Citation Nr: 18139971 Decision Date: 10/02/18 Archive Date: 10/01/18 DOCKET NO. 15-36 768 DATE: October 2, 2018 ORDER New and material evidence having been received, the issue of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is reopened. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. Entitlement to service connection for sleep apnea as secondary to an acquired psychiatric disorder, to include PTSD, is remanded. FINDINGS OF FACT 1. A July 2007 rating decision denied the claim of entitlement to service connection for PTSD; the Veteran did not timely appeal the denial, nor did he submit additional evidence for consideration within one year. 2. Evidence received since the July 2007 rating decision is not cumulative or redundant of the evidence of record, relates to unestablished facts, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The July 2007 rating decision is final. 38 U.S.C. 5108, 7104, 7105; 38 C.F.R. 3.156, 20.1100. 2. New and material evidence has been submitted sufficient to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from December 1971 to September 1975. In July 2018, the Veteran testified before the undersigned Veterans Law Judge at a travel board hearing. A copy of the hearing transcript is of record. New and Material Evidence In general, RO decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.200. An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. “New” evidence is existing evidence not previously submitted to agency decision makers. “Material” evidence is 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 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 evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). Historically, the Veteran’s claim for entitlement to service connection for PTSD was previously denied by the regional office in July 2007 due to the lack of a PTSD diagnosis or verified stressor. The Veteran did not appeal the decision and it became final. At the time of the July 2007 denial, the evidence of record consisted of the Veteran’s DD Form 214, his service treatment records, and his military personnel records. The evidence received since the last final denial includes additional treatment records, a private medical opinion, a VA examination, lay statements from the Veteran and his family members, the hearing transcript, and an appellate brief. The Board finds that some of this additional evidence raises a possibility of substantiating the claim for entitlement to service connection for PTSD, as it may contain a diagnosis of PTSD and/or a nexus between it and service. In this regard, the Board is mindful of the low threshold for reopening a previously denied claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Accordingly, the Board concludes that evidence has been received which is new and material, and the claim for service connection for PTSD is reopened. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. The Veteran maintains that he has an acquired psychiatric disorder, to include PTSD, due to his experiences in the Navy, or as secondary to his service-connected tinnitus. The Veteran submitted a private medical opinion in August 2013. Following a 90-minute psychiatric evaluation, a private psychiatrist diagnosed him with PTSD and major depression, moderate, recurrent under the DSM-V diagnostic criteria. He further indicated that the Veteran’s PTSD was caused by or the result of his service in the Navy and, more specifically, the traumatic experiences he had while working on an aircraft carrier. However, the doctor indicated that he reviewed no medical records prior to providing his opinion, relying solely on the Veteran’s reported history of trauma while in the Navy. The Veteran was also provided a VA examination in January 2014. The examiner diagnosed him with adjustment disorder, unspecified, and found that this disorder was related to recent stress in his marital situation, grieving the loss of his sister, and financial stress. She did not attribute this disability to the Veteran’s service-connected hearing loss or tinnitus as she found that they pre-dated his mental health complaints by nearly forty years. While the January 2014 examiner declined to diagnose the Veteran with PTSD, she did not address the August 2013 private medical opinion, including the diagnoses, in-service stressors, and symptomology reported therein. Further, she did not provide an opinion on whether the Veteran’s psychiatric disorder was aggravated by his service-connected tinnitus, nor did she provide an opinion regarding whether the adjustment disorder was directly related to service. The Board finds that neither medical opinion is probative as to whether the Veteran’s PTSD is related to service or to his service-connected tinnitus. As such, a new medical opinion is required. 2. Entitlement to service connection for sleep apnea, as secondary to an acquired psychiatric disorder, to include PTSD, is remanded. The Veteran asserts that he has sleep apnea that is related to an acquired psychiatric disorder, to include PTSD. As the Board has decided to remand the issue of entitlement to an acquired psychiatric disorder, to include PTSD, for additional development, it finds that this inextricably intertwined issue must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. 2. After obtaining the necessary authorization from the Veteran, obtain and associate with the claims file any identified relevant private medical records. All attempts to secure these records must be documented in the record. If any requested records are unavailable, the Veteran should be notified of such in accordance with 38 C.F.R. § 3.159 (e). 3. After the Veteran’s reported stressors have been developed, schedule the Veteran for a psychiatric examination to determine the nature and etiology of any posttraumatic stress disorder (PTSD). If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor, or whether his PTSD was caused by or aggravated by his service-connected hearing loss or tinnitus. If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease, to include the Veteran’s reported stressors, or whether any other diagnosed acquired psychiatric disorders are caused by or aggravated by his service-connected hearing loss or tinnitus. 4. If, and only if, the Veteran is diagnosed with an acquired psychiatric disorder that is related to service or to a service-connected disability, forward the Veteran’s claims file to an appropriate VA medical professional for a complete file review and a medical opinion addressing whether the Veteran’s currently diagnosed sleep apnea is etiologically related to or aggravated by his service-connected acquired psychiatric disorder. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Bush