Citation Nr: 20021650 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 17-14 427 DATE: March 26, 2020 ORDER The application to reopen a claim of entitlement to service connection for an acquired psychiatric disability is granted; the appeal is granted to that extent only. REMANDED The claim of entitlement to service connection for an acquired psychiatric disability is remanded. FINDINGS OF FACT The Veteran’s claim for service connection for nervousness was denied in a November 1983 decision by the Board, which stemmed from a May 1982 rating decision, because the evidence did not show a chronic psychiatric disability was incurred or aggravated by service. The record showed he was diagnosed with a personality disorder. The Veteran did not appeal that decision and it is final. Since then, evidence has been received that shows he has been diagnosed with an acquired psychiatric disability. He has also presented additional details regarding his service and symptoms during service. This is new and material and reasonably raises the possibility of substantiating the claim. CONCLUSIONS OF LAW The May 1982 rating decision denying service connection for nervousness is final, but the criteria to reopen the claim of service connection are met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1977 to February 1980. 1. The application to reopen a claim of entitlement to service connection for an acquired psychiatric disability is granted. Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In general, VA rating decisions or Board decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.1100, 20.1103. A finally disallowed claim may be reopened only when new and material evidence is secured with respect to that claim. 38 C.F.R. § 3.156. “New” evidence is evidence not previously submitted to agency decisionmakers. Evidence is “material” if it 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 prior final denial of the claim and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Veteran’s claim for service connection for a nervous disability was denied in a May 1982 rating decision because the evidence did not show a current diagnosis. He appealed that decision to the Board, who also denied the claim in a November 1983 decision. The Board found that the evidence did not show that a chronic psychiatric disability was incurred or aggravated by his service. He did not appeal that decision and it is now final. The Board notes that the regulation does not require new and material evidence as to each previously unproven element of a claim, merely that there is a reasonable possibility of an allowance of the claim. 38 C.F.R. § 3.156 (a); Shade v. Shinseki, 24 Vet. App. 110 (2010). On review of the record, the Board finds that new and material evidence has been received. At the time of his first claim, the record showed that he was diagnosed with a personality disorder, which is not subject to service connection, except under certain circumstances that were not considered at that time. See 38 C.F.R. § 4.127. Now, the evidence shows that he has been diagnosed with an acquired psychiatric disability (specifically, anxiety disorder), which is subject to service connection without special circumstances, and which the Board finds raises the possibility of substantiating the claim. Also, the Veteran has provided additional details regarding why he thinks his anxiety disorder is related to service. He had previously reported that he felt pressure while being on guard duty for extended periods and that his supervisor would not consider giving him another duty and would retaliate against him if he complained. He also felt bad about himself due to his service-connected skin disability. Now, he reports that he spoke with a chaplain about his mental health symptoms, who urged him to seek help. He also reports that his father was ill, and he was denied the opportunity to see him, which led to a poor relationship with his parents until their deaths. Finally, he reports that he was conflicted between treating his skin, which required him to stay out of the sun, and performing his duty as a security guard, which required him to be in the sun. Based on the newly received evidence, the Board finds that the claim is reopened. However, a VA examination must be scheduled. REASONS FOR REMAND 1. The claim of entitlement to service connection for an acquired psychiatric disability is remanded. The Veteran must be given a VA examination for an opinion on whether he has an acquired psychiatric disability that is related to his service. But first, a search for mental health service treatment records must be conducted, as they are not stored with the other regularly kept STRs. The matters are REMANDED for the following action: 1. Associate updated treatment records with the claims file. 2. Make an attempt to locate any records of mental health treatment during service. The Veteran reports that he was diagnosed with anxiety at the 22nd Area Branch Clinic at Camp Pendleton in 1979 or 1980. 3. After completion of directives 1 and 2, schedule the Veteran for an appropriate examination for a report on whether it is as likely as not (50/50 probability or greater) that any acquired psychiatric disability is related to service. The examiner is asked to review the claims file and to conduct a thorough examination. The record shows the Veteran has had mental health symptoms since at least the early 1980s. He has consistently reported receiving some treatment for anxiety at Camp Pendleton in 1979 or 1980, as a result of stress he felt from his duties as a security guard, from pressure his supervisor placed on him, and from self-consciousness he felt from his skin disability. His first claim for service connection was received within two years of separation, but he was diagnosed with a personality disorder only at that time. The examiner is asked to opine regarding the following: a) Provide the Veteran’s acquired psychiatric diagnoses. b) For each diagnosis, is it at least as likely as not related to service? c) For each diagnosis, it is at least as likely as not caused or aggravated by the service connection pseudofolliculitis barbae? All opinions must be accompanied by explanation. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Gibson 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.