Citation Nr: 18149688 Decision Date: 11/13/18 Archive Date: 11/13/18 DOCKET NO. 18-32 754 DATE: November 13, 2018 ORDER New and material evidence having been received, the claim of entitlement to service connection for an acquired psychiatric disorder is reopened. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to an initial disability rating in excess of 20 percent for lumbar strain is remanded. FINDINGS OF FACT 1. Service connection for an acquired psychiatric disorder was denied in an unappealed June 1969 rating decision. 2. Evidence received since the June 1969 rating decision is new and material and raises a reasonable possibility of substantiating the Veteran’s claim. CONCLUSIONS OF LAW 1. The June 1969 rating decision that denied service connection for an acquired psychiatric disorder is final. 38 U.S.C. § 4005 (1964); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1969) 2. The criteria for reopening a previously denied claim for entitlement to service connection for an acquired psychiatric disorder have been met. 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 June 1966 to June 1968. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Guaynabo, Puerto Rico. The Veteran was notified of his right to a personal hearing before the Board, but the Veteran did not request a hearing. The Board notes that, in August 2018, the Veteran received a form attempting to opt in to the higher-level review process as part of the rapid appeals modernization program (RAMP). The Veterans Appeals Control and Locator System (VACOLS) indicates that the Veteran’s appeal was received by the Board and activated in July 2018. Therefore, the Veteran was no longer eligible to opt in to RAMP by the time VA received the notice opting into RAMP. The Board shall not address this any further. The Board notes that the issue of whether new and material evidence has been submitted to reopen a claim for entitlement to an acquired psychiatric disorder was initially characterized as two separate issues; whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for an anxiety disorder and entitlement to service connection for depression. As discussed below, a new diagnosis of an acquired psychiatric disorder is within the scope of an earlier claim for service connection for an acquired psychiatric disorder; and the Board must review new and material evidence claims de novo. As such, the Board combined the two issues in one and recharacterized it accordingly. Whether new and material evidence has been submitted to reopen a claim for service connection for an acquired psychiatric disorder. At issue is whether the Veteran has submitted new and material evidence to reopen a previously denied claim of entitlement to service connection for an acquired psychiatric disorder. As explained below, new and material evidence sufficient to reopen the claim has been submitted. In order to reopen a claim which has been denied by a final decision, new and material evidence must be received. 38 U.S.C. § 5108. New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). 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) (in determining whether evidence is new and material, “credibility” of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The evidence to be considered in making this new and material evidence determination is that added to the record since the last final denial on any basis. Evans v. Brown, 9 Vet. App. 27 (1996); see also Shade v. Shinseki, 24 Vet. App. 110, 120 (2010) (new and material evidence need not be received as to each previously unproven element of a claim in order to justify reopening thereof). Regardless of whether the RO determined new and material evidence had been submitted, the Board must address the issue of the receipt of new and material evidence in the first instance, because it determines the Board’s jurisdiction to reach the underlying claim and to adjudicate the claim de novo. The RO originally denied the Veteran service connection for an acquired psychiatric disorder, specifically anxiety, in June 1969. The decision became final after the Veteran failed to submit additional evidence or file a notice of disagreement within one year of notification of the decision. The Veteran subsequently filed a claim to reopen the issue, and, in December 2015, the RO denied the Veteran’s requested relief. The Veteran appealed. In the June 1969 rating decision, the RO had medical evidence of a diagnosis of an anxiety disorder which the RO found was not related to a period of service. Since the June 1969 rating decision additional medical evidence, including a VA examination completed in August 2016, indicating that the Veteran has a diagnosis of depression has been associated with the record. A new diagnosis of an acquired psychiatric disorder is within the scope of a previously filed claim for entitlement to service connection for an acquired psychiatric disorder under another diagnosis. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Moreover, a new diagnosis suggests a new etiology of the Veteran’s claimed psychiatric symptoms which raises a reasonable possibility of sustaining a claim for service connection. Therefore, the evidence submitted since the last final denial is new and material, and the Veteran’s claim for service connection for an acquired psychiatric disorder is deemed reopened. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder is remanded. The Veteran contends that he is entitled to service connection for an acquired psychiatric disorder. Unfortunately, this matter must be remanded for further development before the Board can decide of the matter. The Veteran underwent a VA examination in August 2016. The Veteran provided competent evidence that he had manifested psychiatric symptoms since a period of service, and the examiner diagnosed the Veteran with an acquired psychiatric disorder: depression. The examiner ultimately opined, however, that it was less likely than not that the Veteran’s acquired psychiatric disorder was related to a period of service, because there was no temporal or circumstantial evidence of a link between the Veteran’s acquired psychiatric disorder and military stressors. The examiner further went on to state that the Veteran’s mental symptoms began in 2002, and the Veteran’s reported nervous symptoms during service were related to a separate acute medical condition manifesting at the time, and they are unrelated to a current diagnosis. First, the statement that there is no evidence that the Veteran’s current diagnosis was related to a period of service is untrue, because, the Veteran’s statements of when he began to manifest symptoms is evidence that his current diagnosis potentially relates back to a period of service. Moreover, such a conclusion is at least partially corroborated by a May 1969 VA examination which indicates that the Veteran manifested psychiatric symptoms sufficiently severe that he was diagnosed with an anxiety disorder at the time. This is not sufficient to grant service connection at this time, because the May 1969 examination fails to establish a medical nexus between a current diagnosis and an in-service incurrence. On the other hand, the May 1969 examination seems to contradict the implication of the August 2016 VA examiner that the Veteran’s in-service psychiatric symptoms were somehow transitory or merely related to physical symptoms that the Veteran was manifesting at the time rather than signs or symptoms of a long-lasting acquired psychiatric disorder. Once VA undertakes the effort to provide the Veteran with a VA examination, it must provide the Veteran with an adequate one, and an adequate examination is sufficiently detailed to ensure that an evaluation of the Veteran’s claim is fully formed. Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, this matter must be remanded in order to provide the Veteran with a VA examination in order to discuss the significance, if any, of the May 1969 VA examination diagnosing the Veteran with an anxiety disorder. 2. Entitlement to a disability rating in excess of 20 percent for lumbar strain is remanded. The Veteran contends that he is entitled to an increased disability rating for a back condition. He last underwent a VA examination for a back condition in December 2015. He subsequently underwent a magnetic resonance imaging (MRI) in March 2016 which indicated increased thoracic kyphosis and degenerative changes of the thoracic spine. This suggests that the Veteran’s back condition had increased in severity since his most recent VA examination. As previously noted once VA undertakes the effort to provide the Veteran with a VA examination, it must provide the Veteran with an adequate one, and an adequate examination is sufficiently detailed to ensure that an evaluation of the Veteran’s claim is fully formed. See Barr. Therefore, this matter must be remanded in order to provide the Veteran with a new VA examination evaluating the current severity of the Veteran’s back condition. The matters are REMANDED for the following action: 1. Copies of updated pertinent treatment records should be obtained and added to the claims file. 2. Following completion of the above, arrange to provide the Veteran with a VA examination in order to answer the following questions: (a.) Is it at least as likely as not (50 percent or greater probability) that a medical nexus exists between a current diagnosis of an acquired psychiatric disorder and an in-service incurrence? Why or why not? (b.) Is it at least as likely as not (50 percent or greater probability) that an acquired psychiatric disorder is proximately due to or aggravated by his service-connected lumbar strain? Why or why not? (c.) What is the significance, if any, of the diagnosis of anxiety disorder in 1969; the year after separation from service? Why? (d.) Does the Veteran currently have or did the Veteran ever have any condition that meets the medical definition of a psychosis? Why or why not? If so, over what period of time did it manifest? (CONTINUED ON NEXT PAGE) 3. Arrange to provide the Veteran with a VA examination in order to evaluate the current severity of his lumbar strain. BARBARA B. COPELAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD David R. Seaton, Associate Counsel