Citation Nr: 1802211 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-09 958 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder and depression. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD E. Miller, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from February 1966 to November 1967 to include a tour of duty in the Republic of Vietnam. This matter is on appeal before the Board of Veterans' Appeals (Board) from a December 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. By way of background, the RO denied entitlement to service connection for PTSD, and for an anxiety disorder, claimed as a mental condition, in an August 2008 rating decision, based on a finding that such disability was not shown. The Veteran did not file a timely notice of disagreement within the one-year appellate period. The Veteran filed an August 2012 claim for depression related to military service, which was interpreted by the RO to include a request to reopen the claim for service connection for PTSD. In a December 2012 rating decision, the RO reopened the PTSD issue, but denied the underlying claims both for PTSD and an acquired psychiatric disorder to include depression. The Veteran perfected an appeal to that decision. In January 2017, the Veteran appeared and testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the Veteran's claims file. In any case involving a finally denied claim, the Board must address whether new and material evidence has been received to reopen before addressing the merits of the claim, regardless of whether or not the agency of original jurisdiction (AOJ) has already addressed the question. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 239-40 (1995). In characterizing the issues on appeal, the Board recognizes that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1 (2009). As the medical evidence of record indicates that in the past, the Veteran has made claims for multiple psychiatric diagnoses, the issue of entitlement to service connection for PTSD has been expanded as noted on the title page of this decision consistent with Clemons. The issues 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). FINDINGS OF FACT 1. An August 2008 rating decision denied service connection for PTSD and anxiety, claimed as a mental condition. The Veteran was notified of his appellate rights but did not appeal the denial of these issues or submit new and material evidence during the applicable one year appellate period. 2. The evidence associated with the claims file subsequent to the August 2008 rating decision is not cumulative and redundant of evidence previously of record concerning the claim of service connection for an acquired psychiatric disability, to include PTSD and depression. CONCLUSIONS OF LAW 1. The August 2008 rating decision as to the denial of service connection for PTSD is final. 38 U.S.C. §§ 7105 (West 2008); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2008). 2. New and material evidence sufficient to reopen the claim of service connection for an acquired psychiatric disability, to include PTSD and depression has been received. 38 U.S.C. § 5108 (West 2014); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. VA's duty to notify was satisfied by a letter dated in October 2012. See 38 U.S.C. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). For the purposes of determining the receipt of new and material evidence, VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claims. Service treatment records (STRs), all identified and obtainable post-service treatment records, and lay statements have been associated with the record. Additional records are part of the remand request below pertaining to the underlying claims. The Veteran has claimed that VA has not fulfilled its obligations with respect to the requirements of VCAA. As this current decision grants the Veteran's claim to reopen a previously denied service connection claim, and obligates the RO to further assist the Veteran in the development of the underlying claim, there is no prejudice to the Veteran in proceeding with adjudicating solely the matter of new and material evidence to reopen the claim. II. Claim to Reopen In an August 2008 decision, the RO denied service connection for PTSD, and for an anxiety disorder, claimed as a mental condition. The Veteran did not timely disagree with that decision and it became final. 38 U.S.C. § 7105 (West 2008); 38 C.F.R. § 3.105 (2008). The Veteran made a new claim for depression in August 2012, which the RO interpreted as including a request to reopen the PTSD claim. The RO agreed to reopen the claim in a December 2012 rating decision, but denied service connection for the underlying PTSD and depression claims. The Veteran filed a timely notice of disagreement and a formal Form VA-9 in response to the December 2012 RO decision. The RO certified the current appeal to the Board with a Form VA-8 on August 15, 2014. In reviewing the August 2008 decision, the Board has determined that a new and material evidence analysis is proper for the psychiatric issues on appeal, as they were clearly adjudicated by the August 2008 decision. See Velez v. Shinseki, 23 Vet. App. 199, 204 (2009) (when determining whether a new and material evidence analysis is required, the focus of VA's analysis must be on whether the evidence presented truly amounts to a new claim "based upon distinctly diagnosed diseases or injuries," or whether it is evidence tending to substantiate an element of the previously adjudicated matter). Regardless of the RO's actions, the Board has jurisdictional responsibility to determine whether a claim previously denied by the RO is properly reopened. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C. §§ 5108, 7105(c)). See also Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) and VAOPGCPREC 05-92 (March 4, 1992). Accordingly, the Board must initially determine whether there is new and material evidence to reopen the PTSD issue before proceeding to adjudicate the underlying merits of the claims. If the Board finds that no new and material evidence has been provided, that is where the analysis must end. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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) (2017). The question of whether new and material evidence has been received sufficient to reopen the matter is a threshold question in any case involving a previously denied claim. Wakeford v. Brown, 8 Vet. App. 237, 239-40 (1995). The United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). That is, a finally decided claim must be reopened where the claimant submits new and material evidence relative to a fact that was unestablished at the time of the prior final decision on the claim. Shade, 24 Vet. App. at 119. For the purpose of reopening a claim, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Here, the Board finds that new and material evidence within the meaning of 38 C.F.R. § 3.156(a) has been received since the final August 2008 rating decision. Specifically, the denial in August 2008 was predicated on a lack of evidence showing a PTSD diagnosis or in-service stressors. The RO's October 2012 VCAA letter which informed the Veteran of the requirements pertaining to new and material evidence informed that his claim was denied because evidence did not show he had a current condition. The letter informed the Veteran that he needed to submit evidence relating to a psychiatric disorder and a statement that his stressors were related to fear of hostile military or terrorist activity, if that was the case. In response to this, the Veteran submitted evidence which should be considered both new and material as his submitted statements included information that he worked in a prison in Vietnam which was located near enemy attacks. The Veteran also submitted treatment records which include mental health treatment for depression with a stated subthreshold of PTSD. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board finds that the additional evidence of record constitutes new and material evidence to reopen the claim for entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depression. In short, this evidence, if presumed credible, relates to an unestablished fact necessary to substantiate the acquired psychiatric disorder claims, i.e. whether the Veteran has an acquired psychiatric disorder, whether PTSD or some other mental condition, and raises a reasonable possibility of substantiating the claims. Accordingly, the Board finds that new and material evidence has been presented to reopen the Veteran's previously denied PTSD and acquired psychiatric disorder claims, now characterized as a claim for entitlement to service connection for an acquired psychiatric disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. ORDER The claim of entitlement to service connection for an acquired psychiatric disability, to include PTSD, is reopened. REMAND Upon review of the record, the Board concludes that further evidentiary development is necessary. Although the Board sincerely regrets this delay and is appreciative of the Veteran's service to his country, a remand is necessary to ensure VA provides the Veteran with appropriate process and assistance in developing his claim prior to final adjudication. The Court has held that, once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Daves v. Nicholson, 21 Vet. App. 46, 51 (2007), citing Green v. Derwinski, 1 Vet. App. 121, 123-124 (1991); Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence ... is essential for a proper appellate decision"). See also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Furthermore, VA must ensure that any medical opinion, including one that states no conclusion can be reached without resorting to speculation, is "based on sufficient facts or data." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). Therefore, it must be clear, from either the examiner's statements or the Board decision, that the examiner has indeed considered "all procurable and assembled data," by obtaining all tests and records that might reasonably illuminate the medical analysis. Daves v. Nicholson, 21 Vet. App. 46, 51 (2007). When the record leaves this issue in doubt, it is the Board's duty to remand for further development. The examiner may also have an obligation to conduct research in the medical literature depending on the evidence in the record at the time of examination. See Wallin v. West, 11 Vet. App. 509, 514 (1998). The RO afforded the Veteran VA examination for PTSD in October 2012. The Veteran contended at the January 2017 hearing that the VA examiner did not take the time to listen to all of the Veteran's remarks and interrupted him frequently. Apart from the Veteran's contentions about the adequacy of the examination, the examiner stated that the Veteran had no diagnosis of any mental health condition, to include PTSD. The examiner stated that the Veteran's "symptoms he was treated for in 2006 appear to have been situational stress and currently resolved." This statement appears to contradict the medical evidence of record which shows that the Veteran continued to receive mental health treatment, to include an appointment 4 days prior to the VA examination in October 2012 wherein the mental health treatment provider indicated the Veteran had depressive disorder. At the January 2017 hearing, the Veteran testified that he continues to receive mental health treatment and the medical evidence of record supports that after October 2012 the Veteran continued to be treated. In keeping with the spirit of Clemons, the Veteran should be afforded a more comprehensive VA psychiatric examination which includes evaluation beyond PTSD. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board notes that effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations that define the term "psychosis" to remove outdated references to the DSM-IV and replace them with references to the recently updated Diagnostic and Statistical Manual (Fifth Edition) (the DSM-5). See 79 Fed. Reg. 45,094 (August 4, 2014). VA adopted as final, without change, this interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board on or before August 4, 2014. See Schedule for Rating Disabilities - Mental Disorders and Definition of Psychosis for Certain VA Purposes, 80 Fed. Reg. 14,308 (March 19, 2015). In the present case, the RO certified the Veteran's appeal to the Board on August 15, 2014, which is after August 4, 2014. Thus, the amended 38 C.F.R. § 4.125 conforming to the DSM-5 is applicable in the present case. Additionally, at the January 2017 hearing, the Veteran referred to ongoing mental health treatment, to include an appointment one or two months prior to the hearing. Those more recent medical records are not part of the electronic claims file and should be associated with the file. Accordingly, the case is REMANDED for the following action: 1. Obtain all updated VA treatment records and associate them with the record. Any negative responses should be properly documented in the record. 2. Schedule the Veteran for a VA psychiatric examination by a VA professional qualified to make psychiatric examinations. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. The examiner must state that the claims file was reviewed. All necessary tests should be conducted using the DSM-5 standards. Based on the review of all the evidence of record, the VA examiner is asked to address the following questions: (a) The VA examiner shall list all of the Veteran's current psychiatric disorder diagnoses. (b) Then, for each diagnosis, the examiner should set forth a medical opinion as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that any identified psychiatric disorder(s) was incurred in or is otherwise related to service. (c) If PTSD is diagnosed, the examiner must identify the stressor event and symptoms which support such diagnosis, and indicate whether PTSD is at least as likely as not (a 50% or greater probability) related to the stressor. If PTSD is not diagnosed, please explain why the criteria for such diagnosis are not met. A rationale for any opinion reached should be provided. If the VA examiner concludes that an opinion cannot be offered without engaging in speculation then he/she should indicate this and explain the reason why an opinion would be speculative. 3. After all development has been completed, the RO should readjudicate the issue. If the benefits sought remain denied, the Veteran and his representative should be furnished a supplemental statement of the case, and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. 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. §§ 5109B, 7112 (West 2014). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs