Citation