Citation Nr: 1507270 Decision Date: 02/19/15 Archive Date: 02/26/15 DOCKET NO. 12-18 956 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder. REPRESENTATION Veteran is represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Banister, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1968 to September 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. The issue of entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD) is addressed in the remand portion of the decision below. FINDINGS OF FACT 1. The Veteran's original claim of entitlement to service connection for PTSD was denied in a December 2004 rating decision. Although the Veteran was provided notice of the rating decision and notice of his appellate rights, he did not perfect an appeal thereafter and did not submit additional evidence during the appeal period. 2. Evidence received since the December 2004 rating decision relates to an unsubstantiated fact regarding the Veteran's claim of entitlement to service connection for a psychiatric disorder, to include PTSD, and raises a reasonable possibility of substantiating that claim. CONCLUSION OF LAW Evidence submitted to reopen the claim of entitlement to service connection for a psychiatric disorder, to include PTSD, is new and material, and therefore, the claim is reopened. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran seeks entitlement to service connection for PTSD. However, the medical evidence of record currently includes a diagnosis of anxiety disorder. Thus, the Board has characterized the issue to reflect a broad definition of the claim and will address service connection for any psychiatric disability. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009) (holding that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by a veteran's description of the claim, reported symptoms, and other evidence of record). In June 2004, the Veteran submitted a claim of entitlement to service connection for PTSD, which was denied in a December 2004 rating decision. Although the Veteran was provided notice of the rating decision and notice of his appellate rights via a February 2005 letter, he did not perfect an appeal thereafter and did not submit additional evidence during the appeal period. As such, the December 2004 rating decision is final. See 38 U.S.C.A. § 5107. A final claim will be reopened if new and material evidence is presented. 38 U.S.C.A. § 5108. "New" evidence means 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 no 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). In May 2011, the Veteran submitted a claim to reopen the issue of entitlement to service connection for PTSD. In a September 2011 rating decision, the RO reopened the Veteran's service connection claim, but ultimately denied it on the merits. Although the RO reopened the Veteran's claim, the Board has a jurisdictional responsibility to consider whether it is proper for a claim to be reopened. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The Board must decide that new and material evidence has been presented before addressing the merits of the claim. Butler v. Brown, 9 Vet. App. 167, 171 (1996). At the time of the RO's December 2004 rating decision, the evidence of record consisted of VA treatment records dated April 2004 to May 2004, a September 2004 PTSD questionnaire and written statement from the Veteran, a June 2004 letter from the Veteran's treating VA therapist, a June 2004 memorandum from the Veteran's representative, and a June 2004 memorandum regarding VA's inability to verify the Veteran's claimed in-service stressors. The RO denied the Veteran's claim, finding that the evidence of record was insufficient to confirm that the Veteran experienced an in-service stressor. Since the December 2004 rating decision, the evidence of record now includes and an August 2011 VA examination report, which contains a diagnosis of anxiety disorder. The Board finds that the evidence is new, as it has not been previously submitted to VA for consideration. With respect to whether this evidence is material, the Board observes that the previous denial of the Veteran's service connection claim was based on the lack of evidence to corroborate an alleged in-service stressor sufficient to support a diagnosis of PTSD. The evidence of record now contains a diagnosis of anxiety disorder. A verified in-service stressor is not required to support a finding that an anxiety disorder, other than PTSD, is related to a veteran's active duty. Thus, the Board finds that the evidence submitted since the December 2004 rating decision is material. See Shade v. Shinseki, 24 Vet. App. 110 (2010) (reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim). Consequently, the Veteran has submitted new and material evidence since the December 2004 rating decision, and the claim is reopened. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.156. ORDER New and material evidence having been submitted, the claim of entitlement to service connection for a psychiatric disorder, to include PTSD, is reopened, and to that extent only, the appeal is granted. REMAND The Veteran was provided a VA examination in August 2011. The examination report indicates that the Veteran reported symptoms of anxiety, depressed mood, low energy, poor concentration, forgetfulness, difficulty sleeping, and nightmares. He also described several in-service events that he believes caused his current psychiatric disability. He reported experiencing frequent mortar attacks in Vietnam for approximately three months. Specifically, the Veteran recalled one instance where he was forced to stay in a building that was under attack because he was required to protect radio equipment. He also reported assisting in carrying body bags containing killed U.S. soldiers. Additionally, he reported an ice cream stand being blown up by the Viet Cong; however, he did not indicate whether he witnessed this event. Finally, the Veteran reported hearing stories about American soldiers whose throats were slit by the Viet Cong while they slept in their bunker. The examiner concluded that the Veteran did not have PTSD, but provided a diagnosis of "anxiety disorder [not otherwise specified], not related to military service." In support of this opinion, the examiner provided the following rationale: Based on the record review, the [V]eteran's self-report, and the [V]eteran's responses on psychological testing, he does not meet [the] criteria for PTSD, either in terms of a Criterion A stressor or PTSD symptom criteria. His reported stressor is not related to his fear of hostile military or terroristic activity. The [V]eteran meets [the] criteria for anxiety disorder [not otherwise specified], given his complaints of anxiety and tension, as well as his test results. The [V]eteran's symptoms are at a mild level of severity. The [V]eteran is not currently in psychiatric treatment, but his symptoms are likely to improve were he to pursue treatment. The examiner did not provide a rationale to support the opinion that the Veteran's anxiety disorder is not related to service. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010) (holding that "before the Board can rely on an examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence"); Stefl v. Nicholson, 21Vet.App. 120, 124 (2007) (holding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Once VA undertakes the effort to provide an examination when developing a service-connected claim, even if not statutorily obligated to do so, VA must provide an adequate one or, at a minimum, notify the veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Thus, the Board finds that a remand is necessary in order to obtain a supplemental opinion or afford the Veteran another VA examination. Additionally, in April 2014, the Veteran submitted an article printed from the internet entitled "Enemy Action at Dong Tam" without a waiver of RO jurisdiction. As this additional evidence may be relevant to the Veteran's service connection claim, it must be considered by the RO. See 38 C.F.R. § 20.1304(c) (2014). Accordingly, the case is remanded for the following action: 1. The evidence of record must be reviewed by the August 2011 VA examiner to obtain a supplemental opinion. The examiner must review all pertinent records associated with the claims file. After reviewing the clinical examination, the evidence of record, and with consideration of the Veteran's statements, the examiner must provide an opinion as to whether any previously or currently diagnosed psychiatric disability was incurred in or due to the Veteran's active duty. In doing so, the examiner must specifically address the August 2011 diagnosis of anxiety disorder and provide a rationale for the opinion that the diagnosed anxiety disorder was not related to the Veteran's military service. If the September 2011 examiner is unavailable or unable to render the requested supplemental opinion, the Veteran must be afforded another VA examination. All pertinent symptomology and findings must be reported in detail. The examiner must review all pertinent records associated with the claims file. After reviewing the clinical examination, the evidence of record, and with consideration of the Veteran's statements, the examiner must provide an opinion as to whether any previously or currently diagnosed psychiatric disorder was incurred in or due to the Veteran's active duty. The examiner must provide a complete rationale for all opinions expressed. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether any further information or testing is necessary to make a determination. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 2. The RO must notify the Veteran that it is his responsibility to report for any examination scheduled, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2014). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained and associated with the Veteran's claims file that shows that notice scheduling the examination was sent to his last known address. Documentation must be also be obtained and associated with the Veteran's claims file demonstrating any notice that was sent and returned as undeliverable. 3. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated, to include all the relevant evidence submitted since the September 2011 rating decision. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs