Citation Nr: 1332125	
Decision Date: 10/17/13    Archive Date: 10/21/13

DOCKET NO.  10-10 850	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for a psychiatric disorder other than PTSD.

2.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for posttraumatic stress disorder (PTSD).

3.  Entitlement to service connection for PTSD.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

M. Mills, Associate Counsel


INTRODUCTION


The Veteran served on active duty from November 1980 to November 1987

This appeal comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in September 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied service connection for anxiety disorder and continued the denial of service connection for PSTD.

Although the RO has determined that new and material evidence has not been submitted to reopen the claim for service connection for PTSD, the Board must determine on its own whether new and material evidence has been submitted to reopen this claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001).

In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims held that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled.  In this case, the Veteran has claimed entitlement to service connection for anxiety disorder and PTSD, thus, the Veteran's claim for service connection for PTSD is deemed to include any psychiatric disability.

A review of the Virtual VA paperless claims processing system and Veterans Benefits Management System (VBMS) does not reveal any additional documents pertinent to the present appeal.

The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the appellant if further action is required.


FINDINGS OF FACT

1.  Service connection for PTSD was denied by a rating decision in March 2005.  Although he was notified of this decision in March 2005, the Veteran did not appeal the decision and he did not submit new and material evidence within the one year appeal period.  

2.  The evidence added to the record since March 2005, when viewed in the context of the entire record, relates to an unestablished fact necessary to substantiate the claim.


CONCLUSION OF LAW

1.  The March 2005 decision that denied the claim for service connection for PTSD is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.156, 20.302 (2012).

2.  The evidence received since the March 2005 decision is new and material and the claim for service connection for PTSD is reopened. 38 U.S.C.A. § 5108; 7105 (West 2002); 38 C.F.R. § 3.156 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. The Veterans Claims Assistance Act

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

Given the favorable disposition of the Veteran's request to reopen, the Board finds that all notification and development actions needed to fairly adjudicate the claim have been accomplished.


II. New and material evidence 

Generally, a claim which has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c).  An 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, VA shall reopen the claim and review the former disposition of the claim.  The implementing regulation also provides that new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b).  If such new and material evidence had been submitted and had not been acted upon, a claim could still be pending until a decision had been made on that evidence. See 38 C.F.R. § 3.160(c) ("pending claim" is "[a]n application, formal or informal, which has not been finally adjudicated"); see also Ingram v. Nicholson, 21 Vet. App. 232, 240 (2007) ("[A] claim remains pending-even for years-if the Secretary fails to act on a claim before him.").  To comply with the directive of 38 C.F.R. § 3.156(b) that new and material evidence be treated as having been filed in connection with the pending claim, VA must evaluate submissions received during the relevant period and determine whether they contain new evidence relevant to a pending claim, regardless of whether the relevant submission might otherwise support a new claim. Bond v. Shinseki, 659 F.3d 1362, 1369 (Fed. Cir. 2011).

For applications to reopen received after August 21, 2001, new evidence is defined as existing evidence not previously submitted to agency decision makers.  Material evidence means 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 previously of record, 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, 512-513 (1992).  The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000).

In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996).  The threshold for determining whether new and material evidence has been submitted is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).

Analysis

In September 2004, the Veteran submitted a claim for service connection for PTSD.  At the time of the decision, evidence of record included the Veteran's service treatment records and military personnel records, which did not show that PTSD was diagnosed during service; and post-service VA treatment records, which showed that the Veteran has been diagnosed with various psychiatric conditions, but not PTSD.

In a November 2004 statement in support of claim for PTSD, the Veteran indicated that he was given a job that he was not qualified to perform and could not handle the stress.

The RO denied service connection for the claim in a March 2005 rating decision because there was an absence of medical evidence establishing a diagnosis of PTSD, no link between current symptoms and in-service stressors, and no credible evidence supporting that the stressor occurred.  

The evidence received since the March 2005 rating decision includes VA treatment records which show diagnoses of other psychiatric conditions, none of which is PTSD.  The VA treatment records also include the Veteran's lay statements made to his treating medical professionals elaborating on the purported stressors.  In particular, a June 2009 VA mental health outpatient treatment record notes the Veteran "reported that he was regularly required to help collect body parts of soldiers killed in plane crashes" in addition to his duties as a cook.  

The Board must presume the credibility of this evidence for the purpose of determining whether it constitutes new and material evidence needed to reopen the claims and may not assess its probative weight in relation or comparison to other evidence for reopening purposes.  See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness).  

Presuming its credibility, the Board finds that the Veteran's statements to his treating physician address an unestablished fact at the time of the previous final denial.

At the time of the last rating decision, there was no credible evidence of an in-service stressor, no diagnosis of PTSD, and no accepted evidence of a nexus to service.  Since the last determination, the Veteran provided evidence of an in-service stressor, such lay evidence was not a part of the record at the time of the prior denial.  The Veteran's reports contained in the VA treatment records are lay evidence of an in-service incident potentially giving rise to the disability.  Based upon the evidence that previously existed, such evidence may cure one of the prior evidentiary defects.  Accordingly, the application to reopen the claim for service connection for PTSD is reopened.


ORDER

The application to reopen the claim for service connection for PTSD is granted.





REMAND

The Board finds that further development is necessary before the appeal can be properly adjudicated.

The Veteran contends that his current psychiatric disorders, including an anxiety disorder and claimed PTSD, are related to his period of service.

The Veteran's service treatment records are negative for any complaints, treatment, or diagnosis of anxiety, PTSD, or other psychiatric disorders.  An April 1987 mental health intake note relates the Veteran's reports of somatic issues to marital problems.  However, his post-service VA treatment records document diagnoses of senile dementia, major depressive disorder and anxiety disorder, not otherwise specified, but PTSD was ruled out in a September 2009 VA treatment record.  As addressed above, a June 2009 VA mental health note indicates the Veteran relayed specific details of in-service stressors.

The Board concludes that a VA examination and medical opinion are necessary to determine whether the Veteran has a current psychiatric disorder, to include PTSD, and an anxiety disorder, and if so, whether such disorders are related to his period of service.  

Finally, a March 2010 VA mental health treatment note indicates the Veteran is receiving Social Security Administration (SSA) disability benefits.  VA has a duty to obtain potentially relevant SSA records when it has actual notice that the Veteran is receiving SSA benefits. See Golz v. Shinseki, 530 F.3d 1317 (Fed. Cir. 2010).  Thus, the SSA decision and the supporting medical documents should be obtained.

Accordingly, the case is REMANDED for the following action:

1.  Contact the Social Security Administration (SSA) and obtain and associate with the claims file copies of the Veteran's records regarding SSA benefits, including any SSA administrative decisions (favorable or unfavorable) and the medical records upon which the decisions were based.  Efforts to obtain these records should be documented, and the SSA should provide a negative response if such records are not available.

2.  Schedule the Veteran for a VA examination by a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted.  On examination, the examiner should report all psychiatric disabilities found to be present.  

After examining the Veteran and reviewing the claims file, to include lay statements submitted by the Veteran, the examiner should respond to the following:

Is it at least as likely as not (a 50 percent probability or greater) that any current psychiatric disorder(s) was/were manifested during or otherwise caused by the Veteran's active duty or any incident therein?  If so, clearly identify such current psychiatric disorder(s).

The examiner should specifically consider whether any reported in-service stressor is a contributing factor to any currently diagnosed psychiatric disorder(s).

If there is a medical basis to support or doubt the history provided by the Veteran, the examiner must state this, with a fully reasoned opinion.

3.  Adjudicate the issue of service connection for any psychiatric disorder(s).

4.  If upon completion of the above action any benefit sought remains denied, the case should be returned to the Board after compliance with requisite appellate procedures.

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 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).



_________________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs