Citation Nr: 21030812 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 17-57 712 DATE: May 19, 2021 ORDER The petition to reopen the previously denied claim for service connection for an acquired psychiatric disorder, claimed as a mental condition, posttraumatic stress disorder (PTSD), anxiety, and depression, is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. FINDING OF FACT An unappealed September 2015 rating decision denied service connection for a mental condition; new and material evidence was not received prior to expiration of the appeal period; subsequently received evidence includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim. CONCLUSION OF LAW The September 2015 rating decision denying the claim for service connection for mental condition is final; and new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 20.1103 REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1974 to September 1977, including service in Cambodia from March 1975 to May 1975. This case comes before the Board of Veteran's Appeals (Board) on appeal of a June 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a September 2020 Board hearing before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. Whether new and material evidence has been received to reopen the previously denied claim for service connection for an acquired psychiatric disorder The Veteran seeks service connection for an acquired psychiatric disorder. A claim that has been denied in an unappealed Regional Office (RO) decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). In establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of whether the RO found that new and material evidence had been submitted to reopen a claim for service connection, it is well established that the Board must determine on its own whether new and material evidence has been submitted to reopen a claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Board concludes that a September 2015 rating decision denying the claim for service connection for mental condition is final; and new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 20.1103. The September 2015 rating decision denied the claim for service connection for an acquired psychiatric disorder (mental condition) because the evidence did not show the condition was incurred in or caused by military service, and service treatment records (STRs) did not show complaints, treatment, or diagnosis for an acquired psychiatric disorder in service. Additionally, the medical evidence did not show a current diagnosed disability. A September 2015 letter notified the Veteran of this decision and how to appeal. Following the Veteran's notice of disagreement (NOD), a January 2016 Statement of the Case (SOC) continued denial of the claim. VA did not receive an appeal before the expiration of the appeal period. Therefore, this decision became final. 38 U.S.C. § 7105(b), (c); 38 C.F.R. §§ 3.160(d), 20.201, 20.302, 20.1103. In February 2016, VA received the Veteran's claim for service connection for PTSD. See VA 21-526EZ (February 2016). In May 2017, VA received the Veteran's claim for service connection for anxiety and depression. See VA 21-526EZ (May 2017). As the claim had been previously considered, VA construed this as a request to reopen the claim for service connection for an acquired psychiatric disorder. Evidentiary submissions received since the prior final disallowance include new and material evidence. Specifically, a February 2018 VA psychiatry treatment note reflects that the Veteran was followed for a history of depressive disorder, treated his symptoms with medications (e.g. Lexapro and Prazosin), and had been assessed with "Other depressive disorder specified." See Medical Treatment Record Government Facility at 3, 5 (September 2020). This was not previously before adjudicators and cures a prior evidentiary defect by showing the presence and treatment of a mental health disorder. Therefore, new and material evidence has been received. 38 C.F.R. § 3.156(a). Accordingly, the petition to reopen is granted. REASONS FOR REMAND In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. Entitlement to service connection for an acquired psychiatric disorder The Veteran contends that he has psychiatric disorder due to his wartime and combat experiences in Cambodia. He argues that he has been "diagnosed with PTSD and it is absolutely due to [his] service in Cambodia during the Vietnam War." See NOD (July 2017); see also Hearing Transcript (September 2020). He testified that he believes he was manifesting with symptoms of mental disorder even before he was diagnosed but didn't realize he had a disorder. See Hearing Transcript. The Veteran testified that he saw no medical professional for psychiatric symptoms prior to 2015 and has received all of his treatment since at VA. A February 2015 mental health consult reflects the Veteran presented with symptoms of PTSD and depression. See CAPRI (October 2017). He was diagnosed with other trauma or stressor related disorder and unspecified depressive disorder. The Veteran attended varying classes for managing mental health symptoms from February 2015 to August 2015. At June 2017 Mental Health consultation, the Veteran was diagnosed with depressive disorder, other recurrent depressive disorders, and other specified adjustment reaction. The Veteran, following his Board hearing, submitted partial VA treatment records dated in February 2018, which reflect that the Veteran was followed for a history of depressive disorder, treated his symptoms with medications (e.g. Lexapro and Prazosin), and had been assessed with "Other depressive disorder specified." See Medical Treatment Record Government Facility at 3, 5 (September 2020). To ensure that VA has met its duty to assist reman is necessary for the following reasons. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). First, the Board finds that the VA treatment records are not complete. The Veteran's sworn testimony and the partial records he submitted indicate that there are outstanding VA treatment records. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(2); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). Second, the Board finds that remand is necessary for a VA examination and opinion. Here, the Veteran provided statements and sworn testimony regarding in-service injury and there is evidence of a current mental health disorder, which is sufficient to trigger VA's duties to obtain a new examination and opinion. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). It is noted that the Veteran testified he was referred by his VA health care provider to an outside doctor, but he was unsure of the condition for which that referral was made. The Veteran's testimony did not reasonably identify any non-VA medical care for his claimed mental disorder. Therefore, remand to obtain private treatment records is not warranted at this time. The Veteran is reminded that VA's duty to assist is a two-way street. If the Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in determining entitlement to the benefit sought. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). As such, should the Veteran later recall any non-VA medical care for symptoms of psychiatric disorder, he should provide VA with copies of those records or authorize release to the VA. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from July 2017 to the Present. 2. Schedule the Veteran for a VA examination by an appropriate clinician to address the nature and etiology of any acquired psychiatric disability. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on review of the record and interview of the Veteran, detail the Veteran's reported symptoms, including the nature, onset, and progression of any symptoms consistent with any psychiatric disability. The opinion should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. The clinician should address the following: (a) 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 (Note: VA has conceded the Veteran's exposure to a combat stressor See SOC at 28 (October 2017)). (b) 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 conceded exposure to a combat stressor. 3. Ensure that the VA medical opinion obtained include a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge 4. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Edwards 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.