Citation Nr: 1804806 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-19 383 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD), and if so, whether service connection is warranted. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD H. Fisher, Associate Counsel INTRODUCTION The Veteran had honorable active duty service with the United States Army from February 1971 to April 1972, including service in the Republic of Vietnam. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran timely filed a Substantive Appeal to the Board. In December 2016, the Veteran testified before the undersigned in a Travel Board hearing. A transcript of those proceedings has been associated with the claims file. Pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board is broadening the Veteran's claim of entitlement to service connection for PTSD to a claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, as reflected in the issues section above. See id. at 5 (the claim "cannot be limited only to that diagnosis, but must rather be considered a claim for any mental disability that may be reasonably encompassed..."). The issue of entitlement to service connection for an acquired 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. A June 2008 rating decision denied entitlement to service connection for PTSD. The Veteran did not appeal the RO determination or present new evidence within one year of the rating decision. As such, this decision is final. 2. Evidence has been received since the June 2008 rating decision that relates to an unestablished fact necessary to substantiate the claims, and raises a reasonable possibility of substantiating the claims of service connection for an acquired psychiatric disorder, to include PTSD. CONCLUSIONS OF LAW 1. The June 2008 rating decision is final. 38 U.S.C.A. § 7105(c) (West 2014); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2017). 2. New and material evidence has been received since the June 2008 denial of service connection for PTSD, and as such, the claim is reopened. 38 U.S.C.A. §§ 1131, 5103, 5108 (West 2014); 38 C.F.R. §§ 3.156, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Generally, 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). "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 threshold to reopen a claim is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). 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). The RO initially denied the Veteran's claim of entitlement to service connection for PTSD in June 2008 for lack of a specific in-service stressor. The Veteran had been diagnosed with PTSD, but records were limited as to what caused that PTSD while deployed to combat in the Republic of Vietnam. Evidence received since the June 2008 rating decision includes specific lay statements from the Veteran regarding his stressors in Vietnam, which is corroborated by VA Medical Center (VAMC) treatment records. The bar to reopening a claim for new and material evidence is low, and the Veteran's reported stressors meet that threshold. Therefore, such evidence is new and material, and the claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is reopened. ORDER New and material evidence having been received, the claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is reopened. REMAND Unfortunately, remand is necessary to further adjudicate the issue on appeal. The medical evidence of record presents conflicting information as to the Veteran's present diagnosis. The Veteran was formally diagnosed with PTSD by a psychiatrist around July 2007, and, at the time, presented "all the core signs and symptoms of PTSD" since returning from Vietnam. When the Veteran changed VA facilities, a physician questioned the diagnosis, remarking that the Veteran appeared to be overstating symptoms. However, treatment records indicate ongoing diagnoses of PTSD and depressive disorder, not otherwise specified. In March 2012, the Veteran underwent a VA examination that diagnosed him with alcohol abuse syndrome in sustained remission and cannabis abuse disorder in early sustained remission. At the time, the examiner felt the Veteran was exaggerating his PTSD symptoms. No etiology was provided regarding the diagnosed psychological disorders, nor did he address the Veteran's previous diagnosis of depressive disorder. Clarification is required in order to proceed with this claim. Furthermore, as the Board has broadened the Veteran's claim, a more thorough examination is in order to assess any and all mental health diagnoses that may be etiologically related to his combat experience in Vietnam. As such, the examination is inadequate for the purposes of adjudication, and a new examination is necessary on remand. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and his representative in order to identify any outstanding private treatment records regarding his acquired psychiatric disorder, to include PTSD. If private providers are identified, obtain releases for those records. Make all reasonable attempts to obtain the private treatment records and associate them with the claims file. If such records cannot be obtained, inform the Veteran and his representative, and afford an opportunity for him to provide these outstanding records. 2. Obtain any relevant, outstanding VA treatment records that are not already associated with the claims file. Make as many requests as are necessary to obtain relevant records, and only end efforts to do so if the records sought do not exist or further efforts to obtain those records would be futile. If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e). 3. Once the aforementioned evidentiary development is complete, schedule the Veteran for a VA examination to assess the etiology of his acquired psychiatric disorder, to include PTSD. The examiner must review the entire claims file, including a copy of this remand. The examiner should consider lay statements regarding observable symptomatology. The examiner should opine as to the following: (a) Identify any and all acquired psychiatric disorders with which the Veteran is presently diagnosed; (b) For each identified psychiatric disorder, determine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's acquired psychiatric disorder began during active service, is related to an incident of service, or began within one year after discharge from active service. The examiner must provide all findings, along with a complete rationale for his or her opinion in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. Indications of exaggeration (if any) should be noted. The examiner should also identify what additional information or evidence (if any) may allow for a more definitive opinion. 4. Following completion of the foregoing, the AOJ should review the record and readjudicate the claim on appeal. If it remains denied, the AOJ should issue an appropriate supplemental SOC, afford the Veteran and his representative an opportunity to respond, and return the case to the Board. 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.A. §§ 5109B, 7112 (West 2014). JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs