Citation Nr: 21002902 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 19-21 557 DATE: January 19, 2021 ORDER New and material evidence has been received and the petition to reopen a claim of service connection for an acquired psychiatric disorder is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. FINDING OF FACT In a November 2012 rating decision, the RO denied service connection for anxiety (claimed as insomnia) secondary to prostate cancer on the basis that while the Veteran was diagnosed with anxiety disorder, not otherwise specified, the Veteran’s anxiety and subsequent insomnia manifested before he was diagnosed with prostate cancer. The Veteran filed a timely notice of disagreement and a statement of the case (SOC) was issued in July 2015. The Veteran did not file a substantive appeal; therefore, the November 2012 rating decision became final. Evidence received since the November 2012 rating decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the underlying claim. CONCLUSION OF LAW New and material evidence has been received to reopen a claim of service connection for an acquired psychiatric disorder. 38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. § 3.156 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1967 to October 1969. This matter comes to the Board of Veterans’ Appeals (Board) from a September 2016 rating decision which denied entitlement to service connection for major depressive disorder. In December 2020, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board virtual hearing. A copy of the transcript is of record. In order to serve the Veteran’s stated interests, the Board has broadened the Veteran’s claim for depression and anxiety as a claim of entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder, anxiety disorder, and posttraumatic stress disorder. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (per curium). Reopening Claims Despite the RO’s action, the Board must perform its own de novo review of whether new and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder before addressing the claim on its merits. See 38 U.S.C. § 7104; see also Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. Rating actions from which an appeal is not timely perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A Board decision becomes final when it is issued as of the date-stamped on the decision, unless the appellant continues the appeal to the court or a motion for reconsideration is granted by the Board. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 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 must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans v. Brown, 9 Vet. App. 273, 283 (1996); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The provisions of 38 C.F.R. § 3.156(a) create a low threshold, with the phrase “raises a reasonable possibility of substantiating the claim” enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Whether new and material evidence has been received to reopen a claim of service connection for an acquired psychiatric disorder. In a November 2012 rating decision, the RO denied service connection for anxiety (claimed as insomnia) secondary to prostate cancer on the basis that while the Veteran was diagnosed with anxiety disorder, not otherwise specified, the Veteran’s anxiety and subsequent insomnia manifested before he was diagnosed with prostate cancer. The Veteran filed a timely notice of disagreement and a statement of the case (SOC) was issued in July 2015. The Veteran did not file a substantive appeal; therefore, the November 2012 rating decision became final. In May 2016, the Veteran filed a claim of service connection for major depressive disorder. The Board notes that while the Veteran initially claimed insomnia secondary to prostate cancer, this was subsequently diagnosed as anxiety by a November 2012 VA examiner. As discussed below, the Veteran’s treating VA clinician then diagnosed him with major depressive disorder, apparently secondary to his prostate cancer and residual erectile dysfunction, and a June 2016 VA examiner diagnosed the Veteran with major depressive disorder with symptoms of depression and anxiety. The Board finds that although the Veteran has been diagnosed with various psychiatric disorders at different times, the underlying facts and symptoms of each claim are the same. Thus, new and material evidence is required to reopen the Veteran’s claim of service connection for major depressive disorder. Murphy v. Wilkie, No. 2019-2064, 2020 U.S. App. LEXIS 39954 (Fed. Cir. Dec. 21, 2020). Since the November 2012 rating decision, evidence added to the claims file includes VA treatment records, VA examination reports, and hearing testimony. VA treatment records reflect that in December 2014, the Veteran reported erectile dysfunction and his treating clinician indicated there was both an emotional and psychological component to it. The treating clinician provided a diagnosis of major depressive disorder along Axis 1 and erectile dysfunction along Axis 4. A June 2016 VA examination report reflects a diagnosis of major depressive disorder, recurrent, moderate, with symptoms of depressed mood, anxiety, and suicidal ideation. The examiner indicated that it was clearly evident that the Veteran was doing his best to cope with and adapt to having multiple co-occurring medical problems, including prostate cancer, which had negatively impacted many facets of his life and contributed to his symptoms of depression. Thus, the examiner opined that it was at least as likely as not that the Veteran’s major depressive disorder was incurred in or caused by service. Here, the Board finds that new and material evidence within the meaning of 38 C.F.R. § 3.156(a) has been received since the last, final November 2012 rating decision. The Veteran has a diagnosed psychiatric disorder and a VA examiner opined that his psychiatric disorder is related to service. Thus, new evidence submitted since the RO’s November 2012 decision, when considered with the previous evidence of record, relates to unestablished facts (i.e., nexus) necessary to substantiate the claim. Therefore, new and material evidence has been received since the RO’s November 2012 rating decision and reopening the claim of service connection for an acquired psychiatric disorder is warranted. The Veteran’s petition is granted only to this extent. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for an acquired psychiatric disorder at this time. The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff’d 749 F.3d 1370 (Fed. Cir. 2014). In this case, there is a question as to whether the Veteran’s psychiatric disability preexisted his military service from December 1967 to October 1969. Specifically, on the Report of Medical History on his July 1967 entrance examination, the Veteran reported depression or excessive worry and nervous trouble and explained that he had sought inpatient treatment at several mental health clinics. The entrance examiner noted a diagnosis of psychoneurotic depression and anxiety but ultimately, a psychiatric evaluation was objectively normal. The appellant established “veteran” status based on his period of active duty service. See Hill v. McDonald, 28 Vet. App. 243 (2016). The entrance report of medical examination is not the same as the entrance report of medical history. Rather, there needs to be a finding by the examiner of the existence of a disability. Thus, while the Veteran reported psychiatric treatment on his entrance report of medical history, the objective psychiatric examination was normal. Additionally, the evidence is at least in equipoise as to whether a psychiatric disability manifested during service. Service treatment records reflect that in May 1969, the Veteran reported experiencing nervous tremors and was prescribed Librium, which was refilled in July 1969. Therefore, with respect to a psychiatric disability, the presumption of soundness attaches. 38 C.F.R. § 3.304(b). Because the presumption of soundness attaches with respect to this disability, there must be clear and unmistakable evidence that the disorder both pre-existed service and was not aggravated in service. Id; see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence is defined as obvious or manifest. 38 C.F.R. § 3.306(b). Clear and unmistakable evidence means that the evidence “‘cannot be misinterpreted and misunderstood, i.e., it is undebatable.’” Quirin v Shinski, 22 Vet. App. 390, 396 (2009). Here, the Veteran reported seeking treatment from three different mental health clinics prior to service. While the Veteran testified during the December 2020 Board hearing that he did not recall being diagnosed with a psychiatric disability prior to service, the July 1967 entrance examiner noted the Veteran’s diagnosis of psychoneurotic depression with anxiety, presumably as told to him by the Veteran. As such, the Board gives more probative weight to the Veteran’s reported diagnosis contained in his contemporaneous medical records at the time. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). The most competent and credible evidence of record illustrates that a psychiatric disability, diagnosed as psychoneurotic depression with anxiety, clearly and unmistakably preexisted service. Thus, the question then becomes whether there is clear and unmistakable evidence that the Veteran’s psychiatric disability was not permanently aggravated by service. While an August 2016 VA clinician opined that the Veteran’s preexisting psychiatric disability was not aggravated beyond its natural progression by an in-service event, injury, or illness, the Board finds this opinion is inadequate. Specifically, while the examiner explained that chronicity of depression which would establish aggravation beyond its natural progression was not evident, the examiner did not appear to consider the Veteran’s in-service treatment for nervous tremors or the Veteran’s statements that he was not one to seek treatment unless he was “pushed to the edge.” Therefore, the Board finds that a remand is warranted for a new VA opinion as to whether the Veteran’s preexisting psychiatric disability was aggravated beyond its natural progression. The Veteran also contends that even if his psychiatric disability preexisted service, it has been aggravated by his service-connected disabilities, including the diagnosis of prostate cancer and resulting erectile dysfunction. While a June 2016 VA examiner indicated that the Veteran was adapting to having multiple co-occurring medical problems, including prostate cancer, which were negatively impacting many facets of his life and contributing to his symptoms of depression, the examiner did not opine as to whether the Veteran’s preexisting psychiatric disability was aggravated beyond its natural progression. Furthermore, it is not clear whether the Veteran’s service-connected disabilities alone are responsible for aggravating his psychiatric disability. Thus, the Board finds that upon remand, a new VA medical opinion should be obtained as to whether the Veteran’s preexisting psychiatric disability is aggravated by a service-connected disability. VA treatment records reflect that the Veteran’s treating VA clinician has diagnosed him with PTSD. It is not clear whether this diagnosis was made pursuant to the DSM-5. Furthermore, VA has not attempted to develop the Veteran’s reported stressor and no VA examiner has opined whether the Veteran’s PTSD was incurred in or otherwise related to service. Upon remand, the Veteran’s service personnel records should be obtained and associated with the claims file and a VA examination and medical opinion should be obtained as to the nature and etiology of the Veteran’s PTSD. Finally, the Veteran reports seeking psychiatric treatment in the early- to mid-1990s. Upon remand, VA should obtain authorization and request these records. The matter is REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 for psychiatric treatment received in the early- to mid-1990s. Make two requests for the authorized records from the identified providers, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s VA treatment records for the period from May 2019 to present. 3. Obtain the Veteran’s complete service personnel records. 4. Attempt to corroborate the Veteran’s in-service stressor[s], including his reports that he was in charge of keeping track of pilot deaths while in Vietnam. If more details are needed, contact the Veteran to request the information. 5. After the Veteran’s reported stressors have been developed, schedule the Veteran for a psychiatric examination to determine the nature and etiology of any acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), major depressive disorder, and anxiety disorder. The examiner must review the claims file. The examiner should identify each diagnosed psychiatric disorder, to include PTSD, major depressive disorder, and anxiety disorder. 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. For each diagnosed disorder other than PTSD, to include major depressive disorder and anxiety disorder, the examiner is asked to provide a response to the following: Did the Veteran’s psychiatric disability, which existed prior to service, at least as likely as not increase in severity during service? If so, was the increase in severity clearly and unmistakably (undebatable) due to the natural progress of the disease? (Continued on the next page)   If the examiner finds that the Veteran’s psychiatric disability did not increase in severity during service, or if it did increase in severity but the increase in severity was clearly and unmistakably due to the natural progress of the disease, is a psychiatric disability at least as likely as not aggravated, i.e., worsened beyond its natural progression, by service-connected disability, including prostate cancer, erectile dysfunction, or coronary artery disease? 6. After completing the above, and any other development as may be indicated, the Veteran’s claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Owen, 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.