Citation Nr: 1802138 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-24 269 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Whether new and material evidence was received to reopen a claim for entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disability, to include PTSD. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K. Thompson, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from August 1972 to August 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In April 2017, a Board videoconference hearing was held before the undersigned; a transcript of the hearing is associated with the record. In light of the depression and anxiety contained in the evidence, the Board has broadened the Veteran's PTSD claim to include any acquired psychiatric disorder. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The issue of entitlement to service connection for an acquired psychiatric disability, 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 April 2004, the RO denied service connection for PTSD and the Veteran did not perfect an appeal. 2. The evidence submitted since the RO's April 2004 decision raises a reasonable possibility of substantiating the underlying claim for service connection for PTSD and is therefore new and material evidence. CONCLUSIONS OF LAW 1. The April 2004 rating decision is final regarding the issue of service connection for PTSD. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. § 20.1103 (2017). 2. New and material evidence has been received since the RO's April 2004 rating decision sufficient to reopen the Veteran's claim of service connection for PTSD. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations, VA has a duty to notify and assist the claimant in substantiating a claim for VA benefits. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran's claim has been considered with respect to VA's duty to notify and assist. Other than the matters addressed in the remand section, the outcome below is favorable. Thus, no conceivable prejudice to the Veteran could result from this adjudication. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993). II. Claim to Reopen Governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. Rating actions from which an appeal is not timely perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 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 new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans v. Brown, 9 Vet. App 273, 283 (1996); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The provisions of 38 C.F.R. § 3.156(a) create a low threshold, with the phrase "raises a reasonable possibility of substantiating the claim" enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened. See Shade v. Shinseki, 24 Vet. App. 110 (2010). 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). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In an April 2004 rating decision, the RO denied the Veteran's claim for PTSD. The Veteran did not file a notice of disagreement and, as a result, the April 2004 rating decision is final. Evidence received since the April 2004 rating decision includes VA treatment records, stressor development from the US Army Crimes Records Center, service treatment records, service personnel records, buddy statements, and statements from the Veteran, including the testimony of the Veteran at the April 2017 Board videoconference hearing. The Board finds that the evidence received since the April 2004 rating decision is not cumulative or redundant of the evidence of record at the time of the prior decision and raises a reasonable possibility of substantiating the Veteran's claim. In this regard, the RO previously denied the Veteran's claim for PTSD on the basis that the evidence of record did not show a confirmed diagnosis of PTSD. However, evidence received since the April 2004 rating decision include medical records showing diagnoses of and treatment for PTSD, and evidence of a possible nexus between the Veteran's diagnosed PTSD and his reported in-service stressor. On this basis, the Board finds that new and material evidence has been received to reopen the claim for service connection for PTSD. ORDER New and material evidence has been received to reopen a claim for entitlement to service connection for PTSD. REMAND Remand is warranted for additional development, to include obtaining an adequate VA opinion regarding the etiology of the Veteran's acquired psychiatric disability. As discussed in the introduction above, the Veteran's claim has been recharacterized as entitlement to service connection for an acquired psychiatric disability, to include PTSD as VA treatment records reflect diagnoses of PTSD and depression. Although the Veteran was afforded a VA examination in April 2004, before the April 2004 rating decision, the provided opinion is inadequate. The examiner found that the Veteran did not have any currently diagnosed psychiatric disabilities. As the Veteran has subsequently been diagnosed with PTSD and depression, an additional VA examination is warranted that addresses the Veteran's currently diagnosed psychiatric disabilities. Though the RO could not verify the Veteran's alleged in-service stressor, the May 2012 rating decision on appeal conceded that the Veteran "experienced a stressful event in service or fear of hostile military or terrorist activity." Additionally, the Veteran's report of the in-service stressor was corroborated in a June 2011 buddy statement from a fellow servicemember who witnessed it. Therefore, the Board concedes the occurrence of an in-service stressor and finds that remand is necessary for an addendum opinion regarding the nature and etiology of the Veteran's acquired psychiatric disorders, to include PTSD, which takes into consideration the concession of an in-service stressor. The Court has held that once VA undertakes the effort to provide a medical examination or opinion, it must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). Given the above, another examination is necessary. Accordingly, the case is REMANDED for the following action: 1. Obtain any relevant and outstanding VA treatment records and associate them with the electronic claims file. 2. Upon completion of directive #1, afford the Veteran a VA psychiatric examination conducted by a psychiatrist or psychologist in order to determine the current nature and etiology of his acquired psychiatric disorder(s). The electronic claims file, to include a copy of this remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted and the examiner should identify all of the Veteran's acquired psychiatric disorders. The examiner must elicit from the Veteran a detailed history of the alleged in-service events. The examiner should view the Veteran as a reliable historian as to his service and his report of his activities in service. Upon review of the claims file and examination of the Veteran, the examiner should provide an opinion as to the etiologies of any acquired psychiatric disorders found to be present. With respect to each diagnosed acquired psychiatric disorder, the examiner should offer an opinion on the following: Is it at least as likely as not (i.e., 50 percent or greater probability) that the acquired psychiatric disorder was incurred in, caused by, or is otherwise related to, the Veteran's service? If PTSD is diagnosed, please detail the stressor(s) on which this diagnosis is based. A complete rationale must be provided for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he/she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 3. After completing all actions set forth above and any further action needed as a consequence of the above development, readjudicate the claim on appeal. If the benefit on appeal remains denied, the RO should furnish to the Veteran and his representative an appropriate Supplemental Statement of the Case and allow the appropriate time for response. Then return the case to the Board for further appellate review. 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. §§ 5109B, 7112 (2012). _________________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs