Citation Nr: 20002976 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 17-00 097 DATE: January 14, 2020 ORDER New and material evidence having been received, the claim for entitlement to service connection for major depression is reopened. REMANDED Entitlement to service connection for major depression is remanded. FINDINGS OF FACT 1. An unappealed October 2007 rating decision is the last final decision that denied service connection for major depression. 2. The evidence received since the final October 2007 rating decision is new and relates to unestablished facts necessary to substantiate the claim for service connection for major depression. CONCLUSIONS OF LAW 1. The October 2007 rating decision denying service connection for major depression is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.160(d), 20.302, 20.1103 (2018). 2. The criteria to reopen the service connection claim for major depression are met. 38 U.S.C. §§ 5107, 5108 (2012); 38 C.F.R. § 3.156(a) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1971 to February 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran’s petition to reopen his service connection claim for major depression. Although the RO declined to reopen the Veteran’s claim, it is the Board’s jurisdictional responsibility to consider whether it is proper for a claim to be reopened. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The Board notes that the Veteran did not perfect an appeal as to his claim for service connection for bladder cancer; accordingly, that claim will not be addressed herein. See December 2016 Form 9. In November 2019, the Veteran and his spouse testified at a videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. 1. Whether new and material evidence have been received to reopen a claim of service connection for major depression Rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement (NOD) with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160, 20.201, 20.302. If the Board issues a decision on appeal confirming the RO’s decision, then the Board’s decision subsumes the RO’s decision on the same issue at hand. 38 C.F.R. § 20.1104. Moreover, if the Board’s decision is not timely appealed, then it, too, is final and binding based on the evidence then of record. 38 C.F.R. § 20.1100. VA may reopen a claim that has been previously denied if new and material evidence is submitted by or on behalf of the claimant. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Regarding applications for reopening, 38 C.F.R. § 3.156(a) defines “new” evidence as evidence not previously submitted to agency decision makers and “material” evidence as 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 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 (2003). In order to reopen a claim, it is not necessary that new and material evidence be received regarding each previously unproven element of a claim. Indeed, newly submitted evidence need not be overwhelming as a “low threshold” standard is applied. Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). In this matter, the Veteran’s original service connection claim was denied by the RO in an October 2007 rating decision because the evidence did not show that major depression either occurred in or was caused by service. The Veteran did not appeal the October 2007 rating decision, nor was new and material evidence received within a year of notification of the rating decision. 38 C.F.R. § 3.156(b). Therefore, the October 2007 rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. § 3.104(a). Thus, the question before the Board is whether the evidence received after the final October 2007 rating decision is both new and material. The record reflects that when the RO issued the October 2007 rating decision, the Veteran’s claims file contained June 2003 and May 2007 claim applications, service treatment records, military personnel records, and VA treatment records. Evidence received since the October 2007 rating decision includes an October 2014 NOD, a September 2016 Informal Hearing Presentation (IHP), a December 2016 lay statement from the Veteran, a December 2016 Form 9, a January 2017 statement from the Veteran’s spouse, a January 2017 buddy statement from B.L., a letter from P.L., PhD, received January 2017, records from the Social Security Administration received August 2017, an October 2017 buddy statement from M.P., updated VA treatment records, and the November 2019 Board hearing transcript. Of note, in January 2017, VA received a letter from the Veteran’s counselor, P.L., PhD. Dr. P.L. wrote, “[The Veteran] has a considerable history with depression dating back to his military service in US Army in about the year 1972… His apparent attitude shift was noted by his parents (now deceased), his friends, and his Army peers to include his roommate… He eventually would finish his service obligation, but never regained his former attitude… It seems more likely than not that [the Veteran's] depression had its nidus in the US Army service. It was left undiagnosed and untreated secondary to military culture and his use of alcohol to cover symptoms…” The Board finds that the January 2017 letter from P.L. is new as it was not previously submitted to the RO, and it is material because it relates to the unestablished elements of an in-service incurrence and nexus. Therefore, the Board concludes that the evidence received since the last final decision is new and material and, for these reasons, the petition to reopen is granted. REASONS FOR REMAND 2. Entitlement to service connection for major depression is remanded Here, the Veteran asserts that he currently has major depression that is related to, or caused by, his active service. A November 2017 VA psychiatry note reflects a current diagnosis of major depression, and, as noted above, in a January 2017 letter, the Veteran’s counselor, Dr. P.L., wrote, “It seems more likely than not that [the Veteran’s] depression had its nidus in the US Army service. It was left undiagnosed and untreated secondary to military culture and his use of alcohol to cover symptoms…” To date, VA has not obtained a competent medical examination and opinion addressing this claim. Given the Veteran’s current diagnosis of major depression and the medical evidence regarding the onset of his depression during service, a VA examination should be afforded to him. McClendon v. Nicholson, 20 Vet. App. 79 (2006). Furthermore, the Board notes that there is conflicting evidence in the file regarding the onset of the Veteran’s depression. In a September 2016 IHP, the Veteran’s representative wrote that in discussing his claim, the Veteran “mentioned a history of depression extending prior to service.” Also, during the November 2019 Board hearing, the Veteran was asked whether, prior to going into the military, he ever had any mental health issues or was taken to the doctor by his parents for any mental health problems. The Veteran replied, “Yeah, I went one time to a psychiatrist.” When asked whether he recalled what the doctor said at that time, the Veteran replied, “No, it was too long ago.” See November 2019 Board hearing transcript. Additionally, the Board observes that the Veteran did not endorse depression or excessive worry in his Reports of Medical History in service, and that “psychiatric” was found to be normal on all Reports of Medical Examination. However, the Veteran did endorse “frequent or terrifying nightmares” and “loss of memory or amnesia” in a January 1970 Report of Medical History. In the physician’s summary and elaboration of pertinent data from the January 1970 Report of Medical History, the examiner wrote, “Occasional headache when he worries and states that he has a little trouble getting to sleep and seems to worry quite a bit about various things. Appears stable and doubt that he has truly excessive worry.” Thus, on remand, the examiner should provide an opinion as to whether the Veteran’s major depression clearly and unmistakably existed prior to his entrance to service. The Board acknowledges copious medical evidence and lay statements suggesting an onset of the Veteran’s depression during active service. Nevertheless, there is evidence in which the Veteran reports his depression started after service separation. See May 1995 MHMR, Harris County, Texas, treatment record (Veteran reported he had been depressed since 1990 and that he had no problem adjusting to the military); September 1995 MHMR, Harris County, Texas, treatment record (Veteran reported history of depression since 1989), June 1998 VA psychiatry outpatient note (Veteran reported started feeling depressed after his 16 year-old-stepdaughter became suicidal), November 1998 VA psychiatry outpatient assessment (Veteran claimed onset of mental state was after taking out student loan in 1996, and that his mental state would prevent him from repaying the loan), May 2007 claim application (Veteran claimed the date his major depression occurred was 04/15/1993, while also stating “I had depression while in the service…”). On remand, the examiner should reconcile the above evidence suggesting that the Veteran’s depression had its onset after separation from service. Accordingly, the matter is REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file, and then provide the Veteran with a VA examination by an appropriate examiner to determine the nature and etiology of his major depression. The claims file, and a copy of this Remand, must be made available to and be reviewed by the examiner. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail. After a thorough review of the record and examination of the Veteran, the examiner is asked to respond to the following: (a) Elicit from the Veteran and the record the history of his major depression symptoms before, during, and since his active service. (b) Provide an opinion as to whether the Veteran’s major depression clearly and unmistakably existed prior to his entrance to service. Specifically, address the following evidence: ** January 1970 Report of Medical History. See Veteran’s endorsement of “frequent or terrifying nightmares” and “loss of memory or amnesia” and physician’s summary and elaboration of pertinent data, finding, “[o]ccasional headache when he worries and states that he has a little trouble getting to sleep and seems to worry quite a bit about various things. Appears stable and doubt that he has truly excessive worry.” ** September 2016 Informal Hearing Presentation. See Veteran’s representative’s statement that in discussing his claim, the Veteran “mentioned a history of depression extending prior to service.” ** November 2019 Board hearing transcript. See Veteran’s testimony that prior to service, he went to a psychiatrist one time, but did not remember what the doctor said because it was too long ago. (c) If the major depression clearly and unmistakably existed prior to service, opine whether such disability was clearly and unmistakably NOT AGGRAVATED beyond its natural progression by the Veteran’s service. (d) If the major depression did not clearly and unmistakably exist prior to service, opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s current major depression had its onset during service or is otherwise related to it. In providing these opinions, the examiner’s attention is called to the following: ** October 2014 NOD. See Veteran’s statement that “[t]o have been separated from military service as an E1 should certainly support my belief and claim something bad had occurred in service to have caused this adverse mental condition…” ** February 2015 VA psychology note. See Veteran’s belief that his depression is related to his military service. ** December 2016 Veteran’s lay statement. See Veteran’s statement that after an incident in service in which he was accused of being AWOL although he was told he could have a day off by his First Sergeant, he started feeling depressed and started to drink every night, using alcohol to make it through the rest of his time in service. ** January 2017 Veteran’s spouse’s lay statement. See Veteran’s spouse’s statement that she feels sure the Veteran’s condition began when he was serving his country. ** January 2017 letter from the Veteran’s counselor, P.L., PhD. See Dr. P.L.’s statement that “[The Veteran] has a considerable history with depression dating back to his military service in US Army in about the year 1972… His apparent attitude shift was noted by his parents (now deceased), his friends, and his Army peers to include his roommate… He eventually would finish his service obligation, but never regained his former attitude… It seems more likely than not that [the Veteran's] depression had its nidus in the US Army service. It was left undiagnosed and untreated secondary to military culture and his use of alcohol to cover symptoms…” ** January 2017 buddy statement from B.L. See B.L.’s observations regarding the changes to the Veteran’s demeanor and behavior between when he first met him and after service. ** October 2017 buddy statement from M.P. See M.P.’s observation that “I saw [the Veteran’s] whole life change” during service and noting his suicide attempt on a motorcycle in service. ** November 2017 VA psychiatry note. See Veteran’s report that he attempted suicide in the military. ** November 2019 Board hearing transcript. See Veteran’s testimony that he “spiraled down” after he was accused of going AWOL even though his First Sergeant told him he could take the day off without using leave, and that he attempted suicide during service by riding a motorcycle off of the road and hitting his head). (e) Reconcile the following evidence suggesting that the Veteran’s major depression started after service: ** May 1995 MHMR, Harris County, Texas, treatment record. See Veteran’s report that he had been depressed since 1990 and that he had no problem adjusting to the military. ** September 1995 MHMR, Harris County, Texas, treatment record. See Veteran’s reported history of depression since 1989. ** June 1998 VA psychiatry outpatient note. See Veteran’s report that he started feeling depressed after his 16 year-old-stepdaughter became suicidal. ** November 1998 VA psychiatry outpatient assessment. See report that onset of the Veteran’s mental state was after taking out student loan in 1996, and that his mental state would prevent him from repaying the loan. ** May 2007 claim application. See Veteran’s claim that the date his major depression occurred was 04/15/1993, while also stating “I had depression while in the service…” (Continued on the next page) The examiner should provide a complete rationale for all opinions. 2. Finally, readjudicate the claim on appeal. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. M. Gill, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.