Citation Nr: 21023503 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 17-49 711 DATE: April 20, 2021 ORDER New and material evidence having been received, the application to reopen the claim of entitlement to service connection for an acquired psychiatric disorder is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. FINDINGS OF FACT 1. In a final rating decision issued in September 1990, the Agency of Original Jurisdiction (AOJ) denied service connection for an acquired psychiatric disorder. 2. Evidence added to the record since the September 1990 denial, and associated March 1991 statement of the case, is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder. CONCLUSIONS OF LAW 1. The September 1990 rating decision that denied service connection for an acquired psychiatric disorder is final. 38 U.S.C. § 4005(c) (1988); 38 C.F.R. §§ 3.104, 19.129, 19.192 (1990). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1976 to June 1979 and April 1980 to April 1984. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in August 2015 by a Department of Veterans Affairs (VA) Regional Office. In September 2020, the Veteran and his spouse testified before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. At such time, the undersigned held the record open for 60 days for the submission of additional evidence, which was received in November 2020. 38 U.S.C. § 7105(e)(1) (prior to February 19, 2019). 1. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for an acquired psychiatric disorder. By way of background, VA received the Veteran’s original claim for service connection for an acquired psychiatric disorder in July 1990. In a September 1990 rating decision, the AOJ considered the Veteran’s service treatment records, which were negative for any complaints, treatment, or diagnosis of an acquired psychiatric disorder, and post-service VA treatment records, which reflected the Veteran’s report of anxiety, flashbacks, and nightmares related to his time in the Army. However, as the evidence did not show that an acquired psychiatric disorder was incurred in or aggravated by the Veteran’s military service, service connection for such disorder was denied. Later that month, the Veteran was advised of the decision and his appellate rights, and entered a notice of disagreement in September 1990. Following a hearing at the RO in November 1990, in which he testified to feeling threatened by North Korean guards while stationed in Korea, and a VA examination in February 1991, at which time he was diagnosed with adjustment disorder, the AOJ continued the denial of service connection for an acquired psychiatric disorder in a March 1991 statement of the case. Specifically, based on the entirety of the foregoing evidence, the AOJ denied service connection as the evidence did not show that the Veteran received treatment for an acquired psychiatric disorder in service, or manifested symptoms of a psychosis to a disabling degree within one year of separation. Following the issuance of the March 1991 statement of the case, the Veteran did not submit a timely substantive appeal. Additionally, no new and material evidence was physically or constructively associated with the record within the remainder of the appeal period and no new relevant service department records have since been received. In this regard, while additional service treatment and personnel records were received subsequent to the September 1990 rating decision, and associated March 1991 statement of the case, such are entirely negative for any indication of an acquired psychiatric disorder, or stressful event, during service. Therefore, the September 1990 rating decision is final. 38 U.S.C. § 4005(c) (1988); 38 C.F.R. §§ 3.104, 19.129, 19.192 (1990). Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. 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 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. 38 C.F.R. § 3.156(a). New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Since the issuance of the September 1990 rating decision, and associated March 1991 statement of the case, the Veteran has provided statements, to include in April 2016 and at his September 2020 Board hearing, describing additional in-service stressors that occurred while he was stationed in Korea, to include being the driver in a motor vehicle accident that resulted in the death of a Korean civilian in November 1980, and additional instances of being subjected to harassment and threats from North Korean guards. Further, in an October 2020 statement, M.B., a fellow service member who was stationed with him in Korea, indicated that he recalled seeing an article in Stars and Stripes about the fatal accident, and likewise reported being subject to harassment and threats from North Korean guards. Updated VA treatment records reflecting diagnoses of posttraumatic stress disorder (PTSD) and generalized anxiety disorder based on the Veteran’s reported experiences in Korea, and a March 2020 statement from Dr. I.G. indicating diagnoses of major depressive disorder and early bipolar, which he indicated may be a result of PTSD, were likewise received. As the Veteran’s claim for service connection for an acquired psychiatric disorder was previously denied on the basis that such disorder was unrelated to his military service and the newly received evidence suggests the occurrence of additional in-service stressors and an indication that his current psychiatric disorder is related to such in-service experiences, the Board finds that the evidence added to the record since the September 1990 denial, and associated March 1991 statement of the case, is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder. Thus, new and material evidence has been received and such claim is reopened. REASONS FOR REMAND 2. Entitlement to service connection for an acquired psychiatric disorder. As described above, the Veteran contends that he has a current acquired psychiatric disorder as a result of his experiences that occurred while he was stationed in Korea in the late 1970’s/early 1980’s, to include being the driver in a motor vehicle accident that resulted in the death of a Korean civilian in November 1980 and being subjected to harassment and threats from the North Korean guards. Further, post-service treatment records reflect that he started seeking psychiatric treatment in May 1990, at which point he described experiencing nightmares and flashbacks related to his experiences in Korea, and current treatment records reflect diagnoses of PTSD and generalized anxiety disorder based on his reported experiences in Korea, major depressive disorder, and early bipolar disorder. In regard to the stressor relating to the death of a pedestrian, the AOJ attempted to verify the alleged incident through the National Archives and Records Administration for 1980 and 1981. However, there was no documentation regarding the incident, and a formal finding of the inability to verify such stressor was issued in September 2017. However, later that month, the Veteran indicated that he previously supplied the incorrect unit and clarified that he had been stationed with UNC Security Battalion-JSA at Camp Casey, Korea. Thus, in light of such clarification, the AOJ should undertake any necessary development to verify such claimed stressor. Furthermore, in light of the Veteran’s reported in-service experiences, M.B.’s statement, his treatment for psychiatric complaints within six years of his separation, and his current diagnosis of an acquired psychiatric disorder, the Board finds that a remand necessary in order to afford the Veteran a VA examination so as to the nature and etiology of his claimed disorder. The matter is REMANDED for the following actions: 1. The AOJ should review the Veteran’s September 2017 clarification that he was stationed with the UNC Security Battalion-JSA at Camp Casey, Korea, when he drove a truck that hit and killed a Korean citizen in November 1980, and undertake any necessary development to verify such claimed stressor. 2. Afford the Veteran an appropriate VA examination to determine the nature and etiology of hi claimed acquired psychiatric disorders. The record, to include a copy of this Remand, must be made available to the examiner. Any indicated evaluations, studies, and tests should be conducted. Following a full review of the record, the examiner should address the following inquiries: (A) Identify all of the acquired psychiatric disorders that meet, or have met, the DSM-5 diagnostic criteria at any time since the Veteran’s April 2015 claim, or in close proximity thereto, to include PTSD, generalized anxiety, major depressive disorder, and early bipolar disorder. (B) If PTSD is diagnosed, the examiner should indicate whether such diagnosis is the result of an in-service stressor, to include being the driver in a motor vehicle accident that resulted in the death of a Korean civilian in November 1980, only if verified, and/or his report of being harassed and threatened by North Korean guards. In this regard, the examiner should indicate whether the latter stress is related to his fear of hostile military or terrorist activity, and thus sufficient to support a diagnosis of PTSD under the DSM-5. (C) For each currently diagnosed psychiatric disorder other than PTSD, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such disorder had its onset in, or is otherwise related to, the Veteran’s military service, to include being the driver in a motor vehicle accident that resulted in the death of a Korean civilian in November 1980, only if verified, and/or his report of being harassed and threatened by North Korean guards. In offering such opinions, the examiner should consider the entirety of the evidence, to specifically include M.B.’s October 2020 statement describing the nature of service in Korea, and VA treatment records documenting psychiatric treatment beginning in May 1990 where the Veteran reported having nightmares and flashbacks related to his experiences in Korea. A rationale should be provided for any opinion offered. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Waite 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.