Citation Nr: 21065972 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 19-14 465 DATE: October 28, 2021 ORDER New and material evidence has been received to reopen a claim for service connection for the Veteran's acquired psychiatric condition. REMANDED Entitlement to service connection for an acquired psychiatric condition, claimed as anxiety and posttraumatic stress disorder, is remanded. FINDINGS OF FACT 1. In a final decision issued in November 2015, the RO denied the Veteran's claim of entitlement to service connection for an acquired psychiatric condition. 2. Evidence added to the record since the November 2015 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 condition. CONCLUSION OF LAW As new and material evidence has been received since the issuance of a final November 2015 decision, the criteria for reopening the claim of entitlement of service connection for an acquired psychiatric condition have been met. 38 U.S.C. § 5108; 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 January 2012 to May 2012 and from January 2014 to January 2015. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a Board hearing in June 2021. A transcript is of record. New and Material Evidence 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). Here, in the November 2015 rating decision, the RO denied the Veteran's claim for service connection because the evidence of record failed to establish that his condition occurred in or was caused by service. In addition, the RO based the denial on the Veteran's failure to schedule a VA examination. The Veteran's last final decision for his claim was in November 2015 as he did not file an appeal to this decision. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104. 20.302, 20.1103. In denying the claim, the RO considered service treatment records (STRs), VA medical treatment records, and military personnel records. After the last final denial in November 2015, the Veteran filed a claim for service connection in September 2017. The RO denied the claim in a March 2018 rating decision. The Veteran submitted a notice of disagreement (NOD), which the RO continued the denial in the May 2019 statement of the case (SOC). Evidence submitted since the last final denial includes VA medical treatment records, statements in support of the claim, and the June 2021 Board hearing transcript. Upon review of the aforementioned evidence, the Board finds that the VA treatment records, hearing transcript, and statements in support are new and material. The 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 a diagnosed condition, treatment, and stressor statements. Given such, reopening the claim is in order, as the evidence is new and material. The reopened claim is further addressed in the remand section below. REASONS FOR REMAND Here, the Veteran was not provided with a VA examination. The evidence of record establishes that the Veteran has a current diagnosis of anxiety. See Private MedExpress Medical Treatment Records. The Veteran contends his acquired psychiatric disorder was caused by his active military service while he was stationed in Cuba. The record establishes that the Veteran was stationed in Guantanamo Bay, Cuba. See Military Personnel Record. As such, the Board finds the evidence meets the McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) criteria to obtain a VA examination. Furthermore, during the June 2021 Board hearing, the Veteran testified that he seeks private treatment for his acquired psychiatric condition. The Board finds these records from Holyoke Medical Center are not of record. Since these records pertain to his claim, the Board finds these records must be obtained. The matters are REMANDED for the following action: 1. In accordance with the provisions of 38 C.F.R § 3.159(c)(1), make efforts to obtain all records identified by the Veteran, including outstanding VA treatment records and private treatment records from Holyoke Medical Center. 2. Then, the RO should afford the Veteran a VA psychiatric examination, with an appropriate psychiatrist or psychologist, who must review the claims file. The examiner must address the following, with all opinions supported by a rationale: whether it is at least as likely as not (at least an approximate balance of positive and negative balance) that the Veteran's acquired psychiatric condition had its onset during, or was otherwise related to, active service. The examiner must consider and address the Veteran's statements contained in the record, to include, but not limited to, statements during the June 2021 hearing that he was targeted by inmates during his first deployment to Cuba while working as a military police officer. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Glaeser, Jennifer 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.