Citation Nr: 18154639 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 16-13 181 DATE: November 30, 2018 ORDER New and material evidence to reopen a claim of entitlement to service connection for an acquired psychiatric disorder having been received, the claim is reopened; the claim is granted to this extent only. FINDINGS OF FACT 1. The claim for service connection for a nervous condition (now claimed as an acquired psychiatric disorder) was denied in an unappealed October 1974 administrative decision. 2. Evidence submitted since the October 1974 administrative decision includes information that is new and was not previously considered by VA and that establishes a fact necessary to substantiate the claim for service connection for an acquired psychiatric disorder, and therefore creates a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The October 1974 administrative decision which denied the Veteran’s claim of entitlement to service connection for a nervous condition, is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103 (2018). 2. New and material evidence has been received since the October 1974 administrative decision and the requirements to reopen the claim of 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). REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to a total disability rating based on individual employability (TDIU) is remanded. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1966 to January 1970. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Although, as in the instant case, a veteran’s stated claim may only seek service connection for a specific psychiatric condition, such a claim “cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any mental disability that may be reasonably encompassed.” Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Pursuant to the Court’s decision in Clemons, the issue for consideration on remand should not be strictly limited to any one psychiatric condition, but it should instead encompass any other acquired psychiatric diagnosis shown. As such, the issue has been recharacterized accordingly. By way of background, the RO previously denied the Veteran’s claim for entitlement to service connection for nervous condition. Specifically, an August 1974 rating decision denied the Veteran’s claim for nervous breakdown. The Veteran submitted October 1974 correspondence following that denial. Thereafter, an October 1974 administrative decision, in part, maintained denial of the Veteran’s claim for nervous condition. The Veteran did not appeal the decision and no new and material evidence was received within one year of the notification of the denial. Regarding the current pending appeal, the Veteran submitted a claim for entitlement to service connection for posttraumatic stress disorder (PTSD) in June 2012. As noted above, the Board has since recharacterized the issue for service connection to encompass PTSD and any other acquired psychiatric diagnosis. In any case involving a finally denied claim, the Board must address whether new and material evidence has been received to reopen before addressing the merits of the claim, regardless of whether or not the agency of original jurisdiction (AOJ) has already addressed the question. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 239–40 (1995). The Veteran, through his representative, contended specifically in the October 2018 appellate brief that he had suffered a nervous breakdown in 1968 and that he suffered from PTSD as a result of his time spent in service. In reviewing the prior August 1974 rating decision’s and October 1974 administrative decision’s denial of service connection for nervous condition, the Board finds that the Veteran was requesting compensation for a psychiatric disability and that the Veteran’s current psychiatric disability claim before the Board is based on the same contentions as was claimed in 1974. Thus, the Board finds the June 2012 claim is a claim to reopen the previously denied claim for entitlement to service connection for a nervous condition, and new and material evidence is required. Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); Velez v. Shinseki, 23 Vet. App. 199 (2009). NEW AND MATERIAL VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of an appellant. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New evidence is evidence not previously submitted to agency decision makers. Material evidence is 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 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). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). Moreover, in determining whether that low threshold is met, consideration need not be limited 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 VA’s duty to assist or through consideration of an alternative theory of entitlement. Acquired Psychiatric Disorder As noted above, the Veteran’s claim for service connection for nervous breakdown (now characterized as acquired psychiatric disorder) was originally denied in an August 1974 rating decision. The denial was based on a finding that there was no evidence of a nervous breakdown in service. The Veteran submitted an October 1974 correspondence following the denial. Subsequently, in an October 1974 administrative decision, the adjudication officer continued the denial for service connection based on a finding that there was no evidence of a nervous condition in service. The Veteran did not file a notice of disagreement or submit new and material evidence within one year of the denial. As such, the October 1974 administrative decision became final as to the evidence then of record, and is not subject to review on the same factual basis. 38 U.S.C. § 7105(b)(2)(c); 38 C.F.R. §§ 3.104, 20.302(a), 20.1103. Evidence considered at the time of the October 1974 administrative decision included service treatment records (STRs), May 1974 VA clinical records noting the Veteran’s reports of nervous breakdown while in Vietnam and weight loss in Vietnam, and the Veteran’s lay statements in support of his claim. Since the October 1974 administrative decision, evidence added to the claims file includes additional diagnoses for depression in an October 2012 VA treatment record, bipolar disorder and PTSD in a November 2013 VA treatment record, and mood disorder for 40 years in a December 2017 VA treatment record. See May 2016 and March 2018 CAPRI. Additionally, in a July 2012 VA examination, the Veteran reported in-service stressor of engaging in active combat in Vietnam in which he saw many dead people, including Vietnamese children. The Board finds that such evidence constitutes new and material evidence under the definition set forth in 38 C.F.R. § 3.156(a); specifically, the new evidence shows the Veteran has been diagnosed with additional psychiatric disorders. Additionally, the Veteran provided VA with additional evidence in which to verify his reported in-service stressor event. The evidence is presumed to be credible for the limited purpose of reopening the claim. Given that the above evidence addresses facts necessary to substantiate the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder, the Board finds that the low threshold for reopening the claim has been met. Shade v. Shinseki, 24 Vet. App. 110 (2010). Therefore, the claim of entitlement to service connection for an acquired psychiatric disorder is reopened. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to TDIU is remanded. The Veteran is seeking service connection for PTSD and contends that his disability is directly related to military service. The Veteran has been provided a VA examination in July 2012 in which the examiner found the Veteran did not meet the criteria for PTSD based on Diagnostic and Statistical Manual of Mental Disorders (DSM). However, as noted above, since the July 2012 VA examination, the Veteran has been diagnosed with PTSD and additional psychiatric disorders, to include bipolar disorder, depression, and mood disorder. As there is indication of a current PTSD diagnosis and indication of in-service stressors during combat, and as there is no etiological opinion as to the additional psychiatric diagnoses, a remand is warranted to obtain a VA examination. Lastly, considering the Veteran’s reports that he is unable to maintain gainful employment, in part, due to his psychiatric disability, entitlement to a TDIU is inextricably intertwined with the Veteran’s claim on appeal. See August 2013 Notice of Disagreement. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records or private treatment records and associate the records with the claims file. 2. After all available records are associated with the claims file, provide the Veteran with a VA psychiatric examination to determine the nature and etiology of any diagnosed acquired psychiatric disability, to include PTSD, bipolar disorder, depression, and mood disorder. The claims file must be provided to the examiner for review in conjunction with the examination. The examiner must complete the following: (a) Identify each psychiatric disorder experienced by the Veteran; either diagnose or rule out PTSD, bipolar disorder, depression, and/or mood disorder. (b) If PTSD is diagnosed, the examiner should identify the specific stressors upon which the diagnosis is based and whether the Veteran’s symptoms are related to the claimed stressor(s). (c) If the examination results in a psychiatric diagnosis other than PTSD, the examiner should offer an opinion as to the etiology of the non-PTSD psychiatric disorder, to include whether it is at least as likely as not (50 percent probability or greater) that any currently demonstrated psychiatric disorder, other than PTSD, is related to the Veteran’s service. 3. Then, readjudicate the claims, to include the claim for TDIU, on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case, allow the applicable time for response, and then return the case to the Board. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Cheng, Associate Counsel