Citation Nr: 21028821 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 18-08 086 DATE: May 12, 2021 ORDER The application to reopen a claim of entitlement to service connection for an acquired psychiatric disability is granted. REMANDED The claim of entitlement to service connection for an acquired psychiatric disability is remanded. FINDING OF FACT The Veteran's last claim to service connection an acquired psychiatric disability was denied in a November 2015 rating decision because the evidence did not show a relationship to service. She did not appeal that decision and it is now final. Since then, she has presented new and material evidence that reasonably raises the possibility of substantiating the claim. CONCLUSION OF LAW The criteria are met to reopen a claim of entitlement to service connection for an acquired psychiatric disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1992 to September 1995. This appeal is from an April 2017 rating decision. In June 2020, the Veteran had a personal hearing with the undersigned VLJ. The application to reopen a claim of entitlement to service connection for an acquired psychiatric disability is granted. Service connection is granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, VA rating decisions or Board decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.1100, 20.1103. A finally disallowed claim may be reopened only when new and material evidence is secured with respect to that claim. 38 C.F.R. § 3.156. "New" evidence is evidence not previously submitted to agency decisionmakers. Evidence is "material" if it 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, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Veteran's claim for service connection was last denied in November 2015. The AOJ (agency of original jurisdiction) found the evidence did not show a relationship to service. The evidence of record prior to the November 2015 rating decision contained the Veteran's STRs and other service records, as well as a VA examination. It also contained her statements regarding incidents in service. In her application to reopen, received in January 2017, the Veteran included evidence of another incident in service, not previously reported, wherein she went to a dental appointment in the morning that required anesthesia, and woke up later that evening in the male dental assistant's home. She indicates she did not report this incident because she was not sure of what happened, did not want to cause any problems with her separation from active duty, and did not want to think about it. She reports that over the years, it has weighed on her. For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, although not its weight, is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence also contains a VA examination report, from March 2017, wherein the VA examiner indicated that some of the Veteran's reported stressors, including learning that her five-year-old child had cancer and waking up in a stranger's bed, would qualify as traumatic, although not for purposes of establishing a PTSD diagnosis. She did not provide an adequate opinion on whether these incidents are related to her current diagnosis. The above-cited evidence is new and material, and raises the possibility of substantiating the claim. The appeal is granted to this extent only, and will be remanded for additional development. REASONS FOR REMAND The claim of entitlement to service connection for an acquired psychiatric disability is granted. Primarily, it is not clear that the Veteran's complete STRs and service personnel file have been associated with the claims file. Indeed, the record does not contain a separation examination. On remand, attempts shall be made to ascertain whether any additional records are available. The Veteran has argued that the March 2017 VA examination is inadequate, and the Board agrees. The examiner attributed the Veteran's current diagnoses to a traumatic incident from her childhood, without providing adequate consideration of the incident in service. The Board notes her entrance examination does not show a psychiatric abnormality, and therefore she is considered to have been in sound condition upon entrance. The examiner also did not consider whether any incident in service aggravated any symptoms or diagnosis related to the childhood incident. Another examination shall be conducted by a different examiner. The matters are REMANDED for the following action: 1. Ensure the Veteran's entire service personnel file and STRs are associated with the claims file. 2. Obtain updated VA treatment records. 3. After completion of directives 1 and 2, schedule the Veteran for an appropriate examination with a different examiner than she has seen before for a report on whether it is as likely as not (50/50 probability or greater) that any acquired psychiatric diagnosis is related to her service. She has been diagnosed with PTSD during the current appeal period, and adjustment disorder historically. The examiner is asked to review the record prior to the examination, and to elicit from the Veteran a detailed history of her symptoms since service. The Veteran reports a number of stressors from service. The March 2017 VA examiner agreed that her reports regarding learning of her young child's cancer diagnosis, and the stress involved with frequent traveling to see her and an unsympathetic commanding officer, along with the incident where she woke up in a stranger's bed right around separation, qualified as traumatic. The examiner is asked to opine on whether the incidents in service are as likely as not (50/50 probability or greater) related to her current diagnosis, or aggravated the injury caused by her childhood assault to lead to her current diagnosis. The examiner is advised that attributing any diagnosis to the childhood incident is not dispositive of the question without adequate discussion of the in-service incidents. The Veteran argues that she was not able to successfully have any relationships or keep a job because of the incidents in service, and that she had done well during service. She argues that she showed changed behavior (which is one way to corroborate an assault as a stressor) in the years just after separation. All opinions must be accompanied by explanation. Nathaniel J. Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Gibson 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.