Citation Nr: 22047660 Decision Date: 08/22/22 Archive Date: 08/22/22 DOCKET NO. 18-42 750 DATE: August 22, 2022 ORDER The petition to reopen a claim for service connection for a psychiatric disorder is granted. REMANDED Entitlement to service connection for a psychiatric disorder is remanded. FINDING OF FACT 1. In an unappealed August 2015 rating decision, the Agency of Original Jurisdiction (AOJ) denied the Veteran's claim for entitlement to service connection for a psychiatric disorder; no new and material evidence was received within one year of the notification of that decision. 2. Subsequent to the August 2015 rating decision, evidence was associated with the claims file that is neither cumulative nor redundant of the evidence of record; relates to an unestablished fact; and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for a psychiatric disorder. CONCLUSION OF LAW 1. The August 2015 rating decision that denied entitlement to service connection for a psychiatric disorder is final. 38 U.S.C. §§ 7105, 7252. 2. As evidence received since the August 2015 final rating decision is new and material, the criteria to reopen the claim for service connection for a psychiatric have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1984 to August 1987. He served in the U.S. Army, including service in Korea. The Board thanks the Veteran for his service to our country. The Veteran testified before the undersigned at a Board videoconference hearing in December 2021. A transcript of the hearing is of record. In March 2022, the Veteran submitted a disc containing a copy of his VA claims folder as well as additional lay evidence as to in service events. The petition to reopen a claim for service connection for a psychiatric disorder is granted. The Board notes that the Veteran's appeal has been characterized and developed as a claim to reopen an October 2017 final denial, which the Agency of Original Jurisdiction reopened and denied in a February 2018 rating decision. A rating decision becomes final if no notice of disagreement is filed prior to the expiration of the appeal period. 38 U.S.C. § 7105. If new and material evidence is received prior to the expiration of the appeal period, the claim remains pending. 38 C.F.R. § 3.156(b). "New" evidence means existing evidence not previously submitted to agency decision-makers. "Material" evidence means 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). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110 (2010). In determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. In this case, after two prior adverse decisions, the Veteran submitted new and material evidence prior to the expiration of the respective appeal periods. Within one year of a December 2016 denial of an October 2016 claim and an October 2017 denial of a July 2017 request for reconsideration, later in October 2017, the Veteran's representative informed VA of outstanding SSA disability records related to PTSD and substance abuse. SSA records associated with the record in November 2017 include treatment records from a correctional facility containing diagnoses of bipolar disorder and PTSD by a psychiatrist. The Board finds that the additional evidence is neither cumulative nor redundant, and it is material since the evidence raises the possibility of substantiating the claim of service connection for a psychiatric disorder. See 38 C.F.R. § 3.156(a). Accordingly, the October 2016 claim remains pending. As the October 2016 claim remains pending, the Board will address the prior denial in an August 2015 rating decision. As the Veteran did not appeal the denial of service connection and no new and material evidence was received within one year of the denial, the August 2015 rating decision is final. Claims are to be reopened when new and material evidence is submitted. 38 U.S.C. § 5108. As identified above, new and material evidence was received. Since new and material evidence has been presented for the claim, it is reopened. REASONS FOR REMAND Entitlement to service connection for a psychiatric disorder is remanded. A remand is necessary to associate federal records with the record. A July 1987 inpatient treatment record cover sheet notes that the Veteran was admitted for psychiatric treatment, during which he was diagnosed with adjustment disorder with mixed emotional features. However, there are no in patient treatment records associated with his claims file. A remand is additionally necessary for an addendum opinion. In a May 2018 addendum opinion, a VA clinician stated that recent VA mental health records indicated a diagnosis of major depressive disorder; the Board notes a January 2018 diagnosis of major depressive disorder by a VA psychiatrist. The clinician concluded that his current mental health diagnoses are less likely than not related to adjustment disorder diagnosed in service as that diagnosis was situational and transitory and most likely ended after he discharged from service. However, the examiner did not address whether the major depressive disorder is otherwise related to service, including the Veteran's reported stressors. The Veteran is advised that his former spouse's Dependent Medical Folder has not been associated with the record and that he may submit that at this time. To the extent that the Veteran relayed witnessing servicemembers being killed in the DMZ, the Board observes that this is inconsistent with his testimony and finds that such a statement is not credible. The Board otherwise makes no credibility determinations at this time. The matters are REMANDED for the following action: 1. Please secure for the record copies of complete updated clinical records (any not already of record) of all VA and non-VA treatment the Veteran has received for the disabilities on appeal. Please ask the Veteran to provide the releases necessary for VA to secure private treatment records. 2. Specifically, please secure for the record copies of clinical in-patient psychiatric treatment in July 1987 (see July 15, 1987 in patient treatment record cover sheet identifying the Evac Hospital in Korea). Please document all requests for information as well as all responses in the claims file. 3. After the action requested in paragraphs 1 and 2 are complete, please refer the claim to an appropriate clinician for an addendum opinion as to the nature and etiology of the psychiatric disorder. The Veteran's claims-file must be made available to and reviewed by the clinician. The clinician is requested to respond to the following: (a.) Please identify by diagnosis all psychiatric disorders current during the period on appeal, to include anxiety disorder and depressive disorder. If the clinician concludes that the Veteran did not have bipolar disorder current during the period on appeal, please explain, addressing a DSM-IV diagnosis rendered by a psychiatrist at a correctional facility. See "Mental Impairment Questionnaire" dated 11/17/16, pages 9-10 of 155 of Medical Treatment Records Furnished by SSA received on 11/8/17. For each disorder (except PTSD) identified: (b.) Is the psychiatric disorder related to reportedly seeing soldiers who had been injured in the DMZ when he was feeding the troops? (c.) Is the psychiatric disorder related to reported disparate treatment on the basis of race or a reported miscarriage related to such treatment? (d.) Is the psychiatric disorder related to in service marital problems? (e.) Is the psychiatric disorder otherwise related to service? (f.) In responding to the above, the clinician is requested to explain what types of symptoms would be caused by the reported in service events and whether the Veteran's symptoms align with how the psychiatric disorder is known to develop. The clinician is requested to consider and address as appropriate the following: The Veteran's lay evidence as to in service stressors. See VAF 21-0781 received 1/20/2015, 10/22/14 mental health treatment plan note, 12/22/16 and 1/12/18 PTSD examinations, and testimony in 12/7/21 "Hearing Related" file. A statement from L.H., who served with the Veteran in Korea. See VAF 21-4138 received 3/7/22. A statement from C.S.H., the Veteran's former spouse. See Buddy/Lay Statement received 3/7/22. A July 14, 1987 request for mental health consultation noting that the Veteran's performance had been average but was now poor and that his behavior pattern was good but that he was less able to cope with others, unable to work with peers, and could not take direction from superiors as personal problems developed. See Military Personnel Record received 6/30/15 pages 12-14 of 79. The Board finds that statements of witnessing servicemembers being killed in the DMZ are not credible. Otherwise, SOLELY for the purposes of rendering the requested opinion, the clinician should accept as fact lay evidence of in service events. ONLY IF the clinician determines that an examination is necessary for the addendum opinion, the Veteran should be scheduled for an appropriate VA examination to determine the nature and etiology of the disorder. The clinician must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. The clinician should take into consideration that the Veteran is competent to report in service and post-service symptom experiences; other witnesses are competent to report observable symptoms. If the clinician cannot provide an opinion without resorting to speculation, the clinician should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Vashaw, 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.