Citation Nr: 21062625 Decision Date: 10/08/21 Archive Date: 10/08/21 DOCKET NO. 17-18 602 DATE: October 8, 2021 ORDER New and material evidence having been received, the previously denied claim of service connection for a psychiatric disorder is reopened. REMAND Service connection for a psychiatric disorder. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1974 to December 1974. The case is on appeal from an April 2015 rating decision. Following the March 2017 statement of the case (SOC), the Veteran submitted a VA Form 9 substantiating his appeal and requested a Board hearing. In a May 2021 letter, the Board notified the Veteran and his representative state of a hearing scheduled for August 2021. However, the Veteran failed to report for this hearing. To date, the Veteran has not requested that his hearing be rescheduled. As such, the Board finds that the Veteran's hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d). Whether new and material evidence has been received to reopen a previously denied claim of service connection for a psychiatric disorder. By a November 1988 rating decision, a claim of service connection for a psychiatric disorder (characterized as nervous condition) was denied on the basis of no current disability. The Veteran was notified of the decision later that month. Shortly thereafter, the Veteran filed a timely notice of disagreement (NOD) accompanied by additional medical evidence. As the evidence was not new and material under 38 C.F.R. § 3.156(b), in a subsequent January 1989 statement of the case (SOC), the RO confirmed and continued the November 1988 decision. In June 1989, the Veteran filed a VA Form 9 to substantiate his appeal. Nevertheless, because this form was missing the Veteran's signature, the form is deemed as not valid. Thereafter, nothing further regarding the claim was received until a claim to reopen in June 1992. In a June 1993 rating decision, the RO denied the claim to reopen as it was determined that the evidence submitted in support of the claim was not new and material pursuant to 38 C.F.R. § 3.156(b). The Veteran was notified of the decision by letter later that month, which was mailed to the then current mailing address of record. Thereafter, nothing further regarding the claim was received until the present claim to reopen in March 2015. As the Veteran did not appeal the June 1993 decision, the decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Board finds that new and material evidence has been submitted in the form of medical records, indicating multiple psychiatric diagnoses for which the Veteran has received treatment (i.e., mood disorder, depression, anxiety, and panic attacks). The Board notes that such records are new as they were not considered during the previous claim process, and material as they pertain to a fundamental element of the claim (i.e., a current disability) that could substantiate the Veteran's claim. As such, the previously denied claim of service connection for a psychiatric disorder is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). REASONS FOR REMAND Service connection for a psychiatric disorder. While the April 2015 rating decision denied service connection for panic attacks, medical evidence submitted in connection with this claim contain diagnoses for various psychiatric disorders such as severe anxiety, depression, panic attacks, mood disorders, opioid withdrawal, and traits of personality disorder. As such, the Board has recharacterized the Veteran's reopened claim more broadly as one of claim of service connection for a psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Service treatment records (STRs) reflect that the Veteran was sound at entrance with respect to psychological disorders. See January 14, 1974 entrance medical examination. STRs neither show reports or treatment sought for a mental health condition during service. STRs do reflect, however, that the Veteran was seen on multiple occasions for pseudofolliculitis barbae, a condition which prevented him from shaving during service. In a November 1974 separation Narrative Summary, a mental health provider noted that conversations with the Veteran's supervisors indicated that his unwillingness to comply, in pertinent part, with "grooming standards" and standards of military conduct and bearing were the primary issues which prompted an administrative recommendation for early separation. The Veteran expressed his concern with various supervisors trying "to make life difficult for him." In sum, the mental health provider diagnosed the Veteran with immature personality with features of passive-aggressive behavior. In an October 1974 separation medical examination, the Veteran denied psychological problems. Nonetheless, the separation report reflects that the Veteran was under prescription of valium. See October 1974 Report of Medical History, item 8. During a June 1989 hearing before a VA Decision Review Officer (DRO), the Veteran testified that while in the military he received a lot of unexpected mistreatment, specifically pointing out that his shaving medical problem got him in trouble and for which he felt treated differently. See Haring transcript, p.3. He further stated that his training instructor (TI) irritated him to the point that he became a "nervous wreck." See hearing transcript, p.4. Post-service treatment records associated with his claim's file reflect that during a September 1986 psychiatric evaluation, the Veteran had been told that he did not have any psychiatric problems. The report further notes that the Veteran denied anxiety and depression at that time. See Treatment records from Lake City VA Medical Center (VAMC) received in August 1987. Notwithstanding, private treatment records shows that shortly thereafter the Veteran is emotionally liable (see January 5, 1988 progress notes from Dr. J.M.); that the Veteran experiences acute situational anxiety and adjustment reaction (see February 25, 1988 progress notes from Dr. J.M.); and that the Veteran's biggest challenges in life include dealing with stresses of daily living (see September 28, 1988 progress notes from Dr. J.M.). Between 1992 and 1996, the Veteran received diagnoses of severe anxiety and depression. See June 8, 1992, and March 5, 1996 VA progress notes. VA treatment records also reflect that the Veteran has a longstanding post-service history of opioids and benzodiazepines dependency. In May 2009, the Veteran denied emotional or discipline problems in the 10 months he served. See May 9, 2009 VA Psychological Assessment. Nevertheless, the Board also notes that the Veteran has been found to be a difficult historian and at times appear to be confused. See July 12, 2012 VA progress notes; see also November 2, 2016 progress notes. The Veteran was afforded a VA examination in connection with his "nervous condition" claim in July 1989. The Veteran reported being under medicine for his nerves. The VA examiner noted that while there were no delusional or hallucinatory elements during the interview, the Veteran's mood was depressed. The examiner further noted that according to the RO's examination request (VA Form 2507) the Veteran's claims file was necessary to complete the report. The report does not contain a nexus opinion. In light of the above, and given the Veteran's June 1989 testimony suggesting emotional and psychological problems associated with pressure and alleged mistreatment during service, STRs suggesting the existence of passive-aggressive behaviour, the fact that the Veteran has several post-service diagnoses for psychiatric disorders, and because the Board has found the July 1989 VA examination is not adequate, the Board finds that a remand is warranted for a new VA examination and opinion by a qualified medical professional to comment on the etiology and nature of the claimed psychiatric disorder. In light of the remand, updated VA treatment records must be obtained. The matter is REMANDED for the following action: 1. Obtain any updated VA treatment records dated since June 2019. 2. Thereafter, schedule the Veteran for a VA psychiatric disorder(s) examination by an appropriate medical professional. The examiner should review the entire record. All indicated tests should be conducted and results reported. The examiner should first identify the Veteran's psychiatric disorders, to include any manifested by depression, anxiety disorder, panic attacks, mood disorder, and/or traits of personality disorder. The examiner is then asked to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any identified psychiatric disorder had its onset in, or is otherwise attributable to, the Veteran's military service. Consideration should be given to: (1) STRs showing that the Veteran was sound at entrance and that he was under treatment with valium at separation; (2) the Veteran's testimony as to the alleged mistreatment received in service due to medical problems, to include his inability to shave by reason of his pseudofolliculitis barbae; (3) his statement indicating that the irritation brought up by his supervisors made him a "nervous wreck;" (4) the May 2009 VA psychiatric assessment in which the Veteran denied emotional or discipline problems in the 10 months he served; and (5) the Veteran's documented post-service history of opioids and benzodiazepines dependency. A complete rationale should be provided for any opinion reached. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board William Pagan 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.