Citation Nr: 18143628 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 14-31 471 DATE: October 19, 2018 ORDER New and material evidence having been received, the claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), manic depression, and bipolar disorder, is reopened; to this extent only the appeal is granted. Entitlement to service connection for bilateral hearing loss is dismissed. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, manic depression, bipolar disorder, anxiety disorder, adjustment disorder, mood disorder, schizoaffective disorder, and antisocial disorder, is remanded. FINDINGS OF FACT 1. The Veteran’s prior December 2002 claim for service connection for PTSD was denied in a July 2003 rating decision; the Veteran did not complete (“perfect”) an appeal of that decision and documentation constituting new and material evidence was not actually or constructively received during the appeal period. 2. The Veteran’s prior June 2011 claim for service connection for manic depression and bipolar disorder was denied in a November 2011 rating decision; the Veteran did not complete (“perfect”) an appeal of that decision and documentation constituting new and material evidence was not actually or constructively received during the appeal period. 3. Additional evidence received since those July 2003 and June 2011 decisions, however, is not cumulative or redundant of the evidence of record at the time of those decisions, relates to an unestablished fact necessary to substantiate the claim for service connection for an acquired psychiatric disorder of some sort, and raises a reasonable possibility of substantiating this claim. 4. In an April 2015 statement and on the record at his April 2015 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew the appeal for service connection for bilateral hearing loss. CONCLUSIONS OF LAW 1. The July 2003 rating decision denying service connection for PTSD is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103. 2. The November 2011 rating decision denying service connection for manic depression and bipolar disorder also is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103. 3. But new and material evidence has been received to reopen the Veteran’s claim for service connection for an acquired psychiatric disorder, inclusive of PTSD. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156. 4. The criteria for withdrawal of the appeal of entitlement to service connection for bilateral hearing loss are met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from August 1975 to November 1977. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the Board at a hearing in April 2015. A transcript of the hearing is of record. During the hearing, the Veteran was granted a 60-day abeyance period for the submission of additional evidence to support his claims. The Veteran submitted additional evidence in April 2015 without a waiver. For all substantive appeals received on or after February 2, 2013, any evidence submitted to the Board shall be subject to initial review by the Board unless the Veteran or the Veteran’s representative requests in writing that the Agency of Original Jurisdiction (AOJ) initially review such evidence. 38 U.S.C. § 7105(e) (2012). As the Veteran filed his VA Form 9, Substantive Appeal, in these matters in July 2014, a waiver is unnecessary. The United States Court of Appeals for Veterans Claims (Court) has held that, although a Veteran claims service connection for a specified diagnosed disability, it cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any disability that may reasonably be encompassed by several factors, including the Veteran’s description of the claim, the symptoms the Veteran describes, and the information the Veteran submits or that VA obtains in support of the claim. The Court reasoned that a Veteran does not file a claim to receive benefits only for a particular diagnosis, but for the affliction (symptoms) his condition, however described, causes him. Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). Here, with this in mind, the Board has recharacterized the Veteran’s November 2013 claims of entitlement to service connection for PTSD, depression, and manic depression and bipolar disorder as a claim instead of entitlement to service connection for any acquired psychiatric disorder, to include PTSD, manic depression, bipolar disorder, anxiety disorder, adjustment disorder, schizoaffective disorder, and antisocial disorder. Aside from the November 2013 claims for PTSD, depression, and manic depression and bipolar disorder, there are diagnoses in the record of anxiety disorder, adjustment disorder, mood disorder, schizoaffective disorder, and antisocial disorder. Accordingly, the Board has recharacterized the issue as service connection for any acquired psychiatric disorder to afford the Veteran the broadest scope of review. See Clemons, 23 Vet. App. 1, at 5-6. Lastly, the Board notes that the Veteran’s November 2013 claims are petitions to reopen prior final denials of claims for PTSD, manic depression, and bipolar disorder. The claims were previously denied in separate rating decisions. The RO denied the Veteran’s claim of entitlement to service connection for PTSD in July 2003. The RO denied the Veteran’s claim of entitlement to service connection for manic depression and bipolar disorder in November 2011. The Board will address the Veteran’s petitions to reopen together since they have been recharacterized as a petition to reopen the claim as it relates to any acquired psychiatric disorder. As is noted below, the Veteran has submitted new and material evidence for PTSD in particular; however, upon remand, the RO will evaluate the Veteran’s claim as a claim for any psychiatric disorder. Accordingly, there is no prejudice to the Veteran by not addressing the evidence as it relates to the Veteran’s manic depression and bipolar disorder. Dismissal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his authorized representative. Except for appeals withdrawn on the record at hearings, the withdrawal must be in writing. 