Citation Nr: 21012418 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 17-46 943 DATE: March 4, 2021 ORDER New and material evidence having been received, the application to reopen the claim of service connection for an acquired psychiatric disorder is granted. REMANDED Service connection for an acquired psychiatric disorder. FINDINGS OF FACT 1. The Veteran had active service from September 1975 to February 1977. 2. Service connection for an acquired psychiatric disorder was denied in 2006 and 2015; the Veteran did not appeal, and those decisions became final. The Veterans Claims Court affirmed the Board’s 2015 denial in November 2016. 3. The evidence submitted since the last final denial in 2015 relates to an unestablished fact necessary to substantiate the claim for an acquired psychiatric disorder. CONCLUSIONS OF LAW 1. The 2015 Board decision, which denied service connection for an acquired psychiatric disorder, is final. 38 C.F.R. § 7105 (2012); 38 C.F.R. § 20.1103 (2020). 2. New and material evidence has been received to reopen the claim for service connection for an acquired psychiatric disorder. 38 U.S.C. §§ 1110, 5107, 5108 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.159 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran testified before the undersigned Veterans Law Judge in November 2020. A copy of the transcript has been associated with the claims file. Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision.38U.S.C. §5108; 38C.F.R. §3.156. “New” evidence means evidence “not previously submitted to agency decisionmakers.” “Material” evidence means “evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim.” 38 C.F.R. § 3.156(a). In order to be considered “new and material” evidence, the evidence must not be cumulative or redundant, and “must raise a reasonable possibility of substantiating the claim,” which has been found to be enabling, not preclusive. See Shade v. Shinseki, 24 Vet. App. 110 (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1991). The record reflects that a claim for service connection for an acquired psychiatric disorder was previously denied by the Regional Office (RO) in November 2006. The Veteran did not appeal, and that decision became final. In 2008 the Veteran filed a new claim of service connection for an acquired psychiatric disorder, which was ultimately denied by the Board in 2015 due to the absence of a diagnosis of posttraumatic stress disorder (PTSD), as well as due to a lack of nexus between an acquired psychiatric disorder other than PTSD and an in-service event. The evidence of record at the time of that decision included service treatment records (STRs), hearing transcripts, personnel records, lay statements, and clinical records. The Veterans Claims Court affirmed the Board’s decision in November 2016. In March 2017, the Veteran filed another claim for PTSD. The evidence received since the prior final denial consists of clinical records, lay statements, and a hearing transcript. Specifically, an August 2017 clinical record showed that a PTSD screen was positive, and a November 2020 clinical record provided an opinion as to whether an acquired psychiatric disorder other than PTSD was incurred in service. This evidence is new as it was not of record at the time of the prior rating decision. Moreover, the evidence is material as it relates to the unestablished elements of a diagnosis of PTSD and a nexus between a current disorder other than PTSD and an in-service event. Therefore, the application for service connection is reopened, and the appeal is granted to this extent. REASONS FOR REMAND Having reopened the claim, a remand is needed. Specifically, the Veteran has been diagnosed with anxiety and PTSD. He contends that he developed an acquired psychiatric disorder in service due to being teased for having poor eyesight; however, this stressor does not meet the criteria for PTSD. Moreover, the weight of the medical evidence showed that an acquired psychiatric disorder other than PTSD was not incurred in service. Nonetheless, in a July 2019 statement, the Veteran reported being the victim of a sexual assault in service and experiencing military sexually trauma (MST). Further, in a November 2020 clinical record, he contended that he disclosed information about the MST to a VA clinician; however, these records are not a part of the claims file. The RO has not made an attempt to verify this stressor, and there is no medical opinion regarding whether PTSD or another psychiatric disorder was caused by MST in service. Therefore, after conducting appropriate development to verify his stressor, an opinion is needed as to whether a psychiatric disorder is related to the claimed in-service MST. The matter is REMANDED for the following actions: 1. Obtain VA clinical records that are not already associated with the claims file. If these records are unable to be obtained, that should be documented in the record. 2. Undertake any necessary development to verify the Veteran’s claimed stressor of a MST in service, including the criteria outlined in 38 C.F.R. § 3.304(f)(5). 3. Then, direct the claims file to an appropriate medical or mental health professional for an opinion as to the following: • whether the evidence indicates that a personal assault occurred. 4. If a personal assault is found to have occurred, the clinician to provide an opinion as to the following: • whether it is as least as likely as not (50 percent or greater probability) that PTSD or any other acquired psychiatric disorder is related to the MST experienced during active duty. The claims file should be made available to the clinician. The report should include a discussion of the Veteran’s documented medical history and assertions, and all clinical findings should be reported in detail. Further, a complete rationale should be provided for all opinions.   5. If the clinician determines that an examination is necessary in order to provide the requested opinions, then one should be scheduled. L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Ragofsky, Attorney Advisor 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.