Citation Nr: 1332977 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 12-10 391 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Whether new and material evidence has been submitted sufficient to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD), and if so, whether the reopened claim should be granted. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD A. Dean, Associate Counsel INTRODUCTION The Veteran had active military service from June 1967 to September 1970. This matter comes before the Board on appeal of a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In preparing to decide this claim, the Board has reviewed the contents of the Veteran's Virtual VA electronic claims file, as well as the evidence in the physical claims file. Although the RO determined that new and material evidence had been submitted to reopen the Veteran's claim of entitlement to service connection for a low back disability, the Board must determine on its own whether new and material evidence has been submitted to reopen this claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The issue of entitlement to service connection for ischemic heart disease secondary to herbicide exposure has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issue of entitlement to service connection for an acquired psychiatric disorder, including 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. In an unappealed July 2000 Board decision, the Veteran was denied entitlement to service connection for PTSD. 2. The evidence associated with the claims file subsequent to the July 2000 Board decision includes evidence that relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for PTSD. CONCLUSION OF LAW New and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, including PTSD. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board notes that the Veteran has been provided all required notice, to include notice pertaining to the disability-rating and effective-date elements of his claim. In addition, the Board has determined that the evidence currently of record is sufficient to substantiate the Veteran's claim to reopen his claim of entitlement to service connection for PTSD. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012) or 38 C.F.R. § 3.159 (2013). Legal Criteria Generally, a claim that has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). 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 is defined as 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) recently interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Analysis The Veteran originally filed his claim of entitlement to service connection for PTSD in June 1994. In an October 1994 rating decision, the RO denied service connection for a neuropsychiatric condition including PTSD on the basis of no evidence that the Veteran had been diagnosed or treated for a neuropsychiatric condition. The Veteran appealed that decision, and in a July 2000 Board decision, the Board denied entitlement to service connection for PTSD based on a finding that the claim of entitlement to service connection for PTSD was not well grounded as the service medical records and post-service VA treatment records were silent for a complaint, finding, or diagnosis with respect to PTSD. The Veteran did not appeal that decision. The pertinent evidence of record at the time of the July 2000 Board decision included the following: the Veteran's service treatment records (STRs), which do not show any evidence of complaints of or treatment for PTSD while on active service; VA treatment records from March 1994 to March 1996, which reflect a diagnosis of major depression versus dysthemia and that appear to have ruled out PTSD; and a statement from the Veteran regarding his claimed stressor. The pertinent evidence that has been received since the July 2000 Board decision includes the following: lay statements from the Veteran and his wife from January 2010 and February 2010; private treatment records from January 2010 to April 2010; two letters from the Veteran's private psychiatrist, Dr. Liss, stating he diagnosed the Veteran with PTSD; a general medical VA examination and addendum opinion from July 2010; psychiatry treatment records from the VA Medical Center in St. Louis, Missouri, from March 2010 to July 2011, where a VA psychiatrist and psychologist both declined to diagnose PTSD as the Veteran did not meet criterion A, the avoidance, or hyperarousal criterion; and a VA PTSD examination from June 2010, where the examiner found that the Veteran did not have significant symptoms of PTSD, and therefore did not make a diagnosis of such. The Board finds that the private treatment records showing that the Veteran has been diagnosed with PTSD are new and material. In this regard, the Board notes that the evidence is not cumulative or redundant of the evidence previously of record. Moreover, it is sufficient to raise a reasonable possibility of substantiating the claim. Accordingly, reopening of the claim of entitlement to service connection for PTSD is in order. ORDER The Board having determined that new and material evidence has been presented, reopening of the claim of entitlement to service connection for an acquired psychiatric disorder, including PTSD, is granted. REMAND The Board finds that additional development is required before the Veteran's claim of entitlement to service connection for PTSD is decided. The Veteran has asserted that he has PTSD as a result of experiences while serving in the Republic of Vietnam. As the Veteran's reported PTSD stressors are related to his fear of hostile military activity pursuant to 38 C.F.R. § 3.304(f), the Board notes that the Veteran's stressors with regard to his service in the Republic of Vietnam have been