas H. Tousley, Associate Counsel INTRODUCTION The veteran had active military service from May 1980 to January 1982. The Department of Veterans Affairs (VA) Regional Office (RO) in San Francisco, California, denied the veteran's claim for entitlement to service connection for a psychiatric disorder by a rating decision in December 1986. The veteran did not appeal the rating decision after a letter was mailed to her at her last known address that notified her of the rating decision, her appellate rights, and the time limit in which to initiate an appeal. This matter initially came before the Board of Veterans' Appeal (Board) on appeal of an April 1991 rating decision by the Honolulu, Hawaii RO that the veteran had not submitted new and material evidence to reopen her claim for service connection for a psychiatric disorder. By a decision dated in January 1993, the Board determined that the veteran had not submitted new and material evidence to reopen her claim for entitlement to service connection for a psychiatric disorder. In July 1994, the United States Court of Veterans Appeals (Court), pursuant to a Motion For Remand And To Stay Proceedings submitted by the VA General Counsel, vacated the Board's January 1993 decision, and remanded the case to the Board for compliance with the instructions in the motion for remand. [citation redacted]. REMAND The motion for remand instructed the Board to determine whether the veteran had submitted a well grounded claim for service connection for a psychiatric disorder. The veteran has the "initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a) (West 1991). "A well grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Solely for the purpose of determining whether or not there is a well grounded claim, evidence submitted by the claimant will be presumed credible. King v. Brown, 5 Vet.App. 19, 21 (1993). The service medical records show that the veteran was brought by her boyfriend to an emergency room of a service medical facility in June 1981 after she had become agitated and began crying and striking out. She displayed a disruptive mood and a highly agitated thought content. A treating physician diagnosed an adjustment disorder, with possible underlying histrionic personality traits. Her unit commander noted during service that she had not failed to perform her military duties, but recommended that she be administratively discharged from service because she was incapable of handling the daily stresses and discipline of the military. She was administratively discharged from service in January 1982 for failure to maintain acceptable standards for retention. As a result of a psychiatric hospitalization of the veteran from March 1986 to April 1986 following the onset of manic type behavior and suicidal ideation, the diagnosis of bipolar affective disorder with mixed affective features was made. A psychiatrist, Anna Spielvogel, M.D., treated the veteran from 1989 to 1990 for acute episodes of the bipolar disorder and in April 1990 noted a history of the disorder since 1981. The veteran contended in her September 1991 Substantive Appeal that her psychiatric symptomatology, which had continued to this day, did not appear until she had been in service for more than a year. In light of the presumption of credibility for evidence submitted to establish a well grounded claim, the Board determines that the veteran's claim for service connection for a psychiatric disorder is plausible based on Dr. Spielvogel's notation of a history of the veteran's bipolar disorder since 1981, the evidence of the veteran's psychiatric symptomatology during service, and the veteran's evidentiary assertions regarding the continuity of psychiatric symptomatology since service. Therefore, her claim is well grounded. Once the veteran has submitted a well-grounded claim, the VA has a duty to assist her in the development of her claim. Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). On the VA Form 21-4138, dated in April 1991, the veteran indicated that additional information could be obtained from Dr. Spielvogel, and that medical records were also located at a particular VA medical facility. If the VA has been placed on notice that relevant records exist, the VA has a duty to obtain the records. Ivey v. Derwinski, 2 Vet.App. 320, 322 (1992). Therefore, a remand is required to attempt to obtain any other available relevant medical records. In addition, in view of the similarity of some of the veteran's psychiatric symptomatology during and after service, the case presents questions about the relationship, if any, between the symptoms which were diagnosed as an adjustment disorder during service and the diagnosis of a bipolar disorder after service. The duty to assist includes the obtaining of a thorough and contemporaneous review of the pertinent medical evidence by a physician who can render a medical opinion that may remove diagnostic doubt. See Green v. Derwinski, 1 Vet.App. 121, 123- 124(1991). Therefore, a remand is also required to obtain a medical opinion by a psychiatrist who has reviewed the veteran's claims folder. To ensure that VA has met its duty to assist the appellant in developing the facts pertinent to the claim, the case is REMANDED to the RO for the following development: 1. The RO should obtain the veteran's medical records from the VA medical facility or facilities in Martinez, California, and associate them with the claims folder. 2. After receiving the proper authorization from the veteran, the RO should attempt to obtain, in addition to the two letters already of record, the veteran's treatment records from the veteran's treating psychiatrist, Anna Spielvogel, M.D., in San Francisco, California and from San Francisco General Hospital. 3. The RO should request the veteran to provide the names and addresses of any other physicians and medical facilities from which she has received psychiatric treatment since separation from service. After receiving the proper authorization from the veteran, the RO should attempt to obtain any additional medical records. 4. Once the action requested in the first three paragraphs has been completed, the RO should request that a psychiatrist review the claims folder and offer an opinion as to whether any psychiatric disorder diagnosed or present after service, including any current psychiatric disorder, was present during service. The reviewing psychiatrist is also requested to provide a diagnosis of all current psychiatric disorders by use of the multiaxial system. If deemed necessary by the reviewing psychiatrist before rendering an opinion, the veteran should be afforded a psychiatric examination by the reviewing psychiatrist. Therefore, the claims folder, with any additional medical records obtained, must be made available to the psychiatrist for review prior to rendering any opinion. 5. Once the action requested in the paragraphs above has been completed, the RO should determine whether new and material evidence has been received to reopen the veteran's claim for service connection for a psychiatric disorder. "'New' evidence is that which is not merely cumulative of other evidence of record. 'Material' evidence is that which is relevant to and probative of the issue at hand and which...must be of sufficient weight or significance (assuming its credibility) that there is a reasonable possibility that the new evidence, when viewed in context of all the evidence, both new and old, would change the outcome." Cox v. Brown, 5 Vet.App. 95, 98 (1993). All the evidence received since the December 1986 rating decision must be considered in making this determination. See Glynn V. Brown, No. 92- 1347 (U.S. Vet. App. Jun. 21, 1994). If the RO determines the claim has been reopened, then all the evidence or record must be considered in deciding the veteran's claim. See Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). If the benefit sought on appeal is not granted, the veteran and her representative should be furnished a supplemental statement of the case, and they should be afforded the applicable period of time to respond before the record is returned to the Board for further review. The purpose of this REMAND is to obtain additional evidentiary development to assist the veteran in the development of her claim. The Board does not intimate any opinion, either favorable or unfavorable, at this time. No action is required of the veteran until she is notified. WARREN W. RICE, JR. Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1993).