Citation Nr: 21072862 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 14-31 522 DATE: December 6, 2021 ORDER As new and material evidence to reopen the claim has not been received, the claim to reopen the issue of entitlement to service connection for a lumbar spine disorder is denied. As new and material evidence to reopen the claim has not been received, the claim to reopen the issue of entitlement to service connection for a right shoulder disorder is denied. New and material evidence having been submitted, the claim of entitlement to service connection for depression is reopened; to this extent only, the appeal is granted. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include depression and posttraumatic stress disorder (PTSD), is remanded. FINDINGS OF FACT 1. Service connection for residuals of a back injury was denied in a March 2002 rating decision on the basis that the condition was not related to service 2. Service connection for a right shoulder condition was denied in a May 2003 rating decision on the basis that the condition was not related to service. 3. The Veteran did not file a notice of disagreement for the March 2002 or May 2003 rating decisions, nor submit new evidence within one year, and those decisions became final. 4. The evidence associated with the claims file subsequent to the March 2002 and May 2003 denials consists of evidence that is cumulative or redundant of the evidence previously of record and does not relate to an unestablished fact necessary to substantiate the claims or raise a reasonable possibility of substantiating the claims for service connection for a lumbar spine disorder and service connection for a right shoulder disorder. 5. Service connection for depression was denied in the May 2003 rating decision in part on the basis that there was no current diagnosis. 6. The Veteran did not file a notice of disagreement for the May 2003 rating decision, and that decision became final. 7. Evidence received since the May 2003 rating decision relates to unestablished facts necessary to substantiate the service connection claim for an acquired psychiatric disorder, to include depression and PTSD. CONCLUSIONS OF LAW 1. The March 2002 and May 2003 rating decisions that denied the Veteran's claims of entitlement to service connection for residuals of a back injury, entitlement to service connection for a right shoulder condition, and entitlement to service connection for major depression are final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. The evidence received since the March 2002 denial is not new and material, and the claim for service connection for a low back disorder is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The evidence received since the May 2003 denial is not new and material, and the claim for service connection for a right shoulder disorder is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 4. New and material evidence has been received, and the Veteran's claim for service connection for depression is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1972 to May 1976. This case comes before the Board of Veterans' Appeals (Board) from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. This claim was previously before the Board in June 2021, at which time it was remanded for further development. The Board notes that the issue on appeal was characterized as entitlement to service connection for PTSD. However, in light of the evidence of record, the Board has recharacterized the issue more broadly to ensure complete consideration of the claim. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6, 8 (2009). New and Material Evidence A claim which has been finally denied 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 which 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 decision makers. 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). 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). Whether new and material evidence has been presented to reopen a claim for entitlement to service connection for a lumbar spine disorder Whether new and material evidence has been presented to reopen a claim for entitlement to service connection for a right shoulder disorder Service connection for a lower back condition was initially denied in a March 2002 rating decision and service connection for a right shoulder condition was initially denied in a May 2003 rating decision. Evidence considered in these decisions included the Veteran's service treatment records, VA treatment records and an April 2003 VA shoulder examination. The RO noted a medical history of low back pain and right shoulder pain in the post-service treatment records but found that the records did not reveal a relationship between the current conditions and service. Consequently, the RO denied the claims. The pertinent new evidence added to the record since the March 2002 and May 2003 denials includes VA treatment records, medical records from the Texas Department of Criminal Justice, and Social Security Administration records. Much of this evidence is new in that it was not previously of record. However, the newly submitted evidence does not show that the Veteran's low back and right shoulder conditions are related to his time in service. Hence, the evidence is not material for purposes of reopening the claim. Absent evidence of a link between the diagnosed conditions and service, the newly received evidence does not raise a reasonable possibility of substantiating the claim. As new and material evidence has not been received, the claims for service connection for a lumbar spine disorder and service connection for a right shoulder disorder are not reopened. Whether new and material evidence has been presented to reopen a claim for entitlement to service connection for major depression as secondary to lumbar spine disorder Service connection for depression was initially denied in the May 2003 rating decision. The RO found that the Veteran did not have a current diagnosis of depression. The evidence received since the May 2003 rating decision includes VA treatment records showing a current diagnosis of depression. The evidence is new as it was not previously considered and material as it pertains to an unestablished fact of the claim, i.e., evidence of a current disability; therefore, raising a reasonable possibility of substantiating the claim. See Shade v. Shinseki, 24 Vet. App. 110 (2010). New and material evidence having been submitted, reopening of the previously denied claim is appropriate. However, adjudication of the Veteran's claim does not end with the determination that new and material evidence has been received. For the reasons detailed in the remand section, additional development is required for a full and fair adjudication of the underlying service connection claim. REASONS FOR REMAND Entitlement to service connection for hypertension is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include depression and PTSD, is remanded. At the outset, the Board notes that the Veteran received a VA examination for his depression claim in April 2003; he has not, however, received a VA examination for his subsequent PTSD claim. As the Veteran's medical records establish a diagnosis or persistent symptoms of an acquired psychiatric disorder and hypertension, and there is an indication, through assertions of the Veteran, that the disabilities may be related to service, the Board finds that a medical examination with an opinion is necessary to decide the claims. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 70 (2006). Specifically, a remand is required to afford the Veteran VA examinations so as to determine the nature and etiology of these disabilities. 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 hypertension. The claims file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner is asked to opine as to whether it is as least as likely as not (50 percent probability or more) that any diagnosed hypertension had its onset in service or is otherwise the result of an incident in service. The examiner should consider all evidence, including lay statements, medical records, and other medical opinions of record. Any opinions offered should be accompanied by a clear rationale consistent with the evidence of record. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of any current acquired psychiatric disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The claims folder should be reviewed by the examiner. The examination report should note review of these records and specifically the Veteran's lay statements and VA treatment records. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify all current acquired psychiatric disorder(s). If any previously diagnosed psychiatric disorder is not found on examination, the examiner should address the prior diagnoses of record and indicate whether they may have resolved or been misdiagnosed. For each diagnosis identified other than PTSD, the examiner should state whether it is at least as likely as not (50 percent probability or more) that disorder manifested in or is otherwise related to the Veteran's military service, including any symptomatology therein. With respect to PTSD, the RO should provide the examiner with a summary of any verified in-service stressors and instruct the examiner that only these events may be considered for the purpose of determining whether exposure to an actual in-service stressor has resulted in PTSD. The examiner should determine whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied. If the PTSD diagnosis is deemed appropriate, the examiner should address whether it is at least as likely as not (50 percent probability or more) that PTSD is due to military service. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. B. J. KOMINS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Daniels, 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.