Citation Nr: 20045053 Decision Date: 07/07/20 Archive Date: 07/07/20 DOCKET NO. 17-65 208 DATE: July 7, 2020 ORDER Reopening service connection for an acquired psychiatric disorder to include depression is granted. REMANDED Service connection for an acquired psychiatric disorder to include depression is remanded. FINDINGS OF FACT 1. A June 2005 rating decision denied service connection for an acquired psychiatric disorder to include depression due to a lack of an in-service disease or injury. 2. The Veteran did not enter a timely Notice of Disagreement to the June 2005 rating decision to deny service connection for an acquired psychiatric disorder to include depression, and new and material evidence was not received within one year of notice of the decision. 3. Evidence received since the June 2005 rating decision, including the Veteran’s testimony at the January 2020 Board hearing, pertains to the previously unestablished fact of an in-service disease or injury. CONCLUSIONS OF LAW 1. The June 2005 rating decision denying service connection for an acquired psychiatric disorder to include depression became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. Evidence received since the June 2005 rating decision is new and material to reopen service connection for an acquired psychiatric disorder to include depression. U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1980 to September 1983. The Veteran testified at a Board of Veterans Appeals (Board) hearing in January 2020. Reopening for New and Material Evidence Legal Authority Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. § 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA 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 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. 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 new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Regardless of the RO’s determination as to whether new and material evidence had been received, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board’s jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996)). If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus, 3 Vet. App. at 512. Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to credibility no longer applies. Id. at 513. Reopening Service Connection for an Acquired Psychiatric Disorder In this case, a June 2005 rating decision denied service connection for an acquired psychiatric disorder to include depression due to lack of evidence of an in-service disease or injury. The Veteran did not file a timely Notice of Disagreement in response to this rating decision, and new and material evidence was not received within one year of notice of the decision. As such, the June 2005 rating decision became final as to the evidence then of record and is not subject to revision on the same factual basis. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(a), (b), 20.302, 20.1103. Since the June 2005 rating decision denying service connection for a psychiatric disorder to include depression, VA has received additional lay and medical evidence that pertains to an in-service disease. For example, at the January 2020 Board hearing, the Veteran testified that he received psychiatric treatment during active service, which tends to show an in-service disease, a fact not previously established at the time of the June 2005 rating decision. The credibility of new evidence is presumed for the purposes of reopening the claim. This evidence relates to the unestablished fact of an in-service disease and could reasonably substantiate the issue of service connection for an acquired psychiatric disorder to include depression. For this reason, the Board finds that the additional evidence is new and material to reopen service connection for an acquired psychiatric disorder to include depression. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS FOR REMAND Service Connection for an Acquired Psychiatric Disorder to Include Depression At the January 2020 Board hearing, the Veteran testified that he received psychiatric treatment during active service in Germany. The Veteran also testified that he participated in drug rehabilitation during active service after receiving two non-judicial punishments (Article 15s); however, the record does not show an attempt by VA to obtain the Military Personnel Record. As these records are relevant to the Veteran’s claim for service connection for an acquired psychiatric disorder, the Board will remand this issue for action to associate the Military Personnel Record with the claims file. This matter is REMANDED for the following action: 1. Obtain the complete Military Personnel Record. If the Military Personnel Record is unavailable, a formal finding of unavailability must be added to the Veteran’s file. (Continued on the next page)   2. Readjudicate the issue of service connection for an acquired psychiatric disorder to include depression in light of any new evidence obtained. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Department of Veterans Affairs A. Caruso, Attorney for the Board 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.