Citation Nr: 21041965 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 19-13 710 DATE: July 10, 2021 ORDER New and material evidence has been received to reopen the previously denied claim of entitlement to service connection for an acquired psychiatric disorder. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. FINDINGS OF FACT 1. A November 2007 rating decision, to which the Veteran was notified that month, denied service connection for major depressive disorder, depression, and dysthymia; the Veteran did not perfect a timely appeal with respect to the November 2007 rating decision and no pertinent exception to finality applies. 2. A December 2010 rating decision, to which the Veteran was notified in the following month, denied service connection for major depressive disorder, depression, and dysthymia; the Veteran did not perfect a timely appeal with respect to the December 2010 rating decision and no pertinent exception to finality applies. 3. The evidence received since the December 2010 rating decision is not cumulative or redundant and raises a reasonable possibility of substantiating the Veteran's previously denied psychiatric disorder claims. CONCLUSIONS OF LAW 1. The November 2007 rating decision that denied service connection for major depressive disorder, depression, and dysthymia is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.160(d), 20.200, 20.1103. 2. The December 2010 rating decision that denied service connection for major depressive disorder, depression, and dysthymia is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.160(d), 20.200, 20.1103. 3. New and material evidence has been received to reopen the previous denial of service connection for major depressive disorder, depression, and dysthymia, now characterized as an acquired psychiatric disorder. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran was a member of the Puerto Rico Army National Guard and served on a period of active duty for training (ACDUTRA) from November 1974 to June 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In a March 2020 decision, the Board denied reopening the Veteran's claim for service connection for an acquired psychiatric disorder. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In October 2020, the Court granted the parties' (the Veteran and the Secretary of VA) Joint Motion for Remand (JMR), which vacated the March 2020 Board decision and remanded the appeal to the Board for further action consistent with the JMR. The parties agreed that the Board erred by not providing an adequate statement of reasons or bases for its decision and erred when it applied the incorrect standard for determining whether new evidence is material. New and material evidence has been received to reopen the previously denied claim of entitlement to service connection for an acquired psychiatric disorder Rating actions are final, and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105(b) and (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, and 20.302(a). If new and material evidence is received during an applicable appellate period following a RO decision (1 year for a rating decision and 60 days for a statement of the case), the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156. Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 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 means evidence not previously submitted. Material evidence means existing evidence that by itself or when considered with previous evidence 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 last final decision and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." In the present case, the Agency of Original Jurisdiction (AOJ) initially denied the Veteran's claim for service connection for major depressive disorder, depression, and dysthymia in a November 2007 rating decision because the record did not show that the Veteran's disorder occurred in or was caused by service. Thereafter, the Veteran submitted a timely Notice of Disagreement (NOD) and the AOJ continued to deny the Veteran's claim in a May 2008 Statement of the Case (SOC). The Veteran was notified of this decision and the 60-day requirement to perfect his appeal. The Veteran did not perfect his appeal or otherwise submit new and material evidence within the applicable appeal period. As such, the November 2007 rating decision became final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104 (a), 20.1103. Thereafter, the Veteran filed another service connection claim for a psychiatric disorder and in a December 2010 rating decision, the AOJ denied the Veteran's claim for service connection for major depressive disorder, depression, and dysthymia after finding that no new and material evidence had been received by VA to reopen the claim. The Veteran did not perfect a timely appeal with respect to the December 2010 rating decision and no other pertinent exception to finality applies. Thus, the December 2010 rating decision became final. The Veteran again filed a claim for service connection for a psychiatric disorder and in a subsequent February 2014 rating decision, the AOJ again denied the Veteran's claim for service connection for major depressive disorder, depression, and dysthymia after finding that no new and material evidence had been received by VA to reopen the claim. Although the Veteran did not formally appeal the February 2014 rating decision by submitting a NOD, in November 2014 he submitted a service connection claim for a mental condition as secondary to his service-connected disabilities and in December 2014 underwent a VA mental disorders examination. Specifically, during the December 2014 VA examination, the VA examiner diagnosed the Veteran with a mood disorder not otherwise specified, noted that the Veteran's first encounter with a mental health professional was in the 90s, noted that the Veteran was currently receiving psychiatric treatment, and listed the Veteran's pertinent symptoms. This evidence is new as it was not of record in December 2010 and is material as it relates to the unestablished fact of whether the Veteran's psychiatric disorder may be related to service based on continuity of symptomatology. Additionally, in January 2015, and within one year of the February 2014 rating decision, the AOJ issued a rating decision that denied service connection for a mood disorder not otherwise specified (claimed as depression, anxiety, mood troubles, a mental condition, and sleeping problems) after finding that the Veteran's psychiatric disorder was not related to service or a service-connected disability. Within one year of the January 2015 rating decision, the Veteran underwent another VA mental disorders examination in May 2015. That month, in May 2015, the AOJ again issued a rating decision that denied service connection for a mood disorder not otherwise specified (claimed as depression, anxiety, mood troubles, a mental condition, and sleeping problems) because the Veteran's psychiatric disorder was not related to service or a service connected disability. Although the Veteran did not formally appeal the May 2015 rating decision, in September 2015 and within the one-year appeal period for the May 2015 rating decision, he submitted private psychiatric treatment and hospitalization records. These private records included an August 2015 private psychiatric evaluation reflecting that the Veteran presented with depressive symptoms and psychosis, suicidal thinking, and unintelligible hallucinations that were associated with physical deterioration and chronic pain and a July 2015 private treatment record reflecting the Veteran's report that his physical health/pain was a stressor. This evidence is new because it was not previously of record. This evidence is also material because it indicates that the Veteran may have a psychiatric disorder that is aggravated by a service-connected disability and/or resulting physical pain, which relates to the unestablished fact of whether the Veteran has an acquired psychiatric disorder secondary to his service-connected disabilities. See 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Accordingly, the Board finds that new and material evidence has been received since the final December 2010 rating decision to reopen the Veteran's claim for service connection for an acquired psychiatric disorder. Additionally, while the Board finds that the December 2010 rating decision is final, the subsequent rating decisions regarding service connection for a psychiatric disorder are not final because new and material evidence was received within the one-year appeal period of those rating decisions. The Board notes that where new and material evidence is received within one year after the initial denial, the denial is not final, and the claim remains pending. 38 C.F.R. § 3.156(b). As such, the Veteran's claim has been on appeal since the February 2014 rating decision. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder The Veteran contends that he is entitled to service connection for an acquired psychiatric disorder, to include as secondary to his service-connected disabilities. Unfortunately, after review of the record, a remand is warranted because the VA opinions of record, in December 2014, May 2015, and November 2017, are inadequate to decide the Veteran's claim. In this regard, the December 2014 VA examiner found that the Veteran's diagnosed mood disorder not otherwise specified was less likely than not proximately due to or the result of his service-connected disabilities because the Veteran sought psychiatric care in 1998, 23 years after his discharge from service and the events that led to his service-connected disabilities and because there is no temporal relationship between his neuropsychiatric disorder and his service-connected disabilities. This opinion is inadequate because the evidence shows that the Veteran sought psychiatric care prior to 1998. See e.g., August 1992 Cayey Center mental health interview (reflecting the Veteran's reports of an onset of psychiatric symptomatology since 1991). As such, the December 2014 VA opinion is based on an inaccurate factual premise. The Board notes that a medical opinion based on an inaccurate factual premise has no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Additionally, the December 2014 VA examiner did not address the aggravation element of secondary service connection. Where secondary service connection is asserted, an examination must offer an opinion as to aggravation in addition to direct causation. