Citation Nr: 1802845 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 17-08 917 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE 1. Whether new and material evidence has been received to reopen the previously denied claim for service connection for PTSD. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depressive disorder (MDD). REPRESENTATION Veteran represented by: J. Michael Woods, Attorney ATTORNEY FOR THE BOARD Saudiee Brown, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1989 to July 1991 and from October 1991 to February 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009) the United States Court of Appeals for Veterans Claims (Court) held that in determining the scope of a claim the Board must consider the claimant's description of the claim, symptoms described, and the information submitted or developed in support of the claim. The Board notes that the Veteran has been diagnosed with PTSD and MDD. In light of the Court's decision in Clemons, the Board has recharacterized the issue on appeal as described above. The reopened claim for service connection for a psychiatric disorder is REMANDED to the AOJ. VA will notify the Veteran if action on his part is required. 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). FINDINGS OF FACT 1. The claim for service connection for PTSD was previously denied in a May 2009 rating decision. The Veteran did not appeal that decision and it is therefore final. 2. Evidence added to the record since the May 2009 denial is not cumulative or redundant of the evidence of record at the time of such decision and raises a reasonable possibility of substantiating the Veteran's claim for service connection for the expanded claim, an acquired psychiatric disorder, to include PTSD and MDD. CONCLUSIONS OF LAW 1. The May 2009 rating decision that denied service connection for PTSD is final. 38 U.S.C. § 7104 (b) (2012); 38 C.F.R. § 20.1103 (2017). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for PTSD. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material As the Board's decision to reopen the claim of service connection for PTSD herein is favorable, no further action is required to comply with VA's duties to notify and assist with respect to the new and material evidence issue. The Veteran seeks to reopen his claim for service connection for PTSD. Although the RO determined in a March 2015 rating decision that new and material evidence sufficient to reopen the claim for PTSD had not been submitted, the Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined is irrelevant. Id. The claim for entitlement to service connection for PTSD may be reopened if new and material evidence is submitted. Manio v. Derwinski, 1 Vet. App. 140 (1991). The Veteran filed this application to reopen his claim in July 2014. New evidence means existing evidence that, by itself or when considered with the 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). In determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The evidence before the VA at the time of the prior final decision consisted of the Veteran's service treatment records and a VA examination. The RO denied the claim, finding that the Veteran did not have a PTSD diagnosis and there was insufficient evidence to confirm his in-service stressor. Following the Veteran's application to reopen the claim, VA and private treatment records were obtained. Though the Veteran still did not have a PTSD diagnosis and his in-service stressor could not be confirmed, a private treatment record established a nexus opinion for MDD. In August 2017, the Veteran underwent a private examination by an expert retained by the Veteran and his representative. The Veteran was diagnosed with MDD and alcohol use. After review of the records and the Veteran's history, as well as reference to medical literature, the expert opined that the Veteran suffered from MDD which more likely than not that began in military service, continued uninterrupted to the present, and was aggravated by his tinnitus. Further, the expert stated that the Veteran's alcohol use disorder was more likely than not caused by his MDD. The expert said that these conditions prevented him from maintaining substantially gainful employment. The Board finds that this nexus opinion is new, in that it was not previously considered. The Board further finds that this new nexus opinion is material to the Veteran's claim because it addresses a missing factor in service connection. Thus, for these reasons, the expanded claim for service connection for an acquired psychiatric disorder, to include PTSD and MDD, is reopened. ORDER New and material evidence has been received to reopen the claim for service connection for PTSD. REMAND In a claim to reopen, the duty to assist by arranging for a VA examination or obtaining a medical opinion does not attach until the previously denied claim is reopened. 38 C.F.R. § 3.159 (c)(4)(iii). In light of the foregoing reopening of the claim, the Board finds that this duty to provide an examination must now be considered. The Board notes that a favorable private opinion has been provided, however, the Board finds that it is not sufficient to allow proper consideration of the issue on appeal. In this regard, the opinion does not adequately address factors that weigh against the claim, such as the fact that the service medical records are negative for any signs of psychiatric symptoms and even show the Veteran denied having any such symptoms. Therefore, the claim must be remanded for a new VA examination addressing whether the Veteran had PTSD at any point during the period on appeal that was related to an in-service stressor. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA mental examination to: (a) Identify all acquired psychiatric disorders present; (b) Provide an opinion as to whether any psychiatric disorders identified are at least as likely as not (at least a 50 percent probability) related to service. The examiner must also opine as to whether any current psychiatric disorder was caused or aggravated by a service-connected disability such as tinnitus. Forward the claims file to the examiner for review. The examiner must consider all service medical records, all lay statements, and all post service treatment records. The VA clinician is requested to provide a thorough rationale for any opinion provided. If the clinician is unable to provide an opinion without resorting to speculation, the clinician should explain why a definitive opinion cannot be provided. If the examiner concludes that a current psychiatric disorder is not related to service, the examiner should explain why he or she disagrees with the private opinion which was submitted by the Veteran. 2. Thereafter, readjudicate the issue on appeal. If any benefit sought is not granted, issue a supplemental statement of the case and afford the appellant an appropriate opportunity to respond. The case should then be returned to the Board, as warranted. The appellant 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). ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs