Citation Nr: 18160071 Decision Date: 12/21/18 Archive Date: 12/20/18 DOCKET NO. 17-06 825 DATE: December 21, 2018 ORDER New and material evidence having been received, the claim to reopen service connection for an acquired psychiatric disorder, other than posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, other than PTSD, to include as secondary to a service-connected traumatic brain injury (TBI) is remanded. Entitlement to service connection for PTSD is remanded. FINDINGS OF FACT 1. In an August 2002 rating decision, the Regional Office (RO) denied entitlement to service connection for behavior problems and anger, and drug abuse; the Veteran did not appeal the decision and it became final. 2. In a January 2006 rating decision, the RO denied entitlement to service connection for a bipolar disorder and confirmed and continued the denial of service connection for drug abuse; the Veteran did not appeal the decision and it became final. 3. In a December 2008 rating decision, the RO confirmed and continued the denial of service connection for behavior problems and anger; the Veteran did not appeal the decision and it became final. 4. The evidence received subsequent to the December 2008 rating decision is not cumulative of the evidence previously of record; it relates to unestablished facts necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim of entitlement to service connection for an acquired psychiatric disorder other than PTSD. CONCLUSIONS OF LAW 1. The August 2002, January 2006, and December 2008 rating decisions are final. 38 U.S.C. §§ 7105 (2014); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (2017). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disability other than PTSD. 38 U.S.C. §§ 5108, 7105 (2014); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1977 to June 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from April 2015 (PTSD) and May 2015 (depression) rating decisions issued by the Department of Veterans Affairs (VA) RO in Des Moines, Iowa. In April 2015, the Veteran filed a claim of service connection for depression secondary to a TBI. Earlier claims of entitlement to service connection for behavior problems and anger, drug abuse, and bipolar disorder had been denied, as discussed further below. Following an August 2015 informal conference with a Decision Review Officer (DRO), the RO consolidated the depression claim and all previous mental health denials into a general issue of entitlement to service connection for an acquired psychiatric disorder. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Given the Veteran’s previously denied claims for mental disturbances/disorders, the Board must first address whether the Veteran has submitted new and material evidence to reopen his claim of entitlement to service connection for an acquired psychiatric disorder. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Board notes that additional VA medical records have been associated with the claims file since the January 2017 statement of the case (SOC). However, as discussed below, the Agency of Original Jurisdiction (AOJ) will have the opportunity to review these records on remand. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, other than PTSD. The Veteran seeks to reopen a previously denied claim of entitlement to service connection for an acquired psychiatric disorder, claimed as depression, that was previously claimed as behavior problems and anger, drug abuse, and bipolar disorder. 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(c). 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. 38 C.F.R. § 3.156(a). 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. Id. 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). Furthermore, 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. Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996); see also Graves v. Brown, 8 Vet. App. 522, 524 (1996). The evidence submitted to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been received. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). In August 2001, the Veteran submitted claims of entitlement to service connection for behavior problems and anger, and drug abuse. The RO denied service connection for both claims in August 2002, finding that behavior problems and anger was not considered a disabling condition and no diagnosis of a mental disorder had been made in service. Further, the Veteran’s drug abuse was found to be a primary condition, the result of his own willful misconduct. The Veteran did not appeal the decision and consequently, the decision became final based on the evidence of record at that time. In September 2005, the Veteran submitted claims of entitlement to service connection for substance abuse and bipolar disorder. In January 2006, the RO denied service connection for bipolar disorder because no diagnosis of a mental disorder was made in service and there was no evidence this disorder occurred in or was caused by service. Additionally, the RO denied reopening the Veteran’s claim of service connection for drug abuse, as no new evidence had been received. The Veteran did not appeal and the rating decision became final. In August 2008, the Veteran again submitted a claim of entitlement to service connection for behavior problems and anger. A December 2008 rating decision denied reopening the Veteran’s claim, finding that the evidence was not new and material. The Veteran did not appeal and the rating decision became final. In April 2015, the Veteran submitted a claim of entitlement to depression, secondary to a TBI, which was denied in a May 2015 rating decision. Following an August 2015 informal conference with a DRO, the Veteran’s claim was consolidated with previous mental health claims into a claim of service connection for an acquired psychiatric disorder. As the Veteran perfected his appeal in February 2017, this issue is now before the Board. At the time of the December 2008 rating decision, the evidence of record consisted of service treatment records, post-service VA treatment records, and lay statements. The pertinent evidence received since this time includes additional VA treatment records noting diagnoses of adjustment disorder with mixed anxiety and depressed mood, adjustment reaction, paranoid personality disorder, antisocial personality disorder, and bipolar affective disorder; private treatment records containing March 2014 and October 2015 mental status evaluations; and additional lay statements submitted by the Veteran. This evidence was not before adjudicators when the Veteran’s claim was last denied and is not cumulative or redundant of the evidence of record at the time of December 2008 rating decision. The evidence also relates to an unestablished fact necessary to substantiate the claim of service connection and raises a reasonable possibility of substantiating the claim. Accordingly, the claim of entitlement to service connection for an acquired psychiatric disorder is reopened. To this extent only, the claim is granted. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, other than PTSD, to include as secondary to a service-connected TBI is remanded. 2. Entitlement to service connection for PTSD is remanded. The Veteran is seeking entitlement to service connection for an acquired psychiatric disorder and PTSD. Specifically, the Veteran contends that his mental health issues are due to the racism he endured in service, including a physical assault that resulted in a TBI. The Board finds that additional development is necessary before a decision may be rendered regarding the issues on appeal. As an initial matter, the Board finds that the Veteran’s March 2016 correspondence included an explicit request for a DRO hearing. However, the record does not demonstrate that the RO scheduled the Veteran for a hearing before a DRO. Further, in an October 2018 statement, the Veteran expressed disappointment that he was unable to appear before a DRO. Therefore, the Board finds the Veteran’s DRO hearing request remains pending and a remand is required to ensure due process requirements are satisfied. 38 C.F.R. § 3.103(c) (2017). Next, the Board notes that statements made by the Veteran during his January 2013 VA examination indicate that he is in receipt of disability compensation from the Social Security Administration (SSA) due to physical and mental impairments. As a general matter, VA is required to obtain pertinent Federal government records, including medical records held by SSA. 38 C.F.R. § 3.159(c)(2). See, e.g., Murincsak v. Derwinski, 2 Vet. App. 363 (1992). VA needs to make as many requests as are necessary to obtain relevant records from a Federal department or agency, to include the SSA. 38 C.F.R. § 3.159(c)(2). As long as a reasonable possibility exists that any such SSA records are relevant to a Veteran’s claim, VA is required to assist said Veteran in obtaining the identified records. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). On remand, all pertinent SSA records must be obtained and associated with the claims file. The Board notes that in an October 2018 correspondence, the Veteran’s attorney asserted that VA had failed in its duty to assist the Veteran in obtaining outstanding in-service mental health treatment records and a mental health evaluation that the Veteran had identified during the August 2015 informal conference. Review of the Informal Conference Report reveals that the Veteran reported only undergoing a mental health evaluation and indicated that he did not receive mental health treatment while in service. This mental health evaluation was included in the Veteran’s service treatment records and was associated with his claims file in February 2002. However, portions of the evaluation are illegible due to improper electronic scanning of creased pages. As this evidence is pertinent to the Veteran’s claims, remand is warranted to rescan this document. The Veteran was last afforded a psychiatric VA examination in April 2015 in connection with his claim of service connection for PTSD. The VA examiner indicated that the Veteran’s reported in-service incident involving racism and personal assault met the stressor criteria for a diagnosis of PTSD; however, the Veteran did not meet the diagnostic criteria to establish a PTSD diagnosis, as he failed to endorse symptoms related directly to the stressor. The examiner did note that the Veteran was diagnosed with antisocial personality disorder and adjustment disorder with mixed anxiety and depressed mood, but that these disorders were less likely than not related to service and more a response to situational stressors such as unemployment and homelessness. Subsequent to the VA examination, an addendum opinion was provided in April 2015, as the initial examiner had incorrectly indicated that the Veteran was not diagnosed with a TBI. This opinion noted that the Veteran suffered a mild TBI more than 37 years ago and medical records showed no associated impairments. Instead, the Veteran’s impairments were related to his diagnosed mental health conditions. In May 2015, a VA medical opinion was provided in connection with the Veteran’s claim for depression, secondary to a TBI. The VA examiner opined that the Veteran’s claimed condition was less likely than not related to his TBI. The examiner cited a January 2015 VA TBI examination which noted that the Veteran’s symptoms of depression, anxiety with sleep disorder, and neurobehavioral symptoms of irritability were less likely than not caused by his mild TBI. The Veteran’s depression was due to his diagnosed adjustment disorder with mixed anxiety and depressed mood, which in turn was found to be the result of situational stressors such as unemployment and homelessness. Following the VA examinations and opinions, in September 2016, the Veteran submitted medical literature describing a connection between racism and PTSD. Furthermore, the Veteran underwent a private psychological evaluation in October 2015 in which the psychologist, Dr. R. R., indicated that the Veteran presented with symptoms that suggested a diagnosis of depressive disorder not otherwise specified (NOS) with anxious features. In June 2016, a VA treatment record indicated that the Veteran was diagnosed with bipolar affective disorder. Given the additional evidence in the Veteran’s claims folder since his last VA examination, as well as the new evidence to be associated with the folder following this remand, the Board finds that the Veteran should be afforded a new VA examination which addresses all recent evidence, including all mental health diagnoses, theories of entitlement, and the medical literature submitted by the Veteran. Lastly, the Board notes that additional VA medical records have been associated with the claims file since the January 2017 SOC. Although the Veteran’s substantive appeal was filed after February 2, 2013, these records were obtained by VA rather than the Veteran. Therefore, there is no automatic waiver of AOJ review. The matters are REMANDED for the following action: 1. The Veteran should be scheduled, in accordance with appropriate procedures, for a hearing before a DRO at the RO. The Veteran should be notified in writing of the date, time, and location of the hearing, and such notice must be associated with the claims file. Any indicated development consistent with the request should be undertaken. 2. Contact the Social Security Administration and obtain any records pertaining to the Veteran’s claims for disability benefits. Add all such records to the claims file, and appropriately document if such records are unavailable. 3. Arrange for the Veteran’s April 15, 1990 mental health evaluation, located in his service treatment records, to be re-scanned. Check to confirm that the entire 2-page report is rescanned legibly. 4. After the above development has been completed, and after any records obtained have been associated with the evidentiary record, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his psychiatric disorders. The electronic claims folder, including a copy of this remand, should be made available to the examiner, and the examiner must review the entire claims file in conjunction with the examination. The examiner should provide opinions as to the following: (a) Does the Veteran have a current diagnosis of PTSD in accordance with the criteria of DSM-V? If so, is it as least as likely as not (50 percent probability or greater) that the Veteran’s PTSD had its onset or is otherwise etiologically related to active duty service? Please explain why or why not. (b) Is it as least as likely as not (50 percent probability or greater) that the Veteran’s acquired psychiatric disorder had its onset or is otherwise etiologically related to active duty service? Please explain why or why not. (c) Is it as least as likely as not (50 percent or greater) that the Veteran’s diagnosed acquired psychiatric disorder was caused or aggravated by his service-connected TBI? Aggravation means a permanent worsening of the disability worsening of the disability beyond the natural progression of the disability. Please explain why or why not. In forming the requested opinions, the examiner is asked to address the medical literature submitted in September 2016 and the Veteran’s contentions that his acquired psychiatric disorders are the result of (1) racism he encountered in service, (2) the circumstances surrounding the November 1978 assault, and/or (3) residuals of a TBI. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, the Veteran’s claims should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, furnish the Veteran and his attorney a supplemental statement of the case (SSOC) which considers all evidence added since the January 2017 SOC and return the case to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Silverblatt, Associate Counsel