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). Thereafter, the May 2015 VA examiner also found that the Veteran's diagnosed unspecified mood disorder was less likely than not proximately due to or the result of his service-connected disabilities because the Veteran sought psychiatric care in 1998, 23 years after his discharge from service and the events that led to his service connected disabilities and because the Veteran's psychiatric disorder bears no relationship with his service-connected bilateral shoulder condition and stomach condition. This opinion is also inadequate because the opinion is again based on an inaccurate factual premise and does not address the aggravation element of secondary service connection. Likewise, the November 2017 VA negative nexus opinion also does not address the aggravation element of secondary service connection while the associated November 2017 VA mental disorders examination reflects the examiner's inaccurate finding that the Veteran was first diagnosed with a mental disorder (major depressive disorder) in 2007 when he experienced low back pain and not shoulder pain. Accordingly, given that the December 2014, May 2015, and November 2017 VA examinations and opinions are based on inaccurate factual premises, do not contain adequate rationale, and do not address aggravation, a remand is warranted for an addendum VA opinion to properly assess the nature and origin of the Veteran's acquired psychiatric disorder. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. The last VA treatment of record is dated March 2021. 2. Provide the Veteran another opportunity to identify any outstanding private records relevant to his claim. The Veteran has identified treatment at Capestran Psychiatric Hospital. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained. 3. Then, review the entire claims file for any documents in Spanish that have not already been translated and translate those documents into English by official means. A copy of the translated document should be associated with the claims file. 4. Obtain an addendum VA opinion from an appropriate medical professional to address the Veteran's service connection claim for an acquired psychiatric disorder. The need for an in-person examination is left to the discretion of the examiner. The claims file, including a copy of this Remand, must be available to and be reviewed by the examiner. The examiner is requested to furnish an opinion with respect to the following questions: (a) Identify any and all psychiatric disorders present during the appeal period. The evidence reflects diagnoses of bipolar disorder, a mood disorder not otherwise specified, and major depressive disorder with psychosis. If only one mental disorder is identified/diagnosed, please explain the basis for this conclusion given the multiple diagnoses in the claims file. (b) If PTSD is diagnosed at any point during the appeal period, the examiner must identify the specific stressor(s) underlying any PTSD diagnosis and comment upon the link between the current symptomatology and the Veteran's stressor(s); whether the identified stressor(s) are adequate to support a diagnosis of PTSD; and whether his symptoms are related to the identified stressor(s). (c) For each identified psychiatric disorder, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that such had its onset during the Veteran's active service or is otherwise related to the Veteran's active service. In providing the above opinion, the examiner should consider (1) the private treatment records reflecting the Veteran's report of an onset of psychiatric symptoms in 1991 and (2) the buddy statements from the Veteran's friends and family noting that the Veteran was depressed after his discharge from the Army. (d) For each identified psychiatric disorder, also provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that such is (1) caused by OR (2) aggravated by his service-connected stomach and/or bilateral shoulder disabilities. The examiner should address BOTH the causation and aggravation questions in his or her rationale. In other words, even if the Veteran's service-connected disabilities did not cause any psychiatric disorder, the examiner should still address whether his service-connected stomach and/or bilateral shoulder disabilities could have worsened any psychiatric disorder. If aggravation is found, the examiner should quantify the degree of aggravation, if possible and state whether there was a medically ascertainable increase in disability regardless of permanence. (e) If the examiner finds that the Veteran does NOT have a psychiatric disorder secondary to his service-connected stomach and/or bilateral shoulder disabilities, how does that reconcile with the September 2017 private psychological evaluation reflecting that the Veteran has a long history of treatment due to physical and mental health conditions and has shown a severe deterioration in his psychiatric conditions due to the deterioration of his physical conditions that generate chronic pain and incapacitate him to free movement, which impact his overall functioning? In providing the above secondary service connection opinions, the examiner should also consider (1) the July 2015 and August 2015 private treatment records reflecting that the Veteran's physical health is a mental health stressor and that his psychiatric symptoms are associated with his physical deterioration and chronic pain; (2) the January 2018 VA examination reflecting that his service-connected stomach disability symptoms are productive of considerable impairment of health; and (3) the June 2017 recreational therapy discharge note reflecting that the Veteran's rehabilitation potential seems to be connected to his physical health and that he complains of persistent pain in his neck and shoulders that severely interferes with his rehabilitation goals and plays a significant role in his recovery process and that his mood and energy level seem to also be affected by his physical health. A rationale for all opinions expressed must be provided. If the examiner is unable to provide any required opinion, he or she should explain why. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Amanda Purcell, Associate 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.