Citation Nr: 20036716 Decision Date: 05/28/20 Archive Date: 05/28/20 DOCKET NO. 18-47 754 DATE: May 28, 2020 ORDER Reopening of a previously denied claim of service connection for an acquired psychiatric disorder (claimed as depression), claimed as secondary to his service-connected disabilities, is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder (claimed as depression), claimed as secondary to his service-connected disabilities is remanded. Entitlement to service connection for a back condition is remanded. FINDING OF FACT 1. In an unappealed April 2015 rating decision, the RO denied service connection for depression based on the evidence did not show that the Veteran had a diagnosis of a psychiatric disorder. 2. Since April 2015, evidence was received that is not cumulative or redundant of the evidence of record that the time of the prior denial and relates to an unestablished fact necessary to establish the claim of entitlement to service connection for an acquired psychiatric disorder. CONCLUSION OF LAW 1. The April 2015 rating decision is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2019). 2. The criteria for reopening of a previously denied claim of service connection acquired psychiatric disorder (claimed as depression), claimed as secondary to his service-connected disabilities have been met. 38 U.S.C. §§ 5108, 7104 (2012); 38 C.F.R. § 3.156 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service with the U.S. Navy from June 1964 to March 1965. This case comes before the Board of Veteran’s Appeals (Board) on appeal from a November 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran’s claim for service connection for depression has been recharacterized to reflect that the claim encompasses any and all psychiatric disorders. See Clemons v. Shinseki, 23 Vet. App. 1, 4-6, 8 (2009). Reopening Claim In the November 2017 decision on appeal, the RO reopened a previously denied claim and considered the merits in confirming and continuing the denial of service connection for acquired psychiatric disorder. However, irrespective of the RO’s action, the Board must decide whether the Veteran has submitted new and material evidence to reopen the claim. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F. 3d 1366 (Fed. Cir. 2001). Generally, a claim that has been denied in an unappealed Board or rating decision may not thereafter be reopened and allowed. 38 C.F.R. §§ 20.1100, 20.1103. The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The RO previously denied the claim for service connection for an acquired psychiatric disorder in an unappealed and final April 2015 decision, finding that the Veteran did not have a psychiatric diagnosis. Since that time VA treatment records demonstrated that the Veteran was diagnosed with a psychiatric disorder. This is both new and material, and reopening is warranted. Adjudication of the Veteran’s claim does not end with the determination that new and material evidence has been received. This matter must now be addressed on a de novo basis. For the reasons detailed in the remand section, additional development is required for a full and fair adjudication of the underlying service connection claim. REASONS FOR REMAND Acquired Psychiatric Disorder The Veteran contends that his psychiatric disorder is related to his hearing loss and tinnitus. In November 2017, the Veteran was afforded a VA mental disorder examination. The Veteran was diagnosed with an adjustment disorder with depressed mood secondary to chronic pain and phase of life. The examiner opined that it was less likely than not (less than 50 percent probability) that the Veteran’s adjustment disorder was service connected. He explained that the records demonstrated that his depressive symptoms were in response to his pain condition and the aging process. The Veteran is not service-connected for any condition responsible for pain complaints; his service-connected conditions are hearing loss and tinnitus. On June 2018 Notice of Disagreement (NOD), the Veteran wrote that his psychiatric disorder was related to his hearing loss and tinnitus. These contentions were not addressed by the November 2017 VA examiner. Although the examiner noted the allegation, she did not address such in rendering her opinion, and simply conclusory stated the psychiatric complaints were due to pain and age instead. In the absence of a true rationale, the opinion is not adequate. The Board finds that on remand, the Veteran should be afforded a new VA examination to properly address whether his psychiatric disorder was caused or aggravated by his service-connection conditions (hearing loss and tinnitus). Back Condition The Veteran asserts that his back condition is related to his military service. Service treatment records (STRs) were silent for any treatment or complaints for a back condition. Post-service treatment records demonstrated that the Veteran complained of chronic back pain. A November 2017 VA treatment note documented that the Veteran was diagnosed with chronic lumbar spine and lumbar stenosis. On June 2018 NOD, the Veteran wrote that the poor shoes/boots he wore during long periods of standing and physical training caused his back condition. A nexus remains required, but the record indicates that the Veteran has not been afforded a VA examination. The Board finds that the low threshold requirement has been met for an examination, and that a remand is required to address the nature and etiology of the Veteran's claimed conditions. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Schedule the Veteran for a VA mental disorders examination. The claims folder must be reviewed in conjunction with the examination. The examiner must opine as to whether any currently mental disorder is at least as likely as not caused or aggravated by service or service-connected disabilities. The role of the Veteran’s hearing loss and tinnitus must be discussed. 3. Schedule the Veteran for a VA lumbar spine examination; the claims folder must be reviewed in conjunction with the examination. The examiner must identify all current lumbar spine disabilities and opine as to whether any such are at least as likely as not caused or aggravated by service, to include reported ill-fitting foot wear 4. Then, readjudicate the claims. If any benefit sought remains denied, issue a supplemental statement of the case. The case should then be returned to the Board for appellate review if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Baxter 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.