Citation Nr: 1801793 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 17-07 996 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for a psychiatric disorder to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for psychiatric disorder to include PTSD. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD R. Maddox, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1982 to September 1985. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newnan, Georgia which denied reopening a claim for service connection for PTSD as the evidence submitted was not new and material. The RO subsequently reopened the claim and denied it on the merits; however, the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the RO granted or denied an application to reopen. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). In October 2015 the Veteran submitted his notice of disagreement, was issued a statement of the case in December 2016, and in February 2017 perfected his appeal to the Board. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issue of entitlement to service connection for a psychiatric disorder 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 June 1996 decision, the Board denied the Veteran's claim of entitlement to service connection for a psychiatric disorder to include PTSD. 2. The evidence received since the June 1996 Board decision relates to an unestablished fact necessary to substantiate the claim for entitlement to service connection for a psychiatric disorder to include PTSD, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The June 1996 Board decision that denied the claim for entitlement to service connection for a psychiatric disorder, to include PTSD is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. §§ 20.1100 (a), 20.1104 (2017). 2. Evidence received since the June 1996 Board decision is new and material and the criteria for reopening of the claim for entitlement to service connection for a psychiatric disorder to include PTSD have therefore been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Generally, a Board decision is final unless the Chairman of the Board orders reconsideration. See 38 U.S.C. §§ 7103 (a), 7104(a); 38 C.F.R. § 20.1100 (a). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA will reopen the claim and review it on the merits. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The claim was last previously denied in a June 1996 Board decision which became final June 27, 1996, the date stamped on the face of the decision. 38 C.F.R. § 20.1100(a) (a Board decision is final on the date stamped on the face of the decision). In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The Board notes that the claim was denied in June 1996 as "not well grounded," but the rules regarding reopening of prior finally disallowed claims are not different in cases where the claim was previously denied as not well grounded. Reyes v. Brown, 7 Vet. App. 113, 116 (1994) (citing Glynn v. Brown, 6 Vet. App. 523, 528 (1994)). The prior Board denial was based on a finding of no current diagnosis of PTSD. The evidence considered at that time included service treatment records which were silent for any psychiatric disorder diagnosis or treatment, and medical treatment records which indicate that the Veteran has received diagnoses for psychiatric disorders other than PTSD. Since the June 1996 Board decision, updated VA treatment records have been received which include May 2014 and June 2014 mental health screenings which were positive for PTSD. This newly received evidence was not available at the time of the previously denied claim and raises a reasonable possibility of substantiating the claim. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). The evidence is, therefore, new and material, and the claim for service connection for a psychiatric disorder to include PTSD is reopened. ORDER The application to reopen the previously denied claim for service connection for a psychiatric disorder including PTSD is granted. REMAND The Veteran contends that he suffers from PTSD as a result of his service where he was exposed to sniper fire and harassment following a suicide bombing of the US Embassy while stationed in Beirut. The Veteran stated that on April 18, 1983, less than a minute after leaving the U.S. Embassy in Beirut, a suicide bomber drove his vehicle through the Embassy lobby before detonating a bomb leaving dead and injured bodies all around him. His military personnel records confirm that the Veteran was stationed in Beirut, and was instrumental in re-establishing communications after the suicide bombing. Service treatment records are silent for any treatment for, or diagnosis of a psychiatric disorder, and the Veteran's medical examination and medical history reports do not note any psychiatric issues upon entrance or separation from service. VA treatment records show a diagnosis of depressive disorder not otherwise specified (NOS) in January 1991 and also note paranoid personality disorder. Treatment records from May 2014 and June 2014 show a positive screen for PTSD with obsessive compulsive disorder symptoms, but treatment notes from May 2016 indicate that the Veteran's symptoms are not consistent with a diagnosis of PTSD, and in August 2016 the Veteran was discharged from psychiatric treatment as he did not meet the criteria for PTSD. In October 2016, the Veteran was afforded a VA examination. The examiner noted that the Veteran had diagnoses for unspecified anxiety and depressive disorder as well as alcohol use disorder in early remission, but no other mental disorder was diagnosed. The examiner opined that the Veteran's mental health disorder was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in service injury, event or illness, stating that the Veteran's diagnosed unspecified anxiety and depressive disorder and alcohol use disorder were not evident during service as the service treatment records do not show a complaint or treatment for any mental disabilities; and the Veteran's separation examination noted no psychiatric treatment or diagnosis. However, the examiner failed to address whether the Veteran's diagnosed psychiatric disorders were caused or aggravated by his stressor, i.e. his experience in the aftermath of the suicide bombing in Beirut, which the Veteran described in lay statements that were consistent with his service personnel records. The examination is thus inadequate, and a remand for another opinion is warranted. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, the claim for service connection for a psychiatric disorder to include PTSD 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. Request an opinion from a VA psychiatrist or psychologist regarding the etiology of the Veteran's diagnosed psychiatric disorders, to be preceded by review of the claims file. The psychiatrist or psychologist should identify any and all psychiatric disorders the Veteran has had at any time since approximately September 2014 when he filed the claim on appeal. Then, as to any such psychiatric disorder, the psychiatrist or psychologist is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any such disorder had its onset during the Veteran's active service or was caused by his active service, to include as a result of the Veteran's exposure to the aftermath of the 1983 suicide bombing at the U.S. Embassy in Beirut. In addressing the relationship between any diagnosed psychiatric disorder and service, the psychiatrist or psychologist is advised that the absence of evidence of treatment or diagnoses for the claimed disabilities in the Veteran's service treatment records should not alone serve as the basis for a negative opinion. In this regard, the psychiatrist or psychologist is advised that the Veteran is competent to report his symptoms and history, and such reports should be specifically acknowledged and considered in formulating opinions. A complete rationale should accompany each opinion provided. 2. After completing the above, and undertaking any additional evidentiary development deemed necessary, readjudicate the issue remaining on appeal. If any benefit sought is not granted, the Veteran and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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 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. §§ 5109B, 7112 (2012). ______________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs