Citation Nr: 1603986	
Decision Date: 02/04/16    Archive Date: 02/11/16

DOCKET NO.  10-27 158	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts


THE ISSUES

1.  Whether new and material evidence has been presented to reopen a previously denied claim for entitlement to service connection for an acquired psychiatric disorder, to include PTSD.

2.  Entitlement to service connection for an acquired psychiatric disorder, to include PTSD.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

Dominic Jones, Associate Counsel


INTRODUCTION

The Veteran served on active duty from January 1969 to August 1970.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. 

A July 2009 rating decision denied service connection for PTSD.  A review of the record indicates that the Veteran has a diagnosis of generalized anxiety disorder.  See May 2015 VA examination report.  Accordingly, the Board has broadened his claim from one seeking service connection for PTSD to a claim for service connection for an acquired psychiatric disorder in general.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009).

The issue of entitlement to 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.  Service connection for PTSD was denied in a January 2006 rating decision on the basis that there was no evidence of a diagnosis of PTSD.  The Veteran did not perfect a timely appeal; thus, that decision became final.

2.  Evidence submitted since the January 2006 denial was not previously considered by agency decision makers; is not cumulative and redundant of evidence already of record; relates to an unestablished fact; and raises a reasonable possibility of substantiating his claim for service connection.


CONCLUSIONS OF LAW

1.  The January 2006 rating decision that denied entitlement to service connection for PTSD is final.  38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 3.104 (2015).

1.  The criteria for reopening the claim of entitlement to service connection for PTSD have been met.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran first sought service connection for PTSD in March 2005.  The RO denied this claim in January 2006 on the basis that there was no diagnosis of PTSD.  

The Veteran filed a notice of disagreement with the January 2006 rating decision, and a December 2008 statement of the case (SOC) was issued.  However, the Veteran did not file an appeal with the Board.  As such, the January 2006 rating decision became final.  38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.302; 20.1103.

A final decision cannot be reopened unless new and material evidence is presented.  38 U.S.C.A. § 5108.  The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994).

Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996).

Since the previous denial, the Veteran was provided with a VA examination in May 2015, and more recent VA treatment records were associated with the claims file.  The VA treatment records provide an indication of a diagnosis of PTSD.  See January 2015 treatment record.  While the May 2015 VA examiner did not diagnose the Veteran with PTSD, the examiner did diagnose the Veteran with a generalized anxiety disorder.  Since the Board has broadened the Veteran's claim to one for an acquired psychiatric disorder, this evidence is new and material.  The VA examination report and VA treatment records post-date the January 2006 denial and were not considered in the RO's decision.  This evidence is not cumulative and redundant of evidence already of record; it relates to an unestablished fact; and it raises a reasonable possibility of substantiating his claim for service connection.  The Board concludes that reopening the Veteran's claim of service connection for an acquired psychiatric disorder is warranted based on the submission of new and material evidence.  See 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2015).  The reopened claim is addressed further in the remand section.


ORDER

New and material evidence having been presented, the claim for entitlement to service connection for an acquired psychiatric disorder is reopened; the appeal is granted to this limited extent.  


REMAND

Having reopened the claim, the Board must now address the service connection claim on the merits.  As additional evidence is required, the claim must be remanded for the reasons that follow.

The Veteran underwent a VA examination for PTSD in May 2015.  In the examination report, the examiner opined that the Veteran "would not meet DSM-V or DSM-IV criteria for PTSD."  Nonetheless, the examiner did diagnose the Veteran with generalized anxiety disorder.  However, the examiner did not opine whether it was as likely as not that the psychiatric disorder was related to the Veteran's service.  For this reason, the case must be remanded to obtain this opinion.  See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).

The Veteran also reports being treated for his psychiatric condition at the Lowell Vet Center beginning in about August 2015.   See October 2015 Board hearing.  These records are not currently associated with the claims file, and should also be obtained on remand.

Accordingly, the case is REMANDED for the following action:

1.  Obtain relevant VA treatment records dated since January 2015, to include any relevant treatment records from the Lowell Vet Center, and associate them with the claims file.  

3.  Forward the claims file to an appropriate medical professional.  The examiner should review the entire claims file.

The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed psychiatric disorder is related to the Veteran's active service.

Another examination of the Veteran should only be performed if deemed necessary by the person providing the opinion.

The examination report should include a complete rationale for all opinions expressed.  

4.  Finally, after conducting any other development deemed necessary, readjudicate the appeal.  If the benefit sought remains denied, issue a supplemental statement of the case and 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).
 


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


Department of Veterans Affairs