Citation Nr: 21023990 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 17-36 768 DATE: April 21, 2021 ORDER New material evidence having been presented to reopen a claim for entitlement to service connection for an acquired psychiatric disability to include major depressive disorder, and to that extent only, is granted. REMANDED Entitlement to service connection for an acquired psychiatric disability, to include major depressive disorder, is remanded. FINDING OF FACT An unappealed March 1998 rating decision denied service connection for an acquired psychiatric disorder, labeling it a congenital defect (personality disorder). Since that decision, new and material evidence regarding the possible etiology of the claimed condition has been presented. CONCLUSION OF LAW New and material evidence has been received to reopen a claim for service connection for an acquired psychiatric disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from February 1969 to February 1970. This appeal arises from an April 2014 Department of Veterans’ Affairs (VA) Regional Office (RO) denying reopening of an acquired psychiatric disorder. The Veteran timely appealed the decision filing a Notice of Disagreement in May 2014 and a statement of the case issued in June 2017. The Veteran filed a Form 9 in July 2017 and requested a hearing before a veteran’s law judge (VLJ). The Veteran declined to opt-in to the AMA under RAMP invitations sent in July and August 2018. As such, this appeal is evaluated under the legacy appeal framework. A hearing was held in this case in December 2019 before the undersigned Veterans’ Law Judge, the transcript of which is of record. 1. New material evidence having been presented to reopen a claim for entitlement to service connection for an acquired psychiatric disability to include major depressive disorder Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. §§ 7104, 7105. However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. 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 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). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). In determining whether that threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should consider whether the evidence could reasonably substantiate the claim were the claim to be reopened, including by triggering VA’s duty to obtain a VA examination. Shade v. Shinseki, 24 Vet. App. 110 (2010). Moreover, the Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. 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 (1992). The Board notes that there is no requirement that new and material evidence be submitted by the Veteran, only that it be introduced into the record. A review of the Veteran’s medical records indicates that he was diagnosed with depressive disorder in July 2018. This diagnosis is a new diagnosis of an acquired psychiatric condition after the March 1998 rating decision denying service connection. Further, this diagnosis is for an acquired psychiatric condition that may be compensable if all other elements of service connection are met. Further, at the Veteran’s December 2019 hearing, the Veteran contended that his early diagnosis of personality disorder was incorrect, that it was in fact improper diagnosis of his depression. For reopening, such contentions and evidence are to be accepted for the purposes of reopening. There is no evidence of record to countermand this. Therefore, the Board finds new and material evidence sufficient to reopen the Veteran’s claim has been made of record after the last final decision denying it. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disability, to include major depressive disorder The Veteran’s medical records contains numerous diagnosis going back to 1970. Diagnosis include personality disorder, anxiety disorder, dysthymic disorder, major depressive disorder just to name a few. The most recent evaluation for a psychiatric disorder is dated August 1992. This examination does not address any of the evidence made of record in the last 19 years, including the 2018 diagnosis of depression and anxiety disorders. As such, the Board remands this matter for a new VA examination. The matters are REMANDED for the following action: 1. Obtain all VA and private treatment medical records not already of record. This includes inviting the Veteran to submit all medical records in his possession. 2. Once the above development has been completed, schedule the Veteran for a VA examination with an appropriately qualified examiner for evaluation. The examiner is asked to identify all current psychiatric disorders. (a.) For all disorders identified above, the examiner is asked to opine whether it is as likely as not (fifty percent probability or greater) that the identified psychiatric disorder are related to an in-service injury, event, or disease. The examiner is asked to address the specific incidences identified by the Veteran, to include the racial threats in service (e.g., hangman’s noose, threats of blanket parties). (b.) If the examiner identifies personality disorder or any other non-compensable development or congenital disorders, the examiner is must address the Veteran’s contentions that the early diagnosis of personality disorder was in error, that it was the beginnings of the Veteran’s later diagnosed depression, anxiety, and/or other acquired psychiatric disorders. A complete rationale must be provided for all opinions offered. It should be noted that the Veteran is competent to attest to observable symptomatology. The examiner’s attention is invited to the Veteran’s statements concerning the onset of his claimed disability. The examiner is reminded that a medical opinion based solely on the absence of documentation in the record or that does not take into account the Veteran’s reports of symptoms and history is inadequate. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. (Continued on the next page) If the examiner feels that the requested opinions 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 facts) 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). DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Boushehri, Darjush M. 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.