Citation Nr: 18155457 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 16-59 910 DATE: December 4, 2018 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), mood disorder, and depression, and to include as secondary to service-connected right knee and left shoulder conditions, and the claim is therefore reopened. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), mood disorder, and depression, and to include as secondary to service-connected right knee and left shoulder conditions is remanded. FINDINGS OF FACT 1. A November 2006 rating decision denied service connection for a mental disability (claimed as depression); the Veteran did not perfect an appeal of that decision, and new and material evidence was not received within one year of notice of its issuance. 2. Evidence received more than one year after that November 2006 rating decision is neither cumulative nor redundant of the evidence that was already of record and considered in that decision, and this additional evidence raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder. CONCLUSIONS OF LAW 1. The November 2006 rating decision denying service connection for a mental disability (claimed as depression) is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104 (a), 3.160(d), 20.200, 20.1103. 2. New and material evidence sufficient to reopen the claim of entitlement to service connection for an acquired psychiatric disorder has been received since that November 2006 rating decision. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1964 to October 1968. The Board of Veterans’ Appeals (Board) has recharacterized the issue on appeal, as reflected above, based on its review of the evidence in the Veteran’s claims file. 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), mood disorder, and depression, and to include as secondary to service-connected right knee and left shoulder conditions Service connection for a mental disability (claimed as depression) was denied in a November 2006 rating decision. The Veteran was notified of that determination and of his appellate rights, and he did not appeal or submit new and material evidence within the following year. Accordingly, that decision is a final and binding determination based on the evidence then of record. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.1103. Evidence received since that unappealed rating decision includes but is not limited to a private medical opinion and an addendum private medical opinion received in December 2016 and September 2017, respectively. This newly received evidence is new because it was not previously considered in the November 2006 rating decision, and it is material because it pertains to unestablished facts necessary to substantiate the claims of entitlement to service connection for the aforementioned conditions; namely, nature of the Veteran’s acquired mental/psychiatric condition and the nexus between that condition and the Veteran’s service-connected disabilities. As this additional evidence is new and material, these claims are consequently reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). This action will not prejudice the Veteran, as the Agency of Original Jurisdiction (AOJ) previously reopened this claim in the March 2013 rating decision from which this appeal stems. See Hickson v. Shinseki, 23 Vet. App. 394, 398 (2010). REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), mood disorder, and depression, and to include as secondary to service-connected right knee and left shoulder conditions is remanded. An April 2017 Department of Veterans Affairs (VA) Mental Disorders Disability Benefits Questionnaire (DBQ) reflects that the Veteran has applied for and began receiving Social Security Disability Insurance (SSDI) in or about 2002, but those records are not in the Veteran’s claims file. Through his representative, he contends that he has mood disorder/depressive disorder and that it is secondary to his physical condition, including but not limited to his service-connected right knee and left shoulder disabilities. Based on that contention, the Board finds that records relating to the Veteran’s application for and receipt of SSDI may be relevant to this appeal, therefore, those records should be obtained. Also, the Board finds that prior to its adjudication of this appeal, additional clarification is required as to the etiology of the Veteran’s acquired psychiatric disorders, if any. Multiple private medical opinions, described in the action paragraph below, raise further questions about the nature and etiology of the Veteran’s claimed disorder. The matter is REMANDED for the following action: 1. Obtain all Social Security Administration (SSA) records pertaining to the Veteran’s claims for SSDI benefits, to include any determinations and the medical records used in support of his claim and associate with the Veteran’s claims folder. All attempts to obtain these records should be documented in the claims folder. Efforts to obtain the requested records should be ended only if it is concluded that the records sought do not exist or that further efforts to obtain those records would be futile. Because these are federal records, if they cannot be located or if no such records exist, the Veteran should be notified in writing. 2. Schedule the Veteran an examination, by an appropriate psychiatrist or psychologist, to determine the nature and etiology of any acquired psychiatric disorders that the Veteran has been diagnosed with since March 24, 2011. The examiner must opine whether each such disorder present during the period on appeal (since March 24, 2011) is at least as likely as not (a 50 percent or greater probability) etiologically related to service, or, alternatively, is caused or aggravated by the Veteran’s service-connected right knee and left shoulder conditions. The examiner is asked to review the private medical opinions that were submitted by the Veteran in December 2016 and September 2017, and authored by H. H.-G., Ph.D., HSPP. If unfavorable opinions are rendered in this case, those opinions should be discussed in the context of these cited private opinions. The examiner should provide a detailed rationale which cites to relevant medical literature, if appropriate, for all opinions rendered. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Banks, Associate Counsel