Citation Nr: 1415546 Decision Date: 04/09/14 Archive Date: 04/15/14 DOCKET NO. 10-43 246 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and major depressive disorder. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. J. Tang, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1969 to December 1972. This case is before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA) in Waco, Texas. The RO has denied the claim of service connection for PTSD, however, the Board has broadened the reopened claim under Clemons v. Shinseki, 23 Vet. App. 1 (2009), based on the medical evidence of record and the Veteran's assertions in his notice of disagreement. All documents on the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS) have been reviewed and considered, including the transcript of the August 2013 Board hearing presided over by the undersigned Veteran's Law Judge. The issue of entitlement to service connection for an acquired psychiatric disorder, to include PTSD and major depressive disorder, 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 a November 1998 rating decision, the RO denied a claim for service connection for PTSD based on the determination that the Veteran had no diagnosis of PTSD. 2. The Veteran did not submit a notice of disagreement for the November 1998 rating decision, and there was no evidence or information received within one year of its issuance that was new and material to the claim for service connection for PTSD. 3. The additional evidence received since the November 1998 rating decision was not previously considered in that decision and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The November 1998 rating decision, which denied entitlement to service connection for PTSD, is final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1998). 2. The additional evidence received since the November 1998 rating decision is new and material, and the claim of service connection for PTSD is reopened. 38 U.S.C.A. § 5108 (West 2013); 38 C.F.R. § 3.156(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Because the Board is reopening the previously denied claim of service connection for PTSD, discussion concerning compliance with the duties to notify and assist the Veteran regarding his claim to reopen is not necessary. Application to Reopen the Claim for Service Connection Even if a prior decision becomes final, a claim may be reopened if new and material evidence is presented. 38 U.S.C.A. § 5108. New evidence means existing evidence not previously submitted to agency decision makers. 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 it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (applying to claims to reopen that are filed after August 29, 2001). Evidence "raises a reasonable possibility of substantiating the claim," if it would trigger VA's duty to provide a medical examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010); see McLendon v. Nicholson, 20 Vet. App. 79 (2006). If new and material evidence is received within the remainder of the appeal period after a decision, the evidence will be considered as having been received in conjunction with that decision. 38 C.F.R. § 3.156(b). VA is required to determine whether evidence received during the appeal period is new and material. Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). If VA finds that new and material evidence is presented during this period, the decision does not become final. Id. It is not dispositive whether or not the RO reopened a claim because it is the Board's responsibility to consider whether it is proper for a claim to be reopened. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Where a claim of service connection has been previously denied, a subsequent claim of service connection for the same disability may not be considered on the merits unless new and material evidence has been received. Evidence is presumed credible for the purposes of reopening a claim. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The presumption of credibility is rebuttable when the evidentiary assertion is inherently incredible or when the person asserting the evidence is not competent to make that assertion. King v. Brown, 5 Vet. App. 19, 21 (1993). In a November 1998 rating decision, the RO denied a claim for service connection for PTSD based on the determination that the Veteran had no diagnosis of PTSD. After the Veteran was notified of the adverse decision, the Veteran did not submit a notice of disagreement with the November 1998 decision. Moreover, no new and material evidence was submitted within a year of the November 1998 rating decision. Therefore, the rating decision became final based on the evidence of record at the time. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1998). At the time of the November 1998 rating decision, the evidence of record included the Veteran's service treatment records, the Veteran's claim for entitlement to service connection for PTSD, and statements from the Veteran regarding his symptoms. The additional evidence presented since the November 1998 rating decision includes a diagnosis of PTSD. See February 2009 VA treatment records. The credibility of this diagnosis is presumed for the purposes of reopening the claim. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Because a current diagnosis of PTSD was pertinent evidence that was absent at the time of the November 1998 rating decision, such evidence raises a reasonable possibility of substantiating the claim, and as such it is deemed to be the requisite new and material evidence needed to reopen the claim. ORDER Because new and material evidence has been received, the claim of service connection for PTSD is reopened. REMAND The Veteran has been diagnosed with PTSD and major depressive disorder. See February 2009 and September 2009 VA treatment record. The Veteran contends that his PTSD and depression is related to stressors that happened in service in Korea, Vietnam, and Thailand. The Board notes that the service personnel records show that the Veteran was awarded the Armed Forces Expeditionary Medal (AFEM) for service in Korea. In February 2009, the Veteran was diagnosed with PTSD. However, the mental health professional did not link the Veteran's PTSD symptoms with any claimed in-service stressors and noted that the Veteran served in Vietnam, which is not shown by the record. These facts are pertinent to the Veteran's claim and raise additional questions. First, the nature of the Veteran's psychiatric disorder is unclear. Second, it is unclear whether there is a causal nexus between any PTSD symptomatology and the claimed in-service stressors. Third, it is unclear whether the Veteran's major depressive disorder is etiologically related to service. For these reasons, VA examination is warranted to determine the nature and etiology of any acquired psychiatric disorder, to include PTSD and major depressive disorder. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In addition, the record reflects that the Veteran may receive Social Security Administration (SSA) disability benefits, and it is unclear whether the benefits are for a psychiatric disability. Therefore, SSA records should be obtained. See 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following action: 1. Request, directly from the Social Security Administration, complete copies of any determination on a claim for disability benefits from that agency as well as the records, including medical records, considered in adjudicating the claim. All attempts to fulfill this development should be documented in the claims file. 2. Obtain outstanding VA treatment records that are relevant to the claim. 3. Obtain the Veteran's complete service personnel records. 4. If, after continued efforts to obtain any of the above federal records, it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the AMC should notify the Veteran in accordance with 38 C.F.R. § 3.159(e). The Veteran must then be given an opportunity to respond. 5. Afterwards, schedule the Veteran for a VA psychiatric examination to determine the nature and etiology of any psychiatric disorder, to include PTSD and major depressive disorder. Make the claims file available to the examiner for review of the case. The examiner should review all records associated with the claims file, including the Veteran's service treatment records, post-service treatment records, and lay statements. The examiner is asked to note that this case review took place. The examiner is asked to opine on the following: (a) the nature and diagnosis(es) of the Veteran's current psychiatric disorder. The examiner is asked to specifically address (i) the diagnosis of PTSD, and (ii) the diagnosis of major depressive disorder. See February 2009 and September 2009 VA treatment records. (b) if the Veteran has a diagnosis of PTSD, the examiner should opine whether it is at least as likely as not (probability of 50 percent) that the Veteran's PTSD is etiologically related to service, including as a result of fear of hostile military or terrorist activity. (c) regarding any diagnosis other than PTSD, to include major depressive disorder, whether it is at least as likely as not (probability of 50 percent) that the Veteran's diagnosed psychiatric disorder(s) is etiologically related to military service. The examiner should provide a complete rationale for all opinions expressed. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 6. After completing the development and conducting any additional development that is deemed warranted, readjudicate the claim on appeal. If the benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case and provide an 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. 2013). ______________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs