Citation Nr: 18142967 Decision Date: 10/17/18 Archive Date: 10/17/18 DOCKET NO. 16-12 370 DATE: October 17, 2018 ORDER The appeal seeking to reopen a claim for entitlement to service connection for an acquired psychiatric condition, to include posttraumatic stress disorder (PTSD), is granted. Entitlement to service connection for an acquired psychiatric condition is granted. REMANDED Entitlement to service connection for hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for chloracne is remanded. Entitlement to service connection for a nerve condition of the arms, back and chest is remanded. The appeal seeking to reopen a claim for entitlement to service connection for peripheral neuropathy of the left lower extremity is remanded. The appeal seeking to reopen a claim for entitlement to service connection for peripheral neuropathy of the right lower extremity is remanded. Entitlement to service connection for epilepsy is remanded. Entitlement to service connection for a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. In a February 2004 Board decision, the claim of entitlement to service connection for PTSD was denied because there was no nexus between his diagnosis and his active duty military service. The Veteran did not appeal that decision; it became final. 2. The evidence added to the record since the February 2004 Board decision relates to an unestablished fact that is necessary to substantiate the claim of entitlement to service connection for an acquired psychiatric condition. 3. Resolving reasonable doubt in the Veteran’s favor, his diagnosed major depressive disorder began during active service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim for entitlement to service connection for an acquired psychiatric condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 2. The criteria for entitlement to service connection for an acquired psychiatric condition have been satisfied. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1973 to May 1984. The medical evidence of record indicates treatment and diagnoses for PTSD as well as major depressive disorder. The scope of a mental health disability claim includes any mental disability that may be reasonably encompassed by the claimant’s description of the disability, reported symptoms, and other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board has recharacterized the issue on appeal to include any potentially relevant psychiatric claims raised by the record. 1. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for an acquired psychiatric condition, to include PTSD The Veteran seeks to reopen a previously denied claim seeking entitlement to service connection. The claim was previously denied in a February 2004 Board decision because there was no evidence verifying his claimed in-service stressors and no nexus between his diagnosis and his active duty military service. Evidence of record at that time of the Board decision included the Veteran’s service treatment records, a VA examination, as well as the Veteran’s lay statements. The question before the Board is whether new and material evidence has been submitted to reopen the claim. For the reasons that follow, the Board finds that it has and will reopen his claim. Evidence received since the last final December 2004 Board decision includes a June 2017 private examiner’s report diagnosing the Veteran with major depressive disorder and concluding that it was at least as likely as not that this disorder is related to the Veteran’s active duty service. As service connection for the Veteran’s claim was initially denied because he was not found to have a disability that was related to active duty service, the June 2017 private examiner’s opinion directly relates to the basis of the prior final denial and satisfies the low threshold requirement for new and material evidence. Accordingly, the Board finds that new and material evidence sufficient to reopen service connection for an acquired psychiatric condition has been received, and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110 (2010). De novo consideration of the claim is addressed below. 2. Entitlement to service connection for an acquired psychiatric condition The Veteran contends that he suffers from an acquired psychiatric condition that had its onset during his active duty service. The Board concludes that the Veteran has a current diagnosis of major depressive disorder that likely had its onset during active duty service. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.303. A review of the Veteran’s service treatment records shows he had normal clinical psychiatric findings at his February 1973 enlistment examination. His personnel records reflect that in July 1980, he was permanently disqualified from the human reliability program due to occupational maladjustment with depression and anxiety. In support of his claim, the Veteran submitted a June 2017 private examiner’s report which noted a diagnosis of major depressive disorder. The examiner concluded it was at least as likely as not that the Veteran’s psychiatric disability had its etiology during the Veteran’s time on active duty service. In support of this conclusion, the examiner observed that the Veteran entered active duty service with no known or documented mental illness, he received some mental health treatment while in service, his issues with depression caused him to lose qualification for his job while on active duty, and the symptoms of his depression appear to have continued since active duty service. The Board finds the June 2017 private examiner’s opinion is entitled to significant probative weight. The opinion was provided following examination of the Veteran and a review of the claims file. The examiner addressed the Veteran’s assertions as to the origin of the disability and provided an adequate rationale for the conclusion reached based on the record and the examination findings. Monzingo v. Shinseki, 26 Vet. App. 97 (2012). There is no medical opinion to the contrary in the record concerning the etiology of the Veteran’s psychiatric disorder. Based on the foregoing evidence, the Board finds that the preponderance of the evidence is in favor of service connection, and the claim is granted. REASONS FOR REMAND 1. Entitlement to service connection for hearing loss is remanded. 2. Entitlement to service connection for tinnitus is remanded. 3. Entitlement to service connection for chloracne is remanded. 4. Entitlement to service connection for a nerve condition of the arms, back and chest is remanded. 5. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for peripheral neuropathy of the left lower extremity is remanded. 6. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for peripheral neuropathy of the right lower extremity is remanded. 7. Entitlement to service connection for epilepsy is remanded. A review of the claims file reveals the Veteran was in receipt of disability benefits from the Social Security Administration (SSA). The record does not show what specific medical conditions served as the basis for the award of disability benefits by SSA. There has been no effort made to obtain and associate any available SSA records with his VA claims file so they may be considered in this appeal. Because these SSA records are potentially relevant, VA is obliged to attempt to obtain and consider them. 38 C.F.R. § 3.159 (c)(2). Therefore, the above-noted service connection claims must be remanded to try and obtain these additional records. 8. Entitlement to service connection for a TDIU is remanded. As the Veteran’s service connection claims could each impact the Veteran’s combined rating and eligibility for TDIU, these issues are intertwined. Therefore, this issue must be deferred by the Board. Since the claims file is being returned it should be updated to include any outstanding VA treatment records. See 38 C.F.R. § 3.159 (c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran’s claims file all outstanding VA treatment records dated from May 2017 to the present. 2. Obtain the Veteran’s SSA records, including a copy of its determinations concerning his claim for disability benefits from this other Federal agency, together with the medical records and other evidence that served as the basis for any such determination. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to TDIU. If any benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. M. E. Larkin Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jack S. Komperda, Counsel