Citation Nr: 20021783 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 19-37 111 DATE: March 27, 2020 ORDER The previously denied claim of entitlement to service connection for depressive disorder is reopened. REMANDED Whether new and material evidence has been received to reopen a previously denied claim for service connection for right knee condition is remanded. Whether new and material evidence has been received to reopen a previously denied claim for service connection for left knee condition is remanded. Whether new and material evidence has been received to reopen a previously denied claim for service connection for left ankle condition is remanded. Entitlement to service connection for right ankle condition is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include depressive disorder and posttraumatic stress disorder (PTSD), is remanded. FINDINGS OF FACT 1. In a final June 2017 rating decision, the Regional Office (RO) denied service connection for depressive disorder. 2. Additional evidence received since the RO’s June 2017 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for depressive disorder, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The RO’s June 2017 rating decision that continued the denial of service connection for depressive disorder is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. 2. New and material evidence has been received to reopen the Veteran’s claim for service connection for depressive disorder. 38 U.S.C. §§ 1110, 1131, 5108; 38 C.F.R. §§ 3.303, 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1980 to September 1983 and from September 1990 to March 1991. 1. The previously denied claim of entitlement to service connection for depressive disorder is reopened. In a June 2017 rating decision, the RO continued the denial of service connection for depressive disorder on the basis that there was no link to service. The RO notified the Veteran of its decision, and of his appellate rights, but he did not initiate an appeal of the RO’s decision within one year. Nor was any new and material evidence received within a year. As a result, the RO’s decision became final. Accordingly, the claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. Evidence is considered “new” if it was not previously submitted to agency decision makers. “Material” evidence is existing 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” 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. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence received since the time of the RO’s June 2017 rating decision includes additional information from the Veteran regarding in-service events that he asserts caused his psychiatric disability, including hearing about decapitated bodies and living in fear of IEDs, land mines, and enemy attacks during service in Saudi Arabia. See July 2019 Veteran’s Statement; December 2018 VA Examination Report. This evidence was not before adjudicators when the Veteran’s claim was last finally denied, and it is not cumulative or redundant of the evidence of record at the time of that decision. The new evidence relates to unestablished facts necessary to substantiate the claim for service connection for depressive disorder, and raises a reasonable possibility of substantiating the claim. Accordingly, the claim is reopened. REASONS FOR REMAND 1. Whether new and material evidence has been received to reopen a previously denied claim for service connection for right knee condition is remanded. 2. Whether new and material evidence has been received to reopen a previously denied claim for service connection for left knee condition is remanded. 3. Whether new and material evidence has been received to reopen a previously denied claim for service connection for left ankle condition is remanded. 4. Entitlement to service connection for right ankle condition is remanded. 5. Entitlement to service connection for an acquired psychiatric disorder, to include depressive disorder and posttraumatic stress disorder (PTSD), is remanded. Remand is appropriate to obtain outstanding treatment records. VA treatment records show that potentially relevant private treatment records were scanned into the Veteran’s VA medical file. See, e.g., August 2015, September 2015, October 2015, November 2015, December 2015, April 2016, May 2016, September 2016, December 2016, and January 2017 VA Treatment Records (noting Veteran’s mental health treatment scanned into system). However, such records are not in the Veteran’s claims file. As to the Veteran’s claim for service connection for psychiatric disability, a December 2016 VA examiner opined that it was possible that the Veteran’s depression began in service, but that documentation could not be located to link the Veteran’s depression to his Gulf War service. However, the Veteran’s service treatment records for his Gulf War service have not been located. In a May 2017 addendum, the VA examiner opined that it is less likely than not that the Veteran’s depression was incurred in or caused by his Gulf War service. However, the VA examiner relied on the lack of complaints in the exit examination and noted the Veteran’s distress in the 1980s was linked to alcohol, both of which preceded the Veteran’s Gulf War service. The December 2018 VA examiner also opined that the Veteran’s depressive disorder is less likely related to service. However, the December 2018 VA examiner also relied on the lack of complaints in service treatment records for the Veteran’s first period of service without adequately addressing the Veteran’s reports, including his report that his symptoms worsened following his second period of service. As to PTSD, there are conflicting opinions from the September 2018 private examiner and December 2018 VA examiner regarding whether the Veteran meets the criteria for PTSD but neither provides an adequate explanation for how the Veteran does or does not meet the criteria for PTSD for a particular stressor or stressors. It is unclear whether the Veteran’s reported stressors from Gulf War service meet Criterion A and relate to a fear of hostile military or terrorist activity. Accordingly, remand is appropriate for additional VA medical opinion. The RO has not been able to locate service treatment records from the Veteran’s second period of service. While this matter is on remand, attempts should be made to obtain the Veteran’s service treatment records from his Reserves service and his second period of active duty from all appropriate records depositories. While this matter is on remand, outstanding private and VA treatment records should be obtained, including any additional records from Dr. Allsopp and VA treatment records from November 2018 to the present. The matters are REMANDED for the following action: 1. Request the Veteran’s service treatment records from his Reserve service and his second period of active duty from any appropriate records depositories. All efforts to obtain such records should be fully documented, and a negative response must be provided if such records are not available. 2. After securing any necessary authorization, obtain any private treatment records as the Veteran may identify relevant to his claims, including any additional records from Dr. Allsopp. 3. Obtain outstanding VA treatment records, to include any VA treatment records from November 2018 to the present. Associate with the claims file documents scanned into Vista Imaging but not associated with the Veteran’s claims file, including the August 2015, September 2015, October 2015, November 2015, December 2015, April 2016, May 2016, September 2016, December 2016, and January 2017 mental health treatment records. 4. After obtaining any outstanding records to the extent possible, ask the appropriate examiner (for mental health) to review the Veteran’s file. The necessity of an in-person examination, with any appropriate testing, is left to the discretion of the examiner. The examiner should identify any acquired psychiatric disorders the Veteran has presented during the claim period (from December 2018 to the present). If PTSD is diagnosed, the examiner should discuss the stressor or stressors upon which the diagnosis is based. For each diagnosis, including any PTSD diagnosis, the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that the disorder had an onset in service or is otherwise related to an in-service injury, event, or disease, to include the Veteran’s service in the Gulf War. For any diagnosis of substance abuse disorder, the examiner should opine whether it is at least as likely as not (a 50 percent or greater probability) that the disorder is caused by or aggravated by a psychiatric disorder. The examiner should discuss the September 2018 private examiner’s report opining the Veteran meets the criteria for a diagnosis of PTSD. The examiner should consider all medical and lay evidence of record, including the Veteran’s report in his December 2016 VA examination that his symptoms worsened when he returned from Gulf War deployment, the Veteran’s November 2018 statement regarding IEDs, land minds, and sniper attacks during service in Saudi Arabia, and the Veteran’s reports in his December 2018 VA examination regarding being robbed at gunpoint during his first period of service and hearing stories about decapitated bodies during his second period of service. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Purcell, 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.