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New & Material and Nexus Question


cryingbear

Question

The rater denied the claim because of no new&material evidence. 

Here is the rating for bipolar disorder:

The evidence you submitted is not new and material. Therefore, your claim is not reopened .  It is not material because it does not relate to an unestablished fact necessary to substantiate the claim and/or does not raise a reasonable possibility of substantiating the claim to show objective evidence of worsening of a pre-existing condition since this condition existed prior to service. The evidence does not show that your condition, which existed prior to service permanently worsened as a result of service.

This is an examination that was not considered because there was no evidence of worsening:

There is no evidence to support that the veteran: "clearly and unmistakably" was diagnosed with bipolar disorder prior to his military service. Based on this C & P Mental Health exam and on the veteran's claim and on the available medical evidence; his mood disorder only became evident when he was first treated at Travis AFB for Dysthymia (a form of minor depression). One month later this diagnosis was changed to Major Depression.  Based on the above statement it can be said t.hat the veteran's mood disorder (bipolar disorder) was first manifested in the year 2004 when he began to have symptoms of depression and followed years later by having had a manic or mixed episode.  The diagnosis of bipolar disorder cannot be made unless the person has one or more episodes of mania, hypomania or mixed in addition to having a history of recurrent major depressive episodes. It may take years for the full condition to develop. Therefore bipolar disorder is chronologically related to his time in the military. 

The examiner didn't use the language "at least as likely as not" but used "based on the above statement it can be said" and  without the words "at least as likely as not" chronologically related to his time in the military, will opinion be okay for as new and material evidence and nexus requirement?

I have a DRO review pending but believe they are going to rubber stamp the denial.  However, I do not want to go to the BVA to be remanded for another exam because of the language used in the examination.  There were no notes on my entrance exam so the presumption of soundness never applied either.

What do you guys think?

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