Citation Nr: 21075403 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 16-23 038 DATE: December 20, 2021 ORDER As new and material evidence has been submitted, the previously denied claim of entitlement to service connection for a mental condition, to include memory loss, (previously claimed as sleep disturbance and depression as due to an undiagnosed illness), is reopened, and to that extent only, the appeal is granted. REMANDED Service connection for a mental condition, to include memory loss (previously claimed as sleep disturbance and depression as due to an undiagnosed illness) is remanded. Service connection for post-traumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. An unappealed March 1998 rating decision denied service connection for sleep disturbance and depression as due to an undiagnosed illness finding no in-service or post-service evidence of a psychiatric diagnosis, manifestations, symptoms, or complaints. 2. Additional evidence received since the March 1998 final denial is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim of service connection, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The RO's March 1998 rating decision denying service connection for sleep disturbance and depression as due to an undiagnosed illness is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.1103. 2. New and material evidence has been submitted to reopen the claim for service connection for a mental condition, to include memory loss, (previously claimed as sleep disturbance and depression as due to an undiagnosed illness). 38 U.S.C. §§ 1110, 7105; 38 C.F.R. §§ 3.303, 3.156, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1975 to August 1995. These matters come to the Board of Veterans' Appeals (Board) on appeal from February 2014 and January 2015 rating decisions issued by the Department of Veterans' Affairs (VA) Regional Office (RO) in Guaynabo, Puerto Rico. Preliminary matters By way of background, in a February 2019 decision, the Board previously remanded the claims of entitlement to service connection for a mental condition, to include memory loss (previously claimed as sleep disturbance and depression as due to an undiagnosed illness) and service connection for PTSD for a duty to assist error requiring VA to attempt to obtain service records. Upon review, the Board finds substantial compliance with the February 2019 remand directives has been met. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board has yet to address, however, the issue of new and material evidence regarding the claim of service connection for a mental condition, to include memory loss, previously claimed as sleep disturbance and depression as due to an undiagnosed illness. Indeed, this claim was denied in a March 1998 rating decision from which the Veteran did not appeal. While the RO found new and material evidence had been submitted to reopen the claim as part of the February 2014 rating decision, the Board must still consider whether it was proper to reopen the claim regardless of the RO's determination. The Board will therefore determine whether new and material evidence has been received and, if so, consider entitlement to service connection on the merits. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). This issue has been appropriately characterized above. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. As new and material evidence has been submitted, the previously denied claim of entitlement to service connection for a mental condition, to include memory loss, (previously claimed as sleep disturbance and depression as due to an undiagnosed illness), is reopened, and to that extent only, the appeal is granted. Generally, a claim that has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104, 7105. 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 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). The Court of Appeals for Veterans Claims has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and has viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). 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." Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). In determining whether this low 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, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. See Shade, 24 Vet. App. at 118. In this case, the Veteran's mental conditions claim was originally denied in a March 1998 rating decision where the RO determined that there was no objective evidence of a chronic undiagnosed illness involving sleep disturbance and depression nor was there evidence of a disorder. The RO notified the Veteran of its decision and his appellate rights. The Veteran did not initiate an appeal nor submit additional evidence within one year of the RO's decision. As a result, the RO's March 1998 rating decision became final. Thus, the Veteran's service connection claim for mental conditions may only be considered on the merits if new and material evidence has been received since the time of the prior adjudication. The Veteran filed a petition to reopen the claim in November 2012 contending that the additional evidence of record since the March 1998 rating decision is new and material. As will be discussed in more detail below, the Board agrees and finds reopening of the claim is warranted. Evidence of record at the time of the March 1998 rating decision, relevantly, included service treatment records (STRs) from July 1978 to August 1995, lay statements describing the Veteran's nightmares and mood fluctuations, VA treatment records, a Gulf War Registry examination noting complaints of depression and insomnia with a diagnosis of PTSD, and a subsequent VA examination noting the Veteran was treated for depression but at the time of the examination had no diagnosis except alcohol abuse by history. Since March 1998, the record now contains additional lay statements from the Veteran with details of in-service stressors, VA examinations in October 2014 and May 2021 with negative nexus opinions, VA treatment records referencing diagnosis of and treatment for PTSD and MDD, and private treatment records referencing the same. The Veteran's additional treatment records, statements regarding stressors, and the VA examination in May 2021 are at a minimum both "new" and "material" as they are not duplicative, not cumulative, and raise a reasonable possibility of substantiating the Veteran's service connection claim. Based on the above, the Veteran's service connection claim for a mental condition to include memory loss, previously claimed as sleep disturbance and depression as due to an undiagnosed illness, is reopened. REASONS FOR REMAND 1. Service connection for a mental condition, to include memory loss (previously claimed as sleep disturbance and depression as due to an undiagnosed illness) is remanded. 2. Service connection for PTSD is remanded. The Veteran contends he has an acquired psychiatric condition that was caused by service. The Board finds the evidence of record is insufficient to resolve the Veteran's claim. Initially, the Board notes the Veteran has contended an in-service stressor during his deployment in February 1991. He stated that he was alerted to the possibility of an enemy missile attack which was then confirmed near his location. He stated that he could hear the explosion. The Veteran explained many fellow service members died as a result of the attack or were injured. See August 2016 statement. The Veteran has been afforded three VA examinations to determine the nature and etiology of any mental conditions. Most recently in May 2021, the Veteran was afforded a VA examination during which the examiner found that the Veteran's contended stressor event is adequate to support a diagnosis of PTSD and is related to the Veteran's fear of hostile military or terrorist activity, but he did not meet the DSM-V symptom criteria for a diagnosis of PTSD. The examiner explained that the Veteran did not have persistent re-experiencing of the traumatic event, avoidance of trauma, anxiety, emotional arousal, or impairment in relationships or occupational/social functioning. The examiner stated that there was no change in functional status or in quality of life due to the trauma exposure. Upon review, however, the Veteran's lay statements of symptoms and treatment records throughout the period on appeal reference depression, anxiety, nightmares 2-3 times per week related to events while deployed, impulsiveness, persistent re-experiencing of traumatic events as nightmares and intrusive thoughts, previous suicide attempts, avoidance, flashbacks, and an impact on employment. Additionally, VA treatment records consistently reference a diagnosis and ongoing treatment for PTSD. Thus, the evidence is inconclusive and further clarification is required regarding the Veteran's current psychiatric diagnosis / diagnoses and the likely etiology of any and all conditions found. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Additionally, the May 2021 VA examiner opined that the Veteran had a diagnosis of major depressive disorder that was less likely than not related to service because the Veteran did not seek formal treatment until 2013, almost 18 years after service, and there was no relation between military service and the mental condition found in 2013. The examiner, however, failed to consider or reconcile the Veteran's STRs noting depression or excessive worry during service in November 1983; the October 1995 Gulf War Registry examination noting complaints of depression and insomnia; and the VA examination in 1996 noting the Veteran was taking medication for depression. Consequently, remand is necessary for consideration of these treatment records. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Accordingly, remand is necessary to afford the Veteran another VA examination. The matters are REMANDED for the following action: 1. Attempt to corroborate the Veteran's in-service stressor regarding the February 1991 missile attack. If more details are needed, contact the Veteran to request the information. 2. After the stressor verification efforts are completed, to the extent possible, schedule the Veteran for a VA examination before an appropriate examiner to determine the nature and etiology of any acquired psychiatric disorder, to include PTSD and / or major depressive disorder. The entire claims file and this remand should be made available for review. - If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor or his in-service fear of hostile attack / description of being under enemy fire. In so opining, the examiner is directed to address and consider the Veteran's treatment records referencing diagnosis and treatment for PTSD. The examiner is also directed to address and consider the Veteran's lay statements of symptoms and those noted in treatment records, including but not limited to, depression, anxiety, nightmares 2-3 times per week related to events while deployed, impulsiveness, persistent re-experiencing of traumatic events as nightmares and intrusive thoughts, previous suicide attempts, avoidance, flashbacks, and impacted employment. - If any other acquired psychiatric disorders are diagnosed, including major depressive disorder, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease, to include the described missile attack and / or being under enemy fire. In so opining, the examiner is directed to address and consider the Veteran's treatment records referencing major depressive disorder as well as a complaint of depression during service in 1983; a report of depression in 1995, and a 1996 report of receiving treatment for depression. The examiner must provide a complete rationale for any opinion expressed, based on the examiner's clinical and medical expertise; established medical principles; and references to the evidence of record, as appropriate. If any opinion cannot be expressed without resort to speculation, ensure that the examiner so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. After the above development, and any other development deemed necessary, readjudicate the claims. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.C. Allen, 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.