Citation Nr: 18123727 Decision Date: 08/03/18 Archive Date: 08/02/18 DOCKET NO. 15-27 437 DATE: August 3, 2018 ORDER New and material evidence having been received; the claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), generalized anxiety disorder, and antisocial personality disorder, is reopened. The appeal is granted to that extent only. FINDINGS OF FACT 1. In a January 1991 rating decision, the RO denied service connection for an acquired psychiatric disorder; as the Veteran did not perfect an appeal, the January 1991 decision became final. 2. The evidence received since the January 1991 rating decision is not cumulative or redundant of evidence previously of record, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, generalized anxiety disorder, and antisocial personality disorder. CONCLUSIONS OF LAW 1. The January 1991 rating decision that denied service connection for an acquired psychiatric disorder is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. New and material evidence has been received to reopen the claim of service connection for an acquired psychiatric disorder, to include PTSD, generalized anxiety disorder, and antisocial personality disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1974 to July 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. 1. Whether new and material evidence has been submitted to reopen the claim for service connection for an acquired psychiatric disorder to include PTSD. Pursuant to 38 U.S.C. § 7104 (b), a decision by the Board may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered. As well, a claim that has been denied in a final unappealed rating decision by the RO may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (c). The exception to this rule is described under 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.” Therefore, once a rating decision has been issued, absent the submission of new and material evidence, the claim cannot be reopened or adjudicated by VA. 38 U.S.C. §§ 5108, 7104(b); 38 C.F.R. § 3.156, 20.1105; see Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (reopening after a prior Board denial). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as 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 Board will generally presume the credibility of the evidence in determining whether evidence is new and material. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Significantly, however, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). 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). The Board finds that new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for an acquired psychiatric disorder. The claim of entitlement to service connection for an acquired psychiatric disorder was originally denied in a January 1991 rating decision. The RO denied the Veteran’s claim because the evidence submitted failed to show a current diagnosis of any acquired psychiatric disorder. The Veteran was provided with notification of the January 1991 rating decision and of his procedural and appellate rights. The Veteran submitted a timely notice of disagreement with the rating decision and the RO issued a statement of the case. The Veteran did not perfect an appeal and the January 1991 rating decision which denied service connection for an acquired psychiatric disorder became final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). Subsequent to the January 1991 rating decision, the Veteran has submitted additional evidence and arguments that if presumed credible for purposes of reopening, show a possibility that he has a current diagnosis of PTSD. Specifically, medical treatment records received from the Leavenworth VA medical center note the Veteran has current diagnoses of PTSD, generalized anxiety disorder, and a personality disorder. See Medical Treatment Records. Accordingly, this evidence is sufficient to reopen the previously-denied claim of entitlement to service connection for an acquired psychiatric disorder. See 38 C.F.R. § 3.156 (a). REMANDED Entitlement to service connection for an acquired psychiatric disorder to include PTSD, generalized anxiety disorder, and personality disorder, is remanded. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder to include PTSD is remanded. The Veteran was afforded a VA examination in September 1990 for the claim acquired psychiatric disorder. The examiner indicated the Veteran did not suffer from an acquired psychiatric disorder and therefore, did not provide a nexus opinion. Evidence added to the record since this examination confirms the Veteran has been diagnosed with PTSD, generalized anxiety disorder and personality disorder, which the Veteran has related to service. Thus, the Board finds an examination is needed to determine the etiology of the Veteran’s acquired psychiatric disorder. The matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records from May 2014 to the present and associate them with the claims file. Any and all responses, including negative responses, must be properly documented in the electronic file, as well as any notification to the Veteran as to any records deemed unavailable. 2. Attempt to corroborate the Veteran’s in-service stressor[s], including witnessing a fellow soldier while crawling under wire during boot camp being shot by machine gun fire when the soldier stood up and being involved in a motor vehicle accident. If more details are needed, contact the Veteran to request the information. 3. After the Veteran’s reported stressors have been developed, schedule the Veteran for a psychiatric examination to determine the nature and etiology of any acquired psychiatric disorder, to include PTSD, generalized anxiety disorder and personality disorder. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. If the Veteran is diagnosed with a personality disorder and PTSD, the examiner must opine whether the PTSD was at least as likely as not superimposed on a personality disorder during active service and resulted in additional disability. If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease, to include witnessing a fellow soldier while crawling under wire during boot camp being shot by machine gun fire when the soldier stood up and being involved in a motor vehicle accident. 4. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal. If any benefit sought remains denied a supplemental statement of the case (SSOC) must be provided to the Veteran and his attorney. After the Veteran has had an adequate opportunity to respond, then return the appeal to the Board for appellate review, if otherwise in order KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. McDuffie, Associate Counsel