Citation Nr: 18140935 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 16-18 639 DATE: October 9, 2018 ORDER New and material evidence having been presented, the claim of entitlement to service connection for an acquired psychiatric disorder is reopened. Entitlement to service connection for a schizoaffective disorder is granted. REMANDED Entitlement to service connection for hepatitis C is remanded. FINDINGS OF FACT 1. An unappealed June 2008 rating decision denied entitlement to service connection for an acquired psychiatric disorder, diagnosed as an adjustment disorder with depression. 2. Additional evidence has been received since the June 2008 rating decision that relates to an unestablished fact necessary to substantiate the previously denied claim of entitlement to service connection for an acquired psychiatric disorder, diagnosed as an adjustment disorder with depression. 3. The Veteran’s schizoaffective disorder was incurred in, or caused by, his military service. CONCLUSIONS OF LAW 1. The June 2008 rating decision that denied entitlement to service connection for an acquired psychiatric disorder, diagnosed as an adjustment disorder with depression, is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence has been received since the June 2008 rating decision that denied entitlement to service connection for an acquired psychiatric disorder, diagnosed as an adjustment disorder with depression. 38 U.S.C. §§ 1110, 5108, 7104; 38 C.F.R. §§ 3.104(a), 3.156. 3. The criteria for entitlement to service connection for a schizoaffective disorder have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 28, 1980 to July 23, 1980, and from April 1982 to April 1995 with additional periods of reserve service. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. A September 2012 rating decision confirmed the findings of the July 2011 rating decision. The Board notes that the Veteran has perfected an appeal to the Board concerning the assigned ratings of his left wrist condition and left wrist scar. Those issues will be addressed in a separate Board decision. 1. Whether new and material evidence has been presented to reopen the claim of entitlement to service connection for an acquired psychiatric disorder Initially, the Board notes that whenever a claim to reopen is filed, regardless of how it was characterized by the AOJ, the Board must make a de novo determination as to whether new and material evidence has been received. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). In general, VA rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.302. A finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as 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 (a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). VA must evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence, even if the new submission may support a new claim. 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). A June 2008 rating decision denied service connection for an adjustment disorder with depression because there was no evidence linking the Veteran’s psychiatric condition to his military service. The relevant evidence of record at the time included the Veteran’s service treatment records and VA treatment records. See June 2008 Rating Decision. The Veteran was notified of the June 2008 rating decision and of his appellate rights by letter dated June 30, 2008. The Veteran did not appeal. As such, the June 2008 rating decision is final in regard to the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. In December 2010, the Veteran filed a claim of entitlement to service connection for depression. Since the time of the June 2008 rating decision, additional relevant evidence, to include the Veteran’s testimony, lay statements, and a private medical opinion, has been added to the claims file. This evidence, not previously submitted to decision makers and relating to an unestablished fact necessary to substantiate the claim, raises a reasonable possibility of substantiating the claim and is thus new and material. 38 C.F.R. § 3.156(a). Therefore, the claim for service connection for an acquired psychiatric disorder is reopened. 2. Entitlement to service connection for an acquired psychiatric disorder Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent medical or lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran asserts that his acquired psychiatric disorder had its initial onset during his active duty service. Specifically, he stated that his acquired psychiatric disorder is related to several in-service incidents, including being threatened with a knife in Hawaii and being stabbed on a separate occasion. In this regard, the Veteran is competent to report experiencing these in-service incidents. See Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that a Veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge); Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson, 581 F.3d 1313. The Veteran has been diagnosed with schizoaffective disorder, depressed type, severe. See December 2017 Psychological Consultation. Accordingly, the Board finds that he has a current disability. See Davidson, 581 F.3d 1313. In support of his claim, the Veteran submitted a clinical evaluation from a private psychologist. The psychologist, taking into account the Veteran’s psychological symptomatology history, stated that he has a diagnosis of schizoaffective disorder, depressed type, severe. The psychologist opined that the Veteran’s psychiatric disorder is at least as likely as not related to his military service, specifically his reported in-service stabbing and being threatened with a knife in Hawaii. See December 2017 Psychological Consultation. The Board notes that there is a negative etiological opinion of record in the form a September 2015 VA examination report. However, the September 2015 examination report only addressed the etiology of the Veteran’s unspecified personality disorder. See September 2015 Mental Disorders Disability Benefits Questionnaire (DBQ). As the examination report did not address the full scope of the Veteran’s acquired psychiatric disorder claim, the Board finds that the September 2015 examination report is inadequate. See Barr, 21 Vet. App. 303. In sum, the Veteran has a current psychiatric disorder which has been attributed to his military service by competent medical evidence. The Board finds that the criteria for entitlement to service connection have been satisfied. See Davidson. 581 F.3d 1313. Accordingly, service connection for schizoaffective disorder, depressed type, is granted. REASONS FOR REMAND Entitlement to service connection for hepatitis C is remanded. The Veteran claims entitlement to service connection for hepatitis C. Specifically, he asserts that he contracted hepatitis C as a result of air gun inoculations received during his active duty service. See November 2011 Correspondence; March 2014 Decision Review Officer (DRO) Hearing Transcript. Given the evidence of several in-service immunizations and vaccinations, the Board finds that an examination is required to obtain a medical opinion addressing the etiology of the Veteran’s hepatitis C. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Make arrangements to obtain the Veteran’s VA treatment records, dated from January 2017, forward. 2. Thereafter, schedule the Veteran for a VA examination with an appropriate examiner to determine the etiology of his hepatitis C. The entire claims file must be reviewed by the examiner in conjunction with the opinion. The examiner should confirm in the examination report that he or she has reviewed the folder. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s hepatitis C is related to any incident of service, to include his in-service immunizations and vaccinations. A supporting rationale for all opinions expressed must be provided. If the examiner is unable to provide any opinion as requested, the examiner should fully explain the reason why such opinion could not be rendered. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. M. Stedman, Associate Counsel