Citation Nr: 1635070 Decision Date: 09/08/16 Archive Date: 09/20/16 DOCKET NO. 15-42 432 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Whether new and material evidence has been received to reopen a claim for entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), depression, anxiety, and psychosis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. T. Sprague, Counsel INTRODUCTION The Veteran had active service in the United States Army from July 1977 to February 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. While a notice of disagreement was filed with respect to several other issues, in the Veteran's substantive appeal to the Board, dated in November 2015, he indicated that he only wished to pursue an appeal for his petition to reopen a claim for entitlement to service connection for a psychiatric disorder. Accordingly, it is the only matter currently pending before the Board. 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). The issue of entitlement to 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). FINDING OF FACT Evidence received since the last final decision of record relates specifically to unestablished facts necessary to substantiate the underlying claim for service connection for an acquired psychiatric disability. CONCLUSION OF LAW New and material having been received, the claim for service connection for an acquired psychiatric disability is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran was denied entitlement to service connection for PTSD in a 2009 Board decision on the basis of the alleged stressor not being corroborated by contemporaneous evidence of record. The Board's denial was not appealed to the U.S. Court of Appeals for Veterans Claims (Court), and thus, it is final. In general, decisions of the agency of original jurisdiction (the RO) or the Board that are not appealed in the prescribed time period are final. 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. 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 that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. See Knightly v. Brown, 6 Vet. App. 200 (1994). 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 had been presented), will be evaluated in the context of the entire record. See Evans v. Brown, 9 Vet. App. 273 (1996). 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). In determining whether evidence is new and material, the credibility of the evidence is presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence need not relate specifically to the reason why the claim was last denied; rather it need only relate to any unestablished fact necessary to substantiate the claim. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010) (stating that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim is a component of the question of what is new and material evidence, rather than a separate determination). Additionally, the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Id. Reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. A VA clinical noted on October 2012 indicates that, in addition to PTSD, the Veteran experiences anxiety and depression symptomatology. Additionally, a June 2014 medical note indicates that PTSD was "exacerbated" by back pain, and while this is not an unequivocal endorsement of a secondary relationship, it suggests that the service-connected back pathology aggravated a psychiatric condition beyond the natural progression of the disease process. This evidence is new, in that it was not of record at the time of the previous denial, and it is material, in that it relates to a previously unestablished fact necessary to substantiate the underlying claim (i.e. it suggests the broadening of the present acquired psychiatric pathology and a possibility of a causal nexus between such disability and currently service-connected disability). As such, the claim will be reopened. See 38 C.F.R. § 3.156. ORDER New and material evidence having been submitted, the claim for entitlement to service connection for an acquired psychiatric disability is reopened; to that extent only, the claim is granted. REMAND The Veteran has varied diagnoses of PTSD, depression, anxiety, psychosis, and substance abuse disorder. The Veteran was reduced in rank twice during his period of enlistment. 2006 and 2014 clinical notations mention that the back pain "exacerbates" the psychiatric condition, and there are also opinions of record which link the Veteran's current psychiatric problems with his service in Korea. A clarifying medical examination will be conducted. McLendon v. Nicholson, 20 Vet. App. 79, 84 (2006). 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. The Veteran should be informed of his ability to supplement the record with any additional evidence which might tend to substantiate his claim for service connection. Particularly, he should be reminded of alternative means to substantiate a claim for PTSD/acquired psychiatric disability based on a personal assault, and he should be encouraged to supply any evidence in his possession, to include letters from friends or relatives who knew him at the time of service, which might be helpful in substantiating his claim. 2. Schedule the Veteran for a comprehensive VA psychiatric examination to determine the nature and etiology of claimed acquired psychiatric disability. The following is asked: *The specific pathology present should be identified. The examiner's attention is drawn to diagnoses of PTSD, depression, anxiety, psychosis, and substance abuse disorder. *The Veteran has alleged conflicting stressors with respect to PTSD, and there are incidents where he has reported participation in combat and/or fear of hostile enemy activity. The Veteran did not serve in combat and participated in peacetime operations in Korea. The examiner is to specifically take note of this and of reports of a traumatic childhood. *The examiner should note behavioral abnormality in service as documented by reduction in rank on two separate occasions (Veteran was reduced from Specialist-5 to Private First Class in June 1980, and after regaining his previous rank, was reduced from Specialist-5 to Specialist-4 in October 1982 (the rank which he separated from service), and is to comment on any potential impact such abnormality might have in the development of current psychiatric pathology. *Should the Veteran's PTSD/other acquired psychiatric disability be found to have existed prior to service entry or to be otherwise not related to in-service factors, the examiner is to opine as to if service-connected back issues cause, or aggravate beyond the natural progress of the disease process, the acquired psychiatric disability picture. The 2006 and 2014 annotated of back pain "exacerbating" the then-diagnosed PTSD should be noted. *The 2015 VA clinician's letter, and all clinical records, which ascribe PTSD to allegations of unconfirmed personal assault are to be noted. *A 2004 report of the Veteran's brother, which documented changes in behavioral patterns, should be specifically discussed by the examiner. *Should substance abuse disorder be present outside of other acquired psychiatric manifestations, or, alternatively, should such manifestations be part and parcel of disorders such as PTSD, depression, and anxiety, such a fact should be stated. 2. Following the above-directed development, re-adjudicate the Veteran's claim. Should the claim remain denied, issue an appropriate supplemental statement of the case and forward the case to the Board for adjudication. 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). ______________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs