Citation Nr: 1802249 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-19 942A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder, to include anxiety. 2. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety. REPRESENTATION Veteran represented by: Larry Schuh, Attorney WITNESSES AT HEARING ON APPEAL Veteran and Spouse ATTORNEY FOR THE BOARD S. A. Prinsen, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from August 1967 to July 1970. This matter is before the Board of Veterans' Appeal (Board) on appeal of a September 2012 rating decision of the Montgomery, Alabama Regional Office (RO) of the Department of Veterans Affairs (VA). In July 2017, the Veteran testified at a Board hearing. The transcript is of record. The issues have been recharacterized to comport with the evidence of record. The issue of entitlement to service connection for anxiety has been recharacterized as service connection of a psychiatric disorder in accordance with Clemons v. Shinseki, 23 Vet. App. 1 (2009). The issue of entitlement to service connection for anxiety is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. By a May 2011 rating decision, the RO denied the Veteran's claim for service connection for anxiety disorder, to include depression, anxiety, and severe sleeping problem; he was advised of the RO's decision, and of his appellate rights. 2. The Veteran did not initiate an appeal of the RO's decision within one year; nor was new and material evidence received within a year. 3. Additional evidence received since the RO's May 2011 decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for an acquired psychiatric disability and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The RO's May 2011 rating decision to deny service connection for anxiety is final. 38 U.S.C. §§ 7105 (2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2017). 2. New and material evidence has been received to reopen the Veteran's claim for service connection for an acquired psychiatric disorder, to include anxiety. 38 U.S.C. §§ 1110, 5108 (2012); 38 C.F.R. §§ 3.303, 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A claim may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Evidence is considered "new" if it was not previously submitted to agency decision makers. "Material" evidence is existing 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 prior 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). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the "credibility" of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence, and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Evidence "raises a reasonable possibility of substantiating the claim," if it would trigger VA's duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). In the May 2011 rating decision, service connection for anxiety was denied because the VA examiner opined that the Veteran's anxiety likely predated his military service and stated it was not possible to find anxiety related to military service. The evidence received since the time of the RO's May 2011 rating decision includes a statement from the Veteran explaining that he did not have psychiatric problems until his military service and a letter from the Veteran's doctor containing a diagnosis of post-traumatic stress syndrome associated with significant depression. This evidence was not before adjudicators when the Veteran's claim was last denied in May 2011 and it is not cumulative or redundant of the evidence of record at the time of that decision. It also relates to an unestablished fact necessary to substantiate the claim for service connection for an acquired psychiatric disorder and raises a reasonable possibility of substantiating the claim. Accordingly, the claim is reopened. ORDER As new and material evidence has been received, the previously denied claim of entitlement to service connection for anxiety is reopened. REMAND Although the Board sincerely regrets additional delay, a remand is necessary to afford the Veteran due process of law and to ensure that there is a complete record upon which to decide the Veteran's appeal, so as that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). A veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service except as to defects, infirmities, or disorders noted at the time of examination, acceptance, enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304. "Clear and unmistakable evidence means that the evidence 'cannot be misinterpreted and misunderstood, i.e., it is undebatable." Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009) (citing Vanerson v. West, 12 Vet. App. 254, 258-59 (1999)). The record contains a VA examination, which stated that the Veteran's anxiety disorder cannot be attributed to service because it likely predated military service. However, the record does not show that a psychiatric disability was noted upon entry to service nor are there records showing treatments or a diagnosis of a psychiatric disability prior to service. The VA opinion is insufficient to meet the evidentiary standard required to rebut the presumption of soundness. Accordingly, the presumption of soundness has attached with respect to any psychiatric disability manifested in service, and the rebuttal of such requires clear and unmistakable (obvious or manifest) evidence that the disability predated service. Therefore, a remand is necessary to obtain a VA examination to obtain etiological opinions regarding the Veteran's current acquired psychiatric disabilities. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA treatment records and private treatment records for the Veteran's treatment of an acquired psychiatric disability. All records/responses received must be associated with the electronic claims file. If such records are unavailable, the Veteran's claim file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Schedule the Veteran for a VA examination by a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted; ensure the VA treatment records and any private treatment records are available for the VA examiner to review prior to examination. The entire claims file, to include all electronic files, must be reviewed by the examiner. All indicated tests and studies should be accomplished. The examiner must provide a diagnosis for each psychiatric disability found. If the examiner diagnoses the Veteran with PTSD, he or she must specify the stressor or stressors underlying the diagnosis. For each acquired psychiatric disorder, the examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that such disability was either incurred in or is otherwise related to, the Veteran's active military service. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a 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. additional facts are required, or the examiner does not have the needed knowledge or training). 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ KRISTI L. GUNN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs