Citation Nr: 1536278 Decision Date: 08/25/15 Archive Date: 08/31/15 DOCKET NO. 12-20 986A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim for 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: Robert Lemley, Agent WITNESSES AT HEARING ON APPEAL Veteran and friend ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The Veteran served on active duty from October 1982 to December 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Atlanta, Georgia, Department of Veterans Affairs (VA) Regional Office (RO), which found new and material evidence had been submitted to reopen the claim for PTSD, but ultimately denied the claim for service connection on the merits. Although the RO reopened the claim, it is the Board's jurisdictional responsibility to consider whether a claim should be reopened, no matter what the RO has determined. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Veteran filed a request to reopen the previously denied claim for entitlement to service connection for PTSD and depression. Case law provides that a claim for a mental health disability 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. Brokowski v. Shinseki, 23 Vet. App. 79 (2009); see also Clemons v. Shinseki, 23 Vet. App. 1 (2009). The record reflects mental disorders other than PTSD, including bipolar disorder, schizoaffective disorder, panic disorder, generalized anxiety disorder (GAD), and major depression. Thus, pursuant to the holding in Clemons, the Board has more broadly characterized the psychiatric claim on appeal to extend to other acquired psychiatric disorders. In doing so, the Board acknowledges that a change in diagnosis or the specificity of the claim must be carefully considered in determining whether the claim is based on a distinct factual basis. Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008). In Boggs, the United States Court of Appeals for the Federal Circuit found that a claim for one diagnosed disease or injury cannot be prejudiced by a prior claim for a different diagnosed disease or injury, when it is an independent claim based on distinct factual bases. However, the United States Court of Appeals for Veterans Claims (Court) clarified in Velez v. Shinseki, 23 Vet. App. 199 (2009), that the focus of the analysis must be whether the evidence truly amounted to a new claim based upon a different diagnosed disease or whether the evidence substantiates an element of a previously adjudicated matter. In this case, the Board is broadening the scope of the claim because the present claim turns upon essentially the same history, factual bases, and claimed symptomatology as were considered in the prior final rating decisions - that the Veteran experiences a chronic psychiatric disorder as a result of his active service. As such, the threshold question of whether new and material evidence had been submitted must be addressed. It is also noted that in light of the Board's decision to reopen the claim for an acquired psychiatric disorder, to include PTSD, requiring a grant of the claim to that extent, there is no discernable prejudice to the Veteran. In June 2015, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Videoconference Board hearing. A transcript of that hearing is of record and associated with the Veterans Benefits Management System (VBMS) file. The issue of entitlement to service connection for an acquired psychiatric disorder, to include PTSD being remanded is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if additional action is required on his part. FINDINGS OF FACT 1. Service connection for PTSD and depression was denied by an unappealed rating decision of September 2007. 2. Evidence received subsequent to the September 2007 rating decision raises a reasonable possibility of substantiating the claim of service connection for an acquired psychiatric disorder, to include PTSD. CONCLUSIONS OF LAW 1. The September 2007 RO decision which denied service connection for PTS, and depression is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 3.104(a); 20.302 (2015). 2. Evidence submitted subsequent to the September 2007 denial of service connection for PTSD and depression is new and material. 38 U.S.C.A. § 5107, 5108 (West 2014); 38 C.F.R. §§ 3.156(a) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Assist and Notify As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326(a) (2015). In this case, the Board is granting in full the benefit sought of new and material evidence to reopen the claim on appeal. Accordingly, assuming, without deciding, that there was any error with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered. New and Material Evidence Unappealed rating decisions are final with the exception that a claim may be reopened by submission of new and material evidence. When a veteran seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is "new and material." Second, if VA determines that new and material evidence has been added to the record, the claim is reopened and VA must evaluate the merits of the appellant's claim in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140 (1991);Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996). The question of whether a claimant has submitted new and material evidence to reopen a claim and the question of whether upon such reopening, a claimant is entitled to VA benefits, are questions relating to a single 'matter' for purposes of the Board's jurisdiction under 38 U.S.C.A. § 7104(a). Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). It is the Board's jurisdictional responsibility to consider whether a claim should be reopened, no matter what the RO has determined. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Court held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion or through consideration of an alternative theory of entitlement. Id at 118. A prior final denial on one theory of entitlement is considered a final denial on all theories of entitlement. Bingham v. Nicholson, 421 F.3d 1346, 1349 (2005). That is, while there may be multiple theories or means of establishing entitlement to a benefit for a disability, if the theories all pertain to the same benefit for the same disability, they constitute a single claim. Roebuck v. Nicholson, 20 Vet. App. 307, 313 (2006). As such, new and material evidence is still necessary to reopen a claim for the same benefit asserted under a different theory. Id. For purposes of reopening a claim, the credibility of the evidence is generally presumed. Cox v. Brown, 5 Vet. App. 95, 98 (1993); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Under the applicable provisions, new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the 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 Veteran's claim for service connection for PTSD and depression was denied by rating decision of September 2007. The RO determined that the evidence of record, to include his service treatment records, did not show a confirmed diagnosis of PTSD or a documented stressor. The RO also noted that no other psychiatric disorder was shown to be related to active service. Notice was provided to the Veteran in a letter of that same month. No appeal was made within one year of the notice of denial. The September 2007 denial thereby became final. The Veteran filed to reopen the claim for PTSD in December 2009. The most recent June 2011 rating decision continued to deny the claim. The evidence received since the September 2007 final decision includes private medical statements and medical records, a December 2009 VA assessment record, a May 2011 VA examination opinion, and a June 2015 videoconference hearing transcript. The private medical evidence of record submitted since February 2007 is not new and material. That evidence, which shows treatment for PTSD and psychiatric disorders, does not show corroboration that these mental disorders occurred or were caused by service or that the Veteran has PTSD as a result of his active service. Therefore, this evidence is not new and material. The December 2009 VA assessment note diagnosed PTSD, due to military and civilian work. The VA opinion of May 2011 opines that the Veteran's diagnosed PTSD is secondary to the Veteran's alleged childhood abuse. The examiner diagnosed bipolar disorder and opined that it was predisposed, but triggered by stress of his job as a military police in service. All of this evidence is new, as it was not previously of record. The evidence diagnosing PTSD due to childhood abuse is not material, as it does not relate PTSD to service and does not raise a reasonable possibility of substantiating the claim. However, the diagnosis of PTSD made in the December 2009 treatment assessment, and the diagnosis of bipolar disorder, made in the May 2011 VA examination opinion, are material. This evidence, in connection with previous evidence of record, would raise a reasonable possibility of substantiating the claim of service connection for PTSD and/or bipolar disorder. At the minimum, it would at least trigger the Secretary's duty to assist by seeking additional evidence and providing for a medical opinion. Therefore, since the Board finds this evidence to be new and material, the claim will be reopened. Having reopened the claim, the Board finds the claim may now be given a de novo review. ORDER New and material evidence to reopen the claim for service connection for an acquired psychiatric disorder, to include PTSD and bipolar disorder, having been received, the claim, to this extent, is granted. REMAND The Veteran claims that he has PTSD as a result of his active duty service. He claims that as a result of his service as a military policeman, and his exposure to lots of violence, dead bodies, car crashes, his partner being shot, and child death, he warrants service connection for PTSD. His diagnosis of predisposed bipolar disorder that according to the May 2011 VA examiner, was triggered by his military service, also needs to be addressed. The Veteran has also been diagnosed with numerous other psychiatric disorders which have not been addressed as service-related or not. This should also be addressed. During the Veteran's June 2015 videoconference hearing, it was raised that the Veteran had filed a claim for Social Security Administration (SSA) disability benefits. In Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010), the United States Court of Appeals for the Federal Circuit held that VA's duty to obtain SSA records was not absolute, and that the duty only extends when the records are believed to be relevant. Here, because the Veteran stated at his hearing that he was attempting to obtain SSA disability benefits, and did not clarify if his psychiatric disorders he claims to be due to service are related to the Social Security claim, the potential relevancy of the SSA decision and the records it has considered cannot be ignored. These records are necessary for review before a decision may be made regarding his claim. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file any medical treatment records, VA or non-VA, that may have come into existence since the time the claims file was last updated by the RO. 2. Obtain a copy of the decision and medical records considered by the Social Security Administration in making its decision for Social Security disability benefits. Any negative response should be included with the claims file. 3. The AOJ, after any necessary development, should determine whether a stressor claimed by the Veteran is related to his fear of hostile military or terrorist activity, as pertains to his description of reported service in Korea. 4. The AOJ should contact the Joint Services Records Research Center (JSRRC) and attempt to verify the claimed stressors reported by the Veteran. Evidence of efforts to verify stressors should be made a part of the file. Specifically, JSRRC should be asked to verify whether the Veteran's partner, Sgt. M., was shot during an investigation of domestic violence in 1984. The Veteran should clarify the dates of hanging deaths, specifically one occurring at the Base Exchange prior to the JSRRC's attempt to verify this stressor. If he has any other stressors or any other stressors need to be clarified, the AOJ should allow the Veteran to present that evidence prior to sending the information to the JSRRC. 5. Thereafter, the Veteran should be afforded a VA examination to determine the nature and etiology of his claimed PTSD or other psychiatric disorder. All indicated tests and studies are to be performed. In connection with the examination, the VBMS file must be made available to the examiner (a VA psychologist or psychiatrist) for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. Based on a review of the VBMS file, examination of the Veteran, and utilizing sound medical principles, the examiner is requested to offer an opinion, with full supporting rationale, as to whether the appellant has PTSD meeting the criteria of DSM-V, and, if so, whether it is at least as likely as not (50 percent or greater probability) that the Veteran's PTSD is the result of any in-service claimed event. If a diagnosis of PTSD is deemed appropriate, the examiner must identify the specific stressor(s) underlying the diagnosis, and should comment upon the link between the current symptomatology and the Veteran's claimed stressor(s). Alternatively, the examiner should determine whether a claimed stressor is related to the Veteran's fear of hostile military or terrorist activity (Korea) and is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor. If an acquired psychiatric disability other than PTSD is diagnosed, e.g., depression, bipolar disorder, panic disorder, GAD, schizoaffective disorder, the examiner is asked to opine whether it is at least as likely as not (50 percent or greater probability) that the psychiatric disorder had its onset in service or is otherwise causally related to the Veteran's service. The examiner should take into consideration the statements made by the Veteran, to include his hearing testimony, and alleged reported stressors that should attempt to be verified by JSSRC. Additionally, the examiner should address whether it is at least as likely as not (50 percent or greater probability) that the Veteran had a predisposition to bipolar disorder, which was triggered by stress of the job in service as a military policeman. All findings and conclusions should be set forth in a legible report. A rationale should be given for any opinion rendered. If the examiner is unable to render an opinion without resorting to pure speculation, he/she should so state with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 6. Then, readjudicate the claim. If the decision is adverse to the Veteran, issue a supplemental statement of the case, allow the applicable time for response, and then return the case to the Board. The Veteran 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). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs