Citation Nr: 18140511 Decision Date: 10/03/18 Archive Date: 10/03/18 DOCKET NO. 16-24 948 DATE: October 3, 2018 ORDER The application to reopen the previously denied claim of entitlement to service connection for a psychiatric disability, to include anxiety and depression, is granted. REMANDED Entitlement to service connection for a psychiatric disability, to include anxiety and depression, is remanded. Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. In a December 2013 rating decision, the RO denied entitlement to service connection for a psychiatric disability, to include anxiety, because there was no evidence of an in-service incurrence of the disability and the appellant’s private treatment records related his post-service anxiety to the recent passing of his brother. The appellant was informed of this decision and his appellate rights in a December 10, 2013 letter. The appellant did not appeal within the applicable period, nor was new and material evidence received in the year following notification of the decision. 2. Evidence received since the last final decision in December 2013 denying entitlement to service connection for a psychiatric disability is related to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the service connection claims. CONCLUSIONS OF LAW 1. The December 2013 rating decision denying entitlement to service connection for a psychiatric disability, to include anxiety, is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received to warrant the reopening of the previously denied claim of entitlement to service connection for a psychiatric disability, to include anxiety and depression. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty in the United States Army from May 1969 to May 1971. New and Material Evidence In general, decisions of the RO and the Board that are not appealed in the prescribed period are final. See 38 U.S.C. 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. For claims such as this one, filed on or after August 29, 2001, new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means 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. 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) (in determining whether evidence is new and material, the credibility of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). 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. The appellant’s original claim for entitlement to service connection for a psychiatric disability was denied in a December 2013 rating decision. The appellant’s claim was denied because private medical records submitted with the claim did not indicate that the appellant’s diagnosed anxiety was related to his active duty service and because the appellant’s service treatment records did not indicate an in-service diagnosis of the disability. The appellant was notified of this decision and his appellate rights in a December 10, 2013 rating decision. The appellant did not submit a notice of disagreement nor was new and material evidence received within 1 year from this notification letter. As such, the Board finds that the December 2013 rating decision is final. The appellant filed to reopen his claim for entitlement to service connection for a psychiatric disability, to include both anxiety and depression, in June 2015. In developing the claim to reopen, the RO obtained the appellant’s VA mental health treatment records from July 2015 to March 2016. These records indicate that the appellant has a current psychiatric disability which includes elements of depression and anxiety. Further, records from February 2016 indicate there may be some causal connection between the appellant’s current psychiatric disability and his active service as he discussed his service in Vietnam and how it relates to his current depression. The Board finds that this evidence is new, as it was not of record at the time of the December 2013 rating decision. Further, the Board finds this evidence material, as it triggers the Secretary’s duty to assist. See Shade v. Shinseki, 24 Vet. App. at 118; see also McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006) (holding that VA’s duty to assist includes providing a medical examination or obtaining a medical opinion when there is an indication that the disability may be associated with a veteran’s service). Therefore, the Board finds that the claim for entitlement to service connection for a psychiatric disability is reopened. As discussed below, the Board finds that remand is necessary prior to adjudicating this claim. REASONS FOR REMAND 1. Entitlement to service connection for a psychiatric disability, to include anxiety and depression, is remanded. The appellant contends that his current psychiatric disability, to include anxiety and depression, is related to his active duty service. The appellant asserts that he suffers from survivor’s guilt over having lost friends in Vietnam. The appellant has also asserted that he has had anxiety since his active duty service, and that he still has anxiety from not knowing whether he would be deployed to Vietnam. The Board notes that the appellant’s military personnel records reveal he was classified as a conscientious objector. After a review of the evidence of record, the Board cannot make a fully-informed decision on the issue of entitlement to service connection for a psychiatric disability because no VA examiner has opined whether the appellant’s psychiatric disability, which now includes a diagnosis of depression, is related to his active service. As such, the Board finds that remand is necessary to obtain a VA examination and medical opinion on the nature and etiology of the appellant’s current psychiatric disability. 2. Entitlement to service connection for sleep apnea is remanded. The appellant asserts that he has sleep apnea which is related to his active duty service. In an August 2015 rating decision, the RO denied the appellant’s claim because there was no evidence of record that the appellant had a diagnosis of sleep apnea. After a review of the evidence of record, the Board finds that further development is necessary prior to adjudicating this claim. VA treatment records from March 2016 reveal the appellant was awaiting a sleep study to determine whether he had a diagnosis of sleep apnea, or some other sleeping disorder, and that it was being conducted, or at least scheduled, through the VA health system. As the appellant’s VA treatment records from March 2016 to the present are not of record, the Board finds that these records should be obtained prior to adjudicating this claim, as they may contain evidence of a current sleep disability. As such, remand is necessary to obtain these records. The matters are REMANDED for the following action: 1. Obtain the appellant’s VA treatment records for the period from March 2016 to the present. 2. Schedule the appellant for an examination to determine the nature and etiology of any current psychiatric disability. After examining the appellant and reviewing the record, the examiner should identify all current psychiatric disabilities and provide an opinion, with supporting rationale, as to whether it is at least as likely as not that any diagnosed disability is related to the appellant’s active service, including his reported fears of being deployed to Vietnam and his reported survivor’s guilt over losing a friend in Vietnam while he served in Germany. K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Kleponis, Associate Counsel