Citation Nr: 18147411 Decision Date: 11/05/18 Archive Date: 11/05/18 DOCKET NO. 16-16 400 DATE: November 5, 2018 ORDER As new and material evidence has been received, the claim of entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), is reopened. REMANDED Entitlement to service connection for an acquired psychiatric disability, to include PTSD, is remanded. FINDINGS OF FACT 1. In November 2004, October 2005, and September 2006 VA rating decisions, the claim for entitlement to service connection for bipolar disorder, psychiatric disorder, to include bipolar disorder and PTSD, and PTSD was denied; the Veteran was notified of these actions and of his appellate rights and filed a timely notice of disagreement (NOD) in March 2007; the Regional Office (RO) issued a statement of the case (SOC) in April 2008; and the Veteran submitted an untimely substantive appeal in June 2008. 2. In December 2008 and March 2010 VA rating decisions, the claim to reopen service connection for PTSD and acquired psychiatric disorder, to include depression, was denied; the Veteran was notified of these actions and of his appellate rights, but did not file a timely NOD or submit new and material evidence within a year thereafter. 3. The evidence received since the March 2010 VA rating decision regarding service connection for an acquired psychiatric disability, to include PTSD, is not cumulative or redundant and raises the possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The September 2006 VA rating decision denying entitlement to service connection for PTSD is final. 38 U.S.C. § 7105(b), (d) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2018). 2. The March 2010 VA rating decision denying the reopening of entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depression, is final. 38 U.S.C. § 7105(b), (d); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 3. New and material evidence has been received since the March 2010 VA rating decision to reopen the claim for service connection for an acquired psychiatric disability, to include PTSD. 38 U.S.C. §§ 1131, 5108, 7104(b) (2012); 38 C.F.R. §§ 3.156, 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1977 to March 1977. Before reaching the merits of the claim for an acquired psychiatric disability, to include PTSD, the Board must first determine whether new and material evidence has been received to reopen the previously denied claim. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Therefore, the Board has recharacterized this issue accordingly. In April 2017, the Veteran revoked the American Legion as his representative after the certification of this appeal. He has not indicated that he desires another representative and demonstrated an intent to individually pursue his claim. Thus, the Board will proceed under the assumption that he wishes to represent himself. In the April 2016 substantive appeal, VA Form 9, the Veteran did not specify whether he requested a hearing before the Board. The Veteran was requested in a September 2018 notice letter to clarify his hearing request. The Veteran’s request to withdraw any hearing request was received in September 2018. Whether new and material evidence has been received to reopen a previously denied claim of service connection for an acquired psychiatric disability, to include PTSD In August 2004, the Veteran requested service connection for PTSD and psychological problems. In a November 2004 VA rating decision, service connection for bipolar disorder was denied because the evidence of record was silent for any symptoms, complaints, treatment, or diagnosis of any type of psychiatric disorder during service, did not indicate the alleged sexual assault occurred during service, did not show his diagnosis of bipolar disorder is due to military service, and was silent for any diagnosis of PTSD. In an October 2005 VA rating decision, service connection for a psychiatric condition, to include bipolar disorder and PTSD, remained denied because while additional evidence associated with the record showed a diagnosis of PTSD it was silent for a link between this diagnosis and his military service. In a September 2006 VA rating decision, service connection for PTSD remained denied the available medical evidence of record was insufficient to provide independent verification of the alleged in-service sexual assault and to confirm a link between current symptoms and the in-service stressor. The Veteran was notified of these actions and of his appellate rights and filed a timely NOD in March 2007. The RO issued a SOC in April 2008, but the Veteran submitted an untimely substantive appeal in June 2008. In July 2008, the Veteran was notified that his substantive appeal was untimely. Therefore, the September 2006 VA rating decision is final. See 38 U.S.C. § 7105(b), (d); 38 C.F.R. §§ 20.302, 20.1103. In a December 2008 VA rating decision, the Veteran’s untimely June 2008 substantive appeal, characterized as a claim to reopen, was denied because the additional evidence associated with the record did not provide a link between his military service and PTSD nor verify the claimed in-service stressor. In response to a statement by the Veteran in November 2009, the previous denial was continued in a March 2010 VA rating decision because while the additional evidence associated with the record showed diagnoses of depression and major depressive disorder, it did not indicate a link between these diagnoses and his military service. The Veteran was notified of these actions and of his appellate rights, but did not file a timely NOD or submit new and material evidence within a year thereafter. Therefore, the March 2010 VA rating decision is final. Id. The Board has no jurisdiction to consider a claim based on the same factual basis as a previously disallowed claim. 38 U.S.C. § 7104(b); King v. Shinseki, 23 Vet. App. 464 (2010); DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006). However, the finality of a previously disallowed claim can be overcome by the submission of new and material evidence. See 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decision makers. Evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000). 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 must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Evidence received since the March 2010 VA rating decision includes an April 2014 VA treatment record that documents an Axis I diagnosis of “bipolar II with history of major depression and hypomania . . . [and] history of childhood physical abuse and history of alleged military sexual trauma.” The Board finds that this evidence is new and material to the element of establishing a nexus, which was not established at the time of the March 2010 VA rating decision. As a result, this claim is reopened. 38 U.S.C. §§ 1131, 5108; 38 C.F.R. §§ 3.156(a), 3.303. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disability, to include PTSD In July 2014, VA invited the Veteran to reopen his previously denied claim of service connection for PTSD based on his alleged military sexual trauma (MST). Prior to this appeal period, review of VA treatment records shows an Axis I diagnosis of psychotic disorder not otherwise specified (NOS) in May 2002, depressive disorder in May 2002, PTSD (from MST) in January 2004, and an Axis I diagnosis of PTSD MST in December 2005. As noted above an April 2004 VA treatment record documented an Axis I diagnosis of bipolar disorder with link to childhood physical abuse and alleged MST. Additionally, review of private treatment records noted Axis I diagnoses of depression NOS, major depressive disorder, and PTSD by history in August 2008 and bipolar disorder and PTSD from September 2008 to October 2013. During the appeal period, a September 2015 VA treatment record documented positive results from PTSD and depression screenings and the Veteran reiterated his assertion of a military sexual trauma in an August 2015 VA Form 21-0781a (Statement in Support of Claim for Service Connection for PTSD Secondary to Personal Assault). In light of such evidence, additional development for a VA examination and medical opinion is needed to determine the existence and etiology of any current acquired psychiatric disability. See 38 C.F.R. §§ 3.303, 3.304 (2018); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matter is REMANDED for the following actions: 1. Schedule the Veteran for an examination with an appropriate clinician for his acquired psychiatric disability, to include PTSD. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. First, the examiner must identify all currently diagnosed acquired psychiatric disability(ies), to include PTSD under the DSM-5 criteria (even if resolved since July 2014). Second, the examiner must provide an opinion for each currently diagnosed psychiatric disorder as to whether it is at least as likely as not (50 percent or greater probability) that the disability began during active service or is related to an incident of service, to include the Veteran’s alleged in-service sexual assault. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Then, review the medical opinion to ensure that the requested information was provided. If any report or opinion is deficient in any manner, the RO must implement corrective procedures. 3. Then, readjudicate the claim. If the decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Carter, Counsel