Citation Nr: 20006903 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 19-15 341 DATE: January 28, 2020 ORDER New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder (MDD) and post-traumatic stress disorder (PTSD), is granted. Entitlement to service connection for an acquired psychiatric disorder, to include MDD and PTSD, is granted. FINDINGS OF FACT 1. In an April 2014 rating decision, the claim of entitlement to service connection for an acquired psychiatric disorder, to include MDD and PTSD was denied; new and material evidence was not submitted within one year of notice of that decision, and a notice of disagreement (NOD) was not submitted within one year. 2. The evidence added to the record since the April 2014 rating decision relates to an unestablished fact that is necessary to substantiate the claim of service connection for an acquired psychiatric disorder, to include MDD and PTSD. 3. The Veteran’s psychiatric disorder, to include major depressive disorder (MDD) and post-traumatic stress disorder (PTSD), is at least as likely as not related to service. CONCLUSIONS OF LAW 1. The April 2014 rating decision that denied the Veteran’s claim for entitlement to service connection for an acquired psychiatric disorder, to include MDD and PTSD is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 19.52, 20.1103. 2. As the evidence received after the April 2014 rating decision is new and material, the requirements to reopen the claim for an acquired psychiatric disorder, to include MDD and PTSD, have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.102, 3.156. 3. The criteria for service connection for an acquired psychiatric disorder, to include MDD and PTSD, are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1970 to July 1972. New and Material Evidence 1. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder (MDD) and post-traumatic stress disorder (PTSD) For evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends, and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999); Manio v. Derwinski, 1 Vet. App. 140 (1991). Under the relevant regulation, “new” evidence is defined as 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. If it finds that the submitted evidence is new and material, VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for the claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low, and consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied. Rather, consideration should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). However, for establishing whether new and material evidence has been received, the credibility of such evidence is to be presumed unless “patently incredible.” See Duran v. Brown, 7 Vet. App. 216 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). In this case the Veteran is claiming entitlement to service connection for an acquired psychiatric disorder, to include MDD and PTSD. The Veteran’s previous claim for entitlement to service connection an acquired psychiatric disorder, to include MDD and PTSD was previously denied by the RO in April 2014 on the basis that the evidence of record including several VA medical examinations did not demonstrate that the Veteran’s psychiatric disorder began in or was related to his time in service. He did not appeal this decision, nor did he submit any new and material evidence within a year of receiving the decision. See Buie v. Shinseki, 24 Vet. App. 242 (2011); §§ 3.156, 19.52. This represents the last final denial of the claim. After a review of the evidence submitted since the April 2014 rating decision became final, the Board determines that the claim should be reopened. The evidence now includes new medical evidence, including new medical treatment records, which contain the Veteran’s private doctor’s evaluation of the Veteran’s acquired psychiatric disorder and his opinion that the Veteran’s disorders are related to service, as well as a new VA medical examination in regard to the Veteran’s acquired psychiatric disorder. Additionally, not only is this evidence “new” in that it was not of record prior to the last final denial of the claim, it is also “material,” as it relates to an unestablished fact necessary to support the claim. Namely, the evidence indicates that there may be a nexus between this disorder and the Veteran’s active duty service. Therefore, the claim should be reopened on this basis. Service Connection 2. Entitlement to service connection for an acquired psychiatric disorder, to include MDD and PTSD The Veteran is seeking service connection for a psychiatric disorder, to include MDD and PTSD. In general, under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67(Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). In addition to the above, service connection for PTSD requires: medical evidence diagnosing the condition; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). The applicable regulation requires that the in-service stressor or traumatic event involve actual or threatened death, serious injury, or a threat to the physical integrity of self or others and the person’s response involve intense fear, helplessness, or horror. The Veteran has asserted that his claimed PTSD began in service as a result of attacks on the USS JOHN S. MCCAIN (DDG-36) while he was assigned to it in the waters off Vietnam. The Board concludes that the Veteran’s psychiatric disorder is not related to his active duty service, and thus his claim should be granted. In this regard, the evidence presents two conflicting opinions regarding the state of the Veteran’s psychiatric symptoms. The first is a June 2018 VA examination, which declined to diagnose the Veteran with PTSD, although it did diagnose him with MDD and anxiety. On the other hand, the Veteran has also submitted a private psychiatric opinion in October 2019, where the psychologist stated that it was at least as likely as not that the Veteran’s psychiatric symptoms were related to his active duty service. In the Board’s view, the Veteran’s statements regarding his stressor events are somewhat vague. Moreover, the service treatment records do not reflect any sort of psychiatric symptoms in service. However, what is dispositive in this case is that the Veteran was in receipt of the Combat Action Ribbon for his service on MCCAIN, and is therefore entitled to the presumptions of 38 U.S.C. § 1154(b), which aids combat veterans by relaxing the adjudicative evidentiary requirements for determining events in service.   Given the fact that the Board may accept the Veteran’s testimony of symptoms in service, in conjunction with the private examiner’s opinion, the evidence is at least in equipoise. As a result, service connection is warranted on this basis. 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Q. Hernan, Associate Counsel