Citation Nr: 22015104 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 17-39 631 DATE: March 16, 2022 ORDER New and material evidence having been received, the claim for depression is reopened. REMANDED Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depressive disorder, is remanded. FINDINGS OF FACT 1. In a December 2011 rating decision, the RO denied the Veteran's claim for service connection for depression; the Veteran did not appeal that decision or submit new and material evidence during the appeal period and that decision is final. 2. Some of the evidence received since the December 2011 final denial is new and relates to unestablished facts necessary to substantiate the claim for service connection for depression. CONCLUSION OF LAW New and material evidence has been received to reopen the claim for an acquired psychiatric disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 1978 to December 1981, with additional active duty for training as well as reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript is of record. Whether new and material evidence has been received to reopen the claim for service connection for depression The Veteran initially filed a claim for service connection for depression in November 2009, which was denied in a December 2011 rating decision. The Veteran did not file an appeal or submit new and material evidence within one year of that decision. Therefore, the December 2011 rating decision became final. See 38 U.S.C. § 7105(c) (2006); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2011). The Veteran subsequently filed a claim for post-traumatic stress disorder (PTSD) and major depressive disorder in February 2014. The RO noted this claim as a request to reopen a previous claim and denied the claim on the merits in the July 2014 rating decision that is the subject of this appeal. The Board has an obligation to make an independent determination of its jurisdiction regardless of findings or actions by the RO. See Barnett v. Brown, 8 Vet. App. 1 (1995), aff'd, 83 F.3d 1380 (Fed. Cir. 1996). Generally, if a claim of entitlement to service connection has been previously denied and that decision has become final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as 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). The threshold to reopen a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The basis of the denial of service connection for depression in the December 2011 rating decision was the lack of a diagnosis in the record and lack of evidence of a nexus to service. Evidence added to the record since the December 2011 rating decision includes an April 2014 VA examination diagnosing major depressive disorder. Additionally, a July 2015 letter from the Veteran's VA psychiatrist Dr. N.H. opines that the Veteran's major depressive disorder is related to her service. This evidence is new, as it was not previously submitted to agency decision makers. It is also material, as it relates to an unestablished fact necessary to establish service connection. Accordingly, the Board finds that new and material evidence has been received and the claim for service connection is reopened. REASONS FOR REMAND Service connection for an acquired psychiatric disorder, to include PTSD and major depressive disorder, is remanded. The Veteran contends that she suffers from PTSD and major depressive disorder from two sexual assaults alleged to have occurred in 1978 during her active duty service. In a July 2015 letter the Veteran's VA psychiatrist Dr. N.H. opined that the Veteran's PTSD and major depressive disorder are connected to the Veteran's alleged in-service sexual trauma; however, Dr. H. provided no supporting rationale for this nexus opinion and no rationale to support a finding that the alleged assaults occurred. An April 2014 VA examination also confirmed diagnoses of PTSD and major depressive disorder; however, the examiner opined that the Veteran's service records do not support a finding that a sexual assault occurred as no in-service markers consistent with a history of military sexual assault could be found in the records. However, the Veteran's representative referenced a military personnel record showing decreased performance in 1979. Upon review, the Board finds that a new VA examination with opinion is needed. Updated treatment records should also be requested. The matter is REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his claimed disabilities. After securing any necessary releases, request any relevant records identified. In addition, obtain updated VA treatment records. If any requested records are unavailable, the Veteran should be notified of such. 2. After the above has been completed to the extent possible, schedule the Veteran for a PTSD examination. Following review of the claims file and examination of the Veteran, the examiner should identify all psychiatric disorders present and opine: (a) Whether there are any markers of sexual assault in the Veteran's service records, to include poor performance noted in 1979. (b) For any psychiatric diagnoses other than PTSD, to include major depressive disorder, whether it is at least as likely as not (approximate balance) that the disorder had its onset in service or is otherwise related to the Veteran's active service. A rationale for all opinions should be provided. 3. If the claim remains denied, issue a supplemental statement of the case. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Jesteadt, 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.