Citation Nr: 18145056 Decision Date: 10/26/18 Archive Date: 10/25/18 DOCKET NO. 16-36 815 DATE: October 26, 2018 ORDER New and material evidence having been submitted, the claim of entitlement to service connection for depression with anxiety is reopened; to this extent only, the Veteran’s appeal is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include depression, is remanded. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Service connection for depression with anxiety was denied in an August 2009 rating decision in part on the basis that there was no evidence of a disability related to service. 2. The Veteran did not file a notice of disagreement for the August 2009 rating decision, and that decision became final. 3. Evidence received since the August 2009 rating decision relates to unestablished facts necessary to substantiate the service connection claim for an acquired psychiatric disorder, to include depression. CONCLUSION OF LAW New and material evidence has been received, and the Veteran’s claim for service connection for depression with anxiety is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December March 1984 to May 1992. This matter comes before the Board of Veterans’ Appeals (Board) from a June 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board notes that the issue on appeal was characterized as entitlement to service connection for depression with anxiety. However, in light of the evidence of record, the Board has recharacterized the issue more broadly to ensure complete consideration of the claim. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6, 8 (2009). The Board further notes that while the Veteran’s attorney stated in June 2018 that he refused to waive the RO’s consideration of additional evidence that had been received in connection with the new and material claim, remand for such consideration is not required in this case, because the Board is reopening the claim and the Veteran is therefore not prejudiced by the Board’s actions. Finally, in October 2018, the Veteran filed a Motion to Advance on the Docket (AOD) due to financial hardship. As the Board finds that this is good or sufficient cause to advance the case on the docket has been shown, the AOD Motion is granted. New and Material Evidence Service connection for depression with anxiety was initially denied in an August 2009 rating decision. The RO noted that the Veteran had a current diagnosis of depression, but the service treatment records did not show any complaints, diagnosis or treatment of depression or anxiety. A claim which has been finally denied may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c) (2012). The exception to this rule is 38 U.S.C. § 5108 (2012), which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2017). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). The evidence received since the August 2009 rating decision includes a March 2012 statement from the Veteran and a March 2016 VA examination. The evidence is new as it was not previously considered and material as it pertains to an unestablished fact of the claim, i.e., evidence of racial incidents onboard the USS Ranger during service; therefore, raising a reasonable possibility of substantiating the claim. See Shade v. Shinseki, 24 Vet. App. 110 (2010). New and material evidence having been submitted, reopening of the previously denied claim is appropriate. REASONS FOR REMAND 1. Acquired Psychiatric Disorder The Veteran received a VA examination in March 2016 and was diagnosed with moderate recurrent major depressive disorder. The examiner also indicated that the Veteran did not have a diagnosis of PTSD that conformed to the DSM-V criteria. The examiner did not, however, provide an opinion with regard to the etiology of the Veteran’s diagnosed disability. Once VA undertakes the effort to provide an examination, it must obtain a fully adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board’s duty to return an inadequate examination report “if further evidence or clarification of the evidence... is essential for a proper appellate decision.”). Therefore, this claim must be remanded for a new examination. 2. TDIU Regarding the claim for entitlement to a TDIU, this issue is intertwined with the claim remanded herein; accordingly, it must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of any current acquired psychiatric disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The claims folder should be reviewed by the examiner. The examination report should note review of these records and specifically the Veteran’s lay statements regarding his experiences in service, including racial incidents that occurred onboard the USS Ranger, and VA treatment records. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify all current acquired psychiatric disorder(s). If any previously diagnosed psychiatric disorder is not found on examination, the examiner should address the prior diagnoses of record and indicate whether they may have resolved or been misdiagnosed. For each diagnosis identified, the examiner should state whether it is at least as likely as not that disorder manifested in or is otherwise related to the Veteran’s military service, including any symptomatology therein. Thereafter, the VA examiner is asked to determine the impact, if any, of the Veteran’s acquired psychiatric disability has on his ability to secure or follow a substantially gainful employment. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Daniels, Associate Counsel