Citation Nr: 21006366 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 08-12 981 DATE: February 4, 2021 ORDER New and material evidence having not been received, the application to reopen the previously denied claim for service connection for an acquired psychiatric disorder, to include bipolar disorder, major depression, obsessive compulsive disorder (OCD), and posttraumatic stress disorder (PTSD), is denied. FINDINGS OF FACT 1. The Veteran served on active duty in the United States Marine Corps from September 1965 to July 1968, to include foreign service in the Republic of Vietnam. For his meritorious service, the Veteran was awarded (among other decorations) the Vietnam Service Medal and the Vietnam Campaign Medal. He died in February 2015, and the Appellant (his surviving spouse) is a properly substituted claimant. 2. A final April 2003 rating decision confirmed and continued the previous denial of service connection for bipolar disorder, major depression, OCD, and PTSD; evidence received since that time does not raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has not been received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder, to include bipolar disorder, major depression, OCD, and PTSD. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon the evidence of record, this appeal has been expanded to include all acquired psychiatric disorders. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Sadly, the Veteran died in February 2015. The appeal was thus dismissed in a May 2015 Board decision. However, the Appellant requested to be substituted as the claimant in June 2015. See 38 U.S.C. § 5121A. This request was granted in an August 2019 letter, upon which the appeal was returned to the Board for further review. Historically, this appeal was denied in a June 2012 Board decision. Upon receipt of the parties’ Joint Motion for Remand (JMR), the Court of Appeals for Veterans Claims (Court) vacated this determination and remanded the matter for further adjudication in April 2013. In a September 2019 decision, the Board denied the claim. Upon receipt of the parties’ August 2020 Joint Motion for Remand (JMR), the Court vacated this determination and remanded the matter for further adjudication. In the August 2020 JMR, the parties found that the Board had failed to substantially comply with a March 2013 JMR. The March 2013 JMR had directed the Board to fully articulate the bases for the previous denials of the Veteran’s claim and explain the evidence needed to substantiate those claims as all of the prior denials were not all based on the failure of the evidence to establish a nexus, as stated by the Board in its September 2019 decision. See August 2020 JMR at page (pg.) 5)). New and Material Evidence Currently, the appellant is seeking to reopen a previously denied service connection claim for an acquired psychiatric disorder. 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. During his lifetime, the Veteran repeatedly sought service connection for numerous psychiatric disorders. These claims were the subject of multiple final denials, including a January 1977 rating decision, a January 1980 letter, a November 1991 rating decision, and a November 1996 Board decision. As it pertains to this appeal, an April 2003 rating decision confirmed and continued the previous denial of service connection for bipolar disorder, major depression, OCD, and PTSD, upon a finding that new and material evidence had not been received. The Veteran did not appeal this decision or submit documentation constituting new and material evidence within the one-year appeal period, such that the April 2003 rating decision became final. However, he requested to reopen the claim in March 2005. The Board must now determine whether new and material evidence has been submitted since the final April 2003 rating decision sufficient to reopen the previously denied claim. In this respect, evidence considered at the time of the April 2003 rating decision included the Veteran’s service personnel and treatment records (SPRs and STRs), a January 1995 VA psychiatric examination, transcripts from September 1995 Decision Review Officer (DRO) and August 1996 Board videoconference hearings, VA treatment records through April 2003, and multiple lay statements. Evidence added to the claims file since that time includes limited private treatment records; VA treatment records through June 2011; February 2008 and March 2012 VA psychiatric examinations; and additional lay statements. This evidence is new as it was not of record at the time of the final April 2003 rating decision. However, this new evidence does not raise a reasonable possibility of substantiating the claim. In this respect, the April 2003 denial was based upon the Regional Office’s (RO’s) determination that the collective evidence did not establish that the Veteran’s psychiatric disorder was causally related to service. The newly submitted evidence similarly fails to establish a nexus in this case, to include the complete absence of a competent positive nexus opinion therefrom. Rather, the February 2008 VA examiner opined that the Veteran’s disorder was neither incurred in nor caused by service, nor was a preexisting OCD condition aggravated thereby. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). Thus, the new evidence is not material as it does not raise a reasonable possibility of substantiating the claim. On this point, the Board acknowledges both the Veteran’s and Appellant’s contentions that a nexus is present in this case. However, both parties lack the medical expertise to provide competent etiological opinions, such that the claim may not be reopened on their contentions alone. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). While credibility is generally assumed when determining whether to reopen a previously denied claim, competency is not. Thus, the new evidence is not found to be material. The Board will seek to directly address the contentions raised in the August 2020 JMR. In the August 2020 JMR, the parties maintained that in denying the claim in its September 2019 decision, the Board did not adequately explain how it found there to be substantial compliance with a March 2013 JMR. Specifically, the March 2013 JMR had directed the Board to fully articulate the bases for the previous denials of the Veteran’s claim and explain the evidence needed to substantiate those claims because all of the prior denials were not all based on the failure of the evidence to establish a nexus, as stated by the Board in its September 2019 decision. See August 2020 JMR at page (pg.) 5)). First, the record shows that both the RO and Board have repeatedly denied the claim for service connection for an acquired psychiatric disorder in collective prior denials of the claim, specifically to include, but not limited to, rating actions, issued in January 1977 rating decision, a January 1980 letter, January 1995, January 1996 and November 1991 rating decisions, and November 1996 Board decision. The RO and Board had denied the claim for the following reasons (i) the evidence had failed to disclose a diagnosis of a mental disorder until many years after service discharge; (ii) the evidence failed to demonstrate that any diagnosed mental disorder was causally related to service or that a preexisting condition was aggravated by service; (iii) the evidence did not contain a confirmed medical diagnosis of PTSD; (iv) and the evidence showed that the Veteran had psychiatric problems associated with a personality disorder that could not be service-connected because it was considered a developmental abnormality (unless it is shown that a disease or injury is superimposed over the congenital or developmental defect during service, which was not done here). 38 C.F.R. § 3.303 (c), 4.9; see also Winn v. Brown, 8 Vet. App. 510, 516 (1996); VAOPGCPREC 82-90 (July 18, 1990). The Board finds that the appeal remains unsubstantiated absent credible and competent evidence to establish any of the following (with credibility presumed for the limited purpose of reopening the claim): the Veteran’s psychiatric disorder (other than a personality disorder) initially manifested during service and continued since service discharge; that a psychiatric disorder (other than a personality disorder) was causally related to service or, if preexisting, was aggravated by his service; that a disease or injury was superimposed over the Veteran’s personality disorder during service; or, evidence of a confirmed medical diagnosis of PTSD. Here, the evidence submitted since 2003 fails to establish that any of the reasons enunciated in the previous denial of the claim for an acquired psychiatric disability have been met. In light of the continued lack of competent evidence in this regard, there is no basis upon which to reopen the claim. Thus, in the absence of evidence that is both new and material, the appeal seeking to reopen the claim seeking service connection for an acquired psychiatric disorder is hereby denied. TIFFANY N. HANSON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Carole Kammel, 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.