Citation Nr: 21067171 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 17-14 093 DATE: November 3, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for an acquired psychiatric disorder is reopened. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. FINDINGS OF FACT 1. The Veteran's claim for service connection for depression was denied in October 2012 on the basis that there was no evidence of the disorder noted in the Veteran's service treatment records. 2. The evidence received since October 2012 includes evidence that is not cumulative or redundant of the evidence previously of record and raises a reasonable possibility of substantiating the claim for entitlement to service connection for an acquired psychiatric disorder. CONCLUSIONS OF LAW 1. The October 2012 rating decision that denied the Veteran's claim for service connection for depression is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been presented to reopen the claim of entitlement to service connection for an acquired psychiatric disorder. 38 U.S.C. § 5108, 7104(b), 7105(c); 38 C.F.R. §§ 3.156, 3.159(c)(4). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1980 to February 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the proceeding has been associated with the claims file. New and Material Evidence Generally, a claim that has been denied in a final RO or Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides 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. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Meyer v. Brown, 9 Vet. App. 425, 429 (1996). In October 2012, the RO issued a rating decision and denied service connection for, among other things, depression. The rating decision shows that the RO denied service connection for depression on the basis that the Veteran's service treatment records did not contain evidence of in-service treatment for depression. The Veteran was notified of the October 2012 rating decision, but he did not file a notice of disagreement or submit new and material evidence within one year of that decision. Therefore, the October 2012 rating decision is final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. In March 2015, the Veteran applied for service connection for bipolar disorder and polysubstance dependence in remission. In April 2015, the RO issued a rating decision confirming and continuing the prior denial, finding that new and material evidence had not been received. In May 2015, the Veteran timely filed a Notice of Disagreement. Since the October 2012 rating decision, the Veteran submitted a disability benefits questionnaire (DBQ) from a private provider that noted he was diagnosed to have bipolar disorder and polysubstance abuse; in remission. He also provided a statement from a family member that described a change in the Veteran's behaviour/personality observed during his service. The Veteran testified in July 2021 that he was treated while in service for drug and alcohol misuse, as well as within a few years of his release from active service, which were his efforts to address his mental health symptoms. This new evidence pertains to the basis of the prior denial and presents the possibility of substantiating the claim with additional development. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The clinical records, Veteran's statements, and hearing testimony added to the claims file since the October 2012 rating decision are not cumulative or redundant of the evidence previously of record. Rather, they suggest a potential relationship between the Veteran's current mental health conditions and his active service. Accordingly, reopening of the claim for service connection for an acquired psychiatric disorder is warranted. REASONS FOR REMAND The Veteran contends that his acquired psychiatric disorder began in service. The Veteran has current diagnoses of bipolar disorder and polysubstance dependence. At his July 2021 Board hearing, the Veteran testified that he received alcohol and drug abuse counseling while stationed in Germany. While there are notations that he received drug and counseling during service, no mental health provider has opined if the Veteran's drug and alcohol treatment was an early manifestation of his mental health disorders. As such, remand is necessary to obtain an opinion on the matter. The matters are REMANDED for the following action: 1. Ask the Veteran to identify any health care providers, either during service or after, who may have treated him for his mental health conditions. Ask the Veteran to complete a VA Form 21-4142 for each health care provider so identified. Make two requests for the authorized records from any identified health care providers unless it is clear after the first request that a second request would be futile. 2. For any Army medical facility identified, seek those clinical treatment records, specifically, any mental health clinical treatment records as well as any others that may have been generated by counseling the Veteran may have received. The Board specifically notes a December 1981 service treatment record that reflects a discussion of drug and alcohol abuse and references that the Veteran was in counseling. Any available counseling records should be sought. 3. After the above development has been completed and any additional records obtained have been associated with the claims file, obtain an addendum opinion from an appropriate clinician to determine the nature and etiology of any acquired psychiatric disorders. For any acquired psychiatric disorder diagnosed, the examiner must opine whether it is at least as likely as not related to any in-service injury or disease. The reviewer is requested to address whether any behaviors noted in service were earlier manifestations of any current psychiatric disability. If an examination of the Veteran is necessary to obtain the requested opinions, one should be so arranged. 4. Thereafter, readjudicate the issue on appeal. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Geer, 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.