Citation Nr: 22012135 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 18-54 075 DATE: March 2, 2022 ORDER The application to reopen the claim for service connection for IgG3 deficiency is denied. The application to reopen the claim for service connection for a psychiatric disorder is granted. Service connection for a psychiatric disorder is granted. FINDINGS OF FACT 1. A September 2013 rating decision denied a claim for service connection for IgG3 deficiency. The evidence added to the record subsequent to the September 2013 decision is cumulative of the evidence previously of record or does not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim. 2. A September 2013 rating decision denied a claim for service connection for a psychiatric disorder. The evidence received subsequent to the appeal period includes evidence that is not cumulative or redundant of the evidence previously of record and that relates to unestablished facts necessary to substantiate the claim. 3. An acquired psychiatric disorder is related to service. CONCLUSIONS OF LAW 1. New and material evidence to reopen the claim of entitlement to service connection for IgG3 deficiency has not been presented. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. New and material evidence to reopen the claim of entitlement to service connection for a psychiatric disorder has been presented. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1984 to September 1998. The Veteran presented testimony at a personal hearing before the undersigned Veterans Law Judge in August 2021. A transcript is of record. Application to Reopen Generally, a claim that has been denied in an unappealed decision may not be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c) (2012). An 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 decisionmakers. 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). Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). The United States Court of Appeals for Veterans Claims (Court) has 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." The Court emphasized that 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). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). For the purpose of 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); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). IgG3 Deficiency A claim for service connection for an IgG3 deficiency was denied in a September 2013 rating decision. The claim was denied because although the record showed diagnosis of IgG3 deficiency, the record did not show that the deficiency was present in service, was etiologically related to service, or was secondary to a service-connected disability. The Veteran was notified of the decision and did not appeal within the appeal period or submit pertinent evidence within the appeal period. The evidence added to the record after the September 2013 rating decision includes VA treatment records, a January 2019 VA medical statement, and statements and testimony from the Veteran. The medical records and statements and testimony are cumulative of previously considered evidence, which included the Veteran's histories of a relationship between the service-connected sinusitis and the IgG3 deficiency. The Board notes that the January 2019 VA medical statement reports that there is a direct connection between IgG deficiency and recurrent infections, including in the sinuses, and that the Veteran contends that the in-service sinus infections were symptoms of IgG3 deficiency. The January 2019 medical statement does not report the finding that the Veteran's in-service sinus infections were symptoms of IgG3 deficiency, however, and the previously considered evidence included a June 2013 finding that the Veteran's nasal symptoms were likely due to allergic rhinitis and IgG deficiency. The previous medical records also document histories and findings that the IgG3 deficiency onset in 2004 due to spinal meningitis. The Board finds the January 2019 medical finding of a "direct connection" between IgG deficiency and recurrent infections, with comment solely on the recent interrelationship of the two and not historic relationship, does not suggest a relationship between service and the IgG3 deficiency. In sum, the Board finds the evidence submitted since the last unappealed denial is cumulative of the evidence previously of record or does not relate to an unestablished fact necessary to substantiate the claim and raise a possibility of substantiating the claim. Although the threshold for reopening a claim is low, it is a threshold, nonetheless. Shade, 24 Vet. App. at 110. Thus, reopening of the claim is not warranted. Psychiatric Disorder A claim for service connection for a psychiatric disorder was denied in a September 2013 rating decision. The claim was denied because although the record showed a diagnosis of psychiatric disorder which had been linked to service, the RO determined the more credible evidence did not support such a link. The Veteran was notified of the decision and did not appeal within the appeal period or submit pertinent evidence within the appeal period. In connection with the Veteran's claim to reopen, evidence has been added to the record, which included additional stressor information from the Veteran and a corroborative statement from the Veteran's mother. The Board finds that new and material evidence has been received sufficient to reopen the previously denied claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Service Connection April and May 2000 VA treatment record reveals the Veteran's history of depression, for which she was prescribed Paxil, and multiple stressors beginning with her separation from service. An August 2002 VA treatment record reveals the Veteran's history of in-service harassment and abuse and depression since approximately when she separated from service, and the record reveals the finding that the Veteran would benefit from treatment for the symptoms that affect her from her in-service experiences. An August 2013 VA examination record reveals diagnoses of posttraumatic stress disorder (PTSD) due to military sexual trauma and depressive disorder and trichotillomania due to PTSD. The reported stressors of harassment and abuse are consistent with those reported in 2002. Current VA treatment records reveal the same diagnoses. After consideration of the record, the Board finds service connection is warranted for an acquired psychiatric disorder. The record indicates the presence of depression prior to 2000, histories of symptoms since service, consistent histories of in-service stressors that are competent and credible, and a medical diagnosis linked to service. The Board finds the evidence is near equipoise as to whether an acquired psychiatric disorder is related to service. In such circumstances, service connection is warranted. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Snyder, 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.