Citation Nr: 22067057 Decision Date: 12/02/22 Archive Date: 12/02/22 DOCKET NO. 05-07 659 DATE: December 2, 2022 ORDER New and material evidence has been received, and the Veteran's claim for an acquired psychiatric disability shall be readjudicated. REMANDED Entitlement to service connection for an acquired psychiatric disability is remanded. FINDING OF FACT New and material evidence has been received with respect to the claim for service connection for an acquired psychiatric disability. CONCLUSION OF LAW New and material evidence to reopen a claim for service connection for an acquired psychiatric disability has been presented. 38 U.S.C. §§ 5103, 5103A, 5107, 5108; 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1979 to July 1982 in the United States Army. This matter comes before the Board of Veterans' Appeals (Board) following an August 2022 joint motion for partial remand (JMPR) from the United States Court of Appeals for Veterans Claims (Court). In an October 2021 Board decision, the Board, in pertinent part, denied the Veteran's claim to reopen the claim for service connection for an acquired psychiatric disability. The Veteran appealed the Board's October 2021 decision to the Court. Pursuant to a JMPR, the Court, in an August 2022 Order, vacated the Board's October 2021 decision and remanded the matter to the Board for action consistent with the directives of the JMPR. See August 15, 2022, CAVC Decision. New and Material Evidence Prior unappealed decisions are final. However, a claim will be reopened, and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has held that, when "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). VA law requires that in order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). Where a claim has been finally adjudicated, a claimant must present new and material evidence in order to reopen the previously denied claim. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Wakeford v. Brown, 8 Vet. App. 239-40 (1995). New evidence is that which was not previously submitted to agency decisionmakers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is 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 final denial, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of reopening, evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence that raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). VA should consider whether the newly received evidence could reasonably substantiate the claim were the claim to be reopened, including whether VA's duty to provide a VA examination is triggered. There must be new and material evidence as to at least one of the bases of the prior disallowance to warrant reopening. Shade, 24 Vet. App. at 117-20. 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disability The Veteran's claim for a psychiatric disorder, claimed as a nervous disorder, was initially denied by the RO in January 1986 on the basis the evidence failed to show in-service psychiatric treatment or evidence of psychosis within one year of separation from service. The RO did acknowledge the Veteran's psychiatric treatment in 1985, which was diagnosed as an acute psychotic episode. The RO again denied the claim in a February 1999 rating decision, noting that new and material evidence had not been submitted. The Veteran filed a petition to reopen this claim for service connection in July 2003, claimed as schizophrenia. An August 2004 rating decision continued the previous denial of this claim on the basis that the evidence does not show a psychiatric disorder was incurred in or caused by the Veteran's service. As the Veteran did not file either notice of disagreement within one year of the issuance of this rating decision or submit new and material evidence within one year, the August 2004 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In April 2009, the Veteran filed another petition to reopen this claim, now claimed as schizophrenia and bipolar disorder, and the July 2010 rating decision continued the denial of the claim for service connection for a psychiatric disorder. The Veteran filed a request to reopen that same month and the claim was readjudicated in August 2011 which led to the appeal considered herein. Since the most recent prior final decision, military personnel records (MPR) have been added to the record. In September 2020, a MPR noted that the veteran was treated for "nerves" from March 1, 1981, to March 30, 1981. See September 8, 2020, Military Personnel Record, page 54. The reason for the prior final denial was that there was no evidence establishing the Veteran's acquired psychiatric disorder was incurred in or caused by the Veteran's service. In other words, the in-service disability element was missing. This recent evidence indicates that the Veteran was treated for a psychiatric condition during his active service. The evidence raises a reasonable possibility of substantiating the claim. The Board finds that new and material evidence has been received since the August 2004 rating decision. Therefore, the claim of entitlement to service connection for an acquired psychiatric disability is reopened. REASONS FOR REMAND 2. Entitlement to service connection for an acquired psychiatric disability is remanded Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure the Veteran is given every possible consideration. The August 2022 JMPR vacated and remanded the Board decision because the Court identified a pre-decisional duty to assist error that occurred prior to the October 2021 Board decision. Notably, the Board did not analyze the MPRs submitted in September 2020. See August 15, 2022, CAVC Decision, page 3. As noted above, the September 2020 MPRs revealed in-service treatment for nerves and the Veteran is presently being treated by VA for paranoid schizophrenia and depression. See October 29, 2021, CAPRI, pages 3, 5, 61. As such, the Veteran must be afforded a VA examination to determine whether the Veteran's current diagnosed acquired psychiatric disabilities are etiologically related to his in-service treatment for "nerves." Further, the Court directed the Board to allow the Appellant to submit additional evidence and argument regarding the claim. See August 15, 2022, CAVC Decision, page 4. Based on the above, the Board finds that a VA examination should be provided. See Forcier v. Nicholson,19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court's order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the joint motion for remand or explain why the terms will not be fulfilled). Therefore, the Agency of Original Jurisdiction (AOJ) should obtain a VA examination to address the Veteran's claimed acquired psychiatric disability. The matters are REMANDED for the following action: 1. Send the Veteran a letter permitting no fewer than 90 days, unless explicitly waived, for submission of additional argument to the Board. 2. Then, schedule a VA examination pertaining to the etiology of the Veteran's acquired psychiatric disability. All necessary tests should be conducted. The AOJ should ensure that the examiner has access to the Veteran's claims file, including a copy of this remand. Based on a review of the record, the examiner should opine whether it is at least as likely as not that a current acquired psychiatric disability had its clinical onset during service or is otherwise related to any incident of service, including treatment for "nerves" in March 1981. In rendering the opinion, the examiner should consider the statements of the Veteran regarding the symptoms of his back pain to be competent. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. If it is not possible to provide an opinion without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Danette Mincey Veterans Law Judge Board of Veterans' Appeals J. Costello, Attorney for the Board of Veterans' Appeals 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.