conceded. In the Veteran's January 2010 claim of entitlement to service connection for PTSD, he correlates his PTSD to the fact that he was given a general discharge under honorable conditions. In a January 2010 letter, his private psychiatrist, Dr. Liss, stated that the Veteran got in trouble and was released from service, and that this was the effect of the trauma the Veteran experienced while in Vietnam. The Board notes that upon review of the record, the Veteran's service personnel records appear to be incomplete, as there is no discharge paperwork or any other information pertaining to the Veteran's troubles in active service, nor is there any information related to his discharge. Because the Veteran and his psychiatrist believe the reason for the discharge was evidence of PTSD, the Veteran's full service personnel records, to include his discharge paperwork, should be obtained. Where these records may prove vital in establishing the Veteran's claim, attempts must be made to obtain them on remand. See 38 C.F.R. § 3.159(c)(2). In addition, the Board notes that there are VA and private treatment records for March 1994 to March 1996 and January 2010 to July 2011; however, there are no other records of record for the time period in between. In an August 2010 letter, the Veteran's private psychiatrist stated that the Veteran's condition has continued to deteriorate; however, the last treatment records available from that psychiatrist are dated April 2010. Therefore, any available treatment records from March 1996 to January 2010 and post April 2010 should be obtained. Finally, VA is obliged to provide a VA examination or medical opinion when (1) there is competent evidence that the Veteran has a current disability or persistent or recurrent symptoms of disability; (2) there is evidence establishing that the Veteran suffered an event, injury or disease in service or has a disease or symptoms of a disease within a specified presumptive period; (3) the evidence indicates that the current disability or symptoms may be associated with service or with another service-connected disability; and (4) there is insufficient medical evidence on file to decide the case. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In this case, the Veteran was afforded a VA psychiatric examination in June 2010. However, the examiner does not appear to have taken into consideration the Veteran's private psychiatrist's opinion that the Veteran does have PTSD. Therefore, the Veteran should be afforded a new VA psychiatric examination that not only takes into account the newly acquired evidence, but that also takes into account the other information in both the physical and electronic claims file, to include the two letters from the Veteran's private psychiatrist dated March 2010 and August 2010 and any service personnel records obtained. Accordingly, the case is REMANDED for the following action: 1. Conduct the appropriate development to obtain a complete copy of the Veteran's service personnel records, to include paperwork relating to any disciplinary actions during active service and any facts and circumstances surrounding his general discharge. If any requested records are unavailable, a negative reply is required. 2. Make arrangements to obtain any outstanding private treatment records, especially any relevant records from March 1996 to January 2010 and dated since April 2010 (to include, but not limited to, treatment from Liss and Associates, Inc. dated since April 2010). 3. Make arrangements to obtain any outstanding VA treatment records, to include those from the St. Louis, Missouri VA Healthcare System, dated from March 1996 to March 2010, and then dated after July 2011. 4. Thereafter, the Veteran should be afforded a VA examination by a psychologist or psychiatrist. All indicated studies are to be performed. In conjunction with the examination, the entire claims file, to include any pertinent evidence in the Virtual VA electronic claims file, must be made available to the examiner for review. A notation to the effect that this record review took place should be included in the report of the examiner. The examiner should identify all psychiatric disorders found to be present, to include PTSD, anxiety disorder, etc. In regard to EACH diagnosed condition, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the current disorder had its clinical onset during active service or is related to any in-service disease, event, or injury, to include the in-service stressors described by the Veteran (including the circumstances surrounding his discharge from service). If a diagnosis of PTSD is deemed appropriate, the examiner should clearly explain how the diagnostic criteria are met, to include discussion of whether any stressor(s) related to the Veteran's fear of hostile military or terrorist activity is/are deemed sufficient to have resulted in PTSD, as well as comment upon the link between any such stressor(s) and the Veteran's symptoms. In providing the opinion, the examiner must also acknowledge and discuss the opinion of Dr. Liss that the Veteran does have PTSD as a result of in-service stressors. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 5. Next, review the claims file and ensure that the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If the examination report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 6. Finally, after completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim on appeal. If any benefit sought on appeal remains denied, furnish the Veteran and his representative with an SSOC and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. 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). ______________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs