Citation Nr: 18145684 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 16-17 429 DATE: October 29, 2018 ORDER The previously disallowed claim for service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is REOPENED. REMANDED ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is REMANDED. FINDINGS OF FACT 1. Service connection for PTSD was initially denied by the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO) in a November 2010 rating decision. 2. The record does not show that the Veteran filed a notice of disagreement with the denial of service connection for PTSD within one year of notification of the November 2010 decision. 3. Evidence received since the prior final rating November 2010 rating decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of service-connection for an acquired psychiatric disorder, to include PTSD. CONCLUSIONS OF LAW 1. The November 2010 rating decision is final. 38 U.S.C. § 7105 (c) (West 2014); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103 (2017). 2. The evidence submitted subsequent to the December 2015 rating decision is new and material, and the issue of entitlement to service connection for PTSD is reopened. 38 U.S.C. § 5108 (West 2014); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served as a member of the United States Marine Corps, with active duty service from July 1984 through April 1988. This appeal comes to the Board of Veterans’ Appeals (Board) from a rating decision, dated December 2015, issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas (hereinafter Agency of Original Jurisdiction (AOJ)). The Veteran testified at an April 2018 Travel Board hearing, before the undersigned Veterans Law Judge. A transcript of this hearing has been reviewed and associated with the Veteran’s claims file. After reviewing the Veteran’s medical records and statements to the Board, this issue has been recharacterized as a claim for entitlement to service connection for an acquired psychiatric disorder, to include PTSD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that when a claimant makes a claim he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). As such, the issues on appeal have been recharacterized as reflected on the title page of this decision. Claim to Reopen The Veteran seeks service connection for an acquired psychiatric disorder, to include PTSD. This claim for service connection was previously considered and denied by the RO in a November 2010 rating decision. The claim was denied as the Veteran’s service treatment records did not contain evidence of treatment for, or diagnosis of PTSD and an inservice stressor was not corroborated. The Veteran was informed of this decision in a November 2010 letter. The Veteran did not appeal the decision and it became final. 38 C.F.R. § 20.1103. As such, the Veteran’s claims may be reopened only if new and material evidence has been secured or presented since the last final rating decision. 38 U.S.C. § 7105. As a general rule, a claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to a claim that is final. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156, 20.1105. Under 38 C.F.R. § 3.156(a), new evidence means evidence not previously submitted to agency decision makers. Material evidence means 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. Id. 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). Moreover, the Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. Id. at 120 (noting the assistance of 38 C.F.R. § 3.159(c)(4) would be rendered meaningless if new and material evidence required a claimant submit medical nexus evidence when he has provided new and material evidence as to another missing element). In determining whether evidence is new and material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). At the time of the November 2010 rating decision, the record included the claim, the service records, and VA treatment records. In essence, at the time of the prior decision, there was no accepted evidence of an in-service stressor or confirmed diagnosis of PTSD. The evidence received since the November 2010 rating decision includes evidence that is both new and material to the claims. See 38 C.F.R. § 3.156. The Veteran’s private provider submitted a statement subsequent to the November 2010 rating decision indicating that the Veteran currently has PTSD. Further, the Veteran testified at his Board hearing of specific stressors to which he attributes his PTSD. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the Board concludes that sufficient new and material evidence has been submitted to reopen the Veteran’s previously disallowed claim for service connection for PTSD. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. Although the Board regrets the additional delay, the Veteran’s remaining claims must be remanded before the Board is able to make a determination on the merits. Specifically, the Board finds that additional supporting evidence is required in developing the Veteran’s claim. During the April 2018 hearing, the Veteran testified that he submitted additional evidence corroborating in-service stressors as requested by VA. This evidence consists of lay statements, a medical statement from the Veteran’s doctor, and additional medical records. The Veteran contends that his PTSD is a result of his active duty service in Cuba. While serving in Cuba, the Veteran contends the Cubans pointed their tanks and shot at the tower where he was stationed, and mines and grenades were regularly going off. See e.g. Hearing Transcript. The Veteran testified that his PTSD resulted from recorded events that occurred while he was on active duty service in Cuba. When asked about the shootings directed at his station, the Veteran responded, “[W]e logged them in these log books that we had on each post everything that took place.” See e.g. Hearing Transcript. When asked about who would fill out the log books, the Veteran replied, “Each sentry on the post would fill it out each time they were on duty.” See e.g. Hearing Transcript. The log books referenced by the Veteran at his hearing are not currently associated with the claims folder. The Board finds that a remand is required in order to obtain log books verifying specified in-service stressors referenced by the Veteran in his April 2018 Travel Board hearing. The matter is REMANDED for the following action: 1. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from VA or private health care providers. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159(c). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. The AOJ should make appropriate efforts to obtain the log books that the Veteran referenced at his April 2018 Travel Board hearing, to the extent possible, in order to substantiate his in-service stressor claims related to the shootings he experienced while on active duty in Cuba. 3. After completing the above development, the AOJ should review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. Thereafter, the AOJ should consider all of the evidence of record and readjudicate the issues on appeal for an acquired psychiatric disorder, to include PTSD. If the benefit sought is not granted, issue a Supplemental Statement of the Case (“SSOC”) and allow the Veteran and his representative an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Kathryn Bristor