Citation Nr: 21011391 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 19-14 797 DATE: March 1, 2021 ORDER New and material evidence has been received, and a claim of service connection for an acquired psychiatric disability, to include depression and posttraumatic stress disorder (PTSD), is reopened. REMANDED Entitlement to service connection for an acquired psychiatric disability, to include depression and PTSD. FINDING OF FACT Evidence associated with the claims file since an August 1972 final rating decision relates to an unestablished fact necessary to substantiate the claim, is not cumulative or redundant of the evidence previously of record, and is sufficient to raise a reasonable possibility of substantiating the claim for service connection for an acquired psychiatric disability. CONCLUSION OF LAW Evidence received since a final August 1972 rating decision is new and material; therefore, the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder, to include depression and PTSD, is reopened. 38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. §§ 3.156(a), 20.1103 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1960 to August 1964. This appeal is before the Board of Veterans’ Appeals (Board) from a June 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In his May 2019 substantive appeal, the Veteran requested a hearing before the Board held at a local VA office. After a scheduled hearing was postponed due to the Covid-19 pandemic, he withdrew his request for a hearing in a November 2020 statement. Whether new and material evidence has been received to reopen a claim of service connection for an acquired psychiatric disability, to include depression and PTSD The Veteran seeks to reopen a claim of service connection. VA may reopen a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). “New” evidence is evidence not previously submitted to agency decision makers and “material” evidence is 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 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). In determining whether the evidence presented or secured since the prior final disallowance of the claim is new and material, the credibility of the evidence is generally presumed. Cox v. Brown, 5 Vet. App. 95, 98 (1993); Justus v. Principi, 3 Vet. App. 510, 513 (1992). VA is required to review for newness and materiality only the evidence submitted by a claimant since the last final disallowance of the claim on any basis, whether a decision on the underlying merits or, a petition to reopen. Evans v. Brown, 9 Vet. App. 273, 283 (1996). In Shade v. Shinseki, 24 Vet. App. 100 (2010), the United States Court of Appeals for Veterans Claims (Court) held that § 3.159(c)(4) does not require new and material evidence as to each previously unproven element of a claim for the claim to be reopened and the duty to provide an examination triggered. In a fact pattern where a prior denial was based on lack of current disability and nexus, the Court found that newly submitted evidence of a current disability was, in concert with evidence already of record establishing an injury in service, new and material and sufficient to reopen the claim and obtain an examination. Regardless of any RO determinations that new and material evidence has been submitted to reopen service connection, the Board must still determine whether new and material evidence has been submitted in this matter. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The Veteran’s claim of service connection for a nervous condition was originally denied in an August 1972 rating decision based on a finding that there was no evidence of such a condition in his service treatment records. He neither appealed this decision nor submitted new and material evidence during the one-year appeal period, and the decision therefore became final. In evidence submitted since the August 1972 rating decision, described in more detail below, the Veteran describes being personally assaulted while in service. Moreover, in an undated letter first submitted in June 2020, a VA treating social worker opined that the Veteran was diagnosed with PTSD that was related to his in-service trauma. The Board finds that this evidence relates to an unestablished fact, is not cumulative or redundant of the evidence previously of record, and is sufficient to raise a reasonable possibility of substantiating the claim for service connection for an acquired psychiatric disability. The claim is therefore reopened and addressed on the merits in the remand section of this decision. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disability, to include depression and PTSD The Veteran claims service connection for a mental health disability. Service treatment records do not reflect any symptoms of or treatment for a mental health disability, and no such abnormality was noted at the Veteran’s July 1964 separation examination. In his original April 1972 claim, the Veteran reported the onset of a nervous condition in the spring of 1963. VA treatment records reflect that in April 1972 the Veteran was admitted and diagnosed with passive aggressive personality with alcoholism. There is no indication of a relationship to service. VA treatment records subsequently show that in April 2012 the Veteran underwent a psychological evaluation after a positive depression screen. He reported dreams not related to his own experience in service but to others telling him stories. He thought his current mild depression and stress started at the end of the prior year after the death of his cousin. He was diagnosed with adjustment order with distressed mood. In March 2018, VA received a claim of service connection for depression. Private treatment records reflect that in June 2018 the Veteran reported a longstanding history of anxiety, depression, and panic attacks. He was diagnosed with anxiety disorder and major depressive disorder. In a June 2018 statement, the Veteran reported that he had been struggling with depression since his discharge from service in August 1964. In a statement accompanying his July 2018 notice of disagreement, the Veteran stated that in 1962 he began to experience intense racial harassment in the form of verbal threats, physical violence, and diverse intimidation tactics from his fellow Marines. He stated that his sustained fear of being injured or killed caused him to develop severe episodes of depression which persist. He stated that he did not report the harassment because his superior officers were complicit. In a statement accompanying his May 2019 substantive appeal, the Veteran stated that he experienced racial, emotional, and physical attacks in service which caused him to drink excessively. He reported that this led to becoming severely depressed followed by sporadic periods of generalized anxiety with panic attacks. He further stated that while in service in 1961 he was court martialed for bringing alcohol into the barracks. He stated that he did not bring the alcohol in, but as the senior person in the barracks it was deemed his responsibility. As a result, he was demoted. He stated that the demotion began his depression. He reported that in 1962 he received a severe beating, was stabbed in the left hand, and was given a puncture wound at the base of his spine. Similar accounts were given by the Veteran in statements submitted in November 2019, June 2020, and November 2020. The Board notes that in the Veteran’s May 2019 statement and elsewhere, he indicates that his August 1960 “boot camp” photo does not show any physical scars, yet his August 1964 separation examination report describes a 1-inch scar on his right eyebrow and scar on his right eyelid. While these scars are indeed not noticeable in the provided photo, an eyelid scar was noted and described in his August 1960 entrance examination report. In June 2020 the Veteran submitted an undated letter from his treating VA social worker. The social worker stated that although the Veteran declined formal psychotherapy, he requested informal conversation regarding his in-service trauma and opined that the Veteran met the criteria for a PTSD diagnosis that is significantly more likely than not due to the chronic verbal and physical assaults he experienced in service. The Board finds that remand is necessary to provide the Veteran with a VA examination. VA has a duty to provide a medical examination where there is (1) competent evidence of a current disability or symptoms thereof; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability is associated with service; and (4) insufficient competent medical evidence to decide the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). Here, the Veteran has provided a letter in which a clinical social worker diagnosed him with PTSD. Moreover, in a separate claim for PTSD which was adjudicated while his appeal was pending in a February 2020 rating decision, VA favorably found that the Veteran experienced a qualifying stressor in service. The letter from the social worker indicates a relationship but does not explain the diagnosis under the DSM-5 or provide any rationale. A VA examination is therefore warranted. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any additional medical evidence that may have come into existence but has not been associated with the record. 2. Schedule the Veteran for a VA examination for his mental health condition. The claims file must be reviewed by the examiner. Following a review of the claims file and any clinical examination results, the examiner should diagnose any acquired psychiatric disabilities suffered by the Veteran. For each disability diagnosed, the examiner should offer an opinion as to whether it is at least as likely as not (i.e. 50 percent probability or more) that such disability is related to the Veteran’s reported in-service assault or is otherwise related to service All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. After completing the above, and any other development deemed necessary, readjudicate the appeal. If any benefit sought remains denied, return the appeal to the Board. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Gallagher, 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.