Citation Nr: 18146088 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 13-12 486 DATE: October 30, 2018 ORDER New and material evidence having been received, the petition to reopen the claim of entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD), schizophrenia, major depressive disorder, personality disorder, and impulse control disorder, is granted. FINDING OF FACT Additional evidence submitted since a final and binding March 2008 rating decision relates to a previously unestablished fact necessary to substantiate the claim of entitlement to service connection for a psychiatric disability. CONCLUSION OF LAW New and material evidence has been submitted, and the Veteran’s claim of entitlement to service connection for a psychiatric disability is reopened. 38 U.S.C. §§ 1154(a), 5108, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1984 to January 1990. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a February 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing in October 2016. A transcript of the hearing is of record. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) held that, in determining the scope of a claim, the Board must consider the Veteran’s description of the claim, symptoms described, and the information submitted or developed in support of the claim. Id. at 5. Although the Veteran’s current claim is focused on reopening service connection for PTSD, specifically, the Board will broaden the claim in according with the holding in Clemons and consider whether new and material evidence has been submitted to reopen a broader-scoped psychiatric disorder claim, so inclusive additionally of schizophrenia, major depressive disorder, personality disorder, and impulse control disorder. New and Material Evidence A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). New evidence means existing evidence not previously submitted to agency decision makers. 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). 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, consideration is not limited to whether the newly-submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). Finally, for the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Most recently, service connection for PTSD was denied in a March 2008 rating decision because then newly-submitted evidence did not show a PTSD diagnosis. That decision is the most recent final and binding decision concerning this claim, so it marks the starting point for determining whether new and material evidence since has been received. In February 2011, the Veteran attempted to reopen the claim, but was again denied in September 2012, because the evidence submitted was not material. Evidence associated with the claims file since the March 2008 rating decision includes a September 2011 statement from the Veteran’s daughter, indicating the Veteran’s in-service sexual assault had contributed to continuing psychiatric symptoms. A January 2012 PTSD Disability Benefits Questionnaire (DBQ) indicates the Veteran did not meet the diagnostic criteria for a diagnosis of PTSD. Instead, the examiner diagnosed schizophrenia and reported, “[t]he veteran has suffered negative impact from the sexual assaults that occurred in the 1980’s, but her symptoms are better accounted for by schizophrenia.” On an April 2012 VA Form 21-0781a, Statement in Support of Claim for PTSD Secondary to Sexual Assault, the Veteran described her in-service sexual assault and resulting symptoms. VA medical records further show diagnoses and treatment for multiple psychiatric conditions, including PTSD and schizophrenia. Also added to the claims file is a transcript of the Veteran’s October 2016 Board hearing testimony. During that hearing, the Veteran reasserted that she was sexually assaulted by two civilians while in service, which has resulted in ongoing psychiatric symptoms. The Board finds that the evidence received since the most recent final and binding determination regarding this claim is neither cumulative nor redundant of the evidence previously of record and considered and raises a reasonable possibility of substantiating this claim. A medical professional addressed the posited relationship between the Veteran’s psychiatric disability (schizophrenia) and service based on the Veteran’s reported history. The credibility of the evidence is presumed for this limited purpose of determining whether this claim should be reopened, thus, it is. REMAND As described above, the Board has found that new and material evidence has been received to reopen the claim of entitlement to service connection for a psychiatric disability. Regrettably, the Board finds that additional development is required regarding the Veteran’s claim, as will be discussed below. Since the Veteran’s claim has been reopened, based upon additional evidence submitted, she should be provided a new examination, which considers all of the evidence of record, to determine the etiology of any currently manifested psychiatric disability. The Board notes the January 2012 PTSD DBQ provides a positive nexus between the Veteran’s schizophrenia and military service; however, this opinion is inadequate, as it is solely based on the Veteran’s reports. Ongoing medical records should also be obtained. 38 U.S.C. § 5103A(c); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Thus, any VA treatment records or private treatment records which support the Veteran’s claim but are not associated with the claims file should be requested, where necessary, obtained, and associated with the record. See 38 U.S.C. § 5103A(c); 38 C.F.R. § 3.159(c).] The matter is REMANDED for the following action: 1. Obtain copies of the complete updated VA clinical and private records of all evaluations and treatment the Veteran received for any psychiatric disabilities. All requests for records and responses must be associated with the claims folder. 2. After undertaking the development listed above to the extent possible, schedule the Veteran for a VA examination with a VA psychiatrist or psychologist to determine the nature and etiology of the acquired psychiatric disorder, to include PTSD, schizophrenia, major depression disorder, personality disorder, and impulse control disorder. The claims file must be made available to and reviewed by the examiner, and a note that it was reviewed should be included in the report. After reviewing the claims file and examining the Veteran, the examiner should answer the following question: Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s acquired psychiatric disorder, to include PTSD, schizophrenia, major depression disorder, personality disorder, and impulse control disorder, is related to service? A detailed rationale for the opinion must be provided. Review of the entire claims file is required. The examiner should comment on the diagnoses in rendering the opinion. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Norwood, Associate Counsel