Citation Nr: 18143797 Decision Date: 10/22/18 Archive Date: 10/22/18 DOCKET NO. 16-60 108 DATE: October 22, 2018 ORDER New and material evidence has been presented, and the claim of entitlement to service connection for an acquired psychiatric disorder, to include dementia and generalized anxiety disorder is reopened. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include dementia and generalized anxiety disorder, is remanded. FINDINGS OF FACT 1. An unappealed November 2000 rating decision denied service connection for organic mental disorder with passive dependency reaction on the basis that the condition was considered developmental abnormality, and not a disability for VA purposes. 2. Evidence submitted subsequent to the November 2000 rating decision raises a reasonable possibility of substantiating the claim of entitlement to service connection for an acquired psychiatric disorder, to include dementia and generalized anxiety disorder. CONCLUSIONS OF LAW 1. The November 2000 rating decision which denied service connection for organic mental disorder with passive dependency reaction, is final. 38 U.S.C. §7105(c); 38 C.F.R. §20.1103. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder, to include dementia and generalized anxiety disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Air Force from November 1954 to February 1955. This matter is on appeal to the Board of Veterans’ Appeals (Board) from an September 2015 rating decision of a regional office of the Department of Veterans Affairs (VA). As will be discussed below, the Board finds it appropriate to recharacterize the reopened claim on appeal as entitlement to service connection for an acquired psychiatric disorder, to include to include dementia and generalized anxiety disorder. Clemons v. Shinseki, 23 Vet. App. 1 (2009). New and Material Evidence New evidence means 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). 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. This is a low threshold that is meant to enable, rather than preclude, reopening. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). The focus is not on whether the evidence remedies the principle reason for the previous denial, but whether the evidence, taken together, would at least trigger the duty to assist by providing a medical opinion. Id. at 117. The Veteran filed a claim for entitlement to service connection for aggravation of a pre-existing mental condition (claimed as organic mental disorder with passive dependency reaction) which was denied on the basis that the condition was considered “a constitutional or developmental abnormality, and not a disability for VA purposes.” See Rating Decisions of July 1955, November 2000, November 2004, May 2005, and July 2010. The rating decision was not appealed and new and material evidence was not entered within a year. The decision thereby became final. The Veteran’s claim to reopen was received in January 2015. Since the November 2000 decision, new evidence has been received to include additional VA and private treatment records and lay statements from the Veteran. Further, in April 2018, the Veteran also submitted a written statement from T.G.M., a Veterans Service Officer from American Legion, asserting that the RO “failed to understand that there is a difference between mental illness and mental retardation” and further argued that although mental retardation and personality disorders are not diseases for compensation, “disability resulting from a mental disorder that is superimposed upon mental retardation or a personality disorder may be service-connected.” This appears to be a new theory of entitlement regarding the etiology of the Veteran’s claim. While a new theory of entitlement cannot be the basis to reopen a claim under 38 U.S.C. § 7104(b), if the evidence supporting a new theory of entitlement constitutes new and material evidence, then VA must reopen the claim. Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008). Review of the evidence reflects that VA had not previously received any evidence in support of this new theory, and VA treatment records specifically reflect other mental health diagnoses of dementia and generalized anxiety disorder. Because this information, in connection with evidence previously assembled, raises the possibility of substantiating the Veteran’s claim and supports his new theory of entitlement, it constitutes new and material evidence sufficient to reopen the claim. Accordingly, the claim for service connection for an acquired psychiatric disorder, to include dementia and generalized anxiety disorder is reopened. REASONS FOR REMAND As noted above, the reopened claim has been recharacterized as entitlement to service connection for an acquired psychiatric disorder, to include dementia and generalized anxiety disorder. Clemons, 23 Vet. App. at 4-6. Further, although developmental abnormalities and personality disorders are not service-connectable disabilities as they are considered congenital and developmental defects and are not diseases or injuries in the meaning of applicable legislation for disability compensation purposes under 38 C.F.R. § 4.9, the Board notes that a disability resulting from a mental disorder that is superimposed on a developmental defect or personality disorder may be service connected. 38 C.F.R. § 4.127. In this regard, the Board observes that the Veteran has not been afforded a VA examination for his expanded psychiatric disorder claim, and there is no etiological medical opinion of record taking into consideration the Veteran’s lay statements. Additionally, remand is needed to sufficiently address the new theory of entitlement and to obtain a medical opinion that considers whether there is any evidence of a superimposed acquired psychiatric disorder resulting from the Veteran’s organic mental disorder identified during service. Thus, the Board has determined that remand is warranted to afford the Veteran a VA examination and to obtain an etiological opinion addressing the foregoing. The matter is REMANDED for the following action: Schedule the Veteran for a VA examination with an appropriate medical professional to determine the nature and etiology of any currently diagnosed psychiatric disorder. The claims file, including this remand, should be reviewed by the examiner to become familiar with the Veteran’s pertinent medical history and such review should be noted in the examination report. All indicated studies, tests and evaluations deemed necessary by the examiner should be performed and the results of such must be included in the examination report. Following examination of the Veteran, the examiner is to provide an opinion addressing the following: a) Offer an opinion on whether the Veteran meets the DSM, 5th edition, criteria for a diagnosis of a psychiatric disorder. If so, offer an opinion whether it is at least as likely as not (50 percent or greater probability) that any such psychiatric disorder is related to his time on active duty. b) For each acquired psychiatric disorder, the examiner should specifically discuss the significance of the relationship between the psychiatric disorder and the developmental defect. Because the record reflects an in-service diagnosis of an organic mental disorder with passive dependency reaction, a condition that was considered a developmental abnormality for VA purposes, determine whether it is at least as likely as not (50 percent or greater probability) that his separate diagnosed acquired psychiatric disorder was superimposed upon the developmental defect as a result of service. A clear explanation for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion he or she should explain why. The provided examination opinion must reflect consideration of both the medical and lay evidence of record setting forth a complete rationale for all findings and conclusions. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. An, Associate Counsel