Citation Nr: 1539756 Decision Date: 09/16/15 Archive Date: 09/24/15 DOCKET NO. 14-09 209 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disability, to include PTSD. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran had active service from October 1974 to July 1975. This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The Veteran was afforded a videoconference hearing before the Board in July 2015. A transcript of the testimony offered at the hearing has been associated with the record. The issue of entitlement to service connection for an acquired psychiatric disability, to include PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a September 2011 rating decision, the RO declined to reopen the Veteran's claim for service connection of a an acquired psychiatric disability, to include PTSD, on the grounds that new and material evidence had not been submitted; the Veteran did not appeal that determination. 2. Evidence received since the final September 2011 rating decision relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating it. CONCLUSIONS OF LAW 1. The RO's September 2011 denial of the Veteran's application to reopen his claim for service connection of a an acquired psychiatric disability, to include PTSD, is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.1103 (2015). 2. New and material evidence has been received since the September 2011 denial, and the claim is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Considering the favorable outcome detailed below as to reopening of the Veteran's claims, VA's fulfillment of its duties to notify and assist need not be addressed at this time. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C.A. §§ 5108, 7103, 7104, 7105; 38 C.F.R. §§ 3.156, 20.1100 (2014). For claims received on or after August 29, 2001, new evidence means existing evidence not previously submitted to agency decisionmakers. 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 sustaining the claim. 38 C.F.R. § 3.156(a). New and material evidence need not be received as to each previously unproven element of a claim in order to justify reopening thereof. See Shade v. Shinseki, 24 Vet. App. 110, 120, (2010). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. The only exception would be where evidence presented is inherently incredible. Justus v. Principi, 3 Vet. App. 510 (1992). In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the Veteran in developing the facts necessary for his claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999), but see 38 U.S.C.A. § 5103A (West 2002) (eliminates the concept of a well-grounded claim). Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. In the absence of new and material evidence, the benefit-of-the-doubt rule does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). By way of background, the Board notes that in a May 2006 decision it denied the Veteran's claim for service connection of an acquired psychiatric disability, to include PTSD. A review of that decision shows that the Board denied the claim on the grounds that the Veteran did not then have a diagnosis of PTSD, and that the Veteran's remaining psychiatric disability was not causally related to his period of service. In a September 2011 rating decision, the RO apparently denied the Veteran's application to reopen his claim of entitlement to service connection for a psychiatric disability, to include PTSD. Inter alia, the RO denied the claim on the grounds that the evidence did not show an event, disease or injury in service that may have caused a current disability. At the time of the prior denial in September 2011, the Veteran's service records reflected that he had received an administrative discharge for reason of unfitness due to frequent involvement of a discreditable nature with military authorities. The evidence also disclosed that the Veteran reported several stressors, but none that had occurred while on active duty. New and material evidence has been received. In support of his application to reopen, the Veteran submitted a stressor statement dated in December 2013. In the statement he relates a history of witnessing a soldier accidently shoot his finger off at the firing range on December 13, 1974. He also provided the name of that soldier, Private Russell. This evidence is presumed credible at this stage. Justus, supra. This evidence was not of record at the time of the September 2011 denial and is new. Because the evidence relates to the unestablished in-service event, it is also material. New and material evidence need not be received as to each previously unproven element of a claim in order to justify reopening thereof. See Shade v. Shinseki, 24 Vet. App. 110, 120, (2010). The claim is reopened; to this extent only is the claim allowed. ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disability, to include PTSD; to this extent only the appeal is granted. REMAND The Veteran does not allege a combat stressor, or fear of hostile military or terrorist activity. As such, the matter must be remanded to attempt to corroborate his alleged witnessing of Private Russell shooting off his finger on December 13, 1974. See 38 C.F.R. § 3.304(f)(3). The Board also notes that VA records disclose assessment of PTSD, as well as major depression. VA records also suggest that the Veteran had a pre-existing psychiatric disability that was permanently aggravated by service. A January 2004 VA mental health note reflects that "it is likely that the [Veteran] suffered from depression secondary to childhood events, and from some situational depression from events in the military." A January 2014 VA mental health note reflects "pre-existing posttraumatic stress disorder" and that "seeing the man shoot his thumb off in the military did worsen his pre-existing [PTSD]." A Veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991) . VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 03-2003; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). In the present case, the evidence is insufficient to decide the current claim, but indicates that the Veteran may have had a psychiatric disability that existed prior to service. The evidence also indicates that any pre-existing psychiatric disability may have been aggravated in service. Under these circumstances, the Board finds that a VA examination is necessary. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Attempt to verify the claimed in-service stressor of witnessing Private Russell shoot off his finger on December 13, 1974, with the appropriate Service Department, to include the Marine Corps Archives and Special Collections (MCASC). All information obtained by the AOJ in furtherance of this attempt must be associated with the claims file. If the AOJ is unable to corroborate this stressor, a negative finding to such effect must be associated with the claims file. 2. After the development directed in paragraph 1 has been completed to the extent possible, schedule the Veteran for a VA psychiatric examination to determine the presence, severity and etiology of the Veteran's claimed psychiatric disabilities, to include PTSD. All indicated tests and studies should be conducted. The claims file should be available for review by the examiner. The examiner should obtain a complete, pertinent history from the Veteran and review the claims file in conjunction with the examination, giving particular attention to his lay assertions, as well as the pertinent medical evidence. The examiner should note that the claims file has been reviewed. Based on a review of the record and examination of the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or better probability) that any assessed psychiatric disability, to include PTSD, is attributable to service, including the Veteran's claimed stressor of witnessing a soldier shoot off his finger. If for any assessed psychiatric disability that the examiner concludes is less likely than not attributable to service, the examiner is asked provide an opinion on the following: (1) Whether there is clear and unmistakable evidence that the psychiatric disability pre-existed service and (2) Whether there is clear and unmistakable evidence that any such psychiatric disability was not aggravated by service. Any and all opinions must be accompanied by a complete rationale. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. The examiner is informed that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. Clear and unmistakable evidence means evidence that is undebatable or that cannot be mistaken or misunderstood. 3. Readjudicate the issue on appeal, with consideration of all pertinent evidence of record. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs