Citation Nr: 20005635 Decision Date: 01/23/20 Archive Date: 01/23/20 DOCKET NO. 16-52 165 DATE: January 23, 2020 ORDER The petition to reopen the claim for service connection for an acquired psychiatric disorder, to include PTSD, is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. FINDINGS OF FACT 1. Service connection for PTSD was denied in a June 2013 rating decision, which was not appealed. 2. Since the June 2013 rating decision, evidence has been submitted that was not previously considered by agency decisionmakers and that relates to an unestablished fact necessary to substantiate the claim. CONCLUSIONS OF LAW 1. The June 2013 rating decision denying service connection for PTSD is final. 38 U.S.C. § 7105(c) (2017); 38 C.F.R. § 20.1103 (2017). 2. Evidence added to the record since the June 2013 rating decision is new and material, and the claim for service connection for an acquired psychiatric disorder, to include PTSD, is reopened. 38 U.S.C. § 5108(a) (2017); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably, including active duty from April 1971 to April 1975. He died in December 2018. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The appellant testified before the Board at an October 2019 hearing. As his substitute, the appellant pursues the Veteran’s claim for PTSD that pended before VA at the time of his death. Prior to the instant claim, a June 2013 rating decision denied the Veteran’s claim for service connection for PTSD. This previous decision was not appealed and therefore became final. 38 U.S.C. § 7105(c) (2017); 38 C.F.R. § 20.1103 (2017). Claims denied by a final decision normally may not be reopened, but an exception exists if a claimant submits new and material evidence. 38 U.S.C. § 5108(a) (2017). “New” evidence means evidence not previously submitted to agency decisionmakers, and “material” evidence means 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 cannot be cumulative or redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened. 38 C.F.R. § 3.156(a). New and material evidence must “raise a reasonable possibility of substantiating the claim,” a “low threshold” that “must be viewed as enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). The June 2013 rating decision denied the claim for failure to establish any element of service connection. Since that decision, the Veteran submitted statements explaining that he was a conscientious objector and that he believed his mental health suffered because he felt directly responsible for the lives taken by the B-52 bombers that he refueled. Moreover, the Veteran’s family testified at the Board hearing that the Veteran started exhibiting symptoms when he returned from the war. As this evidence was not previously considered by VA and relates to the unestablished element of a connection to service, the evidence is new and material, and the claim for service connection for PTSD is reopened. 38 C.F.R. § 3.156 (2017); see Shade, 24 Vet. App. at 121. REASONS FOR REMAND In May 2013 the Veteran was provided a VA examination at which he was diagnosed with a chronic adjustment disorder with mixed anxiety and depressed mood. The examiner did not, however, offer an opinion whether this condition was related to service. Another VA examination was provided in September 2016. The examiner opined that the Veteran did not meet the criteria for PTSD, diagnosing him instead with a personality disorder and an adjustment disorder with mixed anxiety and depressed mood, the latter of which the examiner in passing suggested was due to ongoing financial stressors. The examiner’s ultimate opinion, however, only concerned whether the Veteran had PTSD due to service. Given the diagnosis by multiple clinicians of an adjustment disorder with mixed anxiety and depressed mood, the Board finds that a medical opinion should be obtained that considers whether the condition is linked to the Veteran’s service. 38 U.S.C. § 5103A(a); cf. McLendon v. Nicholson, 20 Vet. App. 79, 83, 86 (2006) (applying 38 U.S.C. § 5103A(d)). Likewise, given that the evidence suggests the Veteran may have a psychiatric condition other than PTSD, the Board has restyled the claim to include any acquired psychiatric disorder. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The matter is REMANDED for the following action: 1. Obtain an opinion regarding the nature and etiology of a psychiatric condition. Based on the evidence of record, the clinician is asked to diagnose any psychiatric condition of the Veteran since 2015 until his death. The clinician should opine whether adjustment disorder with mixed anxiety and depressed mood, which the Veteran was diagnosed with by the May 2013 VA examiner, at least as likely as not was related to the Veteran’s service, including his duties refueling B-52s that he knew were sent on bombing missions, as well as his status as a conscientious objector. For any other acquired psychiatric condition diagnosed, the clinician must opine whether the condition at least as likely as not was related to the Veteran’s service. If the clinician is unable to provide the requested opinion without resorting to speculation, he or she should state why and what additional information, if any, would be required to render an opinion without speculating. 2. After the above development and any other development deemed necessary is completed, readjudicate the claim. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Davis, 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.