Citation Nr: 18142351 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 16-28 379 DATE: October 15, 2018 ORDER Whether new and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disorder. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. FINDINGS OF FACT 1. The Veteran’s claim for service connection for an acquired psychiatric disorder (claimed as mental anxiety) was denied in a December 2004 rating decision; the Veteran did not perfect an appeal. 2. The evidence submitted since the December 2004 rating decision, pertinent to the claim for service connection for an acquired psychiatric disorder, is neither cumulative nor redundant, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim.  CONCLUSIONS OF LAW 1. The December 2004 rating decision that denied the claim of entitlement to service connection for an acquired psychiatric disorder (claimed as mental anxiety) is final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 2. Since the December 2004 rating decision, new and material evidence has been received, and the claim of entitlement to 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 The Veteran served on active duty from August 1973 to June 1984. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. Claim to Reopen VA may reopen and review a previously denied claim if new and material evidence is submitted by or on behalf of the veteran. 38 U.S.C. § 5108 (2012). 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 (a). The United States Court of Appeals for Veterans Claims held in Shade v. Shinseki that the language of 38 C.F.R. § 3.156 (a) creates a low threshold to reopen, and emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159 (c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” 24 Vet. App. 110, 120-21 (2010). The provisions of 38 U.S.C. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). For purposes of the new and material analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). The Veteran originally filed a claim of service connection for mental anxiety in September 2004. In December 2004, the RO denied the claim of service connection for mental anxiety because there was no evidence showing current treatment for mental anxiety and/or its relationship to military service. At the time of the December 2004 denial, the evidence of record included the Veteran’s service treatment records and VA treatment records. Since December 2004, the Veteran has submitted lay statements and VA treatment records. VA treatment records reflect a positive screening for PTSD and depression. For the purposes of determining whether new and material evidence has been submitted, the Board finds that the low threshold to reopen the claim has been met because there is new evidence reflecting a current diagnosis of a psychiatric disorder, the absence of which was the basis of the previous denial. Based on the evidence, the claim for service connection for an acquired psychiatric disorder is reopened. To this extent, the appeal is granted. REASONS FOR REMAND AN ACQUIRED PSYCHIATRIC DISORDER is remanded. The Veteran asserts that he has an acquired psychiatric disorder, namely PTSD, depression, and anxiety that are related to service. Specifically, he asserts that such was caused by multiple near misses while conducting live fire exercises and a convoy incident in Weisbatan, Germany between 1983 and 1984 where electrical lines caused live rounds on a tank to explode. An August 1982 Report of Medical History for check-up reflects the Veteran’s complaint of worrying about everything and that sometimes he shook a lot and then would suddenly stop. He reported having had depression or excessive worry. The examiner wrote a note indicating that the Veteran’s nervousness and anxiety were not significant. An April 1984 Report of Medical History for separation reflects complaints of frequent trouble sleeping and depression or excessive worry. The Veteran further noted that he had been treated for a “nervous breakdown.” Post-service, VA treatment records show a positive screening for PTSD and depression. The record does not reflect that the Veteran has ever been afforded a VA examination regarding the etiology of any psychiatric disability. The Board finds the low standard in McLendon has been met and a VA examination is warranted. See 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Schedule the Veteran for a VA psychiatric examination. The examiner is asked to determine if the Veteran currently meets (or met at any time during the pendency of this appeal, even if currently resolved) the diagnostic criteria for a diagnosis of any psychiatric disorder, to include depression, anxiety, and/or PTSD. The examiner must clearly identify each psychiatric disorder found to be present at any point during the appeal. The examiner must opine as to whether it is at least as likely as not (a 50 percent or greater probability) that any currently diagnosed psychiatric disorder, to include depression, anxiety, and/or PTSD, if diagnosed, either commenced during or is otherwise etiologically related to the Veteran’s period of service. The examiner must consider the Veteran’s in-service complaints of nervousness and anxiety, frequent trouble sleeping, and depression or excessive worry upon the August 1982 and April 1984 Reports of Medical History. If PTSD is diagnosed, the examiner must identify the stressor or stressors upon which the diagnosis is based. If the examiner finds the Veteran currently does not, and did not at any time during the course of the appeal, meet the diagnostic criteria for a diagnosis of PTSD and/or depression, the examiner must explain why the current diagnosis of PTSD and/or depression, reflected in the record during the course of the appeal, is not a valid diagnosis. A complete rationale for the opinion is requested. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Gordon, Associate Counsel