Citation Nr: 1534170 Decision Date: 08/10/15 Archive Date: 08/20/15 DOCKET NO. 08-19 053 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Cheyenne, Wyoming THE ISSUES 1. Whether new and material evidence has been received to reopen service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), dysthymia, and depression. 2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, dysthymia, depression, and bipolar disorder. REPRESENTATION Appellant represented by: Christopher Loiacono, Agent ATTORNEY FOR THE BOARD A. Tenney, Associate Counsel INTRODUCTION The Veteran, who is the appellant, had active service from August 1984 to July 1990. This matter came before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the RO in Cheyenne, Wyoming, which denied service connection for bipolar disorder and determined that new and material evidence had not been received to reopen the issue of service connection for PTSD, dysthymia, and depression not otherwise specified. This case was previously before the Board in January 2010, where the Board remanded the instant matter for representative clarification and to attempt to obtain outstanding documents that may have been relevant. Further, the Board recharacterized the issue on appeal pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board finds that there has been substantial compliance with the directives of the January 2010 remand. Documents requested by the Board were determined to be unavailable and formal findings of unavailability were issued. The Veteran's representative was also identified. As such, an additional remand to comply with the January 2010 directives is not required. Stegall v. West, 11 Vet. App. 268 (1998). The instant matter is a Veterans Benefits Management System (VBMS) appeal. The Board has reviewed both the VBMS and the "Virtual VA" files so as to insure a total review of the evidence. The issue of service connection for an acquired psychiatric disorder is addressed in the REMAND portion of the decision below and is remanded to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. An unappealed July 1997 Board decision denied service connection for an acquired psychiatric disorder, finding no clear diagnosis of PTSD and no evidence of record linking any psychiatric disorder to service, including depression and dysthymia. 2. The evidence received since the July 1997 Board decision relates to an unestablished fact of a new PTSD diagnosis that could reasonably substantiate a claim of service connection for an acquired psychiatric disorder. CONCLUSIONS OF LAW 1. The July 1997 Board decision denying service connection for an acquired psychiatric disorder was final when issued. 38 U.S.C.A. § 7104 (West 2014); 38 C.F.R. § 20.1100 (2014). 2. Evidence received since the July 1997 Board decision is new and material to reopen service connection for a psychiatric disorder that includes PTSD, depression, and dysthymia. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2014). In this decision, the Board reopens and remands the issue of service connection for an acquired psychiatric disorder for additional development. As such, no further discussion of VA's duties to notify and to assist is necessary. Reopening Service Connection for an Acquired Psychiatric Disorder When a claim is disallowed by the Board, the claim may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered. 38 U.S.C.A. § 7104(b). However, pursuant to 38 U.S.C.A. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as 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). In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Regardless of the RO's determination as to whether new and material evidence had been received, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board's jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996)). If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus v. Principi, 3 Vet. App. 510, 512 (1992). Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Id. at 513. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. § 3.303(a) (2014). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2014). As a general matter, service connection for a disability requires competent evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In a July 1997 decision, the Board denied service connection for an acquired psychiatric disorder for no clear diagnosis of PTSD and no evidence of record linking any psychiatric disorder to service (no nexus). The July 1997 Board decision, which was not appealed to the Court, was final as to the evidence then of record, and is not subject to revision on the same factual basis. See 38 U.S.C.A. § 7104(b); 38 C.F.R. § 20.1100. Since the final July 1997 Board decision, VA has received a January 2011 treatment record from the Cheyenne VA Medical Center that includes diagnoses of PTSD and opines that the PTSD is related to service. Such evidence could reasonably substantiate a claim of service connection for an acquired psychiatric disorder, as, at the very least, such evidence, when considered with the other evidence of record, triggers the VA Secretary's duty to assist. As such, the new evidence meets the low reopening standard of Shade. For these reasons, the Board finds that the additional evidence is new and material to reopen service connection an acquired psychiatric disorder. 38 C.F.R. § 3.156(a). ORDER New and material evidence having been received, the appeal to reopen service connection for an acquired psychiatric disorder that includes PTSD, dysthymia, and depression is granted. REMAND Mental Health Examination VA must afford a veteran an examination and/or obtain an opinion when it is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In disability compensation (service connection) claims, VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). To that end, when VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Under 38 C.F.R. § 3.304(f)(5)(2014), if a PTSD claim is based on in-service personal assault, evidence from sources other than the veteran's service records may corroborate the veteran's account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. Under 38 C.F.R. § 3.304(f)(5), VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. As noted above, VA has received a January 2011 psychiatric impairment questionnaire from the Cheyenne VA Medical Center. The questionnaire was completed by a VA clinical social worker who diagnosed PTSD. In the January 2011 questionnaire, the VA clinical social worker opined that the currently diagnosed PTSD was proximately caused by military sexual trauma (MST). While the questionnaire provides a current PTSD diagnosis, the VA clinical social worker's purported positive nexus opinion failed to offer any rationale as to how the PTSD is related to the reported in-service MST stressor. The Board notes that the Veteran has advanced being hazed while in-service; however, the Board cannot infer whether the hazing and the MST are one in the same for purposes of the examiner's positive nexus opinion. Further, in-service treatment records do not reflect treatment for symptoms now claimed to be caused by a MST. For these reasons, the Board finds that a VA examination would assist in determining the nature and etiology of any currently diagnosed psychiatric disorder, to include whether the diagnoses include PTSD, and, if PTSD is diagnosed, to offer an opinion as to whether the record indicates that a personal assault occurred. Treatment Records VA should obtain all relevant VA and private clinical documentation which could potentially be helpful in resolving the issues. Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). The record reflects that the Veteran has previously received VA and private treatment for the currently diagnosed psychiatric disorders. On remand the AOJ should attempt to obtain any outstanding VA and private treatment records concerning the remanded issue that are not already of record. Accordingly, the issue of service connection for an acquired psychiatric disorder, to include PTSD, bipolar disorder, dysthymia, and depression not otherwise specified, is REMANDED for the following action: 1. Request the Veteran to provide information as to any private treatment for a psychiatric disorder, including PTSD, not previously received by VA. Upon receipt of the requested information and the appropriate releases, the AOJ should contact all identified health care providers and request that they forward copies of all available treatment records and clinical documentation pertaining to treatment of the Veteran's psychiatric disorder(s), not already of record, for incorporation into the record. If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e) (2014). 2. Associate with the record all VA clinical documentation (treatment records) pertaining to the treatment of the Veteran's mental health, not already of record, for the period from February 2007. 3. Schedule a VA mental health examination to help determine whether the Veteran has a currently diagnosed psychiatric disorder, to include PTSD, that is related to service. The relevant documents in the record should be made available to the examiner. The examiner should obtain a full and accurate history from the record and from the Veteran, and all indicated studies should be performed. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. The examiner should provide the following opinions: A) Does the Veteran have PTSD? In answering this question, the examiner should address the following: i) PTSD diagnosis in the January 2011 opinion. ii) identify the specific stressor(s) underlying any PTSD diagnosis, namely, fear of hostile military activity and reported MST. iii) If it is the examiner's opinion that MST occurred, the examiner should specifically identify what factors this opinion is based on. C) Is any diagnosed PTSD related to service, specifically to fear of hostile military activity and/or reported MST? The examiner should specifically opine as to whether the nature of any diagnosed PTSD indicates that a personal assault occurred. D) Does the Veteran have any other non-PTSD psychiatric disorder, including dysthymia, depression, or bipolar disorder? E) For any diagnosed non-PTSD psychiatric disorder, is it as likely as not (i.e., probability of 50 percent or more) did the disability had its onset during active service? 4. Then readjudicate the issue of service connection for an acquired psychiatric disorder, to include PTSD, dysthymia, depression, and bipolar disorder. If the benefit sought remains denied, the Veteran and representative should be issued a Supplemental Statement of the Case (SSOC). An appropriate period of time should be allowed for response before the case is returned to the Board. The Veteran 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 or by the United States Court of Appeals for Veterans Claims (Court) 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. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs