Citation Nr: 1318455 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 12-08 321 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Whether new and material evidence has been received to reopen the Veteran's claim of entitlement to service connection for posttraumatic stress disorder (PTSD) and, if so, whether service connection is warranted. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The Veteran is the appellant in the instant appeal. He had active service from August 1975 to July 1977 and from June 1979 to July 1980. This matter came before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision of the Roanoke, Virginia, Regional Office (RO) which determined that new and material evidence had not been received to reopen the Veteran's claim of entitlement to service connection for PTSD. In December 2012, the RO determined that new and material evidence had been received to reopen the Veteran's claim of entitlement to service connection for PTSD and denied the claim on the merits. In April 2013, the Board received a Motion to Advance on the Docket. In May 2013, the Board granted the motion. The Board has reviewed both the physical claims file and the "Virtual VA" file so as to insure a total review of the evidence. As to the issue of whether new and material evidence has been received to reopen the Veteran's claim of entitlement to service connection for PTSD, the Board is required to consider the question of whether new and material evidence has been received to reopen the Veteran's claim without regard to the RO's determination in order to establish the Board's jurisdiction to address the underlying claim and to adjudicate the claim on a de novo basis. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Board advanced this appeal on the docket (AOD) pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of service connection for an acquired psychiatric disorder to include PTSD and a depressive disorder is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. The Department of Veterans Affairs (VA) will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. In March 2009, the RO denied service connection for PTSD. The Veteran was informed in writing of the adverse determination and his appellate rights in March 2009. He did not submit a notice of disagreement (NOD) with the decision. 2. The documentation submitted since the March 2009 rating decision denying service connection for PTSD is new and material and raises a reasonable possibility of substantiating the Veteran's claim. CONCLUSION OF LAW The March 2009 rating decision denying service connection for PTSD is final. New and material evidence sufficient to reopen the Veteran's claim of entitlement to service connection for PTSD has been presented. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108, 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326(a), 20.1105 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record that: (1) is necessary to substantiate the claim; (2) VA will seek to provide; and (3) the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (1) (2012). In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable decision on the claim for VA benefits. With respect to an application to reopen a previously denied claim of service connection, the Court has held that VA must notify a claimant of both the evidence and information that is necessary to reopen a previously denied claim and that which is necessary to establish entitlement to service connection. Kent v. Nicholson, 20 Vet. App. 1 (2006). In the decision below, the Board reopens and remands the Veteran's claim of entitlement to service connection for PTSD. Therefore, no discussion of VA's duty to notify and to assist is necessary as to that issue. Application to Reopen Generally, absent the filing of a NOD within one year of the date of mailing of the notification of the initial review and determination of the Veteran's claim and the subsequent filing of a timely substantive appeal, a rating determination is final and is not subject to revision upon the same factual basis except upon a finding of clear and unmistakable error. 38 U.S.C.A. §§ 5108, 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 20.200, 20.300, 20.1103 (2012). The provisions of 38 C.F.R. § 3.156 (2012) direct, in pertinent part, that: (a) General. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. 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. (b) Pending claim. 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 (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of § 20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. The provisions of 38 C.F.R. § 3.156(a) creates a low threshold, with the phrase "raises a reasonable possibility of substantiating the claim" enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court has elaborated on what constitutes "new and material evidence." New evidence is not that which is cumulative of other evidence already present in the record. In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans v. Brown, 9 Vet. App 273, 283 (1996). See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). In making the determination of materiality, "the Board is precluded from considering the credibility of the newly submitted evidence; strictly for purposes of determining whether new and material evidence has been presented, the Board must presume that the newly submitted evidence is credible." Duran v. Brown, 7 Vet. App. 216, 220 (1994) (citing Justus v. Principi, 3 Vet. App. 510, 513 (1992)). In applying 38 C.F.R. § 3.156(b), the Court has clarified that: When a claim is filed and the RO renders an adverse decision, the claimant has the right to disagree with that decision by filing an NOD within one year from the date of mailing of notice of the decision. 38 U.S.C. § 7105(b)(1). However, "[n]ew and material evidence received prior to the expiration of the appeal period ... will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period." Muehl v. West, 13 Vet. App. 159, 161 (1999); see also Bond v. Shinseki, 659 F.3d 1362, 1368-69 (Fed.Cir.2011). Where documents are within VA's control and could reasonably be expected to be a part of the record, such documents are, in contemplation of law, before VA and should be included in the record. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Prior RO Decision In March 2009, the RO denied service connection for PTSD "since this condition neither incurred in nor was caused by service." The Veteran was informed in writing of the adverse determination and his appellate rights in March 2009. He did not submit a NOD with the decision. The evidence upon which the RO formulated its decision may be briefly summarized: The Veteran's service treatment records note that he was seen for psychiatric complaints. A May 1980 psychiatric evaluation states that the Veteran complained of situational stress and depression. Diagnoses of an anxiety neurosis and a passive aggressive personality disorder were advanced. A January 2009 VA psychiatric evaluation conveys that the Veteran was concerned over issues with the Internal Revenue Service. An assessment of "depression [not otherwise specified] vs. [depression secondary to] medical problem or substance alcohol abuse" was advanced. New and material evidence pertaining to the issue of service connection for PTSD loss was not received by VA or constructively in its possession within one year of the March 2009 decision. Therefore, it is final. 38 C.F.R. § 3.156(b) (2012). New and Material Evidence The additional documentation received since the March 2009 decision consists of the copies of the Veteran's service personnel records, VA examination and clinical documentation, and written statements from the Veteran, his ex-wife, and F. B. In his June 2011 Statement in Support of Claim for Service Connection for Posttraumatic Stress Disorder (PTSD) (VA Form 21-0781), the Veteran advanced that his inservice stressful experiences included an incident in which he witnessed a fellow serviceman catch his hand in the running fan of the engine on which he was working and lose approximately three fingers in the accident. He stated that he suffered from nightmares and flashbacks of the incident. An August 2011 VA mental health clinic evaluation noted the Veteran's subjective history of witnessing a fellow serviceman's traumatic hand injury. Diagnostic impressions of "PTSD, chronic, military-accident-related;" "depression [not otherwise specified];" and "[major depressive disorder] vs. [depression secondary to] substance alcohol abuse" were advanced. The Board observes that the Veteran's statements as to his claimed inservice stressful experiences and the August 2011 VA mental health clinic evaluation are of such significance that they raise a reasonable possibility of substantiating the Veteran's claim for service connection when considered with the previous evidence of record reflecting inservice psychiatric symptoms. As new and material evidence has been received, the Veteran's claim of entitlement to service connection for PTSD is reopened. ORDER The Veteran's application to reopen his claim of entitlement to service connection for PTSD is granted. REMAND In light of its reopening above, the Veteran's claim for service connection for PTSD is to be determined following a de novo review of the entire record. In addition, the Board acknowledges that the Veteran has been diagnosed with multiple psychiatric disorders. The United States Court of Appeals for Veterans Claims (Court) has held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Therefore, it is acknowledged that such description includes a claim of entitlement to service connection for all currently diagnosed acquired psychiatric disorders. In reviewing the VA psychiatric evaluations of record, the Board observes that they are in apparent conflict as to whether the Veteran has an acquired psychiatric disorder including PTSD that is related to active service. For instance, the August 2011 VA mental health clinic evaluation notes the Veteran's claimed inservice stressors and advances diagnostic impressions of "PTSD, chronic, military-accident -related;" "depression [not otherwise specified];" and "[major depressive disorder] vs. [depression secondary to] substance alcohol abuse." However, the report of a September 2011 VA examination for compensation purposes states that the Veteran was diagnosed with a substance induced mood disorder. The examiner commented that the Veteran "continues to fail to give significant symptoms overall of major depressive disorder or PTSD." VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Floyd v. Brown, 9 Vet. App. 88, 93 (1996); Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Given the apparent conflict in the VA psychiatric evaluations of record, the Board finds that further evaluation would be helpful in resolving the issues raised by the instant appeal. A March 2013 notation in the record states that the Veteran had been in the Hampton, Virginia, VA Medical Center's (VAMC) Domiciliary for over a year. Clinical documentation associated with such treatment is not of record. VA clinical documentation dated after January 2012 is not of record. VA should obtain all relevant VA and private clinical documentation which could potentially be helpful in resolving the Veteran's claim. Murphy v. Derwinski, 1 Vet. App. 78, 81 82 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he provide information as to all treatment of his claimed PTSD after January2012, including the names and addresses of all health care providers whose records have not already been provided to VA. Upon receipt of the requested information and the appropriate releases, the RO should contact all identified health care providers and request that they forward copies of all available clinical documentation pertaining to treatment of the Veteran, not already of record, for incorporation into the record. If identified records are not ultimately obtained, the appellant should be notified pursuant to 38 C.F.R. § 3.159(e) (2012). 2. Associate with the record any VA clinical documentation pertaining to the treatment of the appellant not already of record, including that provided at the Hampton, Virginia, VAMC's Domiciliary. 3. Then schedule the Veteran for a VA psychiatric examination for compensation purposes in order to assist in determining the current nature and etiology of his acquired psychiatric disability. All indicated tests and studies should be accomplished and the findings then reported in detail. If a diagnosis of PTSD is advanced, the examiner should identify the specific stressor or stressors supporting such a diagnosis. The examiner should advance an opinion as to whether it is as likely as not (i.e., probability of 50 percent or more) that any identified acquired psychiatric disorder had its onset during active service; is related to the Veteran's inservice psychiatric complaints; or otherwise originated during active service. All relevant medical records, including those in the claims folder, should be made available to the examiner for review of pertinent documents therein. The examination report should specifically state that such a review was conducted. A rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. However, if the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 4. After the requested examination has been completed, the examination report should be reviewed to ensure that it is in compliance with the directives of this Remand. The report should be returned to the examiner if it is deficient in any manner. 5. Thereafter, adjudicate the issue of service connection for an acquired psychiatric disorder to include PTSD and a depressive disorder on a de novo basis. If the benefit sought on appeal remains denied, the Veteran and his accredited representative should be provided a supplemental statement of the case (SSOC) which addresses all relevant actions taken on the claim, to include a summary of the evidence and applicable law and regulations considered, since the issuance of the last SSOC. An appropriate period of time should be allowed for response before the case is returned to the Board. 6. Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MATTHEW D. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs