Citation Nr: 21028070 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 18-38 368 DATE: May 10, 2021 VACATUR To the extent that it determined that new and material evidence had not been received to reopen service connection for an acquired psychiatric disorder, the November 2020 Board decision is vacated. ORDER New and material evidence having been received, the application to reopen the claim of service connection for an acquired psychiatric disorder is granted. Service connection for an acquired psychiatric disorder is granted. FINDINGS OF FACT 1. The Veteran had active duty from August 1974 to August 1978; he has been in receipt of a 100 percent rating based on unemployability since March 2018. 2. A claim of service connection for an acquired psychiatric disorder was denied in November 2012; the Veteran did not appeal, and that decision became final. 3. In November 2020, the Board denied service connection for an acquired psychiatric disorder on the grounds that new and material evidence had not been received; however, new and material evidence had been submitted prior to the issuance of the November 2020 decision. 4. An acquired psychiatric disorder was caused or aggravated by a service connected disability. CONCLUSIONS OF LAW 1. The November 2020 Board decision is vacated. 38 C.F.R. §§ 3.105; 20.904 (2020). 2. The November 2012 rating decision, which denied service connection for an acquired psychiatric disorder, is final. 38 C.F.R. § 7105 (2012); 38 C.F.R. § 20.1103 (2020). 3. New and material evidence has been received to reopen the claim for service connection for an acquired psychiatric disorder. 38 U.S.C. §§ 1110, 1131, 5107, 5108 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.159 (2020). 4. An acquired psychiatric disorder is related to a service connected disability. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Vacatur An appellate decision may be vacated by the Board at any time upon the request of the appellant or his or her representative, or on the Board's own motion, when there has been a denial of due process. 38 C.F.R. § 20.904. In November 2020, the Board denied service connection for an acquired psychiatric disorder on the grounds that new and material evidence had not been received to reopen the claim. In November 2020, the Veteran filed a Motion of Reconsideration on the grounds that he had submitted evidence showing that an acquired psychiatric disorder was incurred in service and/or caused or aggravated by service connected disabilities. A review of the record showed that the Veteran submitted a July 2018 private opinion in which the clinician opined that an acquired psychiatric disorder was caused or aggravated by service connected disabilities. As such, the November 2020 Board decision is vacated, and the Motion is granted. New and Material Evidence to Reopen the Claim Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision.38U.S.C. §5108; 38C.F.R. §3.156. "New" evidence means evidence "not previously submitted to agency decisionmakers." "Material" evidence means "evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim." 38 C.F.R. § 3.156(a). In order to be considered "new and material" evidence, the evidence must not be cumulative or redundant, and "must raise a reasonable possibility of substantiating the claim," which has been found to be enabling, not preclusive. See 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, 513 (1991). In 2012, the Regional Office denied service connection for an acquired psychiatric disorder due to the absence of a nexus between a current disorder and an in-service incurrence. The evidence included service treatment records (STRs) and clinical records. The Veteran did not appeal and that decision became final. The evidence received since the prior final denial consists of clinical records, lay statements, and scholarly articles. Specifically, a November 2018 private opinion, as well as scholarly articles, opined as to whether an acquired psychiatric disorder was caused or aggravated by a service connected disability. This evidence is new as it was not of record at the time of the prior rating decision. Moreover, the evidence is material as it relates to the unestablished element of a nexus between a current disorder and an in-service event and/or service connected disability. Therefore, the application for service connection is reopened, and the appeal is granted to this extent. Service Connection for an Acquired Psychiatric Disorder Having reopened the claim, the Board will now address it on the merits. Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) 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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). As an initial matter, the Veteran contends that an acquired psychiatric disorder was incurred in service and/or was caused or aggravated by service connected back and knee disabilities. Therefore, both direct and secondary service connection will be addressed. Turning first to direct service connection, the Veteran was diagnosed with depression and anxiety in 2014. Therefore, a current disorder is shown, and the first element of direct service connection is met. As to an in-service incurrence, in a November 2018 private opinion, the Veteran reported that he was harassed in service due to the color of his skin and that he lost three grandchildren while in service. However, STRs are absent of complaints, diagnoses, or treatment for an acquired psychiatric disorder. Specifically, he sought treatment for left knee, left foot, and back pain, among others, but did not report a psychiatric disorder or symptoms of a psychiatric disorder. To the extent that the Veteran asserts that an acquired psychiatric disorder began in service, in a November 2018 private opinion, the clinician opined that an acquired psychiatric disorder was at least as likely as not incurred in service; however, no supporting rationale was provided. While the November 2018 clinician opined that an acquired psychiatric disorder began in service, STRs do not show an in-service incurrence of an acquired psychiatric disorder. Therefore, the second element of direct service connection is not met, and the medical evidence does not support the claim on a direct service connection basis. As to secondary service connection, the Veteran has been diagnosed with depression and anxiety and is service connected for back and knee disabilities. Therefore, the first two elements of secondary service connection, a current disorder and a service connected disability, are met. As to nexus, in a July 2018 private opinion, the clinician opined that the Veteran's acquired psychiatric disorder was caused or aggravated by service connected back and knee disabilities. In support of her opinion, the clinician cited scholarly articles that showed that individuals with chronic physical pain were more likely to develop and experience psychiatric symptoms. There is no contradictory opinion. Therefore, the medical evidence supports the claim for secondary service connection and the appeal is granted to this extent. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Ragofsky, Attorney Advisor 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.