Citation Nr: 18144196 Decision Date: 10/24/18 Archive Date: 10/23/18 DOCKET NO. 16-30 858 DATE: October 24, 2018 ORDER New and material evidence having been received, the application to reopen the previously denied claim for service connection for post-traumatic stress disorder (PTSD) and to that extent, the claim is granted. REMANDED Entitlement to compensation for service connection for PTSD is remanded. FINDINGS OF FACT 1. A September 2008 rating decision denying the Veteran’s original claim of service connection for PTSD became final after a failure to appeal. 2. Evidence added to the record since the original rating decision presents a reasonable possibility of substantiating the Veteran’s PTSD claim on the merits. CONCLUSIONS OF LAW 1. The Department of Veterans Affairs (VA) Regional Office (RO) September 2008 denial of service connection for PTSD is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been submitted to reopen the previously denied claim of entitlement to service connection for PTSD. 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 with the United States Army from January 1960 to January 1963 and from February 1963 to February 1966. The Veteran served in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision issued by the RO. New and material evidence The Board is required to consider the question of whether new and material evidence has been received to reopen the claim without regard to the RO’s determination in order to establish the Board’s jurisdiction to address the underlying claim and to adjudicate the claim on a de novo basis. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; see also Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). 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. See Justus v. Principi, 3 Vet. App. 510 (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 (2010). Here, a September 2008 rating decision denied the Veteran’s original claim of service connection for PTSD. He did not appeal this determination, and no new material evidence was submitted within a year following notification of the September 2008 denial. The September 2008 rating decision is therefore final. The prior final decision denying service connection for PTSD was based on the finding that no evidence was provided to confirm an in-service stressor related to a current PTSD diagnosis. The Veteran filed a new claim in July 2013, which was subsequently denied in July 2014 due to the lack of a current diagnosis of PTSD. There was an implied reopening of the July 2014 rating decision; however, the Board is not bound by the RO’s finding. See Butler v. Brown, 9 Vet. App. 167, 171 (1996). The Board finds that new and material evidence has been presented sufficient to reopen these claims. New evidence includes details regarding the Veteran’s in-service stressors and VA treatment records showing a diagnosis of PTSD in 2013. The Veteran’s June 2014 VA examination provides in-service traumatic stressors meeting PTSD diagnostic criteria A and conceded by the VA examiner. Additionally, the Veteran’s VA treatment records include mental health treatment notes from a psychiatrist and psychologist in 2013. The evidence is new as it is not cumulative or redundant of the evidence of record at the time of that decision. It is also material, as it relates to an unestablished fact necessary to substantiate the claim (specifically, details regarding an in-service stressor and a current diagnosis), and raises a reasonable possibility of substantiating the claim. The Board finds that new and material evidence has been submitted as to the claim of service connection for PTSD. Accordingly, this claim is reopened. REASONS FOR REMAND Entitlement to compensation for service connection for PTSD The Veteran contends that he was previously diagnosed with PTSD. He adds that he believes he has PTSD due to his service in Vietnam as a door gunner who routinely feared for his life and the lives of his crew. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA’s duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to decide on the claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c) (4); Duenas v. Principi, 18 Vet. App. 512 (2004); Robinette v. Brown, 8 Vet. App. 69 (1995); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In addition, once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). For the below noted reasons, the Board finds that, while the Veteran underwent a VA examination in June 2014 regarding his claim for service connection for PTSD, an addendum to the previous exam and/or an additional VA examination is necessary. On June 2014, the Veteran was afforded a VA examination for PTSD. The examiner noted that he reviewed the Veteran’s VA e-folder, military service treatment records, military personnel records, DD 214s, and VA treatment records to aid in rendering his opinion. The examiner noted a July 2007 medical note by Dr. A.B. regarding PTSD symptoms and insomnia. He also noted a July 2013 visit with Dr. M.F. regarding ongoing symptoms associated with PTSD. Also, the examiner noted a September 2013 diagnosis of PTSD and alcohol abuse. The VA examiner found that the Veteran was exposed to high levels of traumatic stress during his service in Vietnam. The specific stressors noted by the examiner were shooting at enemy units on the ground on multiple missions, being shot down twice and helping an injured pilot, and being shot at by ground units. The examiner opined that the Veteran did not meet the DSM V criteria due to insufficient symptoms of negative alterations of mood, alterations in arousal and reactivity, and clinically significant distress or impairment in social, occupational or life functioning. Additionally, the examiner determined that the Veteran did not meet the DSM IV criteria due to insufficient symptoms of avoidance, increased arousal symptoms and clinically significant distress or impairment in social, occupational, or life functioning. The rationale for the examiner’s opinion was that the medical literature shows that the majority of Veterans exposed to criteria A stressors, do not develop full or chronic PTSD symptoms. The examiner further opined that the Veteran appears to have adapted well and recovered with minimal impairment in functioning that does not reach the clinical criteria for a PTSD diagnosis. While the examiner considered some of the evidence showing past symptoms of PTSD, he failed to consider all of the evidence in the VA treatment records and did not give a proper explanation as to why he was dismissing the September 2013 diagnosis of PTSD. In addition to a September 2013 combat-related PTSD diagnosis by Dr. M.F., the VA examiner failed to address a September 2007 diagnosis of PTSD by Dr. A.B; a June 2013 diagnosis of PTSD and moderate alcohol abuse by a psychiatrist, Dr. P.H.; a July 2013 diagnosis of PTSD v. anxiety not otherwise specified (NOS) and alcohol abuse by Dr. M.F.; and a continued diagnosis in August 2013 for PTSD v. anxiety NOS and alcohol abuse by Dr. M.F. Therefore, on remand, an opinion which takes all the of the evidence of record into account, should be obtained. Due to the amount of time which will pass on remand, updated treatment records should be obtained and associated with the record. The matter is REMANDED for the following actions: 1. Obtain updated relevant treatment records and associate them with the claims file. 2. After the foregoing development has been completed, schedule the Veteran for an examination, by a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted. All indicated tests and studies (to include psychological testing, if necessary) should be accomplished. After reviewing the claims file, the examiner should opine whether the Veteran has met the diagnostic criteria for PTSD using the DSM-V criteria at any time during the pendency of this appeal even if not found on the current examination. The examiner must provide an opinion as to whether it is as likely as not that the Veteran has PTSD which was etiologically linked to his active duty service. The examiner should address the favorable opinions provided in the Veteran’s VA treatment records in September 2007, June 2013, July 2013, August 2013, September 2013 and discuss whether the analysis of the Veteran’s PTSD under the DSM-V criteria meets the obligations of 38 C.F.R. § 4.125. The examiner should also address the results of the June 2014 VA examination. The VA examiner must provide a clear explanation for all opinions, to include any comment on any credibility issues raised by the record from a medical perspective. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer. 3. Readjudicate the appeal. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Hartford, Associate Counsel