Citation Nr: 21012734 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 17-48 268A DATE: March 5, 2021 ORDER The application to reopen the claim of entitlement to service connection for nervous condition, now claimed as depression and anxiety, is granted. REMANDED The issue of entitlement to service connection for nervous condition, now claimed as depression and anxiety, is remanded. FINDINGS OF FACT 1. A September 3, 2011 rating decision denied the Veteran’s claim of entitlement to service connection for a nervous condition. 2. The Veteran appealed the September 2011 rating decision and the agency of original jurisdiction (AOJ) continued its denial in an October 2, 2012 SOC. The Veteran did not perfect his appeal within 60 days of the SOC and the decision became final as of December 2, 2012. 3. The Veteran filed to reopen his claim in January 2013, and the AOJ denied the claim in a July 18, 2014 rating decision due to lack of new and material evidence. 4. Evidence received since the July 2014 rating decision is new and material to the depression and anxiety claim and raises a reasonable possibility of substantiating that claim. CONCLUSION OF LAW 1. The September 2011 rating decision that denied service connection for a nervous condition is final. 38 U.S.C. § 7104; 38 C.F.R. §§ 19.52, 20.1103. 2. The criteria for reopening the Veteran’s claim for service connection for a nervous condition, now claimed as depression and anxiety are met. 38 U.S.C. §§ 5103A, 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Navy from December 1992 to January 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The claim of entitlement to service connection for nervous condition, now claimed as depression and anxiety is reopened. If a claim for entitlement to service connection has been previously denied and that submission is final, the claim can be reopened and reconsidered only if new and material evidence is presented. 38 U.S.C. § 5108. The preliminary question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits. Barnett v. Brown, 8 Vet. App. 1, 4 (1995), affd, Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996). Evidence is considered “new” when it was not previously submitted to agency decision makers. 38 C.F.R. § 3.156. It is considered “material” when the evidence, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. 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. Id.; Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). The credibility of newly submitted evidence is presumed when determining whether a claim should be reopened. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Evidence that is merely cumulative of other evidence in the record cannot be new and material even if the evidence was not previously presented to the Board. See Maxon v. West, 12 Vet. App. 453, 459 (1999). In a September 2011 rating decision, the RO denied entitlement to service connection for a nervous condition because the Veteran’s service treatment records were devoid of complaint, treatment, or diagnosis of said condition. The RO did, however, note that the Veteran’s records evidenced treatment for a personality disorder. While the Veteran filed a notice of disagreement, he did not submit new and material evidence or perfect his appeal within one year of the SOC, so the rating decision became final. 38 C.F.R. § 20.1103. The Veteran filed claims to reopen in October 2013 and February 2014, but a July 18, 2014 rating decision denied his claim because it lacked new and material evidence. Since the July 2014 rating decision, a military personnel record, private medical opinion, and high school transcript have been added to the record. The private medical opinion documents diagnoses of major depressive disorder, post-traumatic stress disorder (PTSD), and obsessive-compulsive disorder (OCD). See 12/25/2020 Medical Treatment Record- Non-Governmental Facility. The evidence is new because it was not previously submitted and material because it relates to the previously unestablished fact that the Veteran has been diagnosed with major depressive disorder. Moreover, the evidence raises a reasonable possibility of substantiating the claim for service connection for depression and anxiety. Because the requirements of 38 C.F.R. § 3.156(a) are met, the claim for service connection for depression and anxiety is reopened. REASONS FOR REMAND To establish service connection generally requires medical or, in certain circumstances, lay evidence of (1) current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009). VA is obligated to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient evidence to make a decision on the claim. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, the Veteran attributes his depression and anxiety to sensory deprivation and a flooding incident that occurred while he was submerged on submarine duty. 11/16/2020 Hearing Transcript. His private medical provider reiterates that the Veteran was involved in an incident while on submarine duty that he experienced as traumatic. See 12/25/2020 Medical Treatment Record- Non-Governmental Facility. Because there is competent evidence of a diagnosis for major depressive disorder, and lay evidence that his mental conditions began due to a flooding incident while in service, a VA examination with medical opinion is necessary to fully address the Veteran’s contentions, and to assist in fully developing the Veteran’s claim. On remand the Board invites the Veteran to submit additional lay and medical evidence to substantiate his claim for service connection. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to be conducted by an appropriate clinician to determine the nature and etiology of the Veteran’s depression, anxiety, and PTSD. The entire claims file should be made available to and be reviewed by an appropriate clinician in conjunction with this request. The examiner should certify in the examination report that he or she has reviewed that material and a copy of this remand. The examiner should address the following: (a.) Please identify any current psychiatric disorder by diagnosis. For the purposes of answering this question, “current” means any diagnosis made during or proximate to the filing of the currently claim, i.e., January 2013. (b.) For each disorder identified, please state whether it is at least as likely as not (50 percent probability or more) that the disorder had its onset in, was caused by, or is otherwise related to service. (c.) If the Veteran is diagnosed with a personality disorder, the examiner should state whether there was a superimposed disease or injury that occurred during service. (d.) If a diagnosis of PTSD is warranted, specify the claimed in-service stressor(s) upon which that diagnosis is based. In offering any opinion, please consider medical and lay evidence dated both prior to and since the filing of the claim. A complete, well-reasoned rationale must be provided for any opinion offered. Citation to relevant peer reviewed medical literature reviewed in rendering the opinion would be of considerable assistance to the Board. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known fact, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Z. Sloley, 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.