Citation Nr: 21041064 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 16-60 647 DATE: July 8, 2021 ORDER New and material evidence having been received, the application to reopen the claim for 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. In a final July 2008 rating decision, the Agency of Original Jurisdiction (AOJ) denied service connection for an acquired psychiatric disorder. 2. Evidence added to the record since the final July 2008 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder. CONCLUSIONS OF LAW 1. The July 2008 rating decision that denied the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder is final. 38 U.S.C. § 7105 (c) (West 2002); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2007). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1973 to June 1976, with service in Korea from January 1975 to June 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decision issued in March 2016 by a Department of Veterans Affairs (VA) Regional Office. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for an acquired psychiatric disorder. Where, as here, a claim has been finally adjudicated in the past, a claimant must present new and material evidence to reopen the previously denied claim. New evidence is defined as evidence not previously submitted to VA decision makers, and material evidence is defined as that which, 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 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). Determining whether new and material evidence raises a reasonable possibility of substantiating a claim is a relatively low threshold. Consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Additionally, the United States Court of Appeals for the Federal Circuit has noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to ultimately grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). In the present case, the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder was last finally denied in July 2008. This determination was based upon a lack of new and material evidence that his currently diagnosed major depressive disorder with anxious distress and panic attacks began during his active service, or was otherwise attributable to that service. The Veteran did not appeal this rating decision and it became final; thus, new and material evidence is now required to reopen the claim. For at least the last 33 years, the Veteran has described stressful duty he performed as a border guard on the demilitarized zone (DMZ) during his period of service in Korea. See, e.g., Psychiatry examination records, September 1988; see also Service personnel records (verifying service in Korea). In February 2016, as part of the present appeal, the Veteran was afforded a VA examination for posttraumatic stress disorder (PTSD). Although the examiner found that the Veteran did not meet the criteria for a clinical diagnosis of PTSD, the examiner did note that the Veteran's general exposure to episodes of enemy attack while stationed in Korea, with actual or threatened harm to the Veteran and the physical integrity of others, resulted in the Veteran's fear of hostile military activity. This is new and material evidence in support of the Veteran's claim because it supports the occurrence of an in-service event to which the Veteran's currently diagnosed psychiatric disorder could be related. The examiner then failed to offer an adequate opinion as to whether the Veteran's currently diagnosed psychiatric disorder was related to the conditions of his active service. Thus, although the February 2016 findings by the examiner do constitute new and material evidence to reopen the claim, it is not sufficient evidence upon which the claim may be granted at this time. It does, however, trigger the need for an additional remand to allow VA to assist the Veteran in obtaining adequate medical evidence in support of his claim. The claim of entitlement to service connection for an acquired psychiatric disorder is reopened and remanded for further development. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for an acquired psychiatric disorder because no VA examiner has adequately opined whether the Veteran's currently diagnosed major depressive disorder, or any other currently diagnosed psychiatric disorder, is related to his described experiences during active service in Korea. Also, a June 1993 document from the Social Security Administration reflects a fully favorable claim for Social Security disability benefits, but the VA claims file does not contain any medical evidence associated with that successful claim. This indicates that there may be outstanding and relevant records held by the Social Security Administration. Evidence indicates that there may also be outstanding relevant VA treatment records. Any VA treatment records are within VA's constructive possession, and are considered potentially relevant to the issue on appeal. A remand is required to allow VA to obtain the outstanding records. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records from the Beckley, West Virginia VA Medical Center for the period from February 2016 to the present. Also obtain any outstanding VA treatment records from the Salem and Richmond, Virginia VA facilities, as identified on the Veteran's November 2015 claims form. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Obtain the Veteran's federal records from the Social Security Administration. Document all requests for information as well as all responses in the claims file. 3. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any currently diagnosed psychiatric disorder. 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, including major depressive disorder with anxious distress and panic attacks, 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 the Veteran's described stress or anxiety experienced during service in Korea. K. Clark Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. McDonald, 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.