Citation Nr: 18144742 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 15-25 354 DATE: October 25, 2018 ORDER New and material evidence having been received, the application to reopen the claim of entitlement to service connection for depression is granted. Entitlement to service connection for depression is granted. FINDINGS OF FACT 1. In an August 2007 rating decision, the RO denied service connection for depression, to include as secondary to service-connected hyperthyroidism. Although the Veteran was notified of the RO’s decision and his appellate rights in an August 2007 letter, he did not appeal within the applicable time period, nor was new and material evidence received within one year of the issuance of that decision. 2. The evidence received since the final August 2007 rating decision denying service connection for depression relates to an unestablished fact necessary to substantiate the claim and, presuming its credibility, raises a reasonable possibility of substantiating the claim of entitlement to service connection for depression. 3. The Veteran’s depression disability had its onset in service. CONCLUSIONS OF LAW 1. The August 2007 rating decision denying service connection for depression is final. 38 U.S.C. § 7105(c) (2012); 38. C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 2. New and material evidence has been received to warrant reopening the claim of service connection for depression. 38 U.S.C. § 5107, 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for service connection for depression have been met. 38 U.S.C. §§ 1101, 1131, 5107(b) (2012); 38 U.S.C. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1982 to November 1985. This matter came to the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO denied reopening of the claim for service connection for depression. The Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the RO granted or denied an application to reopen. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The Board notes that in connection with his appeal, the Veteran requested and was scheduled for a videoconference hearing before a Veterans Law Judge, to be held in October 2018. Prior to the hearing, however, the Veteran cancelled his hearing request. He did not request to reschedule and, consequently, the original hearing request is considered withdrawn. 38 C.F.R. § 20.704 (e) (2017). In addition, in a July 2016 statement in support of claim (VA Form 21-4138), within 90 days of notification of certification, the Veteran indicated that he was revoking the representation of his attorney. The Board recognizes this revocation and the Veteran is therefore considered unrepresented on this appeal. 38 C.F.R. § 20.1304(a) (2017). New and Material Evidence In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.1100, 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. 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). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. As set forth above, in an August 2007 rating decision, the RO denied entitlement to service connection for depression, finding no link to the Veteran’s military service or service-connected hyperthyroidism. The Veteran was notified of his appellate rights in an August 2007 letter. He did not appeal the RO’s determination and no new and material evidence was received within a year of the issuance of the rating decision. He does not contend otherwise. Thus, the RO’s August 2007 rating decision is final and not subject to revision on the same factual basis. 38 U.S.C. § 7105(c); 38. C.F.R. §§ 3.104, 20.302, 20.1103. In this appeal, the Veteran seeks to reopen his claim of service connection for depression. As noted above, despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108 38 C.F.R. § 3.156. Thus, the Board has reviewed the entire record, with particular attention to the additional evidence received since the last final rating decision in August 2007. That evidence includes a July 5, 2013 letter from Dr. Clement reporting that the Veteran had been seen for several episodes of therapy back to June 1998. He stated that the Veteran had a history of depressed mood, poor concentration, inability to complete important projects, poor organization, anxiety, poor sleep, and the inability to secure employment. Dr. Clement opined that all of those conditions had gotten worse since the Veteran’s cardiac disease was diagnosed in 2006. He noted that the Veteran has had varying degrees of depressed mood for many years predating the Veteran’s first visit in 1998. Dr. Clement further noted that the Veteran’s difficulties with concentration and task completion had probably been a very long-standing problem, probably life-long duration. Dr. Clement concluded that he was not able to estimate the amount of impact thyroid and cardiac disease has had on the Veteran’s mood and concentration over the years. Given the basis for the prior denial of the claim, the Board finds that the clinical evidence addressing the etiology of the Veteran’s depression relates to unestablished facts necessary to substantiate the claim of service connection for depression and, presuming the credibility of this evidence, raises a reasonable possibility of substantiating the claim; therefore, the claim is reopened. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). The Veteran seeks service connection for depression, to include as due to his service-connected hyperthyroidism and coronary artery disease. Turning to the merits of the claim, the Board finds that service connection for depression is warranted. First, the evidence of record shows a current diagnosis of depression. Specifically, a February 2004 private treatment record shows that the Veteran was diagnosed as having depression. Thus, the currently disability requirement has been met. The Veteran’s service treatment records indicate that in March 1984, he was diagnosed as mild to moderately depressed. He was placed in an outpatient psychotherapy group. Thus, the in-service disease requirement has been met and the dispositive issue in this case is whether there is a relationship between the Veteran’s depression disability and his military service. In a July 2013 statement, the Veteran reported that he had surgery to remove his thyroid during his military service. He asserted that since that time, he has had weight, metabolic and heart problems, as well as chronic depression. As noted, in a July 5, 2013 letter, Dr. Clement reported that he had seen the Veteran for several episodes of therapy back to June 1998. He stated that the Veteran has had varying degrees of depressed mood for many years predating the Veteran’s first visit with him in 1998. Dr. Clement noted that the Veteran’s difficulties with concentration and task completion has probably been a very long-standing problem, probably life-long duration. Dr. Clement concluded that he was not able to estimate the amount of impact thyroid and cardiac disease has had on the Veteran’s mood and concentration over the years. The Veteran underwent a VA medical examination in May 2015. The examiner opined that it was less likely than not that the Veteran’s depression was incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the Veteran denied experiencing the death of friends during service. The examiner also opined that it is less likely than not that the Veteran’s depression was proximately due to or aggravated by the Veteran’s service-connected condition. The examiner explained that the Veteran's medical records revealed no evidence of a causal association between Veteran’s service-connected hypothyroidism and/or coronary artery disease. There was some evidence that his depression has historically been associated with stressful and disappointing life events, however. The examiner noted that according to a June 2011 psychiatry note, the Veteran’s depression was identified in 1999 when he went through a divorce, his child was taken away from him, and he lost his house and sold his business. The examiner further noted that Dr. Clement’s letter revealed no clear association between Veteran's thyroid problem and cardiac disease and depression. The May 2015 VA examiner opined that the Veteran’s depression was not related to his military service. However, the examiner failed to consider the Veteran’s competent and credible lay statements, which include his assertion of depression symptoms since military service. Thus, the Board finds the December 2014 VA opinion regarding direct causation of little, if any probative weight. VA laws and regulations require review of the entire record, including lay statements, and give due consideration to VA policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). After so doing, and with reasonable doubt resolved in the Veteran’s favor, the Board finds that the service treatment records showing depression in service; Dr. Clement’s opinion that the Veteran had depression for many years predating 1998; the Veteran’s competent and credible lay statements regarding the onset of his depression symptoms, and the clinical evidence showing a current diagnosis of depression, provide a sufficient basis to grant service connection for depression on a direct basis. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. As service connection is being granted on a direct basis, consideration of other theories of entitlement is unnecessary. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Walker, Associate Counsel