Citation Nr: 18147563 Decision Date: 11/06/18 Archive Date: 11/05/18 DOCKET NO. 16-41 423 DATE: November 6, 2018 ORDER New and material evidence having been presented, reopening of the claim for service connection for an acquired psychiatric disorder is granted. New and material evidence having been presented, reopening of the claim for service connection for hepatitis is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD) and bipolar disorder is remanded. Entitlement to service connection for hepatitis is remanded. Entitlement to a disability rating in excess of 10 percent for bilateral hearing loss is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU), due to service connected disabilities is remanded. FINDINGS OF FACT 1. A November 2001 rating decision denied the claim of entitlement to service connection for hepatitis; January 2005 and February 2011 rating decisions denied the claim of entitlement to service connection for an acquired psychiatric disorder; the Veteran did not appeal those denials, and thus, those decisions are considered final. 2. Evidence received subsequent to the November 2001 and February 2011 rating decisions includes evidence that is not cumulative or redundant of the evidence previously of record and relates to unestablished facts necessary to substantiate the claims for entitlement to service connection for hepatitis and an acquired psychiatric disorder. CONCLUSIONS OF LAW 1. New and material evidence has been presented to reopen the claim of entitlement to service connection for an acquired psychiatric disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 2. New and material evidence has been presented to reopen the claim of entitlement to service connection for hepatitis. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (c) (2012). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 C.F.R. § 3.156. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. 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. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The U.S. Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156 (a) as creating a low threshold, and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159 (c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). The RO initially denied the claim for entitlement to service connection for hepatitis in a November 2001 rating decision. At that time, the RO determined the Veteran’s STRs failed to show the disability was incurred in service. With respect to the Veteran’s claim for an acquired psychiatric disorder, the RO initially denied service connection for this claim in a January 2005 rating decision. At that time, the RO determined the evidence failed to show a current disability with respect to PTSD. In addition, the RO determined the Veteran’s bipolar disorder did not warrant service connection, because the evidence did not indicate the condition was incurred in service. Thereafter, in September 2010, the Veteran initiated a claim to reopen his previously denied claim for PTSD. Following a VA examination, the RO reopened, but denied the claim in a February 2011 rating decision. The evidence of record in November 2001 and February 2011 consisted of the Veteran’s statements and service treatment records (STRs), as well as outpatient treatment records from the East Orange VAMC. The record also contained the report of a December 2010 VA examination. The evidence received after the expiration of the appeal period includes additional statements from the Veteran, as well as additional outpatient treatment records from the East Orange VAMC. The Veteran has also provided statements and clinical records from private providers, which establish current diagnoses of PTSD and bipolar disorder, and intimate a potential relationship to service. Further, the Veteran most recently provided a VA Form 21-0781a, Statement in Support for Service Connection for PTSD Secondary to Personal Assault. In this statement, the Veteran provided details of a military sexual assault, which he has indicated resulted in both his acquired psychiatric disorder and hepatitis. These records, when taken in the light most favorable to the Veteran, provide probative evidence tending to support his claims. As such, the Board finds this evidence to be new and material. Accordingly, reopening of the claims for service connection for an acquired psychiatric disorder and hepatitis is warranted. REASONS FOR REMAND Initially, the Board notes the Veteran introduced a claim for an increased rating for his bilateral hearing loss disability in December 2014. He subsequently underwent a VA examination in July 2015; however, the examiner determined the exam results were not valid for rating purposes. Thereafter, the RO confirmed and continued the prior 10 percent rating, and the Veteran initiated the following appeal. The Board observes that following the issuance of a June 2016 Statement of the Case (SOC), additional evidence relevant to this issue was added to the record. Specifically, a November 2017 VA examination report was associated with the record. No Supplemental Statement of the Case (SSOC) was issued considering the additional evidence, and the Veteran has not waived his right to have the evidence considered by the AOJ. The Board has determined that the issuance of an SSOC addressing the cited evidence is warranted. See 38 C.F.R. § 19.37 (b) (evidence received after transfer of records to the Board). As noted above, the Veteran has initiated a claim to reopen his previously denied claim for service connection for a psychiatric disorder. His outpatient treatment notes from the East Orange VA Medical Center (VAMC), as well as treatment notes from other psychiatric providers, show he has been diagnosed with both PTSD and bipolar disorder in the course of the appeal period. Recently, the Veteran reported experiencing a military sexual trauma (MST) on December 31, 1980 near Fort Gordon, Georgia. He also stated that following the MST he was ashamed and fearful, and that as such, he did not report the incident. The Board notes that VA must provide a medical examination or obtain a medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A (d)(2), 38 C.F.R. § 3.159 (c)(4)(i). The third prong, which requires that the evidence of record “indicate” that the claimed disability or symptoms “may be” associated with the established event, disease or injury is a low threshold. McLendon, 20 Vet. App. at 83. To date, the Veteran has not been afforded a VA examination to determine whether his currently diagnosed psychiatric disorders or hepatitis are consequentially related to his reported experiences in service. In closing, the Board notes the Veteran has largely reported that his employment difficulties stem from his psychiatric manifestations. Therefore, the issue of entitlement to a TDIU rating is intertwined with the determination of service connection for his psychiatric disorders. Since the Veteran’s claim for entitlement to a TDIU, is contingent upon whether he obtains service connection for the above-noted disabilities, this issue will remain in abeyance at this time. On remand, all relevant ongoing medical records should be obtained. 38 U.S.C. § 5103A (c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, this case is REMANDED for the following actions: 1. The RO should undertake development to obtain any outstanding records pertinent to the issues on appeal, to specifically include any more recent treatment records related to the claimed disabilities. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 2. Then, the Veteran should be afforded an examination by a VA psychiatrist or psychologist, who has not previously examined the Veteran, to determine the etiology of all acquired psychiatric disorders present during the period of the claim. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. Based on the review of the Veteran’s pertinent history and the examination results, the examiner should identify all acquired psychiatric disorders that have been present during the period of the claim. A diagnosis of PTSD should be confirmed or ruled out. If the examiner determines PTSD has not been present during the period of the claim, the examiner should explain why a diagnosis of PTSD is not warranted. In this regard, the examiner should fully discuss all relevant evidence. If PTSD is diagnosed the examiner should identify the elements supporting the diagnosis. Additionally, if the examiner finds a diagnosis of PTSD is warranted, the examiner should provide a detailed rationale, which explains the stressor deemed sufficient to support this diagnosis, as well as the specific evidence the examiner found persuasive in corroborating the existence of that stressor. In this regard, the examiner should fully discuss and consider the Veteran’s reports of experiencing an MST in service. With respect to each acquired psychiatric disorder, other than PTSD, that has been present during the period of the claim, the examiner should state an opinion as to whether it is at least as likely as not (i.e., at least 50 percent probable) that such disorder originated in service or is otherwise etiologically related to service. A complete rationale for all proffered opinions must be provided. If the examiner is unable to provide any required opinion, he/she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner must provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. (Continued on the next page)   3. Finally, undertake any other development determined to be warranted, and then readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran’s satisfaction, furnish to the Veteran and his representative a supplemental statement of the case and afford them the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Fraser, Counsel