Citation Nr: 18142693 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 15-20 486 DATE: October 17, 2018 ORDER The petition to reopen the claim of entitlement to service connection for an acquired psychiatric disability, to include generalized anxiety disorder and a nervous condition, is granted; the appeal is granted to this extent only. REMANDED The claim of entitlement to service connection for an acquired psychiatric disability, to include generalized anxiety disorder and a nervous condition, is remanded. FINDING OF FACT 1. In November 1985, the RO denied service connection to the Veteran’s claimed acquired psychiatric disability, specifically drug and alcohol abuse. The Veteran was notified of his rights but did not file a timely substantive appeal. 2. The Veteran’s service treatment records, in existence at the time of the November 1985 rating decision, were associated with the claims file in December 2014, after the November 1985 rating decision. CONCLUSION OF LAW 1. The November 1985 rating decision denying the claim of entitlement to service connection to an acquired psychiatric disability, specifically drug and alcohol abuse is final. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2018). 2. The Veteran’s service treatment records, in existence at the time of the November 1985 rating decision, were associated with the claims file after the November 1985 rating decision. As such, new and material evidence is not necessary to reopen the claim. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service with the United States Army from November 1974 to July 1975. The Veteran was discharged under honorable conditions. The Veteran is a Vietnam Era Veteran. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a February 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran’s claims for drug and alcohol abuse, nervous condition, schizophrenia, and depression have been expanded as reflected on the title page. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (finding that a service connection claim for a diagnosed psychiatric disability encompasses all psychiatric disabilities shown by the record, however diagnosed). In any case involving a finally denied claim, the Board must address whether new and material evidence has been received to reopen before addressing the merits of the claim, regardless of whether or not the Agency of Original Jurisdiction has already addressed the question. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 239-240 (1995). The Board notes that the Veteran requested a hearing before the Board in his May 2015 VA Form 9. The Veteran subsequently withdrew his request for a hearing in a July 2017 communication with the Board. As such, the Veteran has waived his right to a hearing, and this issue is properly before the Board. The Board further notes that the Veteran’s representative has submitted an informal hearing presentation on his behalf. The appeal is REMANDED to the Agency of Original Jurisdiction. VA will notify the Veteran if further action is required. Whether new and material evidence has been submitted sufficient to reopen a claim for entitlement to service connection for a psychiatric disability, to include generalized anxiety disorder and a nervous condition, Governing regulations provide that an appeal consists of a timely notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200 (2018). Rating actions from which an appeal is not timely perfected become final. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. § 20.1103 (2018). Under 38 U.S.C. § 5108 (2012), VA may reopen a previously and finally disallowed claim when “new and material” evidence is presented or secured with respect to that claim. The provisions of 38 U.S.C. § 5108 (2012) 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, 282-283 (1996). “New evidence” means evidence not previously submitted to agency decision makers, and “material evidence” means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a)(ii) (2018). To warrant reopening, the new evidence must not be cumulative or redundant of the evidence of record at the time of the last prior final denials of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. Id. In Shade v. Shinseki, 24 Vet. App. 110, 117 (2010), the United States Court of Appeals for Veterans Claims (Court) held that the phrase “raise a reasonable possibility of substantiating the claim” does not create a third element for new and material evidence; rather, it provides guidance as to whether submitted evidence meets the new and material requirements. Id. By way of example, the Court explained that if the newly submitted evidence would likely trigger entitlement to a VA medical nexus examination were the claim to be reopened, the new evidence would raise a reasonable possibility of substantiating the claim. Id. The Court has elaborated on what constitutes “new and material evidence.” New evidence is not that which is cumulative of other evidence already present in the record. In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans, 9 Vet. App. at 283; see Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans, 9 Vet. App. at 273. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is presumed unless the evidence is inherently false or untrue or, if the evidence is in the form of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran received a rating decision denying service connection to an acquired psychiatric disability, specifically alcohol and drug abuse, in November 1985. The RO sent a notification letter informing the Veteran of the negative outcome and his rights. See Notification Letter, dated December 1985. The Veteran did not submit a timely notice of disagreement and, therefore, the rating decision became final. 38 C.F.R. §§ 20.302, 20.1103 (2009). Likewise, no additional relevant evidence was received within 1 year of the November 1985 rating decision. After the November 1985 rating decision, VA received service treatment records from the Veteran’s service dates from November 1974 to July 1975. These records had not been associated with the claims file when VA originally decided the claim. See Rating Decision, dated November 1985. However, the service treatment records associated with the claims file after the November 1985 Rating Decision are relevant to, and have a reasonable possibility of helping to substantiate, the Veteran’s acquired psychiatric disorder claim. As such, new and material evidence is not required to reopen the Veteran’s claim for an acquired psychiatric disorder. 38 C.F.R. § 3.156(c) (2018). REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disability, to include generalized anxiety disorder and a nervous condition, is remanded. A thorough review of the record indicates that further development is warranted prior to adjudicating the Veteran’s claims for service connection regarding an acquired psychiatric disability. The VA must provide an examination when the evidence shows: (1) A current disability; (2) an in-service event, injury, or disease; (3) some indication that the claimed disability may be associated with the established event, injury, or disease, and (4) insufficient competent evidence of record for the VA to make a decision. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Once VA decides that it is appropriate to provide a VA examination, it must be an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board has considered the required elements in consideration of the Veteran’s acquired psychiatric claim. The Veteran has diagnoses of depressive disorder and schizoaffective disorder. See VA Treatment Records, dated October 2016. As such, the Board finds that the first McLendon element is met. The Veteran stated that he was treated for a mental health condition while he was in the Army. See Statement in Support of Claim, dated April 2011. The Veteran is competent to attest to his symptomatology, and treatment received, and the onset thereof. Barr, 21 Vet. App. at 303. As such, the Board finds that the second McLendon element is met. With regard to the final element, the Board finds that the there is insufficient competent evidence of record for the VA to make a decision regarding service connection in this case. Although there are treatment records that establish the existence of a current psychiatric disability and the Veteran stated that his symptoms began while in service, there is no opinion regarding the relationship his acquired psychiatric disability to service. As such, the Veteran should be scheduled for an appropriate VA examination to assess the etiology of his psychiatric disability. The matter is REMANDED for the following action: 1. Appropriate efforts should be made to obtain and associate with this case file any outstanding VA medical records and all outstanding private treatment records, with all necessary assistance from the Veteran. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 2. Obtain an appropriate psychological VA examination to determine the etiology of the Veteran’s psychiatric disability. The electronic claims file must be made available to and reviewed by the examiner, and a note that it was reviewed should be included in the report. After reviewing the claims file and examining the Veteran, the examiner should answer the following question: (a.) Identify each of the Veteran’s psychiatric diagnoses. (b.) Is it as likely as not (a 50 percent probability or greater) that the Veteran’s acquired psychiatric disability, to include depression and schizoaffective disorder, was caused by the Veteran’s active service? It should be noted that the Veteran is competent to attest to observable symptomatology. The examiner’s attention is invited to the Veteran’s statements concerning the onset of his claimed disability. The examiner is reminded that a medical opinion based solely on the absence of documentation in the record or that does not take into account the Veteran’s reports of symptoms and history is inadequate. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones v. Shinseki, 23 Vet. App. 382 (2010). The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. E. Trotter, Associate Counsel