Citation Nr: 21028818 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 16-53 032 DATE: May 12, 2021 ORDER The petition to reopen the claim for service connection for depression is granted. REMANDED Service connection for an acquired psychiatric disability, to include depression, bipolar disorder PTSD, and anxiety is remanded. FINDINGS OF FACT 1. A July 2008 rating decision denied service connection for depression on a direct and secondary basis; the Veteran did not submit a notice of disagreement, new and material evidence was not received within a year of the issuance of the decision, and the decision became final. 2. Evidence added to the record since the July 2008 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for depression, and does raise a reasonable possibility of substantiating that claim. CONCLUSIONS OF LAW 1. The July 2008 rating decision that denied service connection for depression is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. Evidence received since the July 2008 rating decision is new and material, and the claim for service connection for depression is reopened. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. §§ 3.104 (a), 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1974 to May 1977. The Veteran testified before the undersigned Veterans Law Judge during a January 2021 hearing. A transcript of the hearing is in the record before the Board. Turning to the procedural history of the claims on appeal, a July 2008 final rating decision denied service connection for depression on a direct and secondary basis. The Veteran submitted a claim for service connection for PTSD in May 2013. An August 2016 rating decision reopened the claim for depression and denied it on the merits. The rating decision also noted that this claim was inextricably intertwined with the Veteran's pending claim for service connection for PTSD. The Court of Appeals for the Federal Circuit has held that claims that are based on distinctly and properly diagnosed diseases or injuries must be considered separate and distinct claims for new and material evidence purposes. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); see also Ephraim v. Brown, 82 F.3d 399, 402 (Fed. Cir. 1996) ((a newly diagnosed psychiatric disorder (e.g., PTSD), even if medically related to a previously diagnosed disorder (such as depressive neurosis), is not the same for jurisdictional purposes when it has not previously been considered). Therefore, the Board has determined that a new and material evidence analysis is proper for the claim for service connection for depression, whereas a de novo analysis is proper for claim for service connection for PTSD and other psychiatric diagnoses. See Velez v. Shinseki, 23 Vet. App. 199, 204 (2009) (when determining whether a new and material evidence analysis is required, the focus of VA's analysis must be on whether the evidence presented truly amounts to a new claim "based upon distinctly diagnosed diseases or injuries" or whether it is evidence tending to substantiate an element of the previously adjudicated matter). Id. Here, the Veteran's current PTSD was not previously adjudicated by the RO; therefore, it constitutes a new and distinct claim and does not require new and material evidence. The Board also observes that a May 2014 rating decision denied service connection for PTSD. A January 2015 rating decision stated that the claim for service connection for PTSD was considered reopened and denied it on the merits. The Veteran's January 2016 notice of disagreement identified the January 2015 rating decision. The Board observes that the Veteran submitted new and material evidence within the one-year period following the May 2014 denial of service connection for PTSD and thus that denial did not become final. The Veteran need not submit new and material evidence to reopen the PTSD claim. 38 C.F.R. § 3.156 (b). The petition to reopen a claim for service connection for depression is granted. Generally, a claim that has been finally denied in an unappealed rating decision may not be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). However, a claim that has been finally denied may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. New evidence is evidence not previously submitted; material evidence is evidence that 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 Court of Appeals for Veterans Claims (Court) has held that the phrase "raises a reasonable possibility of establishing the claim" must be viewed as "creating a low threshold" and enabling rather than precluding reopening. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to why the claim was last denied. Id. at 118. Rather, VA should ask whether the newly submitted evidence, combined with VA assistance and considering alternative theories of entitlement, can reasonably substantiate the claim. Id. When determining whether a claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). Regardless of whether the RO found new and material evidence to reopen a claim, the Board is not bound by such a determination and must nevertheless consider whether new and material evidence has been received. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The July 2008 rating decision denied service connection for depression on the merits on a direct basis and as secondary to service-connected bilateral ankle disability. Regarding direct service connection, the rating decision explained that there was no evidence of treatment during active duty and no evidence linking the current diagnosis to active duty. The Veteran did not submit a notice of disagreement, new and material evidence was not received within a year of the issuance of the decision, and the decision became final. The initial question before the Board is whether new and material evidence has been submitted to reopen the claim for service connection for depression. Evidence added to the record since the July 2008 rating decision includes a September 2012 VA psychiatry medical note. The medical note relates that the Veteran's mood was depressed at times and that the Veteran "mentions for the first time symptoms of PTSD." He was on planes in the Navy. He was not in combat but was in life-threatening situations. In one case, his plane flew in a storm and he was afraid he might die. He had frequent thoughts about this and found it very difficult to get on a plane. The pertinent Axis I diagnosis was anxiety disorder, NOS (rule out PTSD non-combat). An addendum of the same date relates that a PTSD screening test was positive. The Board finds that psychiatrist who wrote this medical note essentially linked the Veteran's anxiety disorder, NOS, to fear of dying during an active duty flight in a storm. In so finding, the Board finds it significant that the psychiatrist identified no other pre-service, in-service or post-service incident, nor