Citation Nr: 18143710 Decision Date: 10/23/18 Archive Date: 10/19/18 DOCKET NO. 15-18 544 DATE: October 23, 2018 ORDER The petition to reopen the claim of entitlement to service connection for acquired psychiatric disability is granted. REMANDED The reopened issue of entitlement to service connection for acquired psychiatric disability is remanded. FINDINGS OF FACT 1. In a February 2012 rating decision the Veteran did not appeal to the Board, the RO denied an original claim of entitlement to service connection for acquired psychiatric disability. 2. Evidence received since the February 2012 rating decision relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for acquired psychiatric disability. CONCLUSIONS OF LAW 1. The February 2012 rating decision denying service connection for acquired psychiatric disability is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.200 (2018). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for acquired psychiatric disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1974 to October 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii, which denied service connection for bipolar disorder. The Veteran appealed the decision to the Board in January 2014. In June 2018, he testified at a Travel Board hearing before the undersigned Veterans Law Judge. A copy of the transcript of the hearing is included in the record and has been reviewed. The petition to reopen the claim of entitlement to service connection for acquired psychiatric disability is granted. Since November 2011 the Veteran has claimed service connection for acquired psychiatric disability. The RO denied the original claim in a February 2012 rating decision the Veteran did not appeal to the Board. As the Veteran did not appeal the decision, the decision became a final decision. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.200 (2018). In November 2012, the Veteran filed a claim to reopen this service connection claim. In the January 2013 rating decision on appeal, the RO denied the claim. Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 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). In the February 2012 final decision, the RO considered service treatment records (STRs) which are negative for psychiatric disability and VA treatment records dated since 2009 noting acquired psychiatric disability. Based on this evidence, the RO denied the service connection claim. The evidence included in the record since the February 2012 final decision consists of a July 2013 private medical opinion connecting acquired psychiatric disability to service, and the Veteran’s testimony before the Board. This evidence is new evidence. Further, the Board finds material the Veteran’s statements describing symptoms during and following service, and the medical opinion supporting his claim. This information indicates that psychiatric disability is due to service. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179 (2003). Indeed, there is a low threshold for determining whether evidence is new and material. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). Assuming for the purpose of this analysis the probative value of the new evidence, the evidence tends to prove previously unestablished facts (i.e., current disorder that may relate to the Veteran’s experiences during service). Accordingly, the claim of entitlement to service connection for acquired psychiatric disability is reopened. REASONS FOR REMAND The reopened issue of entitlement to service connection for acquired psychiatric disability is remanded. The claim should be remanded for medical inquiry into the Veteran’s claim. The evidence shows that he has current acquired psychiatric disability. Further, lay and medical evidence indicates that he may have experienced psychiatric disability during service. VA should provide him with a VA compensation examination. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The RO should also attempt to include in the claims file a medical opinion referred to in the July 2013 opinion from a private physician. The physician (Dr. R.) referred to another medical opinion by a Dr. H. Such an opinion is not included in the record. The matter is REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s claim, to include any outstanding VA treatment records, the most recent of which are dated in March 2016. All records/responses received must be associated with the claims file. 2. Attempt to include in the claims file an opinion by Dr. H., which is referred to by Dr. R. in the July 2013 private medical opinion. Also attempt to include in the claims file any treatment records that may be associated with these physicians. All records/responses received must be associated with the claims file. 3. After the foregoing development has been completed, schedule the Veteran for a VA compensation examination to determine the nature and etiology of his diagnosed acquired psychiatric disability. The examiner should review the claims folder, examine and interview the Veteran, and answer the following questions. (a). Is it at least as likely as not (i.e., probability of 50 percent or higher) that the psychiatric disability at issue manifested within one year of discharge from service in October 1980? See 38 C.F.R. § 3.309(a). In answering (a) consider and discuss the Veteran’s testimony during the June 2018 Board hearing, during which he stated that he had psychiatric disability soon after discharge from service in 1980. (b). If the answer to (a) is negative, is it at least as likely as not that acquired psychiatric disability is related to an in-service disease, event, or injury? In answering (b), consider and discuss the Veteran’s June 2018 testimony. Also consider and discuss the STRs – to include the September 1980 separation reports of medical examination and history – which are negative for psychiatric complaints, treatment, and diagnosis, but which indicate that the Veteran experienced a head injury during a March 1975 motor vehicle accident. Lastly, consider and discuss the July 2013 private medical opinion favoring the claim, and any other evidence which favors the claim. (Continued on the next page)   Please support any opinion with a detailed explanation. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Christopher McEntee, Counsel