Citation Nr: 21000956 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 16-55 214 DATE: January 6, 2021 ORDER The application to reopen the claim for service connection for anxiety disorder is granted. FINDINGS OF FACT 1. In an unappealed October 2007 rating decision, the RO denied service connection for anxiety. 2. The evidence received since the October 2007 rating decision, by itself or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claim for service connection for anxiety disorder. CONCLUSIONS OF LAW 1. The October 2007 rating decision by the Agency of Original Jurisdiction that denied entitlement to service connection for anxiety is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence has been received to reopen the claim for service connection for anxiety disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1974 to April 1983. These matters were previously adjudicated by the Board in a February 2019 decision, and the Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a June 2020 Order and supporting Joint Motion for Remand (JMR), the Court vacated the Board decision and remanded the matters to the Board. Service Connection 1. The application to reopen the claim for service connection for anxiety is granted. In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence is defined as 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 must raise a reasonable possibility of substantiating the claim. See 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). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court held that once new and material evidence has been presented as to an unestablished fact from a previously denied claim for service connection, the claimant will be entitled to the full benefits of the Secretary’s duty to assist, including a medical nexus examination, if one is warranted; it does not require new and material evidence as to each previously unproven element of a claim. In October 2007, the RO issued a rating decision denying service connection for anxiety due to a lack of nexus to service. The Veteran did not appeal. That decision was final. In November 2014, the Veteran requested reopening of the claim for service connection for anxiety. Evidence received since the prior denial suggests that the Veteran’s anxiety may be secondary to his PTSD and TBI. Both of those issues are currently on appeal. This raises a reasonable possibility of substantiating the claim. The claim for service connection for anxiety is therefore reopened. The issue of entitlement to service connection for anxiety is address in the remand portion below. REMANDED Entitlement to service connection for a traumatic brain injury is remanded. Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for an acquired psychiatric disability, other than PTSD is remanded. REASONS FOR REMAND 1. Entitlement to service connection for a traumatic brain injury is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for TBI because there is no VA examination of record. The Veteran reported headaches during service, and post-service treatment records indicate that he was seen for TBI residual symptoms. Remand is necessary for a VA examination. 2. Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. The Veteran has repeatedly reported an in-service stressor involving witnessing a helicopter crash at Fort Bliss in June or July 1979. Review of the file does not show an attempt to corroborate the stressor. A remand is required to allow VA to attempt to corroborate the Veteran’s reported stressor. 3. Entitlement to service connection for an acquired psychiatric disability, other than PTSD is remanded. The RO denied reopening the claim for service connection for anxiety. As the Board has reopened the claim, remand is necessary for the RO to readjudicate the claim. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his TBI residuals. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is any TBI residual at least as likely as not related to service? Provide a rationale to support the opinion. In providing the requested opinion, consider the Veteran’s description of his/her in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? 2. Attempt to corroborate the Veteran’s in-service stressor, including witnessing a helicopter crash at Fort Bliss in 1979. If more details are needed, contact the Veteran to request the information. 3. After the Veteran’s reported stressors have been developed, schedule the Veteran for a psychiatric examination to determine the nature and etiology of any posttraumatic stress disorder (PTSD) or other acquired psychiatric disability. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to service. 4. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. 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. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Creegan 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.