Citation Nr: 21003460 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 17-04 330 DATE: January 21, 2021 ORDER New and material evidence having been submitted, the petition to reopen a claim of entitlement to service connection for an acquired psychiatric disorder (previously claimed as posttraumatic stress disorder and major depression) is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder (previously claimed as posttraumatic stress disorder and major depression) is remanded. FINDINGS OF FACT 1. In a final decision issued in March 2004, the Regional Office (RO) denied the Veteran’s claim of entitlement to service connection for a lack of a nexus. 2. Evidence added to the record since the March 2004 prior final decision is not cumulative or redundant of evidence of record at the time of the prior decision and raises a possibility of substantiating the Veteran’s claim for entitlement to service connection for an acquired psychiatric disorder. CONCLUSION OF LAW As new and material evidence has been received since the issuance of the final February 2004 decision, the criteria for reopening the claim of entitlement of service connection for an acquired psychiatric disorder have been met. 38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from August 1986 to October 1986 and from February 1991 to May 1991. The claim comes before the Board of Veterans’ Appeals on appeal from an April 2014 rating decision issued by the Department of Veterans Affairs (VA) RO. The Veteran has claimed entitlement to service connection for PTSD, and pursuant to Clemons v. Shinseki, the Board has more broadly recharacterized his claim as one for service connection for an acquired psychiatric disorder, to include persistent depressive disorder with anxious distress, major depressive disorder, PTSD, and anxiety. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009) (finding that a claim for an acquired psychiatric disability includes any mental disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and other information of record). Unappealed rating decisions by the RO are final with the exception that a claim may be reopened by submission of new and material evidence. 38 U.S.C. § 5108, 7105(c). When a Veteran seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is “new” and “material.” See Smith v. West, 12 Vet. App. 312, 31 (1999). In this case, after review of the claims file, it reflects that the Veteran’s claim was reopened by the RO in an April 2014 rating decision. However, the Board must address the question of whether new and material evidence has been received to reopen the claim because the issue goes to the Board’s jurisdiction to reach the underlying claim and adjudicate the claim de novo. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Board does not have jurisdiction to consider a claim that has been previously adjudicated unless new and material evidence is presented, and before the Board may reopen such a claim, it must find that new and material evidence has been presented. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). See also Winters v. West, 12 Vet. App. 203 (1999). Reconsideration New and material evidence is not required to reopen a claim when, at any time after VA issues a decision on a claim, VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim. 38 C.F.R. § 3.156 (c)(1). Service department records include, but are not limited to, records related to a claimed in-service even, injury or disease, additional records forwarded at any time after VA’s initial request, and declassified records that could not have been obtained at the time of the prior final denial. 38 C.F.R. § 3.156 (c)(1)(i)(iii). Relevant records are those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the Veteran’s claim. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). However, this exception does not apply to service records that (1) did not exist at the time VA previously decided the claim, or (2) were not present because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or any other official source. 38 C.F.R. § 3.156 (c)(2). With respect to the Veteran’s claims, service treatment records were added to the claims file in August 2013. The records received in August 2013 included service treatment records from March 1985 to April 1991. These records were not associated with the claims file at the time of the prior denial. After review, the Board finds the records are not relevant as they do not help substantiate the Veteran’s claim for service connection for an acquired psychiatric disorder. Therefore, reconsideration does not apply, and the Board will consider new and material evidence. New and Material Evidence Legal Principles and Regulations In order to reopen a claim which has been denied by a final decision, a claimant must present new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001) (regardless of action taken by RO, Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial). In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. Evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343 (2000). If the evidence is new, but not material, the inquiry ends, and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). New and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, “credibility” of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” In determining whether this threshold is met, VA should not limit its consideration to whether the newly submitted 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 by triggering VA’s duty to assist. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). Analysis Here, in the April 2014 rating decision, the RO denied the Veteran’s claim for service connection for posttraumatic stress disorder (PTSD) because there was no nexus. The RO stated the Veteran’s service medical records were reviewed and there is no evidence of any treatment or diagnosis of major depression or PTSD. Therefore, the RO concluded that service connection is denied since the Veteran’s major depression/PTSD did not occur in or was caused by service. See February 2004 Rating Decision, issued in March 2004. The Veteran’s last final decision for his claim for PTSD was in March 2004 as he did not file an appeal to this decision. 38 U.S.C. § 7105 (c) (West 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In denying the claim, the RO considered service treatment records, military personnel records, VA treatment records, and private treatment records. After the last final denial in March 2004, the Veteran filed a claim to reopen in July 2013. The RO denied the claim in an April 2014 rating decision. Evidence submitted since the last final denial includes service treatment records that are not relevant, VA examinations, statements in support of claim, VA treatment records, a hearing transcript, and private examinations. As addressed above, 38 C.F.R. § 3.156(c) does not apply to the service treatment records (STRs) obtained after the March 2004 prior final denial as they are not relevant. Therefore, 38 C.F.R. § 3.156(c) is not for application. While the Board notes the Veteran sought treatment for his acquired psychiatric disorder, there is an etiological opinion of the Veteran’s military experiences exacerbating his pre-existing depressive symptoms. See October 2016 VA Initial Posttraumatic Stress Disorder Disability Benefits Questionnaire (DBQ). Upon review of the aforementioned evidence, the Board finds that the October 2016 VA examination report is new and material. This evidence is new because it has never been submitted and it is not redundant of evidence already of record. The evidence is material because it contains evidence of a nexus opinion. See id. Given such, reopening the claim is in order, as the evidence is new and material. Shade, 24 Vet. App. 110. REASONS FOR REMAND Regrettably, the Board finds a remand is warranted for a VA examination. The Veteran last underwent a VA examination for PTSD in November 2016. Unfortunately, the Board finds the November 2016 VA examination to be inadequate. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Specifically, the November 2016 VA examiner did not address why he does not meet a diagnosis of PTSD or service connection based on his in-service stressors. Additionally, the Board notes that the examiner opined that it is as likely as not that the Veteran’s military experiences may have exacerbated his pre-existing depressive symptoms but failed to provide an opinion as to whether his acquired psychiatric disorder was incurred in or related to service. The Board finds that the examiner failed to provide a rationale to this opinion. Specifically, the Board notes that during his entrance examination and throughout his service treatment records there is no indication of a pre-existing condition. Therefore, the Board finds that a further explanation is necessary to determine whether this was a pre-existing condition and, if so, what events exacerbated his pre-existing condition. 38 C.F.R. § 4.2. The Board finds the evidence fails to establish that there is a diagnosis of a pre-existing condition as found by the VA examiner. Lastly, the Board notes that additional medical records have been submitted since the November 2016 VA examination and were not considered during the examination. As these medical records are pertinent to the Veteran’s claim, the Board finds the examiner must consider these records in providing an opinion. Therefore, the Board finds a remand is warranted for the examiner to consider this evidence. The matters are REMANDED for the following action: 1. The RO should schedule the Veteran for a new VA psychiatric examination to determine the nature and etiology of any current psychiatric disorders with an appropriate examiner. 2. The examiner should determine whether the diagnostic criteria to support a diagnosis of an acquired psychiatric disorder have been satisfied. The examiner must review the claims file and state whether or not it has been reviewed. The examiner is asked to address the following: (a.) The examiner should first identify any and all currently diagnosed psychiatric disorders, to include depression, anxiety, and/or PTSD. In making this determination, the examiner should address the evidence diagnosing the Veteran with PTSD. (b.) For any acquired psychiatric disorder diagnosis other than PTSD, the examiner should state whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s acquired psychiatric disorder had its onset in service or was caused by, or is otherwise etiologically related to, the Veteran’s active military service. i. If yes, why? ii. If no, why not? (c.) For an acquired psychiatric disorder diagnosis, the examiner should state whether it clearly an unmistakably existed prior to service and whether it clearly an unmistakably was not aggravated by service. i. If a pre-existing condition is found, the examiner must provide clear and unmistakable evidence of a pre-existing condition as the Veteran on entrance to the military was noted to not have any mental disorder. ii. If a pre-existing condition is found, to what degree, if any, did his active military service aggravate his acquired psychiatric disorder? (d.) If a diagnosis of PTSD is deemed appropriate, the examiner should comment upon the link between the current symptomatology and any verified in-service stressor, including fear of hostile military or terrorist activity, if found. 3. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Glaeser, 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.