Citation Nr: 1330048 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 12-07 392 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD. REPRESENTATION John March, Agent ATTORNEY FOR THE BOARD Marne Marotta, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1971 to March 1975. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The RO in Columbia, South Carolina has jurisdiction over this appeal. The claim for service connection has been recharacterized. The scope of a claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The claim for PTSD has therefore been expanded to encompass the any acquired psychiatric disorder. The reopened claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Service connection for PTSD was denied in an August 2007 rating decision; the Veteran did not appeal. 2. The evidence received since the August 2007 rating decision is neither cumulative nor redundant, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for PTSD. CONCLUSION OF LAW The criteria to reopen a claim of service connection for an acquired psychiatric disorder, to include PTSD, have been met. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Given the favorable decision on the claim to reopen, VA's duties to notify and assist are deemed fully satisfied and there is no prejudice to the Veteran in proceeding to decide the issue on appeal. 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156, 3.159. II. New and Material Evidence In general, rating decisions that are not timely appealed become final. 38 U.S.C.A. § 38 U.S.C.A. § 7105(d)(3). The Veteran, however, now seeks to reopen his claim. Despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is furnished with respect to the claim that has been disallowed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). In the July 2011 rating decision, the RO reopened the claim and denied service connection on the merits. The question of whether new and material evidence has been received to reopen each claim must be addressed in the first instance by the Board because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, this is where the Board's analysis must end; hence, what the RO may have determined in this regard is irrelevant. Jackson, 265 F.3d at 1369; Barnett, 83 F.3d at 1383. New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises 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; consideration should be given to whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA's duty to assist or through consideration of an alternative theory of entitlement. Shade v. Shinseki, 24 Vet. App. 110 (2010). For purposes of reopening a claim, the credibility of newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran's PTSD claim was initially denied in August 2007, on the grounds that the Veteran did not have a diagnosis of PTSD and the claimed in-service stressor could not be verified. The Veteran did not appeal the August 2007 denial of the claim and the decision became final. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. The evidence of record at the time of the RO's August 2007 rating decision included the Veteran's service treatment records (STRs), VA treatment records, and several personal statements from the Veteran. Evidence received since the August 2007 rating decision includes: statements from the Veteran providing details about additional stressors during service; a VA PTSD evaluation and VA treatment records. Although some of the Veteran's statements about claimed stressful incidents during service were previously considered, he has included additional events and details. The VA examination did not include consideration of those incidents. The newly submitted evidence relates to the previously unestablished fact of a stressor in service. Considering the other evidence of record and combined with VA assistance, to include attempting to verify the stressor and obtaining a medical opinion based on all reported stressors, that evidence raises a reasonable possibility of substantiating the claim. Shade, 24 Vet. App. at 118. As new and material evidence has been submitted, the claim is reopened. ORDER The appeal to reopen a claim of service connection for an acquired psychiatric disorder, to include PTSD, is granted. REMAND The December 2010 VA examiner noted that the Veteran was not presenting with PTSD and did not report any stressors; however, there was no consideration given to the stressors reported by the Veteran in his December 2010 statement. In that statement, the Veteran noted several stressful incidents during service: a pool accident that resulted in the death of a person that the Veteran knew and his statement that he had to tag the victim's casket; seeing a man with a long white beard on the taxiway that disappeared; a time when three dogs ran toward him, but when he tried to shoot at the dogs, his gun malfunctioned; an incident where a fellow soldier snuck up on and scared the Veteran and the Veteran stabbed the solder in his hand with a switchblade. Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran's VA treatment records indicate that he was diagnosed with Axis I adjustment disorder with depressed mood and Axis II personality disorder not otherwise specified by patient history in March 2008. Those records also indicate that he was treated for adjustment disorder as recently as November 2011. The November 2011 treatment records were the most recent records associated with the Veteran's claim file). The Veteran's service treatment records also indicate that in November 1972, the Veteran was diagnosed with adjustment reaction of adolescence with passive-dependent personality traits and improper use of marijuana, heroin, and alcohol. The examination conducted on remand should consider whether the Veteran has PTSD or any other psychiatric disability and provide an opinion as to whether the condition is related to service. 38 C.F.R. § 3.159(c)(4). Accordingly, the case is REMANDED for the following action: 1. Obtain the names and addresses of all medical care providers who treated the Veteran for psychiatric complaints since service. After securing the necessary release, the RO should obtain these records including any outstanding VA treatment records from November 2011 to the present. All records and/or responses received should be associated with the claims file. 2. After completion of the foregoing, schedule the Veteran for an appropriate VA examination to determine the etiology of any current psychiatric disorder, to include PTSD. The Veteran's claims file should be made available to and reviewed by the examiner. All tests deemed necessary, including psychological testing, should be performed and all findings should be reported in detail. Following review of the claims file and examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not that the Veteran suffers from PTSD or a psychiatric disorder that is related to service. (a) If PTSD is diagnosed (under DSM-IV criteria), the examiner should identify the specific stressors upon which the diagnosis is based and whether the Veteran's symptoms are related to the claimed stressor(s). (b) If the examination results in a psychiatric diagnosis other than PTSD, the examiner should offer an opinion as to the etiology of the non-PTSD psychiatric disorder, to include whether it is at least as likely as not that any currently demonstrated psychiatric disorder, other than PTSD, is related to the Veteran's service. In providing the opinion, the examiner should consider the following: the Veteran's in-service participation in a substance abuse treatment program; the November-December 1972 diagnosis of adjustment reaction of adolescence with passive-dependent personality traits and improper use of marijuana, heroin, and alcohol; the March 2007 diagnosis of Axis I malingering, marijuana dependence, alcohol dependence and cocaine dependence in remission; the March 2008 diagnosis of Axis I adjustment disorder with depressed mood and Axis II personality disorder not otherwise specified by patient history; and the December 2010 diagnosis of Axis I cognitive disorder, unspecified. The examiner should set forth the complete rationale for all opinions expressed and conclusions reached. 3. The RO should then review the record, and readjudicate the claims of service connection for an acquired psychiatric disability, to include PTSD. If the claim remains denied, issue an appropriate SSOC, and afford the Veteran the opportunity to respond before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs