Citation Nr: 21024248 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 18-21 382 DATE: April 22, 2021 ORDER New and material evidence having been received, the claim for entitlement to service connection for rheumatoid arthritis is reopened and, to that extent, the claim is granted. New and material evidence having been received, the claim for entitlement to service connection for an acquired psychiatric disorder is reopened and, to that extent, the claim is granted. Entitlement to service connection for rheumatoid arthritis is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include depression, anxiety, a mood disorder, and insomnia, to include as secondary to service-connected disabilities, is remanded. FINDINGS OF FACT 1. In a June 2012 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for rheumatoid arthritis and depression; the Veteran did not appeal the decision and new and material evidence was not received within the one-year appeal period. 2. Evidence associated with the record since the June 2012 decision relates to unestablished facts and raises a reasonable possibility of substantiating the claims of entitlement to service connection for rheumatoid arthritis and an acquired psychiatric disorder. 3. The evidence is at least in relative equipoise as to whether the Veteran’s rheumatoid arthritis had onset in service. CONCLUSIONS OF LAW 1. The criteria for reopening the previously denied claim for service connection for rheumatoid arthritis have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 2. The criteria for reopening the previously denied claim for service connection for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 3. The criteria for entitlement to service connection for rheumatoid arthritis have been met. 38 U.S.C. §§ 1110, 1112, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1975 to June 1980. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a February 2017 decision by a VA RO. In May 2020, the Veteran testified before the undersigned Veterans Law Judge. New and Material Evidence If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that 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). The credibility of the evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for reopening is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The RO originally denied the Veteran’s claim of service connection for rheumatoid arthritis in December 2006 and November 2008 rating decisions. The Veteran was provided notice of these decisions and his appellate rights, but did not appeal them or submit new and material evidence within one year of the decisions; these decisions became final. See 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2006, 2008). The RO again denied the claim of service connection for rheumatoid arthritis, as well as the claim of service connection for depression, in March 2012 and June 2012 rating decisions. With respect to rheumatoid arthritis, the RO found that new evidence submitted to reopen the claim was not material because it did not show a nexus to service. With respect to depression, the RO found that the evidence did not show a nexus to service and that the Veteran was not service-connected for rheumatoid arthritis for purposes of secondary service connection. The Veteran was provided notice of these decisions and his appellate rights but did not appeal the decisions or submit new and material evidence within one year of the decisions. Therefore, the decisions are final. See 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2011). The evidence received since the June 2012 rating decision includes evidence that is both new and material to the claims. See 38 C.F.R. § 3.156. For example, with respect to rheumatoid arthritis, the Veteran submitted positive medical opinions. With respect to depression, the evidence reflects possible psychiatric diagnoses as well as new theories of entitlement. This new evidence addresses the reasons for the previous denials; that is, a nexus to service, and raises a reasonable possibility of substantiating the claims. The credibility of this evidence is presumed for purposes of reopening the claims. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claims are reopened and will be considered on the merits. Service Connection for Rheumatoid Arthritis Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran contends that his rheumatoid arthritis had onset in service. The Board concludes that the Veteran has a current disability that first manifested in service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The record reflects a current diagnosis of rheumatoid arthritis. Service treatment records reflect multiple musculoskeletal complaints which the Veteran alleges represent the onset of rheumatoid arthritis. Thus, the question becomes whether the current disability is related to service. On this question there are probative opinions in favor of and against the claim. The evidence against the claim includes a January 2017 VA opinion. The examiner opined that the Veteran’s rheumatoid arthritis was less likely than not related to service, noting that, while the Veteran did have various musculoskeletal complaints during service, the Veteran was never diagnosed during service and examinations in 1975, 1977, and 1980 were normal. The evidence in favor of the claim includes medical opinions by Dr. D.S., the Veteran’s treating VA physician, dated June 2015 and December 2016. In June 2015, Dr. D.S. noted the Veteran’s personal accounts of symptoms during service. Specifically, the Veteran asserted that his joints would swell following exercise during boot camp but would subside by the time he could get to sick call the next day. Doctor D.S. opined that rheumatoid arthritis frequently begins in an insidious manner and would account for the Veteran’s symptom complex that was present in the military. In December 2016, Dr. D.S. indicated that he had reviewed the service medical records, in particular the records of musculoskeletal complaints, and opined that it was at least as likely as not that the Veteran’s rheumatoid arthritis began in a more subtle form during service. Doctor D.S. noted that a rheumatoid factor test appeared to be ordered during service and that, even though the results of the test are missing from the record, the fact of the test coupled with the Veteran’s complaints weighed in favor of a finding that the condition began in service. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current rheumatoid arthritis arose in service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for rheumatoid arthritis is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Service connection for an acquired psychiatric disorder. While further delay is regrettable, the Board finds remand is necessary before a decision may be rendered with respect to the Veteran’s claim for entitlement to service connection for an acquired psychiatric disorder. In that regard, when the Veteran underwent VA examination in connection with this claim in January 2017, the examiner found that he did not currently suffer from an acquired psychiatric disorder. However, VA treatment records during the period on appeal reflect diagnoses of a mood disorder and insomnia. As the examiner did not address these diagnoses, the Board finds remand is warranted so that a new VA examination can be conducted and an opinion may be obtained. Updated VA treatment records, as well as any relevant private treatment records identified by the Veteran, should be obtained and associated with the record. The matter is REMANDED for the following actions: 1. Ask the Veteran to identify all outstanding treatment records relevant to his acquired psychiatric disorder claim. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. After records development is completed, schedule the Veteran for a VA examination to determine whether it is at least as likely as not (50 percent probability or greater) that any current acquired psychiatric disorder onset during service or is otherwise related to an in-service injury, event, or disease. The examiner should also address whether any current acquired psychiatric disorder is at least as likely as not (a) caused by, or (b) aggravated by (worsened beyond natural progression) service-connected rheumatoid arthritis or traumatic brain injury. In offering the opinion, the examiner is asked to consider the September and October 2016 diagnoses of mood disorder and insomnia, respectively, noted in the Veteran’s VA treatment records. A rationale for all opinions offered is requested as adjudicators are precluded from making any medical findings. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. D. Bruce, 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.