Citation Nr: 21008206 Decision Date: 02/12/21 Archive Date: 02/12/21 DOCKET NO. 17-17 078A DATE: February 12, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for an acquired psychiatric disorder is reopened. The claim of entitlement to service connection for an acquired psychiatric disorder for accrued benefits purposes is granted. FINDINGS OF FACT 1. In an October 2007 rating decision, the Regional Office denied the Veteran’s claim of entitlement to service connection for posttraumatic stress disorder (PTSD). The Veteran did not file a Notice of Disagreement or submit new evidence within one year of the decision, and it became final. 2. 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 PTSD. 3. Resolving reasonable doubt in favor of the Veteran, his acquired psychiatric disorder, diagnosed both as an anxiety disorder and PTSD, was etiologically related to his active duty service. CONCLUSIONS OF LAW 1. The October 2007 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 2. New and material evidence has been received since the October 2007 denial of service connection for PTSD. 38 U.S.C. §§ 5103, 5108; 38 C.F.R. §§ 3.156, 3.303. 3. The criteria for service connection for an acquired psychiatric disorder for accrued benefits purposes are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Army from September 1966 to September 1969. The instant matter is on appeal from a September 2015 rating decision. The Veteran passed away in October 2014, and his son was substituted as the appellant in the present matter. In November 2020, the appellant 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 PTSD to a claim of entitlement to service connection for an acquired psychiatric 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 having been received, the claim of entitlement to service connection for an acquired psychiatric disorder is reopened 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 initially denied the Veteran’s claim of entitlement to service connection for PTSD in an October 2007 rating decision. Since that rating decision, the appellant submitted private treatment records that report a diagnosis of PTSD related to the Veteran’s Vietnam service. The bar to reopening a claim for new and material evidence is low, and the appellant’s new evidence meets that threshold. Therefore, such evidence is new and material, and the claim of entitlement to service connection for PTSD, recharacterized as an acquired psychiatric disorder, is reopened. 2. The claim of entitlement to service connection for an acquired psychiatric disorder for accrued benefits purposes The appellant contends that the Veteran was entitled to service connection for an acquired psychiatric disorder due to his service in Vietnam. Initially, the Board notes that the appellant is the Veteran’s son, and he was substituted as claimant in the present matter in February 2017. The rules pertaining to the award of accrued benefits apply to substitution claims. 38 C.F.R. § 1010 (a). Persons eligible for accrued benefits are: (i) the spouse; (ii) his or her children in equal shares; (iii) and his or her dependent parents or the surviving parent. 38 C.F.R. § 3.1000 (a) (2017). The term “child” is defined under 38 C.F.R. § 3.57 and includes an unmarried child who became permanently incapable of self-support prior to attaining 18 years of age as well as an unmarried child over the age of 18 but not over 23 years of age, who was pursuing a course of instruction at the time of the payee’s death. 38 C.F.R. § 3.1000 (d)(2). In the present case, there is no evidence or argument that the appellant qualified as a “child” as defined by VA regulation. Nevertheless, substitution benefits may also be paid to reimburse a person who bore the expenses of the last sickness and burial of a payee. 38 U.S.C. § 5121 (a)(5); 38 C.F.R. § 3.1000 (a)(5). Payments to persons who bore the expense of last sickness or burial shall be limited to the amount necessary to reimburse such persons for the expenses of last sickness and/or burial. 38 C.F.R. § 3.1003 (a). As such, although the appellant does not qualify as a child for substitution purposes, he may recover accrued benefits as may be necessary to reimburse him for expenses he personally incurred in connection with the payee’s last sickness and burial. See 38 U.S.C. § 5121 (a)(6); 38 C.F.R. § 3.1000 (a)(5). Turning to the facts of the issue on appeal, the Veteran’s enlistment and separation examinations do not reflect complaints or diagnoses of acquired psychiatric disorders. The Veteran reported that he experienced significant psychological symptoms following his discharge related to his service in Vietnam. The Veteran’s medical records reflect diagnoses of an anxiety disorder and PTSD related to his Vietnam service as early as June 2002. In July 2007, private treatment records reflect a diagnosis of an anxiety disorder related to his Vietnam service. In November 2020, a treating physician stated that he observed symptoms of PTSD in the Veteran related to his Vietnam service prior to his death. While the Veteran failed to report to the February 2014 VA psychiatric examination, the appellant reported that such was scheduled while the Veteran was acutely ill prior to his death, and he lacked the capacity to understand, or even attend, the examination. Thus, the Board finds that good cause has been shown for the failure to report to that examination. Thus, a decision must be made based upon the evidence of record. Resolving reasonable doubt in favor of the Veteran, his acquired psychiatric disorder, alternatively diagnosed as an anxiety disorder and PTSD, was etiologically related to his active duty service, specifically his tour in Vietnam. Accordingly, service connection for an acquired psychiatric disorder for accrued benefits purposes is granted. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Fisher, 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.