Citation Nr: 18143869 Decision Date: 10/23/18 Archive Date: 10/22/18 DOCKET NO. 16-24 125 DATE: October 23, 2018 ORDER The application to reopen a claim of service connection for an acquired psychiatric disability is granted. REMANDED Entitlement to service connection for an acquired psychiatric disability is remanded. Entitlement to service connection for residuals of a fractured rib is remanded. FINDINGS OF FACT 1. In August 2013, the RO denied service connection for depression; the Veteran did not appeal that determination and no new and material evidence was received within one year from its issuance. 2. Evidence received since the August 2013 rating decision is new, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of service connection for an acquired psychiatric disability. CONCLUSIONS OF LAW 1. The August 2013 rating decision that denied a claim for an acquired psychiatric disability is final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 3.104, 30.302, 20.1103 (2017). 2. Evidence received since the August 2013 rating decision denying service connection for an acquired psychiatric disability is new and material and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1975 to August 1995. He earned the Combat Action Ribbon. In March 2017, the RO denied service connection for a right shoulder disability. The Veteran perfected the appeal. The record reflects the RO is actively working on the appeal. Thus, the Board will not take jurisdiction of this issue at this time. The psychiatric issue has been recharacterized to reflect the correct procedural posture, as well as the nature of the Veteran’s claim and the medical evidence of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In August 2013, the RO denied service connection for depression because there was no evidence linking that disability to the Veteran’s active service. The Veteran did not appeal this decision and no new and material evidence was received within one year of this decision. As such, it became final. See Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). A claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to a claim that is final. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Under 38 C.F.R. § 3.156 (a), new evidence means existing evidence not previously submitted to agency decisionmakers. 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. 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). Since the August 2013 rating decision, new evidence has been submitted. In a September 2015 correspondence, a private provider diagnosed PTSD and unspecified depressive disorder. She appeared to attribute both conditions to his active service. The opinion is presumed credible under Justus v. Principi, 3 Vet. App. 510 (1992). The evidence relates to a previously unestablished element of the claim (nexus) and raises a reasonable possibility of substantiating the claim. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The evidence is considered both new and material. Thus, the claim is reopened. The underlying psychiatric claim warrants further development and is addressed in the remand section below. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disability is remanded. The record contains two VA examination reports and a treatment record from a private provider. Unfortunately, there are not adequate for rating purposes. The July 2013 VA examiner provided a DSM-IV diagnosis of major depression, severe. The Veteran provided two stressors, one that occurred in Beirut and one that occurred during Desert Storm. The examiner stated: “It is not clear to me how long he has been depressed . . . He CLAIMS he has been depressed since Beirut/Grenada, but with all the contradictory statements he made to me, and the degree of muddled thinking, I don’t trust that as being accurate.” He provided the following opinion: “An EDUCATED guess (‘at least as likely as not’) is that major depression dates back a few months . . . or a few years . . .” In a September 2015 report, the private provider diagnosed PTSD and unspecified depressive disorder. Although she appeared to attribute both conditions to the Veteran’s active service, she did not provide a nexus opinion with respect to either condition. In a December 2015 addendum, the July 2013 examiner opined that the claimed condition (PTSD) “was less likely than not” incurred in or caused by the Veteran’s service. He explained that the Veteran received favorable fitness reports up until his retirement in 1995, and that the retirement physical examination contained no evidence to support a PTSD diagnosis. He provided a DSM-5 diagnosis of other specified depression, but did not provide a nexus opinion. Nor did he comment on the September 2015 private opinion. The Veteran contends that the RO did not consider the September 2015 report. See May 2016 VA Form 9. The December 2015 rating decision and May 2016 Statement of the Case appear to indicate that that document was reviewed. However, the RO denied service connection because it found there was no medical evidence of PTSD. This finding is clearly wrong. Thus, for the foregoing reasons, remand is warranted for an addendum opinion. 2. Entitlement to service connection for residuals of a fractured rib is remanded. Service treatment records show that in July 1984 the Veteran sustained a left rib injury while playing football. An August 2011 CT scan revealed a probable old rib fracture with a bone projecting medially suggesting a callus formation. The Veteran has complained of discomfort/pain in that area when he exerts himself. See April 2012 VA treatment record and May 2016 VA Form 9. He has not been afforded a VA examination. The Board finds that the evidence of record triggers VA’s duty to provide an examination and obtain an opinion. See 38 C.F.R. § 3.159 (c); McClendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Obtain an addendum opinion from the examiner who conducted the July 2013 and December 2015 examinations. The claims file must be made available to and reviewed by the examiner, with an examination of the Veteran performed only if deemed necessary by the examiner providing the opinion. The examiner is asked to determine whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed psychiatric disability, to include PTSD and depression, is related to his active service. The examiner should address the September 2015 private treatment record. A complete rationale for any opinion offered should be provided. 2. Schedule a VA examination with an appropriate examiner to determine the etiology of any currently diagnosed left rib pathology, to include residuals of an old fracture. The claims file should be made available to the examiner in conjunction with the examination. All necessary testing should be conducted. The examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any currently diagnosed left rib pathology is etiologically related to the Veteran’s active service. The examiner should address the July 1984 STR and the August 2011 CT scan. A complete rationale for any opinion offered should be provided. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R.N. Poulson, Counsel