38 C.F.R. § 20.204. In an April 2015 written statement and on the record at his April 2015 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran provided sworn testimony that he wanted to withdraw the appeal seeking service connection for bilateral hearing loss. His withdrawal of this claim was: 1) explicit, 2) unambiguous, and 3) done with a full understanding of the consequences. See Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018). As the Veteran has withdrawn the appeal of the issue in accordance with 38 C.F.R. § 20.204, there remains no allegation of error of fact or law for the Board to address. Accordingly, the Board does not have jurisdiction to review the appeal and it must be dismissed. New-and-Material-Evidence Claim A claim for service connection for PTSD was denied in a July 2003 rating decision based on a finding that the preponderance of the evidence is against a finding of a verified in-service stressor and there being no confirmed diagnosis of PTSD per VA policy. The Veteran filed a timely notice of disagreement and the RO continued the denial in a February 2004 statement of the case. The Veteran did not timely file a substantive appeal, nor was any new and material evidence actually or constructively received within the 60-day appeal period; therefore, the July 2003 rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.304, 20.1103. A claim for service connection for manic depression and bipolar disorder was denied in a November 2011 rating decision based on there being no evidence showing that the condition incurred during or was caused by service. The Veteran did not appeal the decision, nor was any new and material evidence actually or constructively received within a year following the decision; therefore, the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. The Veteran’s petition currently before the Board to reopen his claims for PTSD and manic depression and bipolar disorder was received by the RO in November 2013. The RO denied the claims in a March 2014 rating decision based on there being no new and material evidence. The Board must now address the issue of the receipt of new and material evidence in the first instance. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. §§ 7104, 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). 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. Id. In determining whether evidence is “new and material,” the credibility of the new evidence must be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); 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 received 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, either by triggering the VA Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Shade, 24 Vet. App. at 118 (2010). Regardless of the RO’s determination as to whether new and material evidence has been received, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board’s jurisdiction to reach the underlying claim and to adjudicate the claim de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus, 3 Vet. App. at 512 (1992). Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Id. at 513. The Board finds the Veteran has submitted new and material evidence since the July 2003 rating decision denying service connection for PTSD. Following an April 2015 psychological evaluation at a VA medical facility, the clinical psychologist diagnosed the Veteran with PTSD in accordance with DSM-5. In addition, the psychologist opined that the Veteran’s “report of symptoms likely meets DSM-5 criteria for military-related PTSD.” This diagnosis and medical nexus statement were not of record at the time of the July 2003 rating decision and relate to unestablished facts necessary to substantiate the claim, i.e., whether the Veteran has a current diagnosis PTSD and medical nexus between his current symptoms and service. Therefore, the Board finds the additional evidence is new and material to reopen the claim of service connection for an acquired psychiatric disorder. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, manic depression, bipolar disorder, anxiety disorder, adjustment disorder, mood disorder, schizoaffective disorder, and antisocial disorder, is remanded. The Board cannot make a fully-informed decision on the issue of service connection for an acquired psychiatric disorder because no VA examiner has opined whether the Veteran’s current PTSD is related to any incident in service. The Board notes that a VA psychologist opined in April 2015 that the Veteran’s “report of symptoms likely meets DSM-5 criteria for military-related PTSD.” However, the Veteran’s report of his in-service stressor of witnessing a motor vehicle accident in Germany while in service has not been verified. Therefore, the issue is remanded, so the Veteran can undergo a VA examination for his now diagnosed PTSD and verification of his alleged stressor. In addition, as the Veteran’s claims have been recharacterized, upon remand and the subsequent VA examination, the Veteran will be evaluated for any and all acquired psychiatric disorders he has had during the pendency of his appeal. The matter is REMANDED for the following actions: 1. Send the Veteran complete notice with respect to a claim of entitlement to service connection for PTSD under the provisions of 38 C.F.R. § 3.304(f). 2. Obtain and associate with the Veteran’s electronic record VA treatment records from April 2015 to the present. Contact the Veteran and afford him the opportunity to identify or submit any pertinent evidence in support of his claim. Based on his response, attempt to procure copies of all records which have not been obtained from identified treatment sources. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 3. After completing the development requested in items 1-2, afford the Veteran a VA examination with an appropriate expert to determine the precise nature of his acquired psychiatric disorder. The entire claims file should be made available to the examiner in conjunction with this request. All tests deemed necessary, including psychological testing, should be performed and all findings should be reported in detail. The examiner should confirm the Veteran’s current psychiatric disorder diagnoses. The examiner should also answer the following questions: A. Is it at least as likely as not (50 percent probability or greater) that the Veteran’s diagnosed PTSD is related to any incident of military service? B. For any psychiatric diagnosis(es) other than PTSD diagnosed during the pendency of the current claim (since November 2013 ), is it at least as likely as not (a 50 percent probability or greater) that such psychiatric disorder(s) began in service or is otherwise related to a disease, event or injury in service? (Continued on the next page)   A complete rationale for any opinion provided is requested. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports of symptomatology, a reason for doing so must be provided. If the examiner is unable to provide an opinion without resorting to speculation, an explanation as to why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered should be provided. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Breitbach, Associate Counsel