Citation Nr: 20023097 Decision Date: 04/03/20 Archive Date: 04/03/20 DOCKET NO. 19-30 976 DATE: April 3, 2020 ORDER New and material evidence having been received, the claim of entitlement to service connection for an acquired psychiatric disorder is reopened. New and material evidence having been received, the claim of entitlement to service connection for traumatic brain injury (TBI) is reopened. REMANDED Entitlement to service connection for right knee pain is remanded. Entitlement to service connection for left knee pain is remanded. Entitlement to service connection for an acquired psychiatric disorder, including depression and anxiety is remanded. Entitlement to service connection for traumatic brain injury (TBI) is remanded. Entitlement to total disability compensation based upon individual unemployability is remanded. FINDINGS OF FACT 1. A March 2012 unappealed rating decision, denied a claim seeking entitlement to service connection for head injury residuals, to include TBI and depression. 2. The evidence received since March 2012 regarding depression and TBI is not cumulative or redundant and raises a reasonable possibility of substantiating the Veteran’s claims. CONCLUSIONS OF LAW 1. The March 2012 rating decision denying service connection for head injury residuals, to include depression and a TBI is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. Evidence received since the March 2012 rating decision in support of the claims of service connection for depression and traumatic brain injury is new and material; thus, the claims are reopened. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.102, 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran honorably served in the United States Army from June 1976 to May 1978. These matters appear before the Board of Veterans’ Appeals (Board) on appeal of a November 2017 rating decision of the Regional Office (RO). New and Material A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. “New evidence” means existing 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. 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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). 1. Whether new and material evidence has been received to reopen the claim of entitlement to depression 2. Whether new and material evidence has been received to reopen the claim of entitlement to TBI In July 2017, the Veteran requested that VA reopen his previously denied claims of service connection to depression and TBI. The March 2012 rating decision denied service connection for a head injury, to include depression and TBI, because although service treatment records noted a traffic accident, there was no indication that the Veteran hurt his head at that time nor was there any indication he ever was treated for or complained of a head injury during his military service. At the time of the March 2012 rating decision, the evidence of record included the Veteran’s DD-214, service treatment records, and military personnel records; March 2000 to November 2000 VA Treatment records; and an August 2011 statement by the Veteran. Since the March 2012 rating decision, the Veteran, most relevantly, submitted a June 2017 private opinion from Dr. P.Y. indicating diagnoses of PTSD and TBI related to an in-service MVA. The Board must presume the credibility of this evidence for the purpose of determining whether it is new and material and, therefore, the private opinion is sufficient for purposes of reopening the claims. See Hickson v. Shinseki, 23 Vet. App. 394, 399 (2010); Duran v. Brown, 7 Vet. App. 216, 220 (1994). The claims are, therefore, reopened and to that extent only the appeal is granted. REASONS FOR REMAND Outstanding records In an August 2011 statement, the Veteran indicated treatment on or around 1979 in a VA hospital in Dublin, Georgia related to substance abuse after a head-on collision. There is one hospital report from the VAMC in Dublin, Georgia dated July 1981 related to substance abuse treatment, but no other records from this facility. Similarly, a July 2017 private mental health examination report noted in-service and post-service treatment that is not currently of record. The Veteran indicated he sought in-service mental health hospitalization treatment while stationed in Germany on or around 1977. He further indicated post-service treatment in Dublin VAMC and at a private facility in 1991 called Penfield Christian Home in Penfield, Georgia. These records seem to pertain directly to mental health treatment but could also be related to the in-service traffic accident he contends are responsible for all the issues on appeal. Accordingly, a remand of all issues is necessary for the RO to make efforts to ensure any outstanding military, VA, and private treatment records are obtained. VA Examinations In support of his claim, the Veteran submitted a private opinion from a chiropractor, Dr. P.Y., dated in June 2017. This opinion noted diagnoses of PTSD, a TBI, bilateral knee disabilities, and TDIU all related to an in-service motor vehicle accident (MVA) where the Veteran allegedly hit a tree and sustained head trauma and knee injuries rendering him unconscious. This report is in stark contrast to the remainder of the evidence. Service treatment records note a “T.A. [traffic accident]” in January 1978 where the Veteran complained of neck pain and right arm tenderness, but x-rays were within normal limits. A November 2018 buddy statement provided by a fellow serviceman also described a road-side accident. Indeed, Dr. P.Y.’s report included an attached independent mental health examination dated July 2017, which did not diagnose the Veteran with PTSD or a TBI, but, rather, diagnosed depression. In light of the disparity of the evidence, however, appropriate new VA examinations are indicated to clarify the Veteran’s diagnoses and likely etiology. Inextricably Intertwined Issue The Veteran contends that he is unable to maintain and sustain gainful employment as a result of service-connected disabilities. Despite the Veteran not having any service-connected disabilities to date, this claim is inextricably intertwined with the above claims. Because a decision on the remanded issues of entitlement to service conenction for right knee pain, left knee pain, acquired psychiatric disorder, and TBI could significantly impact a decision on the issue of TDIU, the issues are inextricably intertwined. Accordingly, the Veteran’s claim of entitlement to TDIU is remanded. The matters are REMANDED for the following action: 1. Obtain records of any inpatient treatment at Neubrucke, Germany Army Hospital in 1977. Document all requests for information as well as all responses in the claims file. 2. Ask the Veteran to complete a VA Form 21-4142 for Penfield Christian Home treatment records for his treatment received in 1991 (or any other years he identifies). Make two requests for the authorized records from Penfield Christian Home in Penfield, Georgia, unless it is clear after the first request that a second request would be futile. 3. Obtain the Veteran’s VA treatment records from the VAMC in Dublin, Georgia for the period from May 1978 to the Present. 4. After the above development is completed, schedule the Veteran for appropriate examinations for his right knee, left knee, acquired psychiatric disability, and TBI claims by the appropriate clinicians to determine the nature and etiology of any diagnosable condition. The examiners must opine whether any found diagnosis is at least as likely as not related to an in-service injury, event, or disease, including the January 1978 in-service motor vehicle accident. A complete examination must include rationales for all opinions offered with consideration of the Veteran’s lay statements describing in-service events and symptoms since service. 5. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined TDIU issue. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. N. Fournier, 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.