anything else, as a potential cause of the Veteran's anxiety. Also significant is the fact that the psychiatrist identified the flight in a storm as a life-threatening situation, which the Board observes is consistent with his implicit finding that the storm was the cause of the Veteran's anxiety. Additional evidence also includes the Veteran's testimony during the January 2021 hearing that provides additional details about the incident. It occurred in February 1976 when he was stationed at San Nicolas Island. He often flew from Point Mugu California Naval Air Station to the island, about 180 missions total. He testified that the Navy chartered planes to get servicemembers to the island. The flight in question was from the air station to the island on a 30-year-old DC-6 during hurricane-type weather. The Veteran was petrified to get on the plane and only did so after being threatened with a court martial. The flight was surreal, up and down with lightening and rain. A day later, the pilots were killed when the plane went down in a crash during the return flight to Point Mugu. From that time, the Veteran kept seeing the pilot go into the cockpit on his flight through the storm. The Veteran stated that his conduct and job performance deteriorated through that summer due to depression and lack of motivation. Prior to the events, he had been a 4.0 sailor. In this regard, the Board observes that a performance evaluation for the period from February 1 to July 15, 1976 shows that the Veteran had required some counseling concerning his lack of motivation and personal drive. At the time of the hearing, the Veteran also submitted an article from an LA Times website which reported a "DC-6 charter plane" "lost an engine during takeoff from what is now Bob Hope Airport" and crash landed, killing both the pilot and the copilot. The article indicated that a steward and a steward trainee escaped with assistance from a bystander on the ground. The Veteran also provided an aircraft accident report from the National Transportation Safety Board regarding the incident. The Veteran's testimony and the evidence provided is presumed credible for determining whether his claim should be reopened. Fortuck, supra. The Board finds that the foregoing evidence is "new" in that it had not been previously submitted and is neither cumulative nor redundant of the evidence in the record at the time of the July 2008 rating decision The evidence is "material" because it relates to an unestablished fact necessary to substantiate the Veteran's claim for direct service connection, specifically whether an in-service event occurred. The evidence raises a reasonable possibility of substantiating the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade, supra. The Board emphasizes that to reopen a claim, the evidence need not conclusively establish service connection, but need only be sufficient to obtain a VA examination. Shade, supra. Accordingly, the claim for service connection for depression is reopened; to this extent only, the appeal is granted. REASONS FOR REMAND 1. Service connection for an acquired psychiatric disability, to include depression, bipolar disorder and anxiety and PTSD is remanded. The Board has combined all the issues on appeal given that the claim for service connection for depression is reopened. In January 2015, VA made a formal finding that the information required to corroborate the stressful events described by the Veteran was insufficient to send to the US Army and Joint Services Records Research Center (JSRRC) and/or insufficient to allow for meaningful research of Marine Corps or National Archives and Records Administration (NARA) records. Subsequently, the Veteran testified during the January 2021 hearing that the stressor occurred in February 1976. His service personnel records demonstrate that at that time he was stationed at NAVFAC San Nicolas Island. As there now appears to be sufficient evidence to attempt to corroborate the Veteran's stressor, such corroboration should be attempted. VA CAPRI records dated during the appeal period include diagnoses of depression with suicidal ideation, unspecified anxiety disorder, bipolar disorder, and PTSD. The Veteran has reported psychiatric symptoms and difficulties related to his service. Therefore, there is an indication that the Veteran has a mental health disorder, diagnosed as PTSD or some other disorder, related to his service. The Board accordingly finds that a remand is warranted to obtain a VA examination to determine what, if any, mental health disorders the Veteran may have and whether any such disorders are related to his active military service. The matters are REMANDED for the following action: 1. Please obtain any updated VA and non-VA mental health treatment records. 2. Please attempt to confirm with JSRRC, or any other appropriate records custodian, the Veteran's alleged stressor that (1) in early February 1976 he flew from Point Mugu California Naval Air Station to NAVFAC San Nicolas Island on a 30-year-old DC-6 during dangerous hurricane-type weather, and (2) on February 8, 1976 two pilots who the Navy chartered to take servicemembers to San Nicolas Island from Point Mugu were killed when the plane went down in a crash during the return flight to Point Mugu. Documents received in the record on January 12, 2021 include an LA Times article and an NTSB report regarding a DC-6 crash of a charter craft following takeoff from Bob Hope Airport that killed pilot James Robert Seccombe and co-pilot Jack Finger. 3. The AOJ should determine and document whether a stressor has been confirmed. 4. Then, please schedule the Veteran for an appropriate examination and medical opinion to determine the nature and etiology of any diagnosed mental health disorder, to include depression, bipolar disorder, anxiety, and PTSD. a. The examiner must opine whether the Veteran's PTSD is at least as likely as not related a corroborated stressor, including flying in bad weather and the death of charter pilots in a plane crash. As the records contain a diagnosis of PTSD by a VA psychiatrist during the appeal period (see, for example, September 2016 inpatient record), it must be taken as a fact that the Veteran has had PTSD during the appeal. b. As to psychiatric disorders other than PTSD, the examiner must opine as to each whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease. The opinion must address the diagnoses of bipolar disorder, depressive disorder, and anxiety disorder. c. The provider is also asked to provide an opinion as to whether the Veteran's cocaine use disorder with depression and psychosis is caused or aggravated by any other psychiatric disability. A complete rationale must be provided for any opinion expressed. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Davitian, 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.