Citation Nr: 1647667 Decision Date: 12/22/16 Archive Date: 01/06/17 DOCKET NO. 09-16 366 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Whether new and material evidence has been received with respect to a claim of service connection for a psychiatric disorder, to include post traumatic stress disorder (PTSD). 2. Entitlement to service connection for PTSD. 3. Entitlement to service connection for a psychiatric disorder other than PTSD. 4. Entitlement to service connection for hepatitis C. REPRESENTATION Veteran represented by: Margaret Matthews, Agent ATTORNEY FOR THE BOARD M. Hendricks, Associate Counsel INTRODUCTION The Veteran had active duty service from January 1970 to October 1972, to include service in the Republic of Vietnam from June 1970 to April 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which in pertinent part denied service connection for PTSD and hepatitis C. The Veteran has timely appealed the above issues. The Board will also address a separate service connection claim for a psychiatric disorder other than PTSD, in order to comply with the holding in Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board considers the psychiatric claim to be reopened. As discussed below, the Board finds that service connection for PTSD is warranted at this time. The issues of service connection for a psychiatric disorder other than PTSD and hepatitis C are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. New evidence that tends to substantiate the claim of service connection for a psychiatric disorder has been received since the final June 1996 rating decision that denied service connection for PTSD. 2. The Veteran's currently diagnosed PTSD is shown to be related to his service in the Republic of Vietnam. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim of service connection for a psychiatric disorder is reopened. 38 U.S.C.A. §§ 5108, 7104 (West 2014); 38 C.F.R. § 3.156 (2016). 2. The criteria for establishing service connection for PTSD have been met. 38 U.S.C.A. § 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) 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 and 3.326(a) (2016). With respect to the Veteran's psychiatric claim, that claim is being reopened and granted with respect to PTSD. Consequently, any further discussion respecting the VCAA is not necessary at this time. New and Material Evidence for Psychiatric Disorder A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision, or new and material evidence is received during the appeal period after the decision. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2016). If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108 (West 2014); see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New evidence is defined as 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) (2016). Historically, the Veteran claimed service connection for a psychiatric disorder, to include PTSD, in September 1994; in a June 1996 rating decision, the AOJ denied service connection for the Veteran's PTSD, noting that the Veteran failed to describe or report information regarding purported stressors in service, and there was no evidence the claimed condition existed at that time. The Veteran was notified of that decision in a September 1996 letter. The Veteran did not submit any additional evidence or notice of disagreement within one year of that letter. As no new and material evidence was received during the appeal period following the September 1996 letter, the June 1996 rating decision became final. See 38 C.F.R. § 3.156(b); Buie v. Shinseki, 24 Vet. App. 242, 252 (2010). Likewise, as the Veteran did not submit a notice of disagreement within one year of the September 1996 letter, the June 1996 rating decision is final. See 38 C.F.R. §§ 20.200, 20.201, 20.1103 (2016). New and material evidence is therefore required to reopen the claim of service connection for a psychiatric disorder. See 38 U.S.C.A. § 5108 (West 2014); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); 38 C.F.R. § 3.156. The Veteran filed his claim to reopen his psychiatric disorder in July 2007; the AOJ afforded the Veteran a VA psychiatric examination in December 2010. During the examination, the Veteran reported information regarding an in-service stressor, and the examiner related this stressor to the Veteran's diagnosis of PTSD. The Board concludes that this evidence received since June 1996 relates to his psychiatric claims and stressors. Based on the evidence received since the final June 1996 rating decision, including the Veteran's statements, the description of a stressor related to PTSD, and the AOJ's determination that a VA examination was necessary in this case, the Board must conclude that new and material evidence has been received which tends to substantiate the Veteran's claim of service connection for a psychiatric disorder, and this claim is reopened. See 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (medical evidence which indicates that a medical opinion is warranted is sufficient to reopen a claim). Service Connection for PTSD Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a) [i.e., a diagnosis under DSM-IV]; a link, established by medical evidence, between current symptoms and a stressor event in service; and credible supporting evidence that the claimed stressor event in service occurred. 38 C.F.R. § 3.304 (f). The evidence necessary to establish the occurrence of a recognizable stressor during service to support a PTSD diagnosis will vary depending upon whether the Veteran engaged in "combat with the enemy". See 38 U.S.C.A. § 1154 (b); 38 C.F.R. §§3.304 (f); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). If VA determines the Veteran engaged in combat with the enemy and his alleged stressor is combat-related, then his lay testimony or written statement is accepted as conclusive evidence of the stressor's occurrence and no further development or corroborative evidence is required-provided that such testimony is found to be "satisfactory," i.e., credible and "consistent with circumstances, conditions or hardships of service." See 38 U.S.C.A. § 1154 (b); 38 C.F.R. § 3.304 (f); Zarycki, 6 Vet. App. at 98. If, however, the VA determines either that the Veteran did not engage in combat with the enemy or that he did engage in combat, but that the alleged stressor is not combat related, then his lay testimony, in and of itself, is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain evidence that corroborates his testimony or statements. Id. Additionally, if a stressor claimed by a Veteran is related to the Veteran's "fear of hostile military or terrorist activity" and a VA or VA-contracted psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor so long as there is not clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service. 38 C.F.R. § 3.304 (f)(3) (2015). "Fear of hostile military or terrorist activity" is defined as being where "a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror." Id. Turning to the evidence of record, the Board specifically notes VA treatment providers throughout the appeal period have diagnosed the Veteran with PTSD and treated that condition, including on an inpatient basis in August 1995 due to a suicide attempt. VA records up until July 2000 demonstrate that the Veteran was receiving services from a PTSD program. Additionally, the Veteran underwent a VA examination in December 2010. The Veteran reported he had combat experience in Vietnam from June 1970 to April 1971. Specifically, the Veteran reported a mortar attack hit a building where he was located, it took several hours to get him out of the debris, and he witnessed a close friend seriously wounded while on duty. The examiner stated the Veteran met the DSM-IV stressor criteria, and that his claimed stressor was related to his diagnosed PTSD. Although the Veteran does not appear to meet the criteria for engaging in combat with the enemy under 38 U.S.C.A. § 1154(b), the Board finds after resolving any reasonable benefit of the doubt in favor of the Veteran, that his reported stressor of being in a building during a mortar attack meets the definition of "fear of hostile military or terrorist activity" such that this stressor does not need to be corroborated as it is generally consistent with the circumstances of the Veteran's service in Vietnam. Thus, the Board finds that all elements of service connection have been met in this case: a VA examiner has diagnosed the Veteran with PTSD based upon his stressor of being in a building in Vietnam that was hit by mortar fire, and this stressor meets the liberalized standard of "fear of hostile military or terrorist activity." Accordingly, entitlement to service connection for PTSD is warranted. ORDER New and material evidence with respect to the claim of service connection for PTSD has been received, and that claim is reopened. Service connection for PTSD is granted. REMAND As discussed above, the Veteran's claim for service connection for a psychiatric disorder has been reopened. The Veteran underwent a December 2010 VA psychiatric examination, in which the examiner only diagnosed the Veteran with PTSD. She did not address any additional psychiatric disorders, including alcohol/polysubstance dependence, which was diagnosed in 1994 VA treatment records; depression, which was diagnosed in 1995 VA treatment records; and bipolar disorder, diagnosed in 2009 VA treatment records. Thus, the Board finds that a remand is necessary to obtain a new VA examination and an adequate medical opinion regarding these additional psychiatric disorders. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise). Regarding the Veteran's hepatitis C claim, VA treatment records showed the Veteran was diagnosed with hepatitis C in April 2006. The Veteran contended that his hepatitis C was the result of receiving immunizations in service by means of a multi-use jet gun injector. Additionally, the Veteran contended he was exposed to blood on or through the skin or mucous membrane during his period of service, and that he experienced a needle-stick accident or medical event involving a needle. In light of these contentions, the Board has determined that the evidence of record-particularly the evidence regarding the presence of risk factors for contraction of hepatitis C-meets the minimum threshold for obtaining a VA examination of that condition at this time. That claim is remanded at this time for such to be accomplished. See 38 U.S.C.A. § 5103A (d) (West 2014); McLendon v. Nicholson, 20 Vet App. 79, 81 (2006). Finally, the Board notes that the record reflects that the Veteran was awarded Social Security Administration (SSA) benefits. A review of the record does not disclose any attempt to obtain those records, and such records may be potentially relevant to all the claims on appeal at this time. Thus, a remand is necessary in order to obtain those records. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed Cir. 2010); see also Baker v. West, 11 Vet. App. 163, 169 (1998). On remand, any outstanding private and VA treatment records should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain any and all VA treatment records from the Boston VA Medical Center, or any other VA medical facility that may have treated the Veteran, and associate those documents with the claims file. 2. Ask the Veteran to identify any private treatment that he may have had for his hepatitis C or psychiatric disorders, which is not already of record. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 3. Request from the Social Security Administration (SSA), any records relating to any application for disability benefits filed by the Veteran, to include any medical records considered in the adjudication of the application If the AOJ determines that such records are unavailable or that further efforts to obtain the SSA records would be futile, the AOJ must expressly make this determination and a copy of such determination must be associated with the claims file. 4. Schedule the Veteran for a VA examination to determine whether any current psychiatric disorder other than PTSD is related to military service or secondary to his service-connected PTSD. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. Following review of the claims file and examination of the Veteran, the examiner should identify all psychiatric disorders other than PTSD found at any time during the course of the appeal, to include alcohol/polysubstance dependence, bipolar and/or depressive disorders. The examiner should opine whether any psychiatric disorders, including alcohol/polysubstance dependence, bipolar and/or depressive disorders, at least as likely as not (50 percent or greater probability) began in or are otherwise the result of military service. Then, the examiner should also opine whether any psychiatric disability is at least as likely as not (a) caused by, or (b) aggravated (i.e. permanently worsened beyond the normal progression of that disease) by his service-connected PTSD. If aggravation of the Veteran's psychiatric disorder by his PTSD is found, the examiner must attempt to establish a baseline level of severity of his psychiatric disorder prior to aggravation by the service-connected PTSD. The examiner should also discuss the Veteran's lay statements, including any statements reflecting continuity of symptomatology since onset or since discharge from service; and, any other pertinent evidence of record, including the previous VA examiners' findings and conclusions, as appropriate. All opinions must be accompanied by an explanation. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 5. Schedule the Veteran for a VA examination to determine whether his hepatitis C is related to military service. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. Following review of the claims file and examination of the Veteran, the examiner should opine whether the Veteran's hepatitis C at least as likely as not (50 percent or greater probability) began in or is otherwise the result of military service, to include any immunizations in service by means of a multi-use jet gun injector, or other exposure to blood or needles. The examiner should also discuss the Veteran's lay statements, including any statements reflecting continuity of symptomatology since onset or since discharge from service; and, any other pertinent evidence of record, including the previous VA examiners' findings and conclusions, as appropriate. All opinions must be accompanied by an explanation. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 6. Following any additional indicated development, the AOJ should review the claims file and readjudicate the Veteran's claims of service connection for a psychiatric disorder, other than PTSD, and service connection for hepatitis C. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the 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