Citation Nr: 1805796	
Decision Date: 01/30/18    Archive Date: 02/07/18

DOCKET NO.  14-09 792	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for an acquired psychiatric disability (claimed as posttraumatic stress disorder (PTSD)).

2.  Entitlement to service connection for an acquired psychiatric disability, to include PTSD and depressive disorder.


REPRESENTATION

Veteran represented by:	Barry P. Allen, Attorney


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

C. Jones, Counsel


INTRODUCTION

The Veteran had active service from December 1966 to December 1970.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.

The Veteran testified before the undersigned at a Board videoconference hearing in August 2017.  A transcript of the hearing has been associated with the claims file.

The Board acknowledges that the psychiatric disability issue on appeal was characterized by the RO as entitlement to service connection for PTSD.  In light of the evidence of record reflecting additional psychiatric diagnoses, the Board has recharacterized the issue more broadly in order to clarify the nature of the benefit sought.  See Clemons v. Shinseki, 23 Vet. App. 1, 5-6, 8 (2009) (holding that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by a claimant's description of the claim, reported symptoms, and the other information of record).  The Veteran is not prejudiced by the recharacterization of the issue, as the matter is being remanded for additional evidentiary development with subsequent reconsideration by the RO.  See Bernard v. Brown, 4 Vet. App. 384 (1993).

The issue of entitlement to service connection for an acquired psychiatric disability 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 January 2009 rating decision, the RO denied service connection for PTSD.  Although the Veteran was notified of the decision and his appellate rights in a February 2009 letter, he did not perfect an appeal within the applicable time period, nor was new and material evidence received within one year of the decision.

2.  The evidence received since the final January 2009 rating decision denying service connection for PTSD includes evidence which relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim of service connection for an acquired psychiatric disorder.  


CONCLUSIONS OF LAW

1.  The January 2009 rating decision denying the claim of service connection for PTSD is final.  38 U.S.C. § 7105(c) (2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2008).  

2.  New and material evidence has been received to warrant reopening of the claim of service connection for an acquired psychiatric disorder.  38 U.S.C. §§ 5107, 5108 (2012); 38 C.F.R. § 3.156 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

Applicable Legal Criteria

In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final.  38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. § 20.1100, 20.1103 (2017).  Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim.

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 (2017). 

To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance.  See Evans v. Brown, 9 Vet. App. 273, 285 (1996).  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 threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low.  See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist.  Id. at 118.

Factual Background and Analysis

The Veteran's claim of service connection for PTSD was initially denied in a January 2009 rating decision because there was no evidence of a confirmed in-service stressor or a diagnosis of PTSD shown to be related to miliary service.

The Veteran was notified of the decision and his appellate rights in a February 2009 letter.  He did not appeal the RO's determination and no new and material evidence was received within a year of the issuance of the rating decision.  Thus, the RO's January 2009 rating decision is final and not subject to revision on the same factual basis.  See 38 U.S.C. § 7105(c) (2002); 38 C.F.R. §§ 3.104, 20.1103 (2008).  

The Veteran now seeks to reopen the previously denied claim of service connection for an acquired psychiatric disorder.  As noted above, despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).

The evidence of record at the time of the January 2009 rating decision included service treatment records noting treatment for frequent episodes of nervousness and VA treatment records dated from January 2008 to April 2008 demonstrating a positive screening for depression and PTSD.   

The additional evidence received since the final January 2009 rating decision includes verification of an in-service stressor and a transcript of the Board videoconference hearing.  Post-service VA medical records demonstrating treatment for PTSD have been associated with the claims file.  Also of record is the report of a February 2012 VA examination and a May 2012 VA medical opinion.  The February 2012 VA examination report notes a diagnosis of personality disorder and depressive disorder.  It was determined that the Veteran did not meet the DSM IV criteria for PTSD.  In the May 2012 VA medical opinion, it was determined that the Veteran's depressive disorder was not related to military service.

The Board has carefully considered the record, with particular attention to the additional evidence received since the final January 2009 rating decision.  After considering this additional evidence, the Board concludes that it is new and material warranting reopening of the claim of service connection for acquired psychiatric disorder.  In this regard, the previous claim was denied because there was no evidence of a verified PTSD stressor or evidence showing a diagnosis of PTSD related to military service.  As detailed herein, the evidence subsequent to the January 2009 rating decision confirms the in-service PTSD stressor.  The Board acknowledges that in February 2012 VA examination it was determined that the Veteran did not meet the criteria for PTSD and in the May 2012 VA medical opinion, the examiner opined that the Veteran's depressive disorder was not related to military service.  However, in testimony provided during the Board hearing, the Veteran asserted that he had been diagnosed with and treated for PTSD subsequent to the February 2012 VA examination.  The Board finds that this evidence, when presumed credible, relates to an unestablished fact necessary to substantiate the claim and would trigger VA's duty to provide a medical examination to determine if the Veteran's acquired psychiatric disorder is related to active service.  38 C.F.R. § 3.159(c)(4) (2017); McLendon v. Nicholson, 20 Vet. App. 79 (2006). 

Under these circumstances, the Board finds that new and material evidence has been presented.  Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010).  Accordingly, the Board finds that the Veteran's previously denied claim of service connection for an acquired psychiatric disorder is reopened.  38 U.S.C. § 5108 (West 2012); 38 C.F.R. § 3.156 (2017).

Although the record is sufficient to warrant reopening of the claim, it is not sufficient to allow the grant of the benefit sought.  For reasons explained below, additional development is necessary before the Board may proceed with a decision on the merits.



ORDER

New and material evidence having been received, the application to reopen the previously denied claim of entitlement to service connection for an acquired psychiatric disorder is granted.


REMAND

The Veteran asserts that service connection is warranted for an acquired psychiatric disorder.  Specifically, he contends that the disability is due to his military occupational specialty as a medical service specialist.  

The Veteran underwent a VA examination in February 2012.  Personality disorder and depressive disorder were assessed.  It was determined that the Veteran did not meet the criteria for a diagnosis of PTSD.  In testimony provided during the Board videoconference hearing, however, the Veteran reported that subsequent to the VA examination, he continued to receive psychiatric treatment from the VA medical center in Nashville, to include for PTSD.  As the Veteran's testimony indicates that a diagnosis of PTSD may have been made subsequent to the February 2012 VA examination, the Board finds that an additional VA examination must be provided and a medical opinion must be obtained on remand.  

As detailed herein, the Veteran has reported continued psychiatric treatment.  The Board observes that the most recent VA medical records regarding VA treatment are dated in April 2012.  On remand, appropriate efforts must be undertaken to obtain any outstanding VA medical records.

Accordingly, the case is REMANDED for the following action:

1.  The AOJ should undertake the necessary efforts to obtain any outstanding and relevant VA medical records pertaining to the Veteran's acquired psychiatric disorder.  Specifically, VA medical records from April 2012 to the present should be secured.

2.  Schedule the Veteran for a VA examination to determine the nature and etiology of his acquired psychiatric disorder.  Access to records in the Veteran's electronic claims file should be made available to the examiner for review in connection with his or her opinion.  

The examiner should identify all psychiatric disorders identified on examination.  If any psychiatric disability identified in the record since August 2010 is not present on examination, the examiner should provide an explanation.  

If PTSD is diagnosed, the examiner must specify the stressor(s) upon which the diagnosis was based. 

For any personality disorder identified, the examiner should opine as to whether that disorder was subject to a superimposed disease or injury in service that resulted in a current acquired psychiatric disability.

For any diagnosed psychiatric disability, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's psychiatric disability was incurred in service or is otherwise causally related to his active service or any incident therein.

A clear explanation for the VA medical opinion is required, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.  If the examiner cannot respond without resorting to speculation, it should be explained why a response would be speculative.

In rendering a decision, the examiner must discuss the service treatment records noting treatment for frequent episodes of nervousness and the relationship to any diagnosed psychiatric disorder.  

The examiner should also discuss post-service medical records noting treatment for PTSD.

3.  After the development requested has been completed, and after conducting any additional development deemed necessary, the AOJ should readjudicate the claim, considering all the evidence of record.  If the benefit sought remains denied, the AOJ must provide the Veteran and his representative with a supplemental statement of the case and afford them an appropriate period of time for response.  Thereafter, if indicated, the case should be returned to the Board for appellate disposition.

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).




______________________________________________
K. Conner
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs