Citation Nr: 18146207 Decision Date: 10/31/18 Archive Date: 10/30/18 DOCKET NO. 15-46 374 DATE: October 31, 2018 ORDER New and material evidence having been received, the claim of entitlement to service connection for posttraumatic stress disorder (PTSD) is reopened. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. Entitlement to service connection for bilateral foot disability is remanded. FINDINGS OF FACT 1. In an August 2003 rating decision, the Agency of Original Jurisdiction (AOJ) denied service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD); a timely notice of disagreement was not filed, and no new and material evidence was received within the appeal period. 2. Additional evidence received since the August 2003 rating decision is new, relates to an unestablished fact necessary to substantial the claim of service connection for an acquired psychiatric disorder, to include PTSD, and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW The August 2003 RO denial of service connection for PTSD became final, but new and material evidence has been received sufficient to reopen the previously denied claim. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.104, 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1970 to July 1972. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2018, the Veteran testified, sitting in Columbia, South Carolina, before the undersigned. A transcript of the hearing has been associated with the virtual file and reviewed. Where a claim has been finally adjudicated, a claimant must present new and material evidence in order to reopen the previously denied claim. See 38 U.S.C. § 5108; 38 C.F.R. §3.156(a); see Wakeford v. Brown, 8 Vet. App. 239-40 (1995). New evidence is that which was not previously submitted to agency decision makers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is 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 final denial, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). For the purpose of reopening, evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence that raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). VA should consider whether the newly received evidence could reasonably substantiate the claim were the claim to be reopened, including whether VA’s duty to provide a VA examination is triggered. There must be new and material evidence as to at least one of the bases of the prior disallowance to warrant reopening. Shade, 24 Vet. App. at 117-20. After reviewing the record, the Board finds that new evidence has been received since the final prior decision, and such evidence is material to the issue of service connection for PTSD. In August 2003, the AOJ denied service connection for PTSD based on the lack of a confirmed diagnosis, a stressful event, and/or a link between the first two elements. The Veteran did not file a timely notice of disagreement and no new and material evidence was received within the appeal period; therefore, the August 2003 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156(b), 20.1103. Consequently, the Board will consider evidence received since the August 2003 decision. A May 2018 medical treatment record indicates that the Veteran had a positive PTSD screening and was diagnosed with PTSD. 05/16/2018, Medical Treatment Record. The Board finds that this evidence is new and that it directly pertains to a basis for the prior final decisions, by addressing whether the Veteran is diagnosed with PTSD. Therefore, the claim of service connection for PTSD is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. After reopening, the Board has recharacterized and broadened claims for PTSD as a claim for an acquired psychiatric disorder. The Veteran contends that, while stationed in Camp Page in the Republic of Korea, he witnessed his friend incur an injury during an exercise at the rifle range and the incident caused him to be depressed, stressful, and angry. The Veteran also testified that, following the incident, he was unable to adapt to miliary life. The Veteran’s statements are corroborated in the miliary service records, indicating that the Veteran was disciplined for multiple incidents of misconduct while stationed in Camp Page in early 1972, which resulted in disciplinary action, loss of rank, and bar to re-enlistment. The Veteran further contends that he has flashbacks and currently experiences nightmares of the incident. Shortly after the hearing in May 2018, the Veteran submitted medical treatment records suggesting that he had a positive PTSD screening and was diagnosed with PTSD. The AOJ should take reasonable steps to verify the occurrence of the incident described by the Veteran. Additionally, the Veteran should be afforded an examination to determine the nature and etiology of any diagnosed psychiatric disorders, to include PTSD. See McLendon, 20 Vet. App. 79, 83 (2006). 2. Entitlement to service connection for bilateral foot disability is remanded. The Veteran contends that he has developed a bilateral foot disability due to active service. He believes that this is the result of his military occupational specialty (MOS) as a cook, wherein he was standing on his feet for eleven-hour work days, six days a week, picking up heavy equipment, including big pots and pans; the Veteran also stated that periodic marching, exercise, and running contributed to his foot disability. Service treatment records do not show complaints of, or treatment for, foot pain. However, the Veteran testified that he did seek treatment for foot pain at the infirmary while in service, and that the infirmary would provide him aspirin or Motrin. The Veteran stated that his foot pain has worsened since leaving service, and that he currently experiences flare ups when the weather is bad and sometimes cannot go to sleep at night due to the pain. The Veteran should be afforded an examination to determine the nature and etiology of any current bilateral foot disabilities. See McLendon, 20 Vet. App. at 83. These matters are REMANDED for the following actions: 1. Through all appropriate sources, seek to verify the occurrence of a training exercise injury to a serviceman named Sanchez in the same unit as the Veteran at Camp Page while the Veteran was stationed there. If those efforts prove unsuccessful, prepare a memorandum of unavailability and associate it with the virtual file. 2. Schedule the Veteran for an examination with a VA psychologist or psychiatrist to provide an opinion as to the nature and etiology of any diagnosed acquired psychiatric disorders. The examiner should review the virtual file, including a copy of this Remand. The examiner is to address the following: (a.) Identify all acquired psychiatric disorders that are currently present. Specifically, the examiner should state whether PTSD is present. The examiner is to clearly explain how the diagnostic criteria have or have not been met under the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). If the examiner disagrees with a diagnosis already established in the medical records, he/she should so state and explain why. (b.) If PTSD is diagnosed, is it at least as likely as not (50 percent or greater probability) that PTSD manifested during or is otherwise related to the Veteran’s period of active service, to include due to the claimed in-service stressors and/or fear of hostile military or terrorist activity? 3. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of all current bilateral foot disabilities. The examiner is asked to review the claims file to become familiar with the relevant medical history related to the Veteran’s feet. The examiner is to address the following: (a.) Identify any current bilateral foot disabilities, to include flat foot, arthritis, or any other foot disability that the examiner finds to have been present since the date of the claim, to include a reasonable amount of time prior to the claim. (Continued on the next page)   (b.) For each current foot disability, is it at least as likely as not (probability of 50 percent or more) related to an event, disease, or injury in service? The examiner is asked to provide a comprehensive rationale for any opinion offered. The examiner must consider lay reports from the Veteran along with pertinent medical evidence, including medical literature submitted by him. If the examiner cannot offer an opinion without resort to speculation, he or she should explain why and state what additional evidence, if any, would be required to offer an opinion. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Han, Associate Counsel