Citation Nr: 18155334 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 17-64 644 DATE: December 4, 2018 ORDER New and material evidence having been received, the claim to reopen service connection for anxiety and a depressive disorder is granted. REMANDED Service connection for an acquired psychiatric disability, to include anxiety and depressive disorder, is remanded. Service connection for a lumbar spine disability is remanded. FINDINGS OF FACT 1. A July 2008 rating decision declined to reopen a claim for entitlement to service connection for anxiety neurosis, the Veteran did not timely appeal the denial, and new and material evidence was not submitted as to the issue within the one-year appeal period following the issuance of the July 2008 rating decision. 2. Evidence added to the record since the July 2008 rating decision relates to an unestablished fact necessary to substantiate the Veteran’s service connection claim for anxiety and a depressive disorder. CONCLUSIONS OF LAW 1. The July 2008 rating decision that denied service connection for anxiety neurosis is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 2. The criteria for reopening a claim of entitlement for service connection for anxiety disorder have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1970 to October 1973. These matters come to the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) San Juan, Puerto Rico Regional Office (RO). New and Material Evidence In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7104. 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 existing 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. Evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000). 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). Initially, in May 1974, the RO denied the Veteran’s claim for service connection for anxiety neurosis. The RO determined that a nervous condition was not incurred in or aggravated by service. The Veteran was notified of the decision in a letter dated in June 1974. The Veteran did not appeal that decision and it became final. In June 2008, the Veteran sought to reopen his claim for service connection which was subsequently denied by the RO in a July 2008 rating decision. The RO found that there was no new and material evidence that relates to an unestablished fact necessary to substantiate the claim that Veteran’s depressive disorder was incurred or aggravated during active. The Veteran did not appeal this rating decision, nor did he submit new and material evidence within one year of the rating decision. The above-mentioned July 2008 rating decision denied service connection because there was no nexus between Veteran’s psychiatric disorder and his active duty service. Evidence associated with the record following this decision includes a July 2017 private medical opinion which states that the Veteran’s current psychiatric symptomatology is attributable to his active duty service. This evidence is new and material because it relates to an unestablished fact necessary to substantiate the claim, namely, a relationship between the Veteran’s anxiety neurosis and his active duty service. As the new evidence is neither cumulative nor redundant the claim is therefore reopened. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disability Service treatment records include notations of psychiatric problems. Situational anxiety was noted in 1973. As noted above, a private clinician indicated that the Veteran’s psychiatric disability began during service. Te assertion appears to be based on a history provided by the Veteran. The Board finds that this evidence is insufficient as there is no rationale or detail provided to support the assertion. On remand, the Veteran should be provided an examination to determine the nature and etiology of any current psychiatric disability. Entitlement to service connection for lumbar spine disability The Veteran’s service treatment records document relevant complaints specific to the spine. In February 1973, the Veteran fell and injured his sacroiliac and complained of pain in his coccyx, which resulted in some minor swelling. The Veteran was provided a VA examination in July 2017 and the VA examiner attributed the Veteran’s current disability to the natural aging process. However, the examination report appears to be inadequate. Specifically, in July 2017, the examiner stated that there was no evidence of any back treatments or injures in the Veteran’s records. However, in addition to the service treatment records, there are post-service complaints of back pain noted in the VA treatment records. In a March 1974 examination, the Veteran complained of not being able to sit for a long period because his “spine hurt.” Therefore, the Veteran should be provided another examination. Accordingly, the claim is REMANDED for the following actions: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of any current acquired psychiatric disability, to include anxiety and depressive disorder. Provide a copy of this remand and the record to the examiner for review. Any and all tests and evaluations deemed necessary by the examiner should be performed. A complete history should be elicited from the Veteran. The examiner must address the following: Provide a diagnosis for any current acquired psychiatric disability. Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any acquired psychiatric disability had its onset in active service or is otherwise causally or etiologically related to the Veteran’s active service, to specifically include the notations of anxiety therein. The examiner should cite to the medical and lay evidence of record. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of any current lumbar spine disability. Provide a copy of this remand and the record to the examiner for review. Any and all tests and evaluations deemed necessary by the examiner should be performed. A complete history should be elicited from the Veteran. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that Veteran’s current spine disability had its clinical onset during service or is due to an event or incident of the Veteran’s period of active service. The examiner should specifically comment on the Veteran’s in-service fall and complaints of coccyx and sacroiliac pain disorder. The examiner should cite to the medical and lay evidence of record. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. (Continued on the next page)   3. Thereafter, readjudicate the Veteran’s claims. If the claims remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case (SSOC) and an opportunity to respond. The case should then be returned to the Board for appropriate appellate consideration. L. Chu Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Mahlet Makonnen, Law Clerk