Citation Nr: 1414048 Decision Date: 04/01/14 Archive Date: 04/11/14 DOCKET NO. 12-17 765A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for 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 Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty from August 1990 to November 1991. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Veteran provided testimony before the undersigned Veterans Law Judge at a videoconference hearing in April 2013. A transcript from this hearing is of record. It was noted at that hearing that an issue concerning medical treatment had been resolved. The Board notes that while a May 2011 rating decision failed to reopen the Veteran's claim for service connection for depressive disorder, VA treatment records have been associated with the claims file that note the Veteran has a diagnosis of major depression and PTSD. 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). As such, this issue on appeal has been characterized to consider all reported and diagnosed psychiatric disabilities, to include PTSD, in accordance with Clemons. The issue 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. In an unappealed June 2001 rating decision, the RO denied entitlement to service connection for a depressive disorder. 2. Evidence received since the June 2001 rating decision includes evidence that is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim for service connection for an acquired psychiatric disorder to include PTSD. CONCLUSIONS OF LAW 1. The June 2001 rating decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2013). 2. New and material evidence has been received since the June 2001 denial, and the claim of entitlement to service connection for an acquired psychiatric disorder to include PTSD is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) VA"s duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159). Given the favorable disposition of the claim to reopen the claim for service connection for an acquired psychiatric disorder to include PTSD, the Board finds that all notification and development actions needed to fairly adjudicate this claim have been accomplished. New and Material Evidence In a May 2000 rating decision, the RO denied service connection for a nervous disorder as it determined that the Veteran's claim was not well-grounded. In a June 2001 rating decision, the RO recadjudicated the claim based on new legislation. In this rating decision, the RO denied service connection for a depressive disorder. The denial was on the basis that there was no evidence linking a psychiatric disability to his service. The Veteran was notified of this decision but did not appeal. As the Veteran did not appeal the June 2001 rating decision, that decision is now final based on the evidence then of record. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Veteran sought to reopen his claim for service connection for an acquired psychiatric disorder to include PTSD in February 2010. VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). See also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). 38 C.F.R. § 3.156(a) defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as 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 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) (2013). In determining whether new and material evidence has been received, VA must initially decide whether evidence received since the prior final denial is, in fact, new. As indicated by the regulation cited above, and by judicial case law, "new" evidence is that which was not of record at the time of the last final disallowance (on any basis) of the claim, and is not duplicative or "merely cumulative" of other evidence then of record. This analysis is undertaken by comparing the newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). Here, the last final denial of the claim is the June 2001 rating decision. Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Evidence received since the June 2001 rating decision includes an October 2010 opinion from a VA physician who determined that it was more likely than not that the Veteran's psychiatric symptoms, comprising the diagnosis of major depressive disorder, began and are directly related to his military service. The prior denial of service connection for an acquired psychiatric disability was based on a lack of evidence of a link between the disability and the Veteran's service. The October 2010 physician's opinion specifically related the Veteran's psychiatric disability to his military service. Hence, this evidence raises a reasonable possibility of substantiating the Veteran's claim for service connection. As noted above, for purposes of determining whether the claim should be reopened, the evidence is presumed to be credible. Under these circumstances, the Board concludes that the criteria for reopening the claim for service connection for an acquired psychiatric disorder to include PTSD, have been met. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for bilateral hearing loss and the claim is reopened. REMAND Following a review of the Veteran's claims file, the Board finds that further development is required prior to the adjudication of the claim for service connection for an acquired psychiatric disorder to include PTSD. At this April 2013 hearing, the Veteran's representative noted the Veteran's belief that he was a part of a geographically separated unit and that his service treatment records which addressed his complaints of depression, never made into his official outpatient records. The Veteran contends that these records demonstrate that he received psychiatric counseling at the Nuremberg Hospital in Nuremberg, Germany and that these records were maintained in Vilseck, Germany. The Veteran was reportedly receiving treatment when he was discharged and he contends that his discharge was actually a medical discharge due to his psychiatric problems. To date, treatment records from the Nuremberg Hospital or those that have been maintained in Nuremberg have not been associated with the claims file and it does not appear that any effort has been made to obtain them. In addition, the appellant's service personnel records may shed some light on this matter and should be obtained. Where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill its statutory duty to assist the Veteran to develop the facts pertinent to the claims. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). In cases where the Veteran's service treatment records (or other pertinent records, for that matter) are unavailable through no fault of the claimant, there is a heightened obligation to assist the claimant in the development of his or her case. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). VA is required to make reasonable efforts to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(c) (2013). As the Veteran had active service from August 1990 to November 1991, further development is required to attempt to obtain these service treatment records. 38 U.S.C.A. § 5103A (b), (c) (West 2002); 38 C.F.R. § 3.159(c) (1)-(3) (2013). The Board also notes that the Veteran underwent a VA examination in April 2001. The examiner diagnosed the Veteran with depressive disorder. However, the examiner did not provide an etiology regarding the Veteran's depressive disorder. Additionally, a March 2010 VA treatment report reflected a PTSD diagnosis while the October 2010 physician indicated that the Veteran's current psychiatric disabilities were related to his military service. An adequate rationale for reaching that determination was not entered, and it is not clear that all pertinent records were reviewed. If the medical evidence of record is insufficient, or, in the opinion of the Board, of doubtful weight or credibility, the Board is always free to supplement the record by seeking an advisory opinion, ordering a medical examination or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions. However, it is not free to substitute its own judgment for that of such an expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Further development is needed so that a medical professional can review the entire medical record, consider a complete history, and provide informed opinions as to the relationship between any current acquired psychiatric disability, to include PTSD, and service. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should attempt to obtain the Veteran's complete records from the Army for the Veteran's treatment at Nuremberg Hospital during his active service from August 1990 to November 1991. This should include any documentation that was previously held in Vilseck, Germany. All service personnel records should also be obtained. Follow the procedures set forth in 38 C.F.R. § 3.159(c) regarding requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. The requests should continue either until the records are obtained or it is reasonably certain that the records do not exist or that further efforts to obtain the records would be futile. All efforts to obtain these records should be fully documented, and any Federal facility should provide a negative response if records are not available. 2. After the above development has been accomplished, the Veteran should be afforded a VA examination by a physician with appropriate expertise to determine the nature and etiology of any currently present psychiatric disorder. The claims folders should be made available to and reviewed by the examiner. All necessary tests should be conducted. Based on the examination results and the review of the claims folders, the examiner should provide an opinion with respect to each currently present psychiatric disorder as to whether it is as likely as not (i.e., a 50 percent or better probability) that the disorder was present during the Veteran's active service or is etiologically related to his active service. The rationale for each opinion expressed must be provided. The examiner should also offer an opinion as to whether the Veteran currently has PTSD under the diagnostic criteria of DSM-IV; and if so, whether such PTSD is due at least in part to a verified in-service stressor event or fear of hostile action during active service. The VA examiner should consider and discuss the Veteran's reported history and contentions, as well as, any other pertinent medical nexus evidence of record. The rationale for all opinions expressed must be provided. If the examiner is unable to provide the requested opinion, he or she must explain why the opinion cannot be provided. 3. After completion of the above and any additional development deemed necessary, the issue on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if in order. 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. 2013). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs