Citation Nr: 20009993 Decision Date: 02/06/20 Archive Date: 02/06/20 DOCKET NO. 18-51 797 DATE: February 6, 2020 ORDER The claim for entitlement to service connection for an acquired psychiatric disorder is reopened. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded.   FINDING OF FACT VA has received new evidence since a July 1974 rating decision that denied service connection for a nervous condition that relates to the bases for the prior denial and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has been received to reopen the service connection claim for an acquired psychiatric disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1972 to February 1974. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision. The Board notes it has recharacterized the Veteran’s claim, which has been addressed at various times in its history as a claim for a mental disorder, depression, unspecified anxiety disorder with polysubstance abuse in remission, and anxiety neurosis, as a broader claim for an acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The claim for entitlement to service connection for an acquired psychiatric disorder is reopened A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision, or new and material evidence is received during the appeal period after the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence is defined as existing evidence not previously submitted to the VA, and 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 Court has held the phrase “raises a reasonable possibility of establishing the claim” must be viewed as “enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The Court emphasized that 38 C.F.R. § 3.156 “does not require new and material evidence as to each previously unproven element of a claim.” Id. at 120. The Court further explained the provisions of 38 C.F.R. § 3.156(a) create a “low threshold” for finding new and material evidence that is favorable to the claimant. Id. A determination of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider an underlying claim. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Therefore, regardless of the AOJ’s action, the Board must address the question of whether new and material evidence has been presented to reopen a claim of service connection. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). The Veteran initially filed a claim for a nervous condition in May 1974, which was denied in a July 1974 rating decision. The RO denied the claim as not incurred in nor aggravated by service. The Veteran did not submit a notice of disagreement with this decision or any additional evidence respecting the claim within one year of notice of the decision; therefore, the July 1974 rating decision became final. See 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.1103; Buie v. Shinseki, 24 Vet. App. 242, 252 (2010). New and material evidence is therefore required to reopen the claim of service connection for an acquired psychiatric disorder. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). VA has received new evidence since the prior denial, including a September 2014 from the Veteran’s sister indicating symptoms since the Veteran separated from service. A June 2018 VA medical records indicating a secondary relationship to service-connected disabilities was also received. This evidence addresses an unestablished fact necessary to substantiate the Veteran’s claim; therefore, the claim for entitlement to service connection for an acquired psychiatric disorder is reopened. REASONS FOR REMAND This issue is remanded to (1) obtain records from Social Security Administration (SSA); (2) arrange for a new VA examination; and (3) obtain translations of foreign language documents. SSA Records A March 2015 VA examination report indicates that the Veteran has been receiving disability benefits since 2000 for his physical and mental disabilities. This statement indicates there may be SSA records that are not currently in the Veteran’s file. A remand is required to allow VA to request these records. VA Examination A March 2015 VA examination determined the Veteran has a diagnosis of unspecified anxiety disorder with polysubstance abuse disorder in remission. In an accompanying May 2015 opinion, the same examiner opined that the Veteran’s diagnosed mental disorder is not at least as likely as not related to service. As rationale, the examiner asserted that alcohol and illicit drug use are known to induce mood instability, and the initial diagnoses of record for the Veteran’s psychiatric condition came after a documented history of alcohol and drug abuse. Therefore, she argues, the Veteran’s condition is more likely the result of substance abuse and related to willful misconduct rather than service. The examiner was asked to address evidence contained in the record relating to emotional issues prior to discharge, including a July 1973 notarized letter from the Veteran’s mother describing emotional issues related to the Veteran’s other health problems. While the examiner notes the existence of this letter, the examiner does not directly address the letter’s content, specifically that the Veteran was experiencing emotional distress during service related to his other medical issues. More recently, the Veteran has asserted that his psychiatric disorder, to include major depressive disorder, is related to chronic pain he experiences as a result of his service-connected back disability, which was documented at the time of his separation from service. The March 2015 examination report and May 2015 nexus opinion fail to address whether the Veteran’s current psychiatric condition is at least as likely as not caused or aggravated by pain due to his current service-connected back condition. Translations Finally, the Board observes that several documents in the Veterans file, including multiple items received from 1974 to 1982 and most recently two documents from March 2009, require translation from Spanish to English. On remand, the regional office (RO) should review the claims file and translate these documents to facilitate review of the record by the Board. The matters are REMANDED for the following action: 1. Translate all Spanish documents in the claims folder that have not been translated, to include documents received by VA in 1974-82 and March 2009. 2. Obtain the Veteran’s federal records from Social Security Administration. Document all requests for information as well as all responses in the claims file. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any acquired psychiatric disability. (a.) The examiner must opine as to whether any current diagnosis is at least as likely as not related to an in-service injury, event, or disease. (b.) The examiner should also address whether a current diagnosis is at least as likely as not (1) proximately due to service-connected disability, or (2) aggravated beyond its natural progression by service-connected disability, to include chronic pain related to a service-connected back condition. In answering this question, the examiner is asked to consider the statements from the Veteran, his mother, and sister indicating that symptoms started during service and have been ongoing since then, including as a result of chronic pain. The examiner is asked to explain why their statements make it more or less likely that the current condition started during service. If indicated, it should be explained whether there is a **medical** reason to believe that the Veteran’s recollection of his symptoms during and after service may be inaccurate or not medically supported as the onset or cause of his current diagnosis. The examiner should not rely on silence in the medical records unless it can be explained: (a) why the silence in the available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present, or (b) why the absence of medical records is medically significant. COREY BOSELY Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Pitman, 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.