Citation Nr: 1802350 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 16-20 752 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Whether new and material evidence has been submitted to reopen service connection for major depressive disorder, and if so, whether service connection is warranted. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran served on active duty from July 2006 to November 2006 and she had additional service with the Washington Air National Guard. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office in Seattle, Washington (RO). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2014). The issue of entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In an unappealed July 2013 rating decision, the RO denied the Veteran's claim to reopen service connection for major depressive disorder. 2. New and material evidence has been received to reopen service connection for an acquired psychiatric disorder, to include major depressive disorder. CONCLUSIONS OF LAW 1. The July 2013 rating decision which denied reopening service connection for major depressive disorder is final. 38 U.S.C. § 7104 (2014); 38 C.F.R. § 20.1103 (2017). 2. The evidence received subsequent to the July 2013 rating decision is new and material to reopen service connection for an acquired psychiatric disorder, to include major depressive disorder. 38 U.S.C. § 5108 (2014); 38 C.F.R. §§ 3.156 (a), 3.303, 20.1105 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2016); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). Because the Board is granting the appeal to reopen service connection for major depressive disorder and is remanding the claim for service connection, the Board need not address whether VA has met its duties to notify and assist the Veteran at this time. Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. "New" evidence means evidence "not previously submitted to agency decisionmakers." 38 C.F.R. § 3.156 (a). "Material" evidence means "evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim." Material evidence is: (1) evidence on an element where the claimant initially failed to submit any competent evidence; (2) evidence on an element where the previously submitted evidence was found to be insufficient; (3) evidence on an element where the appellant did not have to submit evidence until a decision of the Secretary determined that an evidentiary presumption had been rebutted; or (4) some combination or variation of the above three situations. Kent v. Nicholson, 20 Vet. App. 1 (2006). In order to be "new and material" evidence, the evidence must not be cumulative or redundant, and "must raise a reasonable possibility of substantiating the claim," which has been found to be enabling, not preclusive. See Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991). Further, RO decisions become final "only after the period for appeal has run," and "[a]ny interim submissions before finality must be considered by the VA as part of the original claim." Jennings v. Mansfield, 509 F.3d 1362, 1368 (Fed. Cir. 2007). If new and material evidence is received within one year after the date of mailing of an RO decision, it may be "considered as having been filed in connection with the claim which was pending at the beginning of the appeal period that prevents an initial determination from becoming final." King v. Shinseki, 23 Vet. App. 464, 466-67 (2010). When VA fails to consider new and material evidence submitted within the one-year appeal period pursuant to § 3.156(b), and that evidence establishes entitlement to the benefit sought, the underlying RO decision does not become final. Young v. Shinseki, 22 Vet. App. 461, 466 (2009); see also Buie v. Shinseki, 24 Vet. App. 242, 252 (2011). When statements are received within one year of the rating decision, the Board's inquiry is not limited to whether those statements constitute notices of disagreement but whether those statements include the submission of new and material evidence under 38 C.F.R. § 3.156 (b). Id. The RO previously denied service connection for major depressive disorder in a February 2010 rating decision. The Veteran did not appeal the February 2010 decision, and no evidence addressing the claim was received within one year of the issuance of the decision. For these reasons, the denial of service connection for major depressive disorder in February 2010 was final. In a July 2013 rating decision, the RO denied a claim to reopen service connection for major depressive disorder. The Veteran did not appeal the July 2013 decision, and no evidence addressing the claim was received within one year of the issuance of the decision. While the Veteran submitted a December 2014 statement indicating that she was not notified of the results of the claim to reconsider service connection for depression, the record shows that notice of that decision was mailed to the Veteran at her last known address of record in July 2013. It is presumed that government officials "have properly discharged their official duties." United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926). VA need only mail notice to the last address of record for the presumption to attach. Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994). This presumption of regularity in the administrative process may be rebutted by "clear evidence to the contrary." Schoolman v. West, 12 Vet. App. 307, 310 (1999). The Board finds that the Veteran has not provided clear evidence showing that she did not receive the July 2013 notification letter and the Board may presume that such notification was received by the Veteran in a timely manner. Thus, the Board finds that the denial of the claim to reopen service connection for major depressive disorder in July 2013 was final. The RO denied service connection for major depressive disorder because there was no evidence linking the condition to a period of active military service, and because new and material evidence addressing the claim had not been submitted. Accordingly, new and material evidence must tend to establish a nexus between currently the diagnosed acquired psychiatric disorder and active duty service. New evidence, relating to the claim for service connection received since July 2013 includes a letter from the Veteran's family practice physician identifying an initial diagnosis of depression in July 2007 with no prior evaluation for depression prior to that time, December 2007 treatment records indicating that the Veteran was not deployable due to the potential lack of access to health care and medication for depression, and lay witness statements identifying a change in the Veteran's mood and noting symptoms of depression after she returned from boot camp in 2006. The Board finds that the new evidence submitted is material, and indicates that the Veteran's depression may have been incurred during a period of ADT, or may be related to active duty service from July 2006 to November 2006. Accordingly, the Board finds that new and material evidence sufficient to reopen service connection for an acquired psychiatric disorder, to include major depressive disorder has been received, and the claim is reopened. See 38 C.F.R. § 3.156. However, further development is necessary before the Board can address the merits of the claim. ORDER New and material evidence having been received, the appeal to reopen service connection for an acquired psychiatric disorder, to include major depressive disorder, is granted. REMAND Service connection may be granted for any disease diagnosed after 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) (2017). Active military, naval, or air service includes any period of active duty for training (ADT) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in the line of duty, or any period of inactive duty training (IADT) during which the individual concerned was disabled or died from an injury incurred in or aggravated in the line of duty. 38 U.S.C. § 101 (21) and (24) (2014); 38 C.F.R. § 3.6 (a) and (d) (2017). ADT includes full-time duty performed for training purposes by members of the Reserves and National Guard of any state. 38 U.S.C. § 101 (22) (2014); 38 C.F.R. § 3.6 (c)(1) and (3). Thus, service connection may be granted for a disability resulting from a disease or injury incurred or aggravated while performing ADT, or from an injury incurred or aggravated while performing IADT. 38 U.S.C. §§ 101 (24), 106, 1110 (2014). The Veteran contends that she was diagnosed with major depressive disorder in service, and National Guard service treatment records identify an initial diagnosis in July 2007. It is not clear, however, whether an acquired psychiatric disorder was incurred during a period of ADT. On remand, the AOJ should verify periods of ADT performed by the Veteran while serving with the Air National Guard. Thereafter, the AOJ should obtain a VA examination to address service connection for an acquired psychiatric disorder, to include major depressive disorder. The Board notes that the Veteran was initially diagnosed with an adjustment disorder prior to enlistment, but re-evaluation in February 2006, prior to service entrance, indicates that there was no significant psychiatric disorder present. In light of the conflicting medical evidence at service entrance, the Board has requested an opinion to address direct service connection, rather than aggravation of a pre-existing acquired psychiatric disorder. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The AOJ should verify through official sources periods of active duty for training (ADT) performed by the Veteran while serving with the Washington Air National Guard. This should include, but is not limited to, contacting the U.S. Army and Joint Services Records Research Center (JSRRC) or the Washington Air National Guard unit with which the Veteran was stationed to verify all dates of National Guard service. 2. After all available evidence has been associated with the record, the AOJ refer the case for a VA examination to address whether an acquired psychiatric disorder, to include major depressive disorder, was incurred in service, to include verified periods of ADT. The record should be made available for review in connection with this request, and the AOJ should provide the examiner with a listing of the Veteran's ADT service periods. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that an acquired psychiatric disorder (to include depression) was incurred in or is otherwise related the Veteran's active duty service from July 2006 to November 2006 or a verified period of ADT. The examiner should provide a rationale for his or her opinion with reference to the evidence of record. In providing the opinion, the VA examiner should note the Veteran's July 2007 diagnosis of depression shown in National Guard service treatment records and noted in private treatment reports. If the requested opinion cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion, as well as specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided. 3. Thereafter, the AOJ should readjudicate claim. If the benefits sought remain denied, the Veteran and her representative should be furnished a supplemental statement of the case, and should be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. The appellant 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 (2014). ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs