Citation Nr: 1601645	
Decision Date: 01/14/16    Archive Date: 01/21/16

DOCKET NO.  15-07 916	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
the Commonwealth of Puerto Rico


THE ISSUE

Whether new and material evidence has been submitted to reopen a claim of service connection for a psychiatric disorder, including posttraumatic stress disorder (PTSD), and if so, if service connection for a psychiatric disorder including PTSD is warranted.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

K. J. Kunz, Counsel



INTRODUCTION

The Veteran had active service from September 1951 to November 1951, and from September 1952 to August 1954.

This appeal comes before the Board of Veterans' Appeals (Board) from a June 2014 rating decision of a Regional Office (RO) of the United States Department of Veteran's Affairs (VA). In that decision, the RO denied service connection for PTSD.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014).

In this decision, the Board is granted reopening of a previously denied claim for service connection for a psychiatric disorder including PTSD. The issue of that reopened service connection claim, on its merits, 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 an April 2013 Board decision, the Board denied service connection for a psychiatric disorder including PTSD. The Veteran did not appeal that decision.

2. Evidence received since the April 2013 Board decision includes a diagnosis of a psychiatric disorder and provides additional information about the Veteran's psychiatric symptoms since service.



CONCLUSIONS OF LAW

1. The April 2013 Board decision denying service connection for a psychiatric disorder including PTSD is final. 38 U.S.C.A. §§ 7104, 7105, 7266 (West 2014); 38 C.F.R. § 20.1100 (2015).

2. Evidence received since the April 2013 Board decision is new and material and warrants reopening of a claim for service connection for a psychiatric disorder including PTSD. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Request to Reopen Claim

The Veteran contends that he has a nervous or psychiatric disorder as a result of his experiences during combat service in Korea. In an October 2005 rating decision, the RO denied service connection for a nervous condition. The Veteran appealed that decision. In October 2009 and April 2011, the Board remanded the issue for the development of additional evidence. In an April 2013 decision, the Board denied service connection for a psychiatric disorder, to include PTSD. The Veteran did not appeal that decision to the United States Court of Appeals for Veterans Claims (Court).

Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim the review the former disposition of the claim.

In February 2014, the Veteran again sought service connection for a psychiatric disorder, to include PTSD. In a June 2014 rating decision, the RO denied service connection for PTSD. The Veteran appealed that decision.

In order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the last time that the claim was finally disallowed on any basis (not only since the last time that the claim was disallowed on the merits). Evans v. Brown, 9 Vet. App. 273 (1996). The April 2013 Board decision is the only final disallowance of service connection for psychiatric disability including PTSD. The Board will consider whether new and material evidence has been submitted since that decision.

New evidence means 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 Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, supra, at 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). 

On VA mental disorders examination in December 2009 and September 2011, the Veteran related his experiences during combat service in Korea, and his symptoms of nervousness, anxiety, and forgetfulness during and since service. Each examiner found that there was not a basis for a diagnosis of a psychiatric disorder. In the April 2013 decision, the Board denied service connection for a psychiatric disability including PTSD because the Veteran had not been diagnosed as having a current psychiatric disorder.

Subsequently, in June 2014, the Veteran had another VA mental disorders examination. The Veteran provided additional information about psychiatric disorder symptoms that he has experienced ever since his return from Korea. The examiner provided a diagnosis of a mild neurocognitive disorder. The examiner did not provide any finding or opinion as to the likelihood that the diagnosed disorder began during service or is related to experiences during service. The diagnosis that the Veteran has a current psychiatric disorder addresses an unestablished fact that is necessary to substantiate a claim for service connection. The diagnosis thus is new and material evidence. The Board therefore grants reopening of a claim for service connection for a psychiatric disorder including PTSD.

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2015). As the Board is granting reopening of the previously denied claim, it is not necessary to discuss VA's duties to assist the Veteran in substantiating a claim to reopen that claim.

Having reopened the claim for service connection for a psychiatric disorder including PTSD, the Board must consider that claim on its merits. The Board finds that the claim should be remanded to the RO for the development of additional evidence, as explained in the remand section, below.

ORDER

A claim for service connection for psychiatric disability including PTSD is reopened.


REMAND

The Board is remanding the reopened claim for service connection for a psychiatric disorder including PTSD to the RO for the development of additional evidence. The June 2014 VA examiner did not address the question as to the likelihood that the current disorder began during service or is related to his combat experiences. A new mental disorders examination should be performed, with opinion addressing that question.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1. Schedule the Veteran for a new VA mental disorders examination to address the nature and likely etiology of current psychiatric disorders, including neurocognitive disorder and posttraumatic stress disorder (PTSD). Provide the Veteran's claims file to the examiner for review. Ask the examiner to review the claims file and examine the Veteran. Ask the Veteran to provide a diagnosis for each current psychiatric disorder the Veteran has. Ask the examiner to explain in detail which diagnostic criteria for PTSD the Veteran's symptoms meet or do not meet. With respect to each current psychiatric disorder, ask the examiner to provide opinion as to whether it is at least as likely as not (at least a 50 percent likelihood) that the disorder was incurred or aggravated during service, or is otherwise causally related to experiences during his combat service in Korea. Ask the examiner to explain the conclusions reached.  

2. Thereafter, review the expanded record and reconsider the remanded claim. If the claim remains denied, issue a supplemental statement of the case and afford the Veteran and his representative an opportunity to respond. Thereafter, return the case to the Board for appellate review if otherwise in order.

The Board intimates no opinion as to the ultimate outcome of the matter that the Board has remanded. The Veteran has the right to submit additional evidence and argument on that matter. Kutscherousky v. West, 12 Vet. App. 369 (1999).



______________________________________________
M. TENNER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs