Citation Nr: 20072002 Decision Date: 11/06/20 Archive Date: 11/06/20 DOCKET NO. 18-39 363 DATE: November 6, 2020 ORDER New and material evidence having been received, the claim of entitlement to service connection for major depressive disorder is reopened. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for erectile dysfunction is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depressive disorder is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The claim for service connection for major depressive disorder was previously considered and denied by the Regional Office in a December 2008 rating decision. The Veteran was notified of the decision and of his appellate rights; however, he did not appeal, and the decision became final. 2. Evidence received since the December 2008 rating decision, which denied the Veteran’s claim of service connection for major depressive disorder due to no in-service incurrence or link to service, is reopened as the Veteran has provided further statements regarding stressors in service, which when combined with VA assistance relates to an unestablished fact necessary to substantiate his claim. CONCLUSIONS OF LAW 1. The December 2008 rating decision that denied the claim of entitlement to service connection for major depressive disorder is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.158(a), 20.302, 20.1103. 2. Additional evidence received since the December 2008 rating decision is new and material, and the claim of entitlement to service connection for major depressive disorder is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from February 1968 to February 1970. See DD Form 214. The Board has recharacterized the claims for entitlement to service connection for major depressive disorder and for PTSD as a claim for an acquired psychiatric disorder, to include PTSD, where the record reflects that the Veteran had varying diagnoses, treatment, or claims. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009) (the scope of a claim for a mental health disability includes any mental disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and other information of record). New and Material Evidence Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105(c) (2012). However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108 (2012). New evidence is defined as existing evidence not previously submitted to agency decision makers, while 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. 38 C.F.R. § 3.156(a). 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. Id. 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 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but also whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). 1. Whether there is new and material evidence to reopen a claim of entitlement to service connection for major depressive disorder A December 2008 rating decision denied entitlement to major depressive disorder because there was no evidence of an in-service incurrence or a link to service. See December 2008 Rating Decision – Narrative. The Regional Office (RO) noted the January 1970 in-service report of excessive worry or depression, and the treatment for major depression since 1992. See STR-Medical. In November 2014, the Veteran sought to reopen his claim of entitlement to service connection for major depressive disorder. See November 2014 VA 21-526EZ, Fully Developed Claim (Compensation). An April 2015 rating decision continued the denial of the claim finding that there was no new and material evidence to reopen. See April 2015 Rating Decision – Narrative. The Veteran appealed this denial. The Board notes that the Veteran in a March 2016 Statement in Support of Claim has clarified his in-service stressors, which specifically include (1) an April 1968 suicide of a friend at Aberdeen Training Grounds in Maryland; (2) a suicide in Germany occurring between June to August 1968 when a coworker killed himself with the guard’s gun during transfer to the stockade; and (3) general fear of freezing to death while on patrol duty in the early morning hours in Germany. See March 2015 VA 21-0781, Statement in Support of Claim for PTSD; see March 2016 VA 21-4138 Statement in Support of Claim. This evidence is new because it did not exist at the time of the previous decision. The evidence is also material because it indicates the possibility of in-service events, which when combined with VA assistance – here, a VA examination, raises a reasonable possibility of substantiating the claim. REASONS FOR REMAND The Board finds that remand is warranted to provide the Veteran with examinations. Notably, a VA examination is warranted where (1) the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, (2) the record indicates that the disability or signs and symptoms of disability may be associated with active service, and (3) the record does not contain sufficient information to decide the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD The Veteran claims entitlement to service connection for an acquired psychiatric disorder. See November 2014 VA 21-526EZ, Fully Developed Claim. The Veteran, however, has not yet been afforded a VA examination for his acquired psychiatric disorder. The Veteran’s medical records show that he has current diagnoses or symptoms for his claimed psychiatric disability, and he described in-service stressors that he believes made him more susceptible to developing such disabilities. See CAPRI. Specifically, he described tearfulness beginning on his return to duty in Germany, and fear that he might freeze to death during night patrols in the cold. See May 2016 Correspondence. He also described an April 1968 instance of a friend committing suicide having received a letter that his fiancé wanted to end the relationship, and another instance a coworker who was being transferred to the stockade took the guard’s gun and killed himself in the summer of 1969 while in Germany. See March 2015, VA 21-0781, Statement in Support of Claim. Accordingly, as the Veteran’s satisfies the McLendon test, a VA examination is necessary to address the nature and etiology of the acquired psychiatric disorder. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to service connection for hypertension The Veteran claims entitlement to service connection for hypertension, to include as due to an acquired psychiatric disorder. See March 2016 VA 21-526b, Veteran’s Supplemental Claim. Here, the record shows that he is being treated with blood pressure medications and the problem list include benign essential hypertension. See CAPRI. Notably, he has not yet been afforded a VA examination and the Board finds sufficient evidence to meet the McLendon test. See id. As such, remand is warranted to provide the Veteran with an examination to address the nature and etiology of his claimed hypertension. 3. Entitlement to service connection for erectile dysfunction The Veteran claims entitlement to service connection for erectile dysfunction, to include as due to an acquired psychiatric disorder. See March 2016 VA 21-526b,Veteran’s Supplemental Claim. Here, the Veteran is competent to report that he has experienced problems with erectile dysfunction because this requires only personal knowledge as it comes to him through the senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Although there is no VA examination of record for the genitalia, the Board would find it helpful for an examiner to address the nature and etiology of the Veteran’s claimed disorder. Further, if an acquired psychiatric disorder is found to be related to service, then the Board would like the examiner to consider whether any erectile dysfunction is due to or incrementally increased by the psychiatric disorder to include any medications taken for it. 4. Entitlement to a TDIU The Board also notes that the issue of entitlement to a TDIU is inextricably intertwined with the service connection claims being remanded. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Given such, this claim will be remanded until a decision is rendered on the other remanded claims. The matters are REMANDED for the following action: 1. The Board recognizes the potential practical difficulties in scheduling an examination in light of the COVID-19 epidemic and requests flexibility and understanding in affording the Veteran any warranted examination. 2. Schedule the Veteran for an examination by an appropriate clinician (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the nature and etiology of any acquired psychiatric disorder, hypertension, and erectile dysfunction. The examiner must opine whether: (a) any acquired psychiatric disorder is at least as likely as not related to an in-service injury, event, or disease. The examiner should consider all of the Veteran’s reported in-service stressors in forming his opinion. (b) any hypertension is at least as likely as not related to an in-service injury, event, or disease. (c) any erectile dysfunction is at least as likely as not related to active service, manifested within one year after discharge from service, or was noted during service with continuity of the same symptomatology since service. If the acquired psychiatric disorder is at least as likely as not related to service, then the examiner must also consider: (d) whether it is at least as likely as not any hypertension is: (1) proximately due to service-connected psychiatric disorder, or (2) underwent any incremental increase in disability, regardless of its permanence by service-connected disability. (e) whether it is at least as likely as not any erectile dysfunction is: (1) proximately due to service-connected psychiatric disorder, or (2) underwent any incremental increase in disability, regardless of its permanence by service-connected disability. The term “incremental increase” in disability means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. The term “at least as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. • The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. • Furthermore, if medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized. • A complete rationale for the medical opinions expressed must be provided. 3. If any of the claims for service connection is granted, then develop the Veteran’s claim for entitlement to TDIU, specifically to include obtaining the relevant employment information and/or records from the Veteran, in addition to any other necessary development. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Barner, 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.