Citation Nr: 21073956 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 19-12 325 DATE: December 13, 2021 ORDER New and material evidence having been received to reopen a claim for service connection for an acquired psychiatric disorder, the petition to reopen is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded FINDING OF FACT Evidence associated with the claims file since May 2005 is new and raises a reasonable possibility of substantiating the claim of entitlement to service connection for an acquired psychiatric disorder. CONCLUSION OF LAW Evidence received since the May 2005 rating decision that denied service connection for an acquired psychiatric disorder, which was the last final denial with respect to this issue, is new and material; the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2018); 38 C.F.R. §§ 3.104, 3.156(a), 3.160(d), 20.200, 20.302, 20.1103 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Air Force from June 1968 to January 1972. In March 2021, the Veteran testified before the undersigned at a Board hearing held via videoconference. A transcript of that hearing is of record. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Medical evidence of record contains diagnoses of generalized anxiety disorder. Thus, while the Veteran specified that he was seeking service connection for adjustment disorder with depressed mood, the claim has been broadened to include other psychiatric disabilities and is re-characterized accordingly. New and Material Evidence 1. Whether evidence received since the May 2005 Rating Decision is new and material to warrant readjudication of the Veteran's claim for service connection. In May 2005, the RO denied the Veteran's claim for service connection for adjustment disorder with depressed mood on the basis that the probative evidence of record did not establish that adjustment disorder was incurred during or caused by his period of active service. He did not submit a notice of disagreement or submit new and material evidence within one year of its promulgation. See Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011); see also Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). Accordingly, the May 2005 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.160(d), 20.200, 20.302, 20.1103. The Board has no jurisdiction to consider a claim based on the same factual basis as a previously disallowed claim. 38 U.S.C. § 7104; King v. Shinseki, 23 Vet. App. 464 (2010); DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006). However, the finality of a previously disallowed claim can be overcome by the submission of new and material evidence. See 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means 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 for purposes of deciding whether a claim should be reopened, "the credibility of the evidence is to be presumed." Savage v. Gober, 10 Vet. App. 488 (1997); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Only in cases in which the newly submitted evidence is "inherently false or untrue" does the presumption of credibility not apply. Duran v. Brown, 7 Vet. App. 216, 220 (1994). In March 2021, the Veteran testified to multiple incidents and injuries during his period of active service, including a suicide attempt, that may be related to his psychiatric disorder. Presuming the credibility of this evidence, it is new and material. Reopening of the Veteran's claim for service connection for adjustment disorder with depressed mood based on the receipt of new and material evidence is therefore warranted. Shade v. Shinseki, 24 Vet. App. 110, 121 (2011) (holding that the phrase "raises a reasonable possibility of substantiating the claim" in applicable regulation as "enabling rather than precluding reopening"). REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder The Veteran claims entitlement ot service connection for an acquired psychiatric disorder. VA treatment records note a diagnosis of chronic posttraumatic stress disorder, generalized anxiety disorder, and major depressive disorder. At a March 2021 Board Hearing, the Veteran testified to a suicide attempt during his period of active duty service as well as other events or injuries occurring during service that may have caused his current adjustment disorder. Following an in-person examination completed in March 2019, the VA examiner determined that the Veteran's persistent depressive disorder was not related to his period of active service. However, the examination and subsequent medical opinion was not able to consider the lay statements offered by the Veteran during his March 2021 Board Hearing. Among the lay statements, the Veteran testified that shooting himself in the abdomen during his period of active service was a suicide attempt. This event is characterized as a non-suicidal event by the March 2019 examiner and subsequent medical opinion. A medical opinion is inadequate if the examiner's rationale fails to account for pertinent evidence, to include competent lay statements describing symptoms of the disability at issue. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Buchanan v. Nicholson, 451 F.3d 1331,1335 (Fed. Cir. 2006) (noting that "lay evidence is one type of evidence that must be considered, if submitted, when a veteran's claim seeks disability benefits"). The Board finds that an additional medical opinion is necessary to comprehensively evaluate the Veteran's claim for service connection. Accordingly, the matters are REMANDED for the following action: 1. Schedule the Veteran for an examination with an appropriate clinician for his acquired psychiatric disorder. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's acquired psychiatric disorder began during active service, or is related to an incident of service, including the Veteran's report of a suicide attempt during service, and other lay statements from the Veteran's March 2021 Board Hearing regarding his period of active service. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Readjudicate the claim. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Riordan, 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.