Citation Nr: 22014129 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 17-19 612 DATE: March 11, 2022 ORDER The appeal to reopen the claim for entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD), is granted. REMAND Entitlement to service connection for a psychiatric disability, to include PTSD, is remanded. FINDING OF FACT The evidence associated with the claims file since the June 2011 final denial includes evidence that relates to an unestablished fact necessary to substantiate the claim, is not cumulative or redundant of the evidence previously of record, and is sufficient to raise a reasonable possibility of substantiating the claim for service connection for a psychiatric disability, to include PTSD. CONCLUSION OF LAW The criteria for reopening of the claim for entitlement to service connection for a psychiatric disability, to include PTSD, are met. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 19.20, 19.21, 19.52(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1966 to April 1968. He unfortunately passed away in May 2013. The Appellant is the Veteran's surviving spouse, and she has been substituted for the Veteran for purposes of adjudicating this claim to completion. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 Rating Decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. A Board hearing was conducted at the RO in Louisville, Kentucky. A transcript of this hearing is contained within the electronic claims file. In a February 2020 Decision, the Board denied reopening this claim. The Appellant appealed that determination to the United States Court of Appeals for Veterans Claims (CAVC). In her November 2020 Brief to the CAVC, she argued that the Board committed two errors. First, she contends that the Board failed to assess properly under the new-and-material-evidence standard her and her daughter'sO.S.'shearing testimony. Second, she avers that the Board failed to assess the possible applicability of 38 C.F.R. § 3.156(b), obviating the need for new and material evidence altogether. In a May 2021 Memorandum Decision, the CAVC vacated the portion of the Board's February 2020 Decision that declined to reopen this appeal only on the ground that it had failed to assess properly the Appellant and O.S.'s hearing testimony. It specifically declined to address the § 3.156(b) argument. See Quirin v. Shinseki, 22 Vet. App. 390, 395 (2009) (noting that "the Court will not ordinarily consider additional allegations of error that have been rendered moot by the Court's opinion or that would require the Court to issue an advisory opinion"). VA may reopen a claim that previously has been denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers, and material evidence is 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 of record at the time of the last 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). VA is required to review for newness and materiality only the evidence submitted by a claimant since the last final disallowance of the claim on any basis, whether a decision on the underlying merits or a petition to reopen. Evans v. Brown, 9 Vet. App. 273, 283 (1996). 38 C.F.R. § 3.156(a) must be read as creating a low threshold, which suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim. Shade v. Shinseki, 24 Vet. App. 110, 11718 (2010). Furthermore, evidence as to each previously unproven element of a claim is not required for the claim to be reopened. Id. at 121. Lay testimony "should not be rejected as not being material solely because [a claimant] is a lay person offering observations as to [a particular] condition...." Id. at 122 (citing Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009)). In determining whether the evidence presented or secured since the prior final disallowance of the claim is new and material, the credibility of the evidence generally is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). "Justus does not require the Secretary to consider the patently incredible to be credible. Moreover, any presumption of credibility required by Justus... is inapplicable... when the claim is adjudicated de novo by evaluating both the weight and credibility of all the evidence of record." Duran v. Brown, 7 Vet. App. 216, 22021 (1994). If a veteran's claim does not have the same factual basis as a prior claim, then the veteran is not seeking to reopen his prior claim but rather is opening a new claim. Boggs v. Peake, 520 F.3d 1330, 1334 (Fed. Cir. 2008). "[T]he 'factual basis' of a veteran's claim for service connection is the veteran's underlying disease or injury, rather than the symptoms of that disease or injury." Id. Thus, it naturally follows that "claims based upon distinctly and properly diagnosed diseases or injuries cannot be considered the same claim." Id. at 1335 (footnote omitted). Conversely, a misdiagnosis cannot serve as the basis for a new claim. Id. at 1336. A new etiological theory of entitlement, on its own, cannot be the basis to reopen a claim; however, if VA receives evidence supporting a new theory of entitlement that constitutes new and material evidence, then it must reopen the claim. Id. at 133637. To the latter point, the "presentation of new arguments based on evidence already of record at the time of the previous decision does not constitute the presentation of new evidence." Untalan v. Nicholson, 20 Vet. App. 467, 470 (2006) (citing 38 U.S.C. § 5108). Regardless of any RO determinations that new and material evidence has been submitted to reopen a previously denied claim, the Board still must review whether new and material evidence has been submitted. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). At the time of the June 2011 final denial, the evidence of record consisted of service treatment records (STRs), military personnel records (MPRs), VA medical center (VAMC) records from February 2000 through June 2011, and a May 2011 VA psychiatric examination. An October 2010 VAMC entry noted a diagnosis of mood disorder NOS and alcohol abuse. A May 2011 note indicates that the Veteran suffers headaches from his Omeprazole, a medication for gastrointestinal conditions. In pertinent part, the May 2011 examiner noted that the Veteran has trouble sleeping, bad dreams multiple days a week, flashbacks of his Vietnam service, and hypervigilance; she also noted that the Veteran's mood was mildly anxious. He obtained each night around four hours of sleep and sometimes feels sluggish. His intrusive thoughts and nightmares occurred twothree times per week. The Veteran also reported being very quick tempered. The VA examiner diagnosed the Veteran only with alcohol dependence sustained in full remission, which, she opined, was not caused by service. The evidence received since the June 2011 final denial consists of lay statements from the Appellant, testimony from her hearing, and VAMC records that previously were not associated with the claims file at the time of the June 2011 final denial. In December 2012, it was noted that the Veteran endorsed depression regarding waiting to be called for a liver transplant. That same month, an official diagnosis of depression was rendered. In her January 2017 VA Form 9, the Appellant stated that she feels the Veteran "suffered from anxiety and depression for years related to his time of service. He would have nightmares [and] could not watch certain things or do certain things because of this. He would get migraines periodically due to the anxiety and depression." At the November 2019 hearing, the Appellant and the Veteran's daughter testified regarding the Veteran's overall behavior, attitude, and the activities in which the Veteran liked to partake. See June 1, 2021, Hr'g Tr. (Tr.) at 814 (discussing that the Veteran "moped around the house," had good hygiene, "had lots of friends," had no panic attacks, no suicidal or homicidal ideation, was no longer as bubbly or outgoing as he used to be, did not experience problems with crowds, and experienced problems with loud noises) In view of the CAVC's Memorandum Decision, the Board finds that the Appellant's and O.S.'s testimony and written statements in conjunction with the updated VAMC records provide a basis to reopen the claim. As noted above, the newly associated VAMC records confirm that the Veteran was diagnosed with depression. As a previously unestablished element of the Veteran's claim, the Board finds that reopening is warranted. See Shade, 24 Vet. App. at 121; 38 C.F.R. § 3.156(a). REASONS FOR REMAND When the Board reopens a claim after the RO has denied reopening that same claim, the matter generally must be returned to the RO for consideration of the merits. Hickson v. Shinseki, 23 Vet. App. 394, 399 (2010) (holding that the "RO should, in the first instance, consider that new evidence and decide the matter so as to preserve for that claimant the one review on appeal as provided by [38 U.S.C. §] 7104."). The Board should proceed on the merits only where it has secured a waiver from the claimant or it determines that proceeding would not prejudice him/her. Id. at 399400. While the AOJ did reopen the claim, it has not been able to consider the any of the post-decisional evidenceboth medical lay. Additionally, the Board finds that an updated opinion is needed. The VAMC entries verify that the Veteran was diagnosed with depression, he had service in Vietnam, and his reports that his psychiatric symptoms (intrusive flashbacks, nightmares, etc.) stem from that service at least indicate that the two could be related. Thus, VA has a duty to obtain a retrospective medical opinion. See 38 U.S.C. § 5103A(d); Chotta v. Peake, 22 Vet. App. 80, 85 (2008) (holding that obtaining a retrospective medical opinion may be necessary to make a decision on a claim); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); 38 C.F.R. § 3.159(c)(4). The matters are REMANDED for the following action: 1. Obtain a retrospective addendum medical opinion to the May 2011 VA examination. The opinion shall answer the following: (a.) During his lifetime, did the Veteran have any diagnosed psychiatric disability? In answering this question, the examiner specifically must reference the VA medical records, which note a diagnosis of depression and alcohol abuse. (b.) Is it at least as likely as not (a fifty percent probability or greater) that any psychiatric condition diagnosed occurred in, or is the result of, his period of active duty service, to include service in Vietnam? Note: The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. A detailed rationale supporting the examiner's opinions must be provided. The lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 2. Conduct any other development deemed necessary and then readjudicate the Appellant's claim. The Appellant has the right to submit additional evidence and argument on the matter that the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded for additional development or other appropriate action by the Board or the CAVC must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Trevor T. Bernard, 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.