Citation Nr: 22045441 Decision Date: 08/10/22 Archive Date: 08/10/22 DOCKET NO. 19-10 749 DATE: August 10, 2022 ORDER New and material evidence having been received; the claim for entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), is reopened. REMANDED Entitlement to service connection for an acquired psychiatric disability, to include PTSD, is remanded. FINDINGS OF FACT 1. A December 2013 Board decision denied the Veteran's claim for entitlement to service connection for an acquired psychiatric disability; the Veteran has not submitted a motion for reconsideration of the December 2013 Board decision and did not timely appeal that decision. 2. Evidence received since the December 2013 Board decision is new and raises a reasonable possibility of substantiating the Veteran's claim for entitlement to service connection for an acquired psychiatric disability. CONCLUSIONS OF LAW 1. The December 2013 Board decision is final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. 2. New and material evidence having been received; the claim for entitlement to service connection for an acquired psychiatric disability is reopened. 38 U.S.C. §§ 1110, 5108; 38 C.F.R. §§ 3.156 (a), 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 2001 to March 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a November 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2022, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. New and Material Evidence In the absence of clear and unmistakable error, a Board decision is final unless the Chairman of the Board orders reconsideration. See 38 U.S.C. §§ 7103 (a), 7104; 38 C.F.R. § 20.1100 (a). If a claim for entitlement to service connection has been previously denied and that decision became 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. The question of whether new and material evidence has been received to reopen a previously denied claim must be addressed by the Board in the first instance because the issue goes to the Board's jurisdiction to reach and adjudicate the underlying claim on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and further analysis beyond consideration of whether the evidence received is new and material is neither required nor permitted. Barnett, 83 F.3d at 1384. New evidence is existing evidence not previously considered by VA. Material evidence is existing 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 prior 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). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). In this case, the Board denied entitlement to service connection for an acquired psychiatric disability in a December 2013 decision because there was no evidence that the Veteran's acquired psychiatric disability, which clearly and unmistakably preexisted service, was aggravated beyond its natural progression due to an in-service event. Thus, service connection for an acquired psychiatric disability could not be established. The Veteran did not appeal the decision to the Court, there has been no allegation or finding of clear and unmistakable error in the decision, and the Chairman of the Board has not ordered reconsideration of the decision. Therefore, the decision is final. See 38 U.S.C. §§ 7103 (a), 7104; 38 C.F.R. § 20.1100 (a). Evidence associated with the record since the December 2013 Board decision includes a June 2022 evaluation from the Veteran's therapist. After an interview with the Veteran and review of the claims file, the therapist opined that the in-service incident with a drill sergeant compounded the Veteran's psychiatric traumas and symptoms that were already present before service. This evidence is new in that it was not previously considered by VA. It is also material because it provides evidence that relates to an unestablished fact necessary to substantiate the claim. As such, the therapist evaluation raises a reasonable possibility of substantiating the claim. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Accordingly, the Board finds that new and material evidence has been received to reopen the Veteran's claim for entitlement to service connection for an acquired psychiatric disability, and the claim is reopened. 38 C.F.R. § 3.156 (a). REASONS FOR REMAND The Veteran asserts that her psychiatric disability was aggravated by her service. The Veteran was provided a VA examination as to her psychiatric disabilities in November 2012. VA has a duty to ensure that any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A medical opinion is adequate where it is based upon consideration of the full medical history and describes a disability in sufficient detail so that the Board's evaluation will be fully informed. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Here, the Board finds the November 2012 VA examination relating to the Veteran's psychiatric disabilities is inadequate for decision-making purposes because the VA examiner did not use the proper legal standard when addressing the issue of entitlement to service connection for a preexisting disability. The November 2012 VA examiner stated that the Veteran's 44 days of military service did not significantly change or alter her mental condition beyond its natural progression. The correct legal standard to apply is whether there is clear and unmistakable evidence that the preexisting disability did not undergo a worsening in service beyond that which would be due to the natural progression of the disability. This distinction is imperative, because "clear and unmistakable evidence" is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." Cotant v. Principi, 17 Vet. App. 116, 131 (2003), (citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993)). As the examination is not adequate for decision-making purposes, the Veteran must be provided a new VA examination to address whether any of the Veteran's various psychiatric disabilities are related to service. The matter is REMANDED for the following action: Schedule the Veteran for a VA examination to determine the nature and etiology of her acquired psychiatric disabilities. Identify all acquired psychiatric disabilities present during the pendency of the appeal and determine whether each identified psychiatric disability is a defect, disease, or the result of injury. Does the Veteran have acquired psychiatric disabilities that clearly and unmistakably existed prior to her service? If so, were the pre-existing acquired psychiatric disabilities clearly and unmistakably NOT aggravated beyond natural progression during service? For any diagnosed acquired psychiatric disability NOT found to clearly and unmistakably exist prior to the Veteran's service, the examiner should provide an opinion as to whether the disability had its onset during the Veteran's service or is otherwise related to such service. (Continued on the next page) For any identified defect, did the Veteran develop superimposed pathology as a result of service? R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. St. Laurent, 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.