Citation Nr: 18157382 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 15-01 726A DATE: December 12, 2018 ORDER The appeal to reopen a claim of service connection for an anxiety disorder is granted. REMANDED Entitlement to service connection for an anxiety disorder (on de novo review) is remanded. FINDINGS OF FACT 1. An unappealed June 1954 rating decision denied the Veteran service connection for a nervous condition based on a finding that such disability was not shown to be related to a disease or injury in service. 2. Evidence received since the June 1954 rating decision includes an October 2018 private medical statement that relates the Veteran’s anxiety disorder to his service; relates to an unestablished fact necessary to substantiate the claim of service connection for an anxiety disorder; and raises a reasonable possibility of substantiating such claim. CONCLUSION OF LAW New and material evidence has been received and the claim of service connection for an anxiety disorder may be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is a Veteran who served on active duty from April 1946 to April 1947. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2012 rating decision, which declined to reopen a claim of service connection for an anxiety disorder. In August 2018 a videoconference hearing was held before the undersigned. The appeal to reopen a claim of service connection for an anxiety disorder is granted. Legal Criteria, Factual Background, and Analysis Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. “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. 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). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The United States Court of Appeals for Veterans Claims (CAVC) has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold requirement. The CAVC interpreted the language of 38 C.F.R. § 3.156(a) as “enabling rather than precluding reopening.” See Shade v. Shinseki, 24 Vet. App. 110 (2010). An unappealed June 1954 rating decision denied the Veteran service connection for a nervous condition based essentially on a finding that such was not shown to be related to his service. The Veteran did not appeal that rating decision, or submit new and material evidence within a year following, and it became final and is the last prior final rating decision in the matter. 38 U.S.C. § 7105. Evidence of record at the time of the June 1954 rating decision included service treatment records (STRs), VA treatment records, private treatment records (including a June 2, 1954 summary report from Hillside Hospital), and the Veteran’s lay statements, and did not show or suggest an etiological relationship between the Veteran’s nervous disorder and his service. As the claim was previously denied based on a finding that the claimed disability is unrelated to service, for evidence to be new and material, it must tend to relate to this unestablished fact (tend to show a nexus between the current disability and service). Evidence received since the June 1954 rating decision includes an October 2018 private psychological evaluation report from Dr. Marcia Baruch, which reports a current diagnosis of generalized anxiety disorder and relates it to the Veteran’s service. This evidence is new, as it was not part of the record in June 1954, and is material, as it is competent (medical) evidence that pertains to the unestablished fact necessary to substantiate the claim. Consequently, in light of the “low threshold” standard for reopening endorsed by the CAVC in Shade, the Board finds that the evidence received is both new and material, and that the claim of service connection for bipolar disorder may be reopened. De novo consideration of the claim is discussed in the remand below. REASONS FOR REMAND Service connection for an anxiety disorder (on de novo review) is remanded. The Board finds that further development of the record is necessary to comply with VA’s duty to assist the Veteran in the development of facts pertinent to his reopened claim of service connection for an anxiety disorder. As noted above, in an October 2018 private psychological report, Dr. Baruch opined that the Veteran’s anxiety disorder is at least as likely as not related to his service. As rationale for her opinion, she explained that “dizziness is a common symptom of stress/anxiety.” She stated that his “in-service symptoms of dizziness…are consistent with his symptoms documented in 1954 and all documents thereafter.” She also reported that “[The Veteran] has no other physical or medical problems to describe his dizziness. He does not suffer from seizures, vertigo, or diabetes.” Dr. Baruch’s opinion appears to be based on a limited review of the record, including the Veteran’s STRs, a June 1954 statement from Hillside Hospital, and a November 2011 letter from the Veteran’s treating physician, Dr. Frederick Lehman (which indicates that he experiences anxiety attacks, for which medication is prescribed). She apparently did not review the Veteran’s VA treatment records, dated from 2001 to 2014, which show that the Veteran was hospitalized for 3 days with a final diagnosis of vertigo (November 2004), has a long history of hypertension (November 2004), has impaired glucose intolerance and hyperlipidemia (December 2010), and had EKG testing which showed a non-specific ST abnormality (July 2014) (although prior clinical records showed normal cardio testing). As the rationale for the opinion provided is not based on review of the entire record, and is based on an inaccurate factual premise (that the Veteran does not have any “physical or medical problems” that could cause his dizziness), it is inadequate for rating purposes. An examination to secure an adequate medical advisory opinion is necessary. The Veteran receives ongoing VA treatment (including occasional mental health treatment). Records of such treatment may contain pertinent information, and considering also that VA records are constructively of record, they must be obtained. The record also suggests that records of pertinent private treatment remain outstanding. At the August 2018 Board hearing, the Veteran testified that after separation from service, he received psychiatric treatment (including medication) from a Dr. Tisby (a family doctor), Dr. Lehman (noted above), and a Dr. Comfee (who “took over for Dr. Lehman”). Treatment records from these three physicians (other than Dr. Lehman’s November 2011 statement) are not associated with the record, may contain pertinent information, and must be sought on remand. Records from Dr. Comfee (the last of those providers), at least, may be available. The matter is REMANDED for the following: 1. Secure for the record updated (to the present, those not already associated with the record) complete clinical records of all VA evaluations and treatment the Veteran has received since October 2014 (when the most recent VA treatment records in the record are dated). Ask the Veteran to identify all providers of private evaluations or treatment he has received for his psychiatric disability and submit authorizations for VA to secure complete existing clinical records from the providers identified, in particular Drs. Tisby, Lehman, and Comfee. Obtain those records. 2. Then, arrange for the Veteran to be examined by a psychologist or psychiatrist to determine the nature and likely etiology of his psychiatric disability. The examiner should note the diagnoses of vertigo, hypertension, impaired glucose intolerance, hyperlipidemia, and non-specific ST abnormality on EKG study, and, Dr. Baruch’s October 2018 opinion, and: (a) Identify (by diagnosis) each psychiatric disability found (or shown by the record). (b) Identify the likely etiology of each psychiatric disability entity diagnosed. Is it at least as likely as not (a 50% or greater probability) that it is related to the Veteran’s service/events therein? Include rationale with all opinions. Discuss the Veteran’s testimony that the symptoms he experiences today are identical to those in service, and his psychiatric treatment at Hillside Hospital from November 1953 to June 1954. Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Dupont, Jason