Citation Nr: 21005764 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 15-12 272A DATE: February 2, 2021 ORDER Whether new and material evidence has been received to reopen a claim for service connection for an acquired psychiatric disorder is granted. Entitlement to service connection for schizoaffective disorder, depressed type, is granted. REMAND Entitlement to an evaluation in excess of 30 percent for perirectal abscess is remanded. FINDINGS OF FACT 1. The Veteran’s claim of service connection for PTSD was denied in a February 2009 rating decision that was not appealed; no further evidence relevant to the Veteran’s service connection claim was submitted for a period of one year following the February 2009 rating decision. 2. Evidence relevant to an acquired psychiatric disorder claim was submitted since the February 2009 rating decision, and was not previously considered by agency decision makers; is neither cumulative nor redundant of the evidence already of record; relates to unestablished facts; and raises a reasonable possibility of substantiating the Veteran’s claim for service connection for an acquired psychiatric disorder. 3. The record reflects evidence of a current diagnosis of schizoaffective disorder manifesting in anxiety, chronic depression, passive suicidal ideation, and hallucinations, as well as evidence that the current psychiatric disorder had its onset during service. CONCLUSIONS OF LAW 1. New and material evidence has been received since the February 2009 denial became final; the criteria for reopening the previously denied claim for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. §§ 3.156, 20.203, 20.1103. 2. The criteria for service connection for schizoaffective disorder, depressed type, have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from February 1968 to February 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran died in September 2018, and his surviving spouse has been substituted as the Appellant in this case. The Appellant testified before the undersigned Veterans Law Judge (VLJ) at a hearing in November 2020. As an initial matter, the Board notes the Veteran filed a claim for service connection for PTSD, then later filed service connection claims for anxiety disorder, major depressive disorder, and schizoaffective disorder. As the Veteran is not expected to possess the medical knowledge to describe the universe of his claim and the record indicates that other psychiatric disorders are present, the Board has recharacterized his claims as one of service connection for an acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). New and Material Evidence 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; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision, or new and material evidence is received during the appeal period after the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. A Board decision becomes final the date it is issued, which is the date stamped on the face of the decision. 38 U.S.C. § 511; 38 C.F.R. § 20.1100. VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). The threshold is low and does not require new and material evidence regarding each element of the claim that had not been proved in the prior final decision. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New evidence is defined as 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). 1. Whether new and material evidence has been received to reopen a claim for service connection for an acquired psychiatric disorder The Veteran filed his initial claim of service connection for PTSD in April 2008. The RO denied service connection for that claim in a February 2009 rating decision based on a finding that there was no evidence of a confirmed PTSD diagnosis or any verified in-service stressor. The Veteran was notified of that decision in a February 2009 notice letter. The Veteran did not submit any additional evidence respecting the claim or a notice of disagreement with the decision within one year of that notice letter. As no timely notice of disagreement or new and material evidence was received during the appeal period following the February 2009 notice letter, the February 2009 rating decision became final. See 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.1103; Buie v. Shinseki, 24 Vet. App. 242, 252 (2010). New and material evidence is therefore required to reopen the claim of service connection for PTSD, which has been recharacterized as a claim of service connection for an acquired psychiatric disorder. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Since the February 2009 rating decision, evidence the current psychiatric disorder had its onset in service has been associated with the record, and the Appellant testified at a Board hearing in November 2020 regarding why she believes the current psychiatric disorder is related to the Veteran’s military service. Therefore, the Board finds that new and material evidence which tends to substantiate the Veteran’s claim of service connection for an acquired psychiatric disorder has been received in this case, and the claim is reopened. See 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (medical evidence indicating a medical opinion is warranted is sufficient to reopen a claim). Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also 38 C.F.R. § 3.303, Hickson v. West, 12 Vet. App. 247, 252-53 (1999). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). 2. Entitlement to service connection for an acquired psychiatric disorder The Appellant contends the Veteran’s acquired psychiatric disorder was secondary to the service-connected perirectal abscess, as the condition caused him depression and anxiety. Consistently throughout the course of this appeal, the Veteran reported experiencing a hallucination while in service, as well as symptoms of anxiety, nervousness, and depression. He also reported that these symptoms persisted until the time of this appeal. In addition to the Veteran’s reports, the service treatment records indicate the Veteran sought treatment in September 1968 for feelings of nervousness. The Veteran’s VA treatment records contain various psychiatric diagnoses, including anxiety disorder, dysthymia, depressive disorder, and psychosis. In May 2012, the Veteran was referred to a clinical psychologist in the VA mental health clinic to clarify the diagnosis. After formal psychological testing and an interview with the Veteran, the psychologist concluded the Veteran’s diagnosis was schizoaffective disorder, depressed type; the psychologist noted PTSD was not indicated. The psychologist noted the Veteran experienced significant anxiety, chronic mild to moderate depression, and apparent hallucinations. During the interview, the Veteran also reported that he often had passive suicidal ideation. The psychologist considered the Veteran’s report of the in-service hallucination, the results of the formal testing, and the Veteran’s current symptoms, and opined that the onset of the Veteran’s mental health problems occurred in the military, and are most likely associated with the first visual hallucination he had while under situational stress. The psychologist noted the Veteran continued to have affective impairment and ongoing hallucinations since his time in service. After review of the record, the Board finds service connection for an acquired psychiatric disorder is warranted. The Board first notes the VA clinical psychologist is competent to provide a medical opinion regarding the onset of the Veteran’s current psychiatric disability. See 38 C.F.R. § 3.159(a)(1). Next, the Veteran’s reports described by the psychologist coincide with the reports he made throughout the record, and the Board finds no reason to doubt the credibility of those reports. The record thus contains competent and credible evidence of an incurrence in service of an acquired psychiatric disorder. Therefore, service connection for a schizoaffective disorder, depressed type, is warranted. REASONS FOR REMAND 1. Entitlement to an evaluation in excess of 30 percent for perirectal abscess is remanded. The February 2013 rating decision that initially denied the Veteran’s claim for an increase and the February 2015 statement of the case both cite as evidence a VA examination completed on January 30, 2013. The Veteran also referenced this examination in a statement accompanying his notice of disagreement. However, this examination does not appear in the record, either separately or within the Veteran’s VA treatment records. The Appellant testified that the Veteran underwent a VA examination in 2018, shortly before his death; this examination also does not appear in the record. A remand is necessary to obtain these examinations and associate them with the record. The matter is REMANDED for the following action: 1. Associate copies of the January 2013 and August or September 2018 VA examinations and associate them with the record. If such examination reports are not available and the Agency of Original Jurisdiction (AOJ) determines that further attempts to obtain them would be futile, the AOJ must explicitly make this finding of record. 2. Attempt to verify that the record is complete regarding any VA-generated evidence relevant to the claim for an increased evaluation for perirectal abscess. Document any such attempts in the claims file. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Josey, 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.