Citation Nr: 18141129 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 15-38 948 DATE: October 9, 2018 ORDER New and material evidence having been received, the claim of entitlement to service connection for an acquired psychiatric disorder, previously characterized as posttraumatic stress disorder (PTSD), is reopened; the appeal is granted to this extent only. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a right ankle disorder is remanded. FINDINGS OF FACT 1. A final February 2013 rating decision denied service connection for an acquired psychiatric disorder, characterized as PTSD. 2. Evidence added to the record since the final February 2013 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder. CONCLUSIONS OF LAW 1. The February 2013 rating decision that denied service connection for an acquired psychiatric disorder, characterized as PTSD, is final. 38 U.S.C. § 7105(c) (West 2002) [(2012)]; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2012) [(2017)]. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1976 to July 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2018, the Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. At such time, the undersigned held the record open for 60 days for the receipt of additional evidence, which was received later that month. 38 U.S.C. § 7105(e)(1). 1. Whether new and material evidence has been received in order to reopen a claim for service connection for an acquired psychiatric disorder, characterized as PTSD. The Agency of Original Jurisdiction (AOJ) originally denied service connection for an acquired psychiatric disorder, characterized as PTSD, in a February 2013 rating decision. At such time, the AOJ considered the Veteran’s stressor statement, his service treatment records (STRs), VA treatment records, and unrelated VA examinations. The AOJ noted that current treatment records reflected a diagnosis of an acquired psychiatric disorder, but the Veteran’s STRs were negative for complaints, treatment, or diagnosis referable to an acquired psychiatric disorder and his claimed stressor, i.e., a tank explosion killing a fellow service member, had not been verified. Consequently, as the evidence did not show that the Veteran experienced a stressful incident in service, the AOJ denied service connection for an acquired psychiatric disorder, characterized as PTSD. In February 2013, the Veteran was advised of the decision and his appellate rights; however, he did not enter a notice of disagreement of such decision. In this regard, while he filed an application to reopen his claim in July 2013, such did not reflect disagreement with the February 2013 rating decision. Furthermore, no new and material evidence was physically or constructively received within one year of the issuance of such decision, and no new relevant service department records have since been associated with the record. In this regard, the Board notes that the Veteran’s service personnel records were associated with the file in July 2013 and January 2018. However, such records are irrelevant as they do not show any markers of a stressor. Therefore, the February 2013 rating decision is final. 38 U.S.C. § 7105(c) (West 2002) [(2012)]; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2012) [(2017)]. Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The 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 means existing evidence not previously submitted to agency decisionmakers. 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). New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. See Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Since the final February 2013 rating decision, additional evidence consisting of VA treatment records, numerous lay statements, and an April 2018 VA examination report. Importantly, such newly received evidence includes a report of a new stressor involving military sexual trauma (MST), which the Veteran alleges occurred in July 1976 while he was in boot camp. Thus, as service connection was previously denied on the basis that there was no corroborating evidence of a stressor, and the newly received evidence includes lay statements, which are presumed credible for the purposes of reopening the claim, of in-service MST, the Board finds that new and material evidence sufficient to reopen the Veteran’s previously denied claim has been received. Specifically, such evidence is not cumulative or redundant of the evidence of record at the time of the prior decision and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder. Therefore, the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder is reopened. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder. In his original claim for service connection, the Veteran alleged that he developed an acquired psychiatric disorder, i.e., PTSD, because he was traumatized by witnessing another service member get decapitated in a tank explosion in late 1977 or early 1978. However, during the course of the appeal, the Veteran has also indicated that he developed PTSD from MST which occurred in July 1976 while he was in boot camp. With regard to the latter claimed stressor, the Board finds that, as the Veteran has stated he never filed any report or mentioned it at all, and he has been notified what other records could corroborate such MST, no further development is necessary with regard to such stressor. However, pertaining to the former claimed stressor, the Board finds that further development is warranted. Specifically, the Veteran has maintained that, in late 1977 or early 1978, he witnessed a tank explosion in the motor pool at Fort Hood, Texas, while he was with the 2nd Armored Division, which decapitated and killed a Sergeant [redacted]. A review of the Veteran’s service treatment and personnel records is negative for confirmation of this stressor. In January 2013, the AOJ sent a letter to the Veteran stating that the information he provided was insufficient to verify the claimed stressor, to include referral to Joint Services Records Research Center (JSRRC). However, the Board finds that the Veteran has described his claimed stressor with enough specificity that the AOJ should attempt to corroborate such stressor through any appropriate source, to include JSRRC. 2. Whether new and material evidence has been received in order to reopen a claim for service connection for a right ankle disorder. The Board notes there are VA treatment records relevant to the instant claim that have not been associated with the record. Notably, the Veteran received treatment for a right ankle disorder from the Miami VA Medical Center in 2000, as noted in the May 2014 rating decision. Further, at his Board hearing, the Veteran testified that he had numerous x-rays taken of his ankle. Such records are not associated with the file. Therefore, such should be obtained on remand. Further, the Veteran indicated in his June 2014 notice of disagreement that he injured his ankle when he fell off a running board after the aforementioned tank explosion. Accordingly, the development of such stressor as indicated above may shed light on the existence of an in-service injury to the Veteran’s ankle. The matter is REMANDED for the following action: 1. Obtain all of the Veteran’s VA treatment records to date, to include those from the Miami VAMC. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Attempt to verify the Veteran’s claimed in-service stressor of a tank explosion at Fort Hood in the latter half of 1977 or the beginning half of 1978, which killed another service member, possibly a Sergeant [redacted], through any appropriate source, to include JSRRC. If necessary, the AOJ submit multiple requests to the JSRRC covering the relevant time period in 60-day increments. All requests and responses should be associated with the record. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jonathan M. Estes, Associate Counsel