Citation Nr: 21077588 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 18-02 214 DATE: December 30, 2021 ORDER New and material evidence has been received sufficient to reopen the claim of entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder and schizoaffective disorder. REMANDED The claim of entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder and schizoaffective disorder, is remanded. FINDINGS OF FACT 1. In a May 2006 rating decision, the Regional Office denied the Veteran's claim of entitlement to service connection for schizoaffective disorder. The Veteran did not file a Notice of Disagreement or submit new evidence, nor was new evidence constructively possessed by VA within one year of the decision; thus, the decision became final. 2. In an October 2007 rating decision, the Regional Office denied the Veteran's claim of entitlement to service connection for schizoaffective disorder and bipolar disorder. The Veteran did not file a Notice of Disagreement or submit new evidence. To the extent the VA was in constructive possession of VA treatment records produced through the subsequent one-year appeal period, the records only report a diagnosis of, and treatment for, the claimed psychiatric disabilities, but do not relate to any etiological relationship with active duty service. Thus, these records are not new and material, and the decision became final. 3. Evidence has been received since the October 2007 rating decision that relates to an unestablished fact necessary to substantiate the claim and that raises a reasonable possibility of substantiating the claim of entitlement to service connection for an acquired psychiatric disorder. CONCLUSIONS OF LAW 1. The May 2006 and October 2007 rating decisions are final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 2. Since the October 2007 rating decision, new and material evidence has been received sufficient to reopen the previously denied claim of service connection for an acquired psychiatric disorder, to include bipolar disorder and schizoaffective disorder. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Navy from July 1980 to July 1984. The instant matter is on appeal from a March 2015 rating decision. In September 2021, the Veteran testified before the undersigned in a virtual hearing. A transcript of the proceedings has been associated with the record. Pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board is broadening the Veteran's claim of entitlement to service connection for schizoaffective disorder and bipolar disorder to a claim of entitlement to service connection for an acquired psychiatric disorder, to include schizoaffective disorder and bipolar disorder, as reflected in the issues section above. See id. at 5 (the claim "cannot be limited only to that diagnosis, but must rather be considered a claim for any mental disability that may be reasonably encompassed..."). 1. New and material evidence has been received sufficient to reopen the claim of entitlement to service connection for an acquired psychiatric disorder Generally, if a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. "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). The threshold to reopen a claim is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Regional Office last denied the Veteran's claim of entitlement to service connection for schizoaffective disorder and bipolar disorder in an October 2007 rating decision. The Veteran did not submit new and material evidence, nor did he otherwise appeal this determination. To the extent the VA was in constructive possession of VA treatment records produced through the subsequent one-year appeal period, the records only report a diagnosis of, and treatment the claimed disabilities, but do not relate to any etiological relationship with active duty service. Thus, these records are not new and material. As a result, the October 2007 rating decision is final. Lang v. Wilkie, 971 F.3d 1348 (2020); Beraud v. McDonald, 766 F.3d 1402, 1407 (Fed. Cir. 2014). Since that decision, the Veteran has provided lay statements regarding his subjective symptoms during service, and he underwent a VA mental health examination. The bar to reopening a claim for new and material evidence is low, and the Veteran's lay evidence pertaining to the onset and progression of his symptomatology both during and after service meets that threshold. Therefore, such evidence is new and material, and the claim of entitlement to service connection for an acquired psychiatric disorder is reopened. REASONS FOR REMAND 1. The claim of entitlement to service connection for an acquired psychiatric disorder is remanded. The Board regrets the additional delay, but remand is necessary in order to obtain a more thorough evaluation of the Veteran's claimed acquired psychiatric disorders. The opinion obtained in March 2015 provided a negative nexus statement, indicating that mental health symptoms preceded service and continued through active duty, progressing after he discharged. There was no discussion as to whether active duty service worsened the Veteran's mental health. Furthermore, the Veteran's enlistment examination reflected a normal psychiatric evaluation, as did his separation examination. A new opinion is necessary on remand in order to consider this information more thoroughly, as well as properly address any potential mental health symptoms preceding service. The matters are REMANDED for the following action: 1. Obtain any relevant, outstanding VA treatment records that are not already associated with the claims file. If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). All attempts to contact the Veteran should be documented in the record. 2. Once the aforementioned development is complete, schedule the Veteran for a VA examination to address the etiology of his claimed acquired psychiatric disorder. The examiner should consider the Veteran's lay statements regarding observable symptomatology both during and after service. After a thorough review of the medical and lay evidence of record, the examiner should discuss the following: (a.) Based upon the medical and lay evidence of record, is there clear and unmistakable evidence (such that reasonable minds could not differ) that an acquired psychiatric disorder preexisted active duty service? (b.) If you determine that an acquired psychiatric disorder clearly and unmistakably preexisted service, was it clearly and unmistakably not aggravated (i.e., not permanently worsened beyond the natural progression of the disease) during service? Specifically discuss the Veteran's lay statements of observable symptoms during service. (c.) If it is found that there is clear and unmistakable evidence that the Veteran's acquired psychiatric disorder existed prior to service AND that there is clear and unmistakable evidence that the condition was not aggravated by service, please clearly indicate the basis/evidence supporting your conclusions. (d.) If the Veteran's acquired psychiatric disorder did not preexist service OR it was not aggravated by service, please then opine as to whether it is at least as likely as not (i.e., a probability of 50 percent or more) that the Veteran's acquired psychiatric disorder is etiologically related to his active duty service? The examination report should specifically state that a review of the record was conducted. The examiner should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 3. Following completion of the foregoing, the AOJ should review the record and readjudicate the claim on appeal. If it remains denied, the AOJ should issue an appropriate supplemental SOC, afford the Veteran and his representative an opportunity to respond, and return the case to the Board. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Fisher, 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.