Citation Nr: 18159352 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 16-48 029 DATE: December 18, 2018 ORDER New and material evidence having been received, the petition to reopen the claim of entitlement to service connection for an acquired psychiatric disability is granted. REMANDED The issue of service connection for an acquired psychiatric disability is remanded. FINDING OF FACT 1. In a June 2010 rating decision, the St. Paul, Minnesota, RO denied service connection for major depressive disorder. The Veteran initiated an appeal, and the June 2013 Board decision denied the claim. 2. Evidence associated with the file since June 2013, when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for an acquired psychiatric disability. CONCLUSION OF LAW 1. The June 2013 decision denying service connection for an acquired psychiatric disability is final. 38 U.S.C. § 7104 (b) (West 2014); 38 C.F.R. §§ 3.104 (a), 20.302 (a), 20.1103 (2017). 2. As pertinent evidence received since the June 2013 denial is new and material, the criteria for reopening the claim of service connection for an acquired psychiatric disability is met. 38 U.S.C. §§ 5108, 7104, 7105 (West 2014); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1988 to October 1988. In December 2014, the Court of Appeals for Veterans Claims (Court) affirmed the Board’s June 2013 denial. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disability Generally, a claim that has been denied in an un-appealed Board decision or an un-appealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105 (c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108 (West 2014); 38 C.F.R. § 3.156 (a); see also Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). 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). The Court has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration 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 the VA Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). The newly presented evidence need not be probative of all the elements required to award the claim, just probative of each element (or at least one element) that was a specified basis for the last disallowance of the claim. See Evans v. Brown, 9 Vet. App. 273, 283 (1996); see also Hodge, 155 F.3d at 1363 (noting that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant the claim). The claim of service connection for an acquired psychiatric disability was previously denied in a June 2013 Board decision. Because new and material evidence has since been submitted, this claim will be reopened. In a June 2010 rating decision, the RO denied the Veteran’s claim for entitlement to service connection for major depressive disorder because the evidence did not demonstrate that the Veteran’s disability was incurred in service. The Veteran initiated a timely appeal, and the Board denied the claim, recharacterized as entitlement to service connection for an acquired psychiatric disability, in a June 2013 decision. The denial is final as to the evidence then of record, and is not subject to revision on the same factual basis. See 38 U.S.C. § 7104 (b); see also 38 C.F.R. §§ 3.104, 3.156 (a), 20.302, 20.1103. In March 2016, the Veteran through counsel submitted additional service department records, consisting of the Veteran’s Enlisted Personnel Record; a copy of the service department’s decision letters and endorsements as to the Veteran’s discharge; a document reporting the Veteran’s military test scores; a duplicate copy of the Veteran’s “performance remarks” sheets, (showing demerits, awards, and discrepancies), service treatment records previously of record, duplicate copy of the Veteran’s enlistment contract and associated forms (also previously of record), and a duplicate copy of the Veteran’s service medical records. Generally, if VA receives or associates with the claims folder relevant official service department records at any time after a decision is issued on a claim that had not been associated with the claims folder when VA first decided the claim, VA will reconsider the claim without requiring new and material evidence. 38 C.F.R. § 3.156 (c) (1). However, these records are duplicative of previous service department records and/or do not substantiate a nexus between the Veteran’s current psychiatric diagnoses and his service. Therefore, these service department records are not relevant to the Veteran’s claim. Accordingly, review of the Veteran’s claim in the context of requiring new and material evidence is appropriate. Evidence submitted since the final June 2013 decision consists of a buddy/lay statement from the Veteran’s former employer, VA treatment records, and a July 2004 article on cognitive therapy for adjustment disorder in cancer patients. The former employer’s statement clarified that he hired the Veteran before the Veteran entered service, and that the former employer noticed a change in the Veteran after the Veteran’s discharge. This statement, even with the clarification regarding when the employer hired the Veteran, does not suggest a nexus between the Veteran’s current psychiatric diagnoses and his service. The VA treatment records are duplicative of the Veteran’s January 2012 VA medical examination for posttraumatic stress disorder, when the examiner indicated the Veteran did not demonstrate any current psychiatric diagnoses. The article submission suggests that the Veteran’s in-service psychiatric condition could have progressed to his current and more severe major depressive disorder. Given the threshold for substantiating a claim to reopen is low, the evidence associated with the claims file since the June 2013 denial, when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim for entitlement to service connection for an acquired psychiatric disability and raises a reasonable possibility of substantiating the claim. Thus, the claim of service connection for an acquired psychiatric disability is reopened and will be remanded for further development. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disability The Veteran contends his current psychiatric diagnoses, to include severe major depressive disorder, were incurred in service. The Veteran was afforded two VA examinations to determine the relationship between his current psychiatric diagnoses and his in-service diagnosis of adjustment disorder with depressed mood and suicidal threat. However, neither examiner opined on whether the Veteran’s in-service diagnosis progressed or evolved into a more chronic condition since service. The Veteran has submitted medical literature suggesting a nexus between his in-service diagnosis of adjustment disorder and his current major depressive disorder. An addendum medical opinion is needed to fully and fairly evaluate the Veteran’s claim. The matter is REMANDED for the following action: 1. Request the Veteran provide any service treatment records he possesses or identify and secure any relevant private medical records that are not in the claims file. If the Veteran identifies private records, following the securing of the appropriate waivers, make all appropriate attempts to locate such records and to associate them with the claims file. If the Veteran has no further evidence to submit, or, if after exhaustive efforts have been made, no records can be identified, so annotate the record. 2. Obtain any outstanding VA medical records and associate them with the claims file. 3. Return the claims file to the April 2010 or January 2012 VA examiner and request s/he re-review the claims file and respond to the inquires below. If the examiner is not available, arrange for another appropriate VA examiner to provide an addendum medical opinion to assist in determining the relationship between the Veteran’s in-service and current psychiatric diagnoses. All appropriate tests, studies and consultations should be accomplished, including a new medical examination if necessary, and all clinical findings should be reported in detail in the narrative portion of the examination report. A rationale should be given for all opinions and conclusions rendered. Based upon a review of the relevant evidence of record, history provided by the Veteran, and sound medical principles, the VA examiner should provide the following opinions: Did the Veteran’s in-service diagnosis of adjustment disorder with depressed mood progress or evolve into any of his current psychiatric diagnoses, to include major depressive disorder? The examiner must review the entire record in conjunction with rendering the requested opinions. IN ADDITION TO ANY RECORDS THAT ARE GENERATED BECAUSE OF THIS REMAND, the VA examiner’s attention is drawn to the following: * Service treatment records indicate the Veteran’s enlistment psychiatric examination was normal. In October 1988 he wrote his girlfriend and told his mother that he was going to kill himself. He was diagnosed with adjustment disorder and depressed mood in October 1988 and given an administrative separation. See “STR – Medical,” received January 6, 2011. * Social Security Administration medical records, with several psychiatric evaluations indicating the Veteran demonstrated major depression. See “Medical Treatment Records – Furnished by SSA,” received October 22, 2010, 116 pages. * April 2010 VA medical examination, when the Veteran reported that his Petty Officer mistreated him during basic training. The examiner diagnosed the Veteran with moderate to severe recurrent major depressive disorder, with personality disorder and negativistic and narcissistic features but opined that since adjustment disorder was not a chronic condition, the Veteran’s current depression was not related to service. See “VA Examination,” received April 8, 2010. * Range Mental Health Center records from September 2010 to June 2011, when the Veteran repeatedly indicated that his experiences in the military continue to affect his current mental health, such as having flashbacks to his treatment during service when his wife raises her voice during fights. See “Medical Treatment Record – Non-Government Facility,” received November 21, 2011, 39 pages. * January 2012 VA medical examination, when the examiner could not determine if the Veteran met the criteria for posttraumatic stress disorder (PTSD) or any other mental disorder because s/he considered the Veteran’s self-reports noncredible. See “VA Examination,” received January 24, 2012. * September 2012 evaluation by Dr. Fink, who opined the Veteran’s in-service adjustment disorder with depressed mood diagnosis “evolved” into the Veteran’s current chronic major depressive disorder. See “Medical Treatment Record – Non-Government Facility, received October 25, 2012, pages 1-5 of 11. * Medical literature indicating that adjustment disorder diagnoses in cancer patients can develop into more severe psychiatric diagnoses as the initial cancer diagnosis progresses into treatment. See “Correspondence,” received August 23,2018. A thorough explanation must be provided for the opinion rendered. If the examiner cannot provide the requested opinion without resorting to speculation, s/he should expressly indicate this and provide supporting rationale as to why the opinion cannot be made without resorting to speculation. The examiner should schedule a new examination only if necessary to provide an adequate opinion. THE EXAMINER IS ADVISED THAT BY LAW, THE MERE STATEMENT THAT THE CLAIMS FOLDER WAS REVIEWED AND/OR THE EXAMINER HAS EXPERTISE IS NOT SUFFICIENT TO FIND THE EXAMINATION/OPINION SUFFICIENT. 4. Following the review and any additional development deemed necessary, re-adjudicate the claim. Should the claim not be granted in its entirety, issue an appropriate supplemental statement of the case (SSOC) and forward the claim to the Board for adjudication. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (Continued on the next page)   This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2014). Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Anwar, Associate Counsel