Citation Nr: 21024486 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 18-47 183 DATE: April 22, 2021 ORDER New and material evidence having been received, the application to reopen the previously denied 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. A February 2013 rating decision originally denied the Veteran’s claim for service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder and depression. The Veteran did not timely appeal that decision and it became final. 2. Evidence received since the February 2013 rating decision is both new and material as it relates to an unestablished fact necessary to substantiate the claim. CONCLUSIONS OF LAW 1. The February 2013 rating decision originally denying the Veteran’s claim for service connection for an acquired psychiatric disorder is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. Evidence received since the February 2013 rating decision is new and material, and the Veteran’s claim for service connection for an acquired psychiatric disorder is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Navy from April 1969 to January 1971. Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for an acquired psychiatric disorder. In general, RO rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 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. 38 U.S.C. § 5108; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). A February 2013 rating decision originally denied the Veteran’s claims for service connection for depression and PTSD (acquired psychiatric disorder) on the basis that the evidence did not show a diagnosis of PTSD and the evidence did not show an event, disease, or injury in service for depression. The Veteran did not timely appeal that decision and it became final. He sought to reopen his claim in January 2017. Since the February 2013 rating decision, the Veteran has submitted lay statements related to his in-service stressor and also submitted a private medical opinion indicating that he has a diagnosis of PTSD related to service. This evidence is new, and it is also material as it relates to an unestablished fact necessary to substantiate the claim. Therefore, the Veteran’s claim is reopened. To this extent only, the appeal is granted. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder is remanded. The Veteran’s VA treatment records contain various acquired psychiatric disorder diagnoses including anxiety disorder and PTSD. The Veteran contends that he has PTSD as a result of service as: He feared he was going to drown while undergoing a military swimming and diving exercise he was forced to repeatedly do. He reports that this changed him and made him isolate himself more, which had subsided some before resurfacing in 2011 after having prostate surgery. He came more depressed after the procedure as well. He reports having distressing memories, flashbacks, and nightmares of drowning from the military exercise. He and his wife report he has nightmares around four night a week where he acts out his dreams and wakes up sweating, one time choking her. He avoids being around water, crowded traffic, and media content centered on bodies of water, is hypervigilant, and has an exaggerated startle response. The Veteran also reported a stressor of observing a sailor falling overboard and drowning from the USS Plymouth Rock in March 1970. The RO referred the claim to JSRRC to review and determine if sufficient details were provided. However, a response from JSRRC has not yet been obtained. Compare May 2020 Request and May 2020 SSOC. Regardless, given the Veteran’s lay statements of his personal experience, which admittedly cannot be verified, the Board finds that remand is warranted to obtain a VA examination. Although the Veteran’s attorney submitted a private medical opinion, such opinion does not contain sufficient rationale and it is unclear from the report whether the examiner applied the Veteran’s symptoms to the DSM-V criteria. Further, the examiner did not discuss any of the Veteran’s medical history, to include becoming depressed after having prostate surgery. Therefore, remand to afford the Veteran a VA examination is necessary. The matters are REMANDED for the following action: 1. Obtain any response from JSRRC regarding the Veteran’s claimed stressor related to observing a sailor falling overboard and drowning from the USS Plymouth Rock in March 1970 and associate it with the claims file. 2. Next, schedule the Veteran for a psychiatric examination to determine the nature and etiology of any acquired psychiatric disorder, to include PTSD. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease, to include his claimed stressor related to being forced to repeatedly jump into the water when he felt he was going to drown. The examiner should explain the relevance, if any, of the Veteran’s rise in depression after undergoing prostate surgery as well as the lay statement of the Veteran’s wife indicating that his depression began in approximately 2012-2013. See September 2017 Statement. The examiner is to accept as true that the Veteran was fearful of drowning. If the examiner feels the Veteran is not credible in his reports, he or she must state as much as provide sufficient reasoning for why this is so. A complete rationale for any medical opinion rendered must be provided. Saudiee Brown Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Martha R. Luboch, 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.