Citation Nr: 21042180 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 18-23 941 DATE: July 12, 2021 ORDER The petition to reopen a previously denied 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 an unappealed May 2009 rating decision, the RO denied the Veteran's original claim for an acquired psychiatric disorder. 2. The evidence received since the May 2009 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for an acquired psychiatric disorder. CONCLUSIONS OF LAW 1. The May 2009 rating decision denying a claim for an acquired psychiatric disorder is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.105(a), 20.302, 20.1103 (2020). 2. The additional evidence received since the May 2009 rating decision is new and material, and the claim of service connection for an acquired psychiatric disorder is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1966 to November 1968. In March 2021, the Veteran testified in a virtual hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. New and Material Evidence Rating decisions 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 (NOD) with the decision or submitting new and material evidence, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160, 20.201, 20.302. An exception to the finality rule is found in 38 U.S.C. § 5108, which provides that, if new and material evidence is received with respect to a claim which has been disallowed, VA 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). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Here, in a May 2009 rating decisions, the RO denied entitlement to service connection for an acquired psychiatric disorder, claimed as depression and PTSD. At the time, the Veteran did not respond to the RO's requests regarding information about his in-service stressor. Relevant evidence received since the last final denial of the claim in May 2009 included the Veteran's statements regarding an in-service stressor of being on funeral detail and seeing dead bodies. The Veteran testified to the same during the 2021 Board hearing and provided photographs purportedly showing him on detail. This evidence is new and material and the petition to reopen a previously denied claim for an acquired psychiatric disorder is granted. REASONS FOR REMAND A remand is necessary to obtain outstanding medical records and to provide the Veteran with a VA examination to help determine the likely etiology of the claimed acquired psychiatric disorder. During the March 2021 hearing, the Veteran reported that he received mental health treatment at the VA medical center in Florence, South Carolina. He mentioned that he believed the treatment was within a year of discharge from service and/or in the early 1970s. Meaningful attempts to obtain these records should be made. The record shows that the Veteran has been diagnosed with various psychiatric disorders, to include PTSD. In addition, the Veteran provided information that help support his reports of being on a funeral detail. Accordingly, a VA examination is necessary prior to deciding the claim on the merits. The matters are REMANDED for the following action: 1. Make at least two meaningful attempts to obtain any of the Veteran's treatment records dated from November 1968 through the 1970's from the VA Medical Center in Florence, South Carolina. 2. Then, provide the Veteran with an additional comprehensive VA mental health examination to help determine the likely etiology of the claimed psychiatric disorder. The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. After a review of the claims file and examination of the Veteran, the examiner is asked to respond to the following: (a) Elicit from the Veteran's all signs and symptoms of the claimed psychiatric disorder during service and since separation from service. (b) Identify all currently diagnosed psychiatric disorders, to include PTSD, since the date of claim in July 2013. **If the examiner concludes that a diagnosis of a psychiatric disorder previously shown by the record is not warranted, he/she is asked to address the Veteran's reported symptoms and explain how the diagnosis resolved or no longer shows any pathology. (c) For each currently diagnosed psychiatric disorder, provide an opinion as to whether it at least as likely as not (50 percent or higher probability) had its onset during service or is otherwise related to service, to include experiences during funeral and burial detail. Please address a VA mental health report dated 12/31/2008. A complete rationale should be provided for all opinions. 3. Thereafter, readjudicate the remanded claim. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Yaffe, 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.