Citation Nr: 1512832 Decision Date: 03/26/15 Archive Date: 04/03/15 DOCKET NO. 13-14 440 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether new and material evidence has been received to reopen the claim of service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD M. Pryce, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1991 to July 1991, August 1997 to May 1998, and January 2002 to January 2003; she also had prior inactive service for more 20 years. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The issue of entitlement to service connection for PTSD, on the merits, is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. By a May 2008 rating decision, the RO denied the Veteran's claim of service connection for PTSD . The Veteran filed a notice of disagreement but did not perfect his appeal. 2. Evidence received since the May 2008 rating decision relates to an unestablished fact necessary to substantiate the claim of service connection for PTSD. CONCLUSIONS OF LAW 1. A May 2008 rating decision that denied the Veteran's claim of service connection for PTSD is final. 38 U.S.C.A. § 7105(b), (c) (West 2014); 38 C.F.R. §§ 20.201 , 20.302, 20.1103 (2014). 2. New and material evidence has been received, and the claim of service connection for PTSD is reopened. 38 U.S.C.A. §§ 5108 , 7105 (West 2014); 38 C.F.R. § 3.156(a) (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In December 2007 and May 2008 rating decisions the RO denied the Veteran's claim of entitlement to service connection for PTSD. Essentially, the claim was denied as the record did not contain a diagnosis of the disorder. The Veteran was notified of these decisions but did not perfect an appeal of either decision. Moreover, no additional pertinent evidence was received within one-year following notification of the denial, and no additional service records were received at any point warranting readjudication of the claim. See 38 C.F.R. § 3.156(b), (c). Thus, the May 2008 rating decision is final. 38 U.S.C.A. § 7105. In October 2009, the RO received correspondence from the Veteran requesting that her claim for PTSD be reopened. Under pertinent legal authority, VA may reopen and review a claim which has been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C.A. § 5108 ; 38 C.F.R. § 3.156(a) . New evidence is defined as 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 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) has held that when determining whether submitted evidence meets the definition of new and material evidence, VA must consider whether the evidence received could, if the claim were reopened, reasonably result in substantiation of the claim. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Thus, pursuant to the Court's holding in Shade, evidence is new if it has not been previously submitted to agency decision makers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist to provide a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. The Court also has held that 38 C.F.R. § 3.156(a) must be read as creating a low threshold. Shade, 24 Vet. App. at 117. The evidence since the May 2008 final decision includes medical evidence showing a diagnosis of PTSD. The Board finds this evidence to be new and also to be material. The evidence relates to an unestablished fact necessary to substantiate the Veteran's claim of service connection for uveitis. In light of the current evidence and taking into consideration the low threshold required for reopening, the Board finds that the evidence since the May 2008 rating decision is sufficiently material to reopen the Veteran's claim of service connection for PTSD. Shade, 24 Vet. App. at 117 . At this point, the Board cannot adjudicate the reopened claim of service connection for PTSD, as further development of the claim is necessary prior to a final adjudication. The specific evidentiary development needed is discussed in detail in the remand below. ORDER New and material evidence having been received, the claim of entitlement to service connection for PTSD is reopened; to that limited extent, the appeal of this issue is granted. REMAND Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical opinion is considered adequate "where it is based upon consideration of the veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one.'" Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). In the present case, the Veteran asserts that her presently diagnosed PTSD is the result of her active service as a military police officer (MP) in Cuba, Bosnia and Saudi Arabia. Particularly, she has testified to such incidents as witnessing a soldier being killed in an accident, dealing with prisoners in Cuba who would assault her by throwing urine in her face, being stationed near to the front lines in Saudi Arabia during missile attacks, being exposed to dead bodies and smoke during a mission to pick up prisoners, and the general feeling of being in imminent danger throughout her periods of deployment. For its part, VA has conceded that the Veteran was exposed to imminent danger while deployed. In April 2010, the Veteran was afforded a VA examination in connection with her claim. Unfortunately, the Board finds the resulting opinion inadequate for several reasons. First, the examiner states that she reviewed the Veteran's claims file and medical records and concluded that the Veteran had been treated for an adjustment disorder between 2009 and 2010. The examiner also stated that a positive diagnosis of PTSD could not be given. However, a review of the record reveals that the Veteran has a positive diagnosis of PTSD, and had been in treatment for that condition at the VA outpatient clinic in Tallahassee, Florida, since at least February 2008. In fact, a review of the record shows a possible positive screen for PTSD as early as December 2007. It does not appear that the VA examiner took this diagnosis and medical history into account when forming her opinion. Second, the Board notes that the VA examiner found that a nexus could not be made between the Veteran's current symptoms and the witnessing of an accident while in service. However, the examiner did not address all of the claimed stressors which VA has conceded, particularly, being in imminent danger throughout the duration of her deployment. The examiner did note that symptoms such as guardedness and startle response may be related to her duties as a MP, but the examiner did not provide an opinion on whether the circumstances surrounding her duties as an MP could be etiologically related to her previously diagnosed PTSD. Under these circumstances, the Board finds that the VA opinion is incomplete, and that further medical opinion, based on full review of the record and supported by adequate rationale, is needed to fairly resolve the claim. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2014); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the Veteran's claims file all outstanding VA treatment records dated from June 2010 to the present. 2. Send the Veteran and her representative a letter requesting that the Veteran provide information and authorization to enable VA to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Specifically, the Veteran should be requested to furnish appropriate authorization for any pertinent private medical treatment records, if they exist. 3. After any outstanding records have been associated with the claims file, schedule the Veteran for an examination regarding her PTSD. The entire claims file, to include a complete copy of this REMAND must be made available to the examiner, and the examiner must indicate that it was reviewed in its entirety. All indicated tests and studies should be accomplished and all clinical findings should be reported in detail. The resulting examination report should include discussion of the Veteran's documented medical history and assertions from December 2007 through the present. The examiner should also report and consider all possible in-service stressors, to include the circumstances of imminent danger that surrounded the Veteran's active service as a MP. Thereafter, the examiner should clearly indicate whether the Veteran currently suffers from PTSD. If so, then the examiner should provide an opinion as to whether it is at least as likely as not (i.e., 50 percent or greater) that the Veteran's PTSD is related to any of her in-service stressors. If the examiner finds that the Veteran does not presently suffer from PTSD, he or she should provide an opinion as to whether the Veteran's PTSD, as diagnosed and treated since 2008, is at least as likely as not related to an in-service stressor. A rationale for all requested opinions should be provided. If the examiner cannot provide any requested opinion without resorting to speculation, then it must be so stated and the examiner must provide the reasons for why this is so. 4. After completing the requested actions, the AOJ should undertake any additional development deemed warranted. Thereafter, the AOJ should re-adjudicate the claim in light of all pertinent evidence and legal authority. If the benefit sought is not granted, the Veteran and her representative should be furnished with a supplemental statement of the case and be afforded an opportunity to respond before the record is returned to the Board. 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 2014). _________________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals