Citation Nr: 1328314 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 12-17 740 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD) and, if so, whether the claim should be allowed. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Matthew Hill, Attorney ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran had active service from January 1966 to May 1969. He served two month overseas. He was awarded the Vietnam Campaign Medal, the Purple Heart, the Vietnam Service Medal with two stars, and the Marksman Badge (M-14 rifle). His military occupational specialty was a rifleman. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which also granted service connection for a residual shrapnel wound scar of the left calf and for a residual shrapnel wound scar of the right calf, below the knee, and each was assigned an initial noncompensable disability rating, effective April 8, 2009 (date of receipt of the application to reopen those claims). The Veteran has no other service-connected disabilities. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal, except as otherwise stated herein. In correspondence from the Veteran's attorney in May 2013 a prior request for a videoconference was withdrawn and all issues other than those stated on the title page were withdrawn from appellate consideration. As will be discussed further herein, the Veteran's claims for service connection for a psychiatric disorder and PTSD were previously denied in a final October 2007 rating decision. As the Board herein finds that new and material sufficient to reopen such claim has been received, the Board has characterized the merits of the issue on appeal as entitlement to service connection for an acquired psychiatric disorder and recognizes that such includes all currently diagnosed psychiatric disorders. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding 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). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). Accordingly, the reopened issue of entitlement to service connection for an acquired psychiatric disorder, including PTSD, as well as the claim for TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. In a final decision issued in October 2007, of which the Veteran was notified but did not appeal, the RO denied service connection for an acquired psychiatric disorder, to include PTSD. 2. Evidence added to the record since the final October 2007 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran's claim for service connection for a psychiatric disorder and PTSD. CONCLUSIONS OF LAW 1. The October 2007 rating decision that denied service connection for an acquired psychiatric disorder, including PTSD, is final. 38 U.S.C.A. § 7105(c) (West 1991) [(West 2002)]; 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2007) [(2012)]. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for a psychiatric disorder and PTSD. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As the Board's decision to reopen the Veteran's claim of entitlement to service connection for a psychiatric disorder and PTSD is completely favorable, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations. However, consideration of the merits of his claim of entitlement to service connection for an acquired psychiatric disorder and PTSD is deferred pending additional development consistent with the VCAA. Principles of Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in- service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. To establish entitlement to service connection for PTSD the evidence must satisfy three basic elements. There must be 1) medical evidence diagnosing PTSD; 2) a link, established by medical evidence, between current symptoms of PTSD and an in-service stressor; and 3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(1). See also 38 U.S.C.A. § 1154(b). Recent amendments to the regulation have eliminated the requirement of evidence corroborating the occurrence of the claimed in-service stressor in claims in which PTSD was diagnosed in service and in some claims in which the claimed stressor is related to the claimant's fear of hostile military or terrorist activity. Specifically, 38 C.F.R. § 3.304(f) was amended during the course of the Veteran's appeal to read that if a stressor claimed by a Veteran is related to his fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. "Fear of hostile military or terrorist activity" means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. Background The STRs show that the September 1965 service entrance examination was negative and there were no pertinent complaints in an adjunct medical history questionnaire. The Veteran sustained penetrating shrapnel wounds of both legs in Vietnam in February 1968 from hostile forces mortar fragments from a booby trap. Following surgery, he underwent delayed primary closure of the wounds. After being hospitalized in Key West, Florida, he was discharged from hospitalization in April 1968. The May 1969 service separation examination was negative. Analysis Historically, the Veteran's claim of entitlement to service connection for a psychiatric disorder, to include PTSD, was initially denied in October 2007 and he was notified of that denial by letter that month but did not appeal that decision. The claim was denied because he had failed to attend a VA examination. In sum, in the absence of a current disability, evidence of incurrence or aggravation of a disease or injury in service, and evidence of a nexus between the in-service injury or disease and the current disability, service connection for a psychiatric disorder, including PTSD, was denied. Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of an RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C.A. § 7105(b) and (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, and 20.302(a). In October 2007, the Veteran was advised of the decision and his appellate rights. However, no further communication regarding his claim of entitlement to service connection for a psychiatric disorder, including PTSD, was received until April 2009, when VA received his application to reopen such claim. Therefore, the October 2007 rating decision is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no evidence pertaining to the Veteran's claim for service connection for a psychiatric disorder, including PTSD, was received prior to the expiration of the appeal period stemming from the October 2007 rating decision. See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). Generally, a claim which has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 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. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Here, in the February 2010 rating decision which is appealed, the RO determined that new and material evidence had been submitted to reopen the claim. However, irrespective of whether the RO determined there was new and material evidence, so, too, must the Board make this threshold preliminary determination, before proceeding further, because it affects the Board's jurisdiction to adjudicate the claim on its underlying merits, i.e., on a de novo basis. Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); and McGinnis v. Brown, 4 Vet. App. 239 (1993) (Board reopening is unlawful when new and material evidence has not been submitted). See, too, VAOPGCPREC 05-92 (March 4, 1992). Since the October 2007 rating decision, the Veteran underwent a VA psychiatric examination in February 2012 and the examiner opined that the Veteran did not have PTSD. On the other, hand, there are VA outpatient treatment (VAOPT) records showing that the Veteran has multiple psychiatric diagnoses, for which he has received treatment, and has also received treatment for PTSD. Further, there is also on file a report of a January 2013 psychiatric examination by Dr. E. T., a psychiatrist, which concludes that the Veteran has PTSD due to inservice combat. The Board notes that when at that time of the past denial there is insufficient evidence as to multiple elements needed for claim substantiation, only evidence pertaining to a single element need be received for the limited purpose of reopening a claim. Here, there are now various psychiatric diagnoses, i.e., evidence of the existence of current disability (an element not previously shown in October 2007). Such evidence is favorable to the Veteran's claim. Taken together with the current VAOPTs documenting treatment for psychiatric symptoms and the recent diagnosis of PTSD being putatively related to inservice combat, the only conclusion which may be reached is that the new evidence, taken with the old evidence, establishes a reasonable possibility of substantiating the claim. However, it must be noted that in the reopening context, the Board may not weigh the evidence. Accordingly, there is sufficiently favorable evidence to establish a reasonable possibility of substantiating the claim. So, the claim for service connection for a psychiatric disorder and PTSD is reopened. ORDER The application to reopen the claim for service connection for a psychiatric disorder and PTSD is granted; to this extent only the appeal is granted. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's reopened claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, evidence received since the Statement of the Case includes VAOPT records and a report of a private psychiatric evaluation in January 2013. The RO has not had an opportunity to consider this evidence in the first instance. In light of the reopening of the claim for service connection for psychiatric disability, due process considerations require that the RO consider this evidence in the first instance prior to the Board's adjudication of the claim for service connection for psychiatric disability, to include PTSD. Moreover, as it is contended that the Veteran is unemployable, in part due to psychiatric disability for which service connection is now claimed, the adjudication of the TDIU claim must be deferred. Because new and material evidence has been received to reopen the claim, such evidence triggers VA's duty to assist in providing the Veteran with a VA examination to determine the current nature and etiology of his acquired psychiatric disorder. Under the duty to assist a VA medical examination or medical opinion is not authorized unless new and material evidence is presented. 38 C.F.R. § 3.159(c)(4)(iii). Falzone v. Brown, 8 Vet. App. 398, 404 (1995) (obtaining an examination is not necessary unless the claim was to be adjudicated on the merits). See also McLendon v. Nicholson, 20 Vet. App. 79 (2006) (recognizing that 38 C.F.R. § 3.159(c)(4) presents a low threshold for the requirement that evidence indicates a claimed disability may be associated military service for the purposes of a VA examination). Therefore, the Veteran should be afforded a VA examination so as to determine the nature and etiology of his acquired psychiatric disorder, to include PTSD. As to VA clinical records, the private psychiatrist reported that the Veteran had begun receiving VA psychiatric treatment in 2011 in Lake City, Florida. The VAOPT records on file extend from September 2011 to December 2012. Thus, all up-to-date VA treatment records from the VA Lake City, Florida, psychiatric clinic should be obtained. The Veteran has never reported having received any private psychiatric treatment since his military service; rather, all such treatment has been with VA. If this is incorrect, the Veteran and his attorney should so indicate. The Veteran's attorney requested a copy of the Veteran's claim file. There is on file a June 2012 VA letter indicating that a copy of the claim file was sent to the Veteran's attorney. However, in a July 2012 letter the Veteran's attorney indicated that he had not received a copy of the claim file. On the other hand, the January 2013 report of a private psychiatrist indicates that private psychiatrist reviewed a copy of the Veteran's claim file. There is nothing in the record which indicates that VA provided a copy of the claim file to that private psychiatrist. This leads to the conclusion that the copy of the claim file reviewed by the private psychiatrist was obtained from the Veteran's attorney. Thus, unless otherwise notified, the Board will assume that the Veteran's attorney has in fact received a copy of the claim file, as he requested. If not, the attorney should again notify the RO and request that he be provided a copy of the Veteran's claim file. While there has been correspondence addressing a request for any records of the Social Security Administration (SSA), and in particular the Veteran's correct Social Security number, it appears from correspondence from the Veteran that he is receiving SSA benefits based on his retirement and his age and, so, he has never filed for SSA disability benefits. In fact, he has never reported having done so. Since no medical records would be kept by SSA unless he had claimed SSA disability benefits, the Veteran and his attorney should be requested to clarify whether the Veteran has ever claimed or received SSA benefits based solely on disability, as opposed to his age. Accordingly, the case is REMANDED for the following action: (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.) 1. Contact the Veteran and his attorney and requested that they clarify whether the Veteran has ever received or filed for SSA benefits based on disability rather than age and whether he has ever received postservice treatment for psychiatric disability from any source other than VA. Based on the response to such requests, the RO should take the appropriate steps to obtain any records stemming from the requests. Also inquire whether the Veteran has received any VA treatment prior to September 2011 and, if so, at which VA facility(ies). All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Obtain all up-to-date VA records of psychiatric treatment of the Veteran from the Lake City, Florida, VA medical facility, since December 2012. Also, if the Veteran or his attorney report having received VAOPT at that or any other VA facility prior to September 2011, such records must be obtained. 3. After obtaining all outstanding treatment records, the Veteran should be afforded a VA psychiatric examination to determine the nature and etiology of any currently diagnosed acquired psychiatric disorder. The claim folder must be made available to and reviewed so that pertinent aspects of the Veteran's medical history may be reviewed. The examiner should identify all of the Veteran's acquired psychiatric disorders that meet the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) criteria. The examiner should specifically indicate whether the Veteran meets the diagnostic criteria for PTSD and whether such diagnosis is the result of an in-service stressor, to include the Veteran's combat and combat shrapnel wounds. For each currently diagnosed acquired psychiatric disorder other than PTSD, the examiner should offer an opinion as to whether it is at least as likely as not that any such disorder is related to the Veteran's military service, to include his in-service combat. The examiner should consider (1) the Veteran's statements that he continues to have post-service psychiatric symptoms; (2) the diagnosis of PTSD rendered by a private psychiatrist in January 2013; and (3) his VA treatment for psychiatric symptoms and the psychiatric diagnoses reported in the VAOPT records. The rationale for any opinion offered should be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence, to include all evidence received since the issuance of the Statement of the Case (SOC). If the claims remain denied, the Veteran and his attorney should be issued a Supplemental SOC. An appropriate period of time should be allowed for response. The appellant 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims 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). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs