Citation Nr: 1804855	
Decision Date: 01/25/18    Archive Date: 02/05/18

DOCKET NO.  14-12 894	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim of service connection for an acquired psychiatric disorder, to include generalized anxiety disorder and depression.

2.  Entitlement to service connection for an acquired psychiatric disorder, to include generalized anxiety disorder and depression.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

R. Brunot, Associate Counsel


INTRODUCTION

The Veteran served in the United States Marine Corps from August 1979 to August 1983.  

This matter comes before the Board of Veterans' Affairs (Board) from a March 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. 

The issue of service connection for an acquired psychiatric disorder, to include anxiety and depression is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The Veteran's claim for service connection for depression was considered and previously denied by the RO in an October 2000 rating decision.  The Veteran was notified of this decision and his appellate rights and did not file a Notice of Disagreement (NOD) or submit new evidence within 1 year of the rating decision.

2.  The evidence of record since the October 2000 rating decision is not cumulative of evidence previously of record and relates to an unestablished fact necessary to substantiate the claim for service connection for an acquired psychiatric disorder.


CONCLUSIONS OF LAW

1.  The October 2000 rating decision that denied the Veteran's claim for service connection for depression is final.  38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.201, 20.202, 20.302, 20.1103 (2017).

2.  The evidence received since the October 2000 rating decision is new and material, and the claim for service connection for an acquired psychiatric disorder is reopened.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service.  38 U.S.C. §§ 1110, 1131 (2012).  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b) (2017).  Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d) (2017).

To reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108.  New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with 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 purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed.  See Justus v. Principi, 3 Vet. App. 510, 513 (1992).

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.

In an October 2000 rating decision, the RO determined that the Veteran's depression was not due to any incident in his military service.  The RO noted there was no evidence of any complaints or treatment for any psychiatric disorder in service.  Furthermore, the RO noted there was a lack of diagnosis for any psychiatric disorder.  The Veteran was notified of that decision and his appeal rights; however, he did not file an appeal.  There was also no new and material evidence received within one year of the issuance of the decision.  Thus, the October 2000 rating decision is final.  38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.302, 20.1103 (2017).

In November 2011, the Veteran filed an application to reopen the claim.  The evidence received since the October 2000 rating decision includes the Veteran's more recent VA treatment records, his Social Security Administration (SSA) records, his VA examination reports, and his lay statements.  The records documented that the Veteran has depression and generalized anxiety disorder.  The additional treatment records noted the Veteran's continued treatment for his psychiatric disorders.  Moreover, the Veteran's lay statements documented his mistreatment in service from his fellow comrades.  Furthermore, the lay statements from the Veteran indicated that he was experiencing these symptoms in service but did not feel comfortable speaking about these symptoms in service.  The Board finds that the new evidence triggers the VA's duty to assist by requiring a VA examination and medical opinion.  See Shade, 24 Vet. App. 110.  Thus, the Board concludes that new and material evidence has been received to reopen the Veteran's claim for an acquired psychiatric disorder.  38 C.F.R. § 3.156(a).  However, as discussed below, the Board is of the opinion that further development is necessary before the merits of the Veteran's claim can be addressed.


ORDER

New and material evidence having been submitted, the claim for service connection for an acquired psychiatric disorder, to include depression and anxiety, and to this extent only, the appeal is granted.


REMAND

The Board concludes this case must be remanded to afford the Veteran an opportunity to have a VA examination for his psychiatric disorders.  A VA examination is required when there is an indication that the disability may be associated with the Veteran's service.  McClendon v. Nicholson, 20 Vet. App. 79 (2006).  The Board acknowledges the Veteran received a VA examination in March 2012 and a subsequent opinion in April 2013.  However, once VA undertakes the effort to provide an examination, it must provide an adequate one.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  The Board finds the following examinations inadequate as they did not consider the Veteran's lay statements that he has been experiencing depression and anxiety symptoms since service.  The Board notes the March 2012 VA examiner concluded in part the Veteran's psychiatric disorder was not related to service due to the lack of in-service treatment.  The VA examiner must consider the Veteran's lay statements when coming to a conclusion.  At his March 2012 VA examination, the Veteran asserted that his As the Veteran has asserted that his service-connected knee disabilities caused or aggravated his psychiatric disability.  The March 2012 VA examination report provides an opinion as to the causation prong of a secondary service connection claim.  38 C.F.R. § 3.310.  However, no opinion was provided as to the aggravation prong.  Furthermore, the evidence of record now contains the Veteran's Social Security Administration Records, which were not previously considered.  

Accordingly, the case is REMANDED for the following action:

1.  The Veteran should be afforded a VA examination to determine the nature and etiology of his psychiatric disorders.  The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated.

Then, for each psychiatric diagnosis rendered, the examiner must provide an opinion as to the following: 

a. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's psychiatric disorders began during active service; or are related to an incident of service, including the bullying the Veteran experienced from his fellow comrades; or, if a psychosis is diagnosed, whether it began within one year after discharge from active service. 

b. Whether it is at least as likely as not that the Veteran's psychiatric disorders were aggravated beyond their natural progression by his service-connected knee disabilities.  

The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report.  If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion.

2.  If the benefit sought on appeal is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.  

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).




______________________________________________
D. Martz Ames
Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs