Citation Nr: 21064522 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 18-36 950 DATE: October 20, 2021 ORDER New and material evidence having been received; the claim for entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and depression, is reopened. REMANDED Entitlement to service connection for an acquired psychiatric disability, to include PTSD and depression, is remanded. FINDING OF FACT A December 1997 rating decision denied entitlement to service connection for PTSD; the Veteran did not timely appeal the denial; and new and material evidence was not submitted as to the issue within the one-year appeal period following the issuance of the December 1997 rating decision. CONCLUSION OF LAW Evidence received since the December 1997 rating decision is new and raises a reasonable possibility of substantiating the Veteran's claim for entitlement to service connection for an acquired psychiatric disability, to include PTSD and depression. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1968 to June 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In May 2021, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. New and Material Evidence In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. An exception to this rule is provided in 38 U.S.C. § 5108, which states that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. The question of whether new and material evidence has been received to reopen a previously denied claim must be addressed by the Board in the first instance because the issue goes to the Board's jurisdiction to reach and adjudicate the underlying claim on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and further analysis beyond consideration of whether the evidence received is new and material is neither required nor permitted. Barnett, 83 F.3d at 1384. New evidence is existing evidence not previously considered by VA. Material evidence is 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 evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). PTSD and Depression In this case, the RO denied service connection for an acquired psychiatric disability (PTSD) in a December 1997 rating decision because there was no evidence of an in-service event, injury, or disease and no present disability. Thus, service connection for an acquired psychiatric disability could not be established. The Veteran was notified of the decision in a letter dated December 1997. The Veteran did not file a notice of disagreement with the December 1997 rating decision and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of issuance of notice of the rating decision. See 38 C.F.R. § 3.156 (b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the December 1997 rating decision became final based on the evidence then of record. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.1105. Evidence associated with the record since the final December 1997 rating decision includes a June 2019 hospitalization at a VA facility with a diagnosis of depression. This evidence is new in that it was not previously considered by VA. It is also material because it provides evidence that relates to an unestablished fact necessary to substantiate the claim. As such, the diagnosis of depression raises a reasonable possibility of substantiating the claim. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Accordingly, the Board finds that new and material evidence has been received to reopen the Veteran's claim for entitlement to service connection for an acquired psychiatric disability, and the claim is reopened. 38 C.F.R. § 3.156 (a). REASONS FOR REMAND Entitlement to service connection for PTSD and Depression The Veteran asserts that he has an acquired psychiatric disability, to include PTSD and depression, due to in-service stressors. The Veteran reported witnessing scores of dead bodies while in Vietnam, and he was constantly in fear for his life due to the constant threat of torpedoes. He also reported fearing for his life due to racial tensions and fights while serving. Although a VA examination in May 2016 found the Veteran did not have any current acquired psychiatric disability, the Veteran has since been diagnosed with depression following a hospitalization in June 2019. In light of this evidence, the Veteran should be afforded a VA examination to determine the nature and etiology of any acquired psychiatric disability found. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of any diagnosed psychiatric disability, to include PTSD and depression. (a.) Provide a diagnosis for any acquired psychiatric disability demonstrated since service, found on current examination or in the record. (b.) If there is a current diagnosis of PTSD and a verified stressor, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's PTSD is related to an in-service stressor. (c.) Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any acquired psychiatric disability other than PTSD demonstrated since service, to include depression, had its onset in service or is otherwise related to the Veteran's service. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. St. Laurent, 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.