Citation Nr: 21077337 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 18-54 184 DATE: December 29, 2021 ORDER New and material evidence having been received, the application to reopen the claim of entitlement to service connection for a psychiatric disorder is granted. REMANDED Entitlement to service connection for a psychiatric disorder is remanded. FINDING OF FACT A final October 2014 rating decision denied service connection for a psychiatric disorder; newly received evidence raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW Evidence received to reopen the claim of entitlement to service connection for a psychiatric disorder is new and material and the claim is reopened. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from May 1991 to November 1993, including foreign service in Korea. Of note, the Veteran's December 2018 VA Form 9 indicated his intent to limit the matters on appeal, to be identified in a following memorandum which was never provided to VA. However, the Veteran subsequently pursued a separate increased rating appeal via the modernized system (known by the Board as the AMA), and offered only evidence and argument pertaining to the matters identified herein as it relates to the current appeal stream. Thus, the appeal has been appropriately limited as per the Veteran's wishes. The Veteran also testified during a September 2021 virtual hearing. A transcript of this proceeding has been associated with the record. Upon the Board's review of the claims file, this appeal has been expanded to include all acquired psychiatric disorders. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). New and Material Evidence First, the Veteran seeks to reopen a service connection claim for a psychiatric disorder on the basis of new and material evidence. VA may reopen a claim for service connection which has been previously and finally disallowed when new and material evidence has been presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996). In this regard, "new evidence" means existing evidence not previously submitted to VA. "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. Taken in combination, 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). New evidence may be sufficient to reopen a claim if it can contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998); Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Thus, the Board must first determine whether new and material evidence has been submitted under 38 C.F.R. § 3.156(a) to have a claim reopened under 38 U.S.C. § 5108. Elkins v. West, 12 Vet. App. 209 (1999). Then the Board may proceed to evaluate the merits of the claim after ensuring that VA's duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). To determine whether new and material evidence has been submitted, it is necessary to consider all evidence added to the record since the last time the claim was denied on any basis in conjunction with the evidence already of record. Here, the Veteran has repeatedly sought service connection for a variety of psychiatric disorders (including paranoid schizophrenia, major depressive disorder, posttraumatic stress disorder (PTSD), manic depression, and adjustment disorder). The Board construes each as a claim seeking service connection for a psychiatric disorder (rather than separate and distinct diagnoses), and will interpret the relevant procedural history as such. Thus, procedurally and in pertinent part, service connection for a psychiatric disorder was most recently denied in an October 2014 rating decision. The Veteran did not perfect an appeal as to this matter or submit documentation constituting new and material evidence within the appropriate appeal period, such that the October 2014 rating decision became final. Rather, the Veteran requested to reopen the claim in September 2016. His request may be granted upon a finding that new and material evidence has been received since the final October 2014 rating decision. Here, the Board finds that such evidence has been submitted. In part, the October 2014 rating decision denied service connection upon the Regional Office's (RO's) determination that the evidence did not show an in-service incident. Newly received evidence, including that received in February 2017, speaks directly to one of the Veteran's claimed in-service stressors. Additionally, the Veteran's September 2021 hearing testimony raised multiple other theories of entitlement for consideration, including that his current disorder is related to in-service friendly fire incidents or is secondarily related to the pain caused by his service-connected disabilities. Given the Veteran's competency to testify as to the nature and onset of his symptoms, particularly in relation to his military service, the Board finds that this new evidence further raises a reasonable possibility of substantiating the claim. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Upon a finding of new and material evidence, the application to reopen the service connection claim for an acquired psychiatric disorder is hereby granted. REASONS FOR REMAND Although the Board sincerely regrets the additional delay this will cause, further development is necessary prior to the adjudication of the service connection appeal. Historically, the Veteran underwent VA psychiatric examinations in August 2013, March 2017, and October 2018. Collectively, these evaluations are inadequate upon which to assess the merits of this appeal, as they do not engage all theories of entitlement as presented by the record or offer adequate rationales for the opinions provided. An addendum opinion is required as a result. Additionally, the Veteran testified as to additional stressors during the September 2021 hearing. Development must be undertaken regarding this testimony. The matter is REMANDED for the following actions: 1. Conduct all appropriate development to corroborate the Veteran's reports of multiple friendly fire incidents during his period of service. All efforts to obtain these records must be documented in the claims file. Such efforts shall continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. 2. Obtain an addendum opinion addressing the questions below. If the examiner determines that an opinion may not be offered without first examining the Veteran, an examination shall be scheduled. The claims file and a copy of this remand must be made available for review. In particular, the examiner is asked to offer medical opinions as to: (A.) Identify ALL psychiatric disorders shown by the Veteran during the period on appeal. A diagnosis of PTSD must be offered in accordance with VA regulations. (B.) If a PTSD diagnosis is rendered, the examiner must state to what stressor that diagnosis is related, to include any stressors confirmed from the Veteran's active service. (C.) For any diagnosis other than PTSD, the examiner must state whether it is at least as likely as not that any such psychiatric disorder had its onset during or is otherwise related to active service. (D.) For any psychiatric disorder other than PTSD, the examiner must also state whether it is at least as likely as not that such psychiatric disorder is secondary to the Veteran's service-connected disabilities. That is, is any such psychiatric disorder proximately due to, the result of, or aggravated by any of the Veteran's service-connected disabilities? A complete rationale must be provided for all requested opinions. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Kovarovic, 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.