Citation Nr: 18142868 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 16-03 837A DATE: October 17, 2018 ORDER Request to reopen a claim for service connection for an acquired psychiatric disorder, to include depressive disorder and posttraumatic stress disorder (PTSD) is granted; to this extent only, the appeal is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. FINDINGS OF FACT 1. A claim for service connection for an acquired psychiatric disorder, to include depressive disorder and PTSD was initially denied in an August 2008 rating decision. The Veteran appealed the denial, and the claim was last denied by a May 2010 statement of the case. The appeal was not perfected to the Board and the August 2008 rating decision, confirmed by the May 2010 statement of the case, became final. 2. Evidence received subsequent to the August 2008 rating decision is not cumulative of evidence previously of record, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim for service connection for an acquired psychiatric disorder, to include depressive disorder and PTSD. CONCLUSIONS OF LAW 1. The August 2008 rating decision that denied a claim for service connection for an acquired psychiatric disorder, to include depressive disorder and PTSD, affirmed by the May 2010 statement of the case is final. 38 U.S.C. § 7105 (c); 38 C.F.R. § 3.104, 20.302, 20.1103. 2. The criteria to reopen a claim for service connection for an acquired psychiatric disorder, to include depressive disorder and PTSD, have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1972 to August 1975. Although the Veteran initially filed a claim for PTSD, the Veteran has been diagnosed with depressive disorder. To afford the Veteran the broadest possible scope for his claim of entitlement to a psychiatric disorder, the issue has been recharacterized accordingly to that of entitlement to service connection for an acquired psychiatric disorder. Clemons v. Shinseki, 23 Vet. App. 1,6 (2009). Request to Reopen Previously-Denied Claim A finally adjudicated claim is an application which has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. See 38 U.S.C. § 7105 (c); 38 C.F.R. § 3.104, 20.302, 20.1103. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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). To prevail on the issue of service connection there must be evidence of a current disability, in-service incurrence or aggravation of a disease or injury; and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 116667 (Fed. Cir. 2004). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed unless such evidence is inherently incredible or beyond competence of the witness. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran seeks to reopen a previously denied claim for service connection for an acquired psychiatric disorder, to include depressive disorder and PTSD. He maintains that his psychiatric condition was caused by a traumatic assault incident in service, where he was grabbed by the arms and pulled down the stairs by another individual. In a rating decision dated in August 2008, the RO first denied the Veteran’s claim for service connection for PTSD on the basis that there was no credible evidence for the Veteran’s claimed stressor event. In a statement of the case dated in May 2010, the RO continued to deny the claim for service connection for an acquired psychiatric disorder, to include depressive disorder and PTSD because the Veteran’s August 2008 stressor statements did not provide sufficient information to verify with JSRRC and the Veteran’s depressive disorder was due to constant pain according to a July 1998 Jackson Mental Health Center treatment notes. In the August 2008 stressor statement, the Veteran described an assault incident in April 1973 where he was grabbed by the arm and pulled down the stairs by another individual during an altercation among several soldiers. He reported that his shoulder dislocated during the incident and was subsequently hospitalized. The appeal was not perfected to the Board and it became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. New and material evidence was not received prior to the expiration of the appeal period. 38 C.F.R. § 3.156 (b). The Veteran’s application to reopen his claim of service connection for an acquired psychiatric disorder was received in August 2014. Based on the grounds stated for the denial of service connection for an acquired psychiatric disorder in the May 2010 statement of the case, new and material evidence would consist of evidence corroborating the in-service assault incident. In this regard, additional evidence received since the May 2010 statement of the case includes an April 1973 military police report describing the assault incident where the Veteran was involved. Accordingly, the Board finds that the evidence received subsequent to the May 2010 statement of the case is new and material and serves to reopen the claim for service connection for an acquired psychiatric disorder, to include depressive disorder and PTSD. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder The Veteran underwent a VA examination in May 2015 for his psychiatric condition. During the examination, the Veteran was diagnosed with depressive disorder and alcohol use disorder, but the examiner found that the Veteran’s reported stressor event in April 1973 does not meet the DSM-5 criteria for PTSD. This examination is not adequate because it failed to provide an opinion on whether his depressive disorder is related to the in-service incident. Since the incident has been corroborated by a military police report, an addendum opinion must be obtained to address this issue. The matter is REMANDED for the following action: (Continued on the next page)   1. Obtain an addendum opinion from an appropriate clinician, a psychiatrist or a psychologist if possible, to determine the nature and etiology of any current chronic acquired psychiatric disorder. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, to include the April 1973 incident. The examiner must also opine whether it is at least as likely as not proximately due to service-connected disability or aggravated beyond its natural progression by service-connected disability. If the examiner finds that a service-connected disability permanently aggravates the chronic acquired psychiatric disorder, the examiner is asked to state whether there is medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for the chronic acquired psychiatric disorder prior to aggravation. If the examiner is unable to establish a baseline for the chronic acquired psychiatric disorder prior to the aggravation, he or she should state such and explain why a baseline cannot be determined. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. N. RIPPEL Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Y. Taylor, Associate Counsel