Citation Nr: 18160085 Decision Date: 12/21/18 Archive Date: 12/21/18 DOCKET NO. 17-02 114 DATE: December 21, 2018 ORDER The petition to reopen the claim of entitlement to service connection for acquired psychiatric disability is granted. REMANDED The reopened claim of entitlement to service connection for acquired psychiatric disability is remanded. FINDINGS OF FACT 1. In a December 2009 decision the Veteran did not appeal, the Board denied an original claim of entitlement to service connection for acquired psychiatric disability. 2. Evidence received since the December 2009 Board decision relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for acquired psychiatric disability. CONCLUSIONS OF LAW 1. The December 2009 Board decision denying service connection for acquired psychiatric disability is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2018). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for acquired psychiatric disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1972 to October 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a rating decision by a U.S. Department of Veterans Appeals (VA) regional office (RO). In April 2017, the Veteran testified before the undersigned Veterans Law Judge at a hearing convened at the RO. A transcript of the hearing is included in the record and has been reviewed. Claim to Reopen In November 2005, the Veteran filed an original claim of entitlement to service connection for acquired psychiatric disability. The RO denied the claim in a March 2006 rating decision the Veteran ultimately appealed to the Board. In December 2009, the Board denied the claim as well. As the Veteran did not appeal the decision to the U.S. Court of Appeals for Veterans Claims, the decision became a final decision. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2018). In September 2015, the Veteran filed a claim to reopen this service connection claim. In the January 2016 rating decision on appeal, the RO denied the claim. Generally, a claim which has been denied in an unappealed Board decision or an unappealed 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, VA shall reopen the claim and review the former disposition of the 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. 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). In the December 2009 final decision, the Board considered service treatment records (STRs), to include entrance and discharge reports of medical examination and history, which are negative for mental health issues, service personnel records (SPRs) showing that the Veteran was twice punished for unauthorized absence, post-service medical evidence indicating commencement in 2005 of regular treatment for psychiatric illnesses such as anxiety, dysthymia, and substance abuse, lay statements from the Veteran asserting that he had psychiatric problems prior to service and that service aggravated the problems, and an opinion from the Veteran’s treating VA pharmacist who related psychiatric problems to service. Based on this evidence, the Board denied the claim, finding that the Veteran had a pre-service psychiatric disability which was not aggravated by service. The evidence included in the record since the final December 2009 decision consists of additional lay statements from the Veteran, to include testimony before the Board in April 2017 in which he described service as a medic in the United States as traumatic, a May 2017 lay statement from the Veteran’s friend who described the Veteran’s mental state prior to and following service, private medical evidence dated in June 2017 noting PTSD and anxiety, and VA treatment records detailing continued treatment for mental health issues to include anxiety and depression. This evidence is new evidence. Further, the Board finds material the lay assertions connecting service and mental illness. When considered with the evidence of record before the Board in December 2009, this new evidence raises a reasonable possibility of substantiating the claim. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179 (2003). Indeed, there is a low threshold for determining whether evidence is new and material. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). Assuming for the purpose of this analysis the probative value of the new evidence, the evidence tends to prove a previously unestablished fact (i.e., current disorder that may relate to experiences during service). Accordingly, the claim of entitlement to service connection for acquired psychiatric disability is reopened. REASONS FOR REMAND A remand is warranted for medical inquiry into the claim on appeal. The Veteran has claimed service connection for anxiety, depression, and PTSD. Medical inquiry should be conducted into whether any diagnosed psychiatric disability is related to service. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (the scope of a mental health disability claim includes any mental disorder that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and other information of record). The Veteran asserts that he had a pre-service acquired psychiatric disability that was aggravated by service. Medical inquiry must address whether psychiatric disability was incurred in service or whether pre-service psychiatric disability was aggravated by service. The matter is REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s claim. Include in the record any outstanding VA treatment records, the most recent of which are dated in April 2017. All records/responses received must be associated with the electronic claims file. 2. Schedule an examination to determine the nature and etiology of any current psychiatric disability. After reviewing the claims folder, interviewing the Veteran, and examining the Veteran, the examiner should answer the following questions: (a). What acquired psychiatric disabilities has the Veteran been diagnosed with since September 2015? (b). Is it at least as likely as not (i.e., probability of 50 percent or greater) that any such acquired psychiatric disability is related to a disease, event, or injury experienced during service? (c). If the answer to (b) is negative because you find that the Veteran entered service with an acquired psychiatric disability (as the Veteran has asserted), is it clear and unmistakable (i.e., undebatable) that he had an acquired psychiatric disability prior to commencement of active duty in September 1972? (d). If, and only if, it is clear and unmistakable that acquired psychiatric disability pre-existed active service, is it also clear and unmistakable that the disorder WAS NOT aggravated (i.e., permanently worsened) during service? In other words, is it clear and unmistakable that any increase in disability during service was due to the natural progress of the disorder? In answering these questions, discuss the STRs, the entrance and discharge reports of medical examination and history, and the Veteran’s lay statements of record, to include those offered in the April 2017 Board hearing. (Continued on the next page)   Please explain in detail any opinion provided G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Christopher McEntee, Counsel