Citation Nr: 21015416 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 20-05 164 DATE: March 17, 2021 ORDER New and material evidence having been received, the claim of service connection for a psychiatric disability is reopened. REMANDED Service connection for a psychiatric disability is remanded. FINDINGS OF FACT 1. The Veteran’s claims for service connection for a mental condition/bipolar disorder, posttraumatic stress disorder (PTSD), and depression were reopened but denied in a November 2015 rating decision on the basis that the evidence failed to establish an in-service injury or illness or a nexus to service. He was notified of this decision, did not timely disagree with it or submit new and material evidence within one year of it, and it became final. 2. Evidence received since the November 2015 rating decision raises a substantial possibility of substantiating the claim of service connection for a psychiatric disability. CONCLUSION OF LAW The November 2015 rating decision is final with regard to the issue of service connection for a mental condition/bipolar disorder, PTSD, and depression. New and material evidence sufficient to reopen the claim of service connection for a psychiatric disability has been received. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. §§ 3.104, 3.156, 19.52, 20.1103 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the Air Force from March 1971 to June 1975. This matter is on appeal from a July 2017 rating decision. In a March 2020 decision, the Board denied service connection for a chronic eye disability manifested by left eye pain to include a detached retina and for a kidney disorder to include a right kidney tumor. The Board also denied the Veteran’s applications to reopen claims of entitlement to service connection for a liver disorder to include hepatitis B, a chronic disability manifested by chest pain and coughing up blood to include costochondritis and lynx syndrome, and an acquired psychiatric disorder including PTSD. The Veteran appealed the Board’s decision, but only with regard to the psychiatric disability, to the United States Court of Appeals for Veterans Claims (Court). In a Joint Motion for Partial Remand (JMPR), the parties agreed to vacate the Board’s decision with regard to that issue and remand the case to the Board for additional development. The JMPR was incorporated by reference in a Court order dated in October 2020. 1. Psychiatric Disability – New and Material Evidence The Veteran contends that he has a psychiatric disability that is etiologically related to his active duty service. In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured to that claim. New evidence means existing evidence not previously submitted to agency decision makers. 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. New and material evidence is neither cumulative nor redundant of evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). However, evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343, 1347 (Fed. Cir. 2000). In deciding whether new and material evidence has been submitted, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is generally “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Until the Veteran meets his threshold burden of submitting new and material evidence sufficient to reopen his claim of entitlement to service connection, the benefit of the doubt doctrine does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). The Veteran was denied service connection for a mental condition/bipolar disorder in a March 2003 rating decision. He submitted a Notice of Disagreement in January 2004, but did not perfect an appeal within one year of the rating decision or within 60 days of the September 2004 SOC. Therefore, the March 2003 rating decision is final. 38 U.S.C. § 7105(b)(1); 38 C.F.R. §§ 19.52, 20.1103. The basis for the March 2003 denial was a lack of evidence of an in-service injury or illness or a nexus to service. The Veteran’s claim for service connection for a mental condition/bipolar disorder, PTSD, and depression was reopened but denied again on the merits in a November 2015 rating decision. He did not submit a Notice of Disagreement or submit new and material evidence within one year of the rating decision. Therefore, the November 2015 rating decision is final. 38 U.S.C. § 7105(b)(1); 38 C.F.R. §§ 19.52, 20.1103. The basis for the November 2015 denial was a lack of evidence of an in-service injury or illness or a nexus to service. The question is thus whether the Veteran has submitted or VA has otherwise received evidence that was not before the adjudicator in November 2015, that is neither redundant nor cumulative, and that raises a reasonable possibility of substantiating a claim that the Veteran currently has a psychiatric disability as a result of active duty service. In their JMPR, the parties before the Court agreed that a May 2019 statement by the Veteran’s spouse constituted new evidence. This statement pertains to the onset of the Veteran’s psychiatric symptoms during active duty service and their continuity thereafter. As the record now contains more evidence pertinent to the issue of a nexus to service than it did in November 2015, the Board finds that new and material evidence has been received which pertains to previously unestablished facts necessary to support the claim. As this evidence raises a reasonable possibility of substantiating the claim, satisfying the criteria of 38 C.F.R. § 3.156(a) for new and material evidence, the claim is reopened. REASONS FOR REMAND 1. Service connection for an acquired psychiatric disorder is remanded. VA must provide an examination with regard to a claim for disability compensation when there is competent evidence of a disability that may be associated with an in-service disease, injury or event, but there is insufficient information to make a decision on the claim. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran’s VA treatment records note diagnoses of psychiatric disabilities and the Veteran and his spouse have reported that his psychiatric symptoms had their onset during his active duty service. The threshold for determining whether the evidence “indicates” that there “may” be a nexus between a current disability and an in-service event, injury, or disease is a low one. Id., at 83. This evidence meets that threshold, and an examination is necessary. In his January 2020 brief, the Veteran’s attorney raised the theory of secondary connection by stating that VA should consider whether his acquired psychiatric disorder was caused or aggravated by his service-connected headaches and physical disabilities such as his shoulder, spine, neck, and knee disabilities. In addition, the Veteran has reported, that his stressors included witnessing a fatal fighter jet crash for which he felt at least partially responsible. Although his reports of the timing of this incident have varied between July and October 1973, he has consistently reported that it took place at RAF Upper Heyford in the United Kingdom. He has also reported that he witnessed another crash that took place in March 1970 at Lackland AFB in Texas. Despite this, the Joint Services Records Research Center (JSRRC) only reviewed the records from July 1973 to September 1973 and only did so for Travis AFB in California. A remand is necessary in order to contact the JSRRC to attempt to verify the stressors the Veteran has reported for the full period the Veteran has contended. If a limited time period is necessary to request development (such as a 60-day period), multiple requests should be made to cover the entire time period claimed by the Veteran. See Gagne v. McDonald, 27 Vet. App. 397, 404 (2015). The matters are REMANDED for the following action: 1. Send a request to the JSRRC in an attempt to verify the Veteran’s contended stressors involving fighter jet crashes at Lackland AFB in March 1970 and at RAF Upper Heyford between July 1973 and October 1973. All appropriate records should be requested. The AOJ is advised that the previous search is insufficient because only records from July 1973 to September 1973 were reviewed and only from Travis AFB. The JSRRC should be provided with any necessary documentation. Multiple requests should be made, if necessary, to cover the entirety of these periods. Any response should be documented in the claims file. 2. Schedule the Veteran for a physical or telehealth examination with an appropriate clinician for his psychiatric disability. The entire claims file and a copy of this remand must be made available to the examiner for review. The clinician must provide opinions as to the following: a. The clinician must provide an opinion as to whether it is at least as likely as not (a probability of 50 percent or greater) that any current psychiatric disability began in service, was caused by service, or is otherwise related to the Veteran’s active service. b. Whether it is as least as likely as not that any current psychiatric disability was caused by the Veteran’s service-connected headaches and physical disabilities (shoulders, knees, low back and bilateral lower extremity radiculopathy, neck and bilaterally upper extremity radiculopathy). c. Whether it is as least as likely as not that any current psychiatric disability was aggravated beyond its natural progression by the Veteran’s service-connected headaches and physical disabilities (shoulders, knees, low back and bilateral lower extremity radiculopathy, neck and bilaterally upper extremity radiculopathy). Although an independent review of the claims file is required, the Board calls the clinician’s attention to the following: a. The Veteran’s May 1974 report of medical history, in which he indicated that he was unsure whether he had a history of frequent trouble sleeping, depression or excessive worry, or loss of memory or amnesia. b. The Veteran’s statements in a January 2002 VA treatment record regarding the onset and continuity of his symptoms. c. The Veteran’s statements in a December 2002 claim regarding the onset and continuity of his symptoms. d. The Veteran’s statements in a February 2004 authorization and consent to release information regarding the onset and continuity of his symptoms. e. The Veteran’s June 2006 statements regarding the onset of his symptoms. f. The Veteran’s August 2014 statements regarding the onset of his symptoms. g. The Veteran’s May 2015 statements regarding the onset of his symptoms. h. The Veteran’s June 2015 statements regarding the onset of his symptoms. i. The Veteran’s March 2017 statements regarding the onset and continuity of his symptoms. j. The Veteran’s April 2019 statements regarding the onset and continuity of his symptoms. k. The Veteran’s spouse’s May 2019 statements regarding the onset and continuity of the Veteran’s symptoms. The rationale for any opinion expressed should be provided. Note that the fact that a disability is not mentioned or diagnosed in treatment records cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the clinician should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 3. Ensure that the directives specified in this remand have been implemented. If they have not, appropriate corrective action must be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998) 4. Then, readjudicate the claim. If the decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ryan Frank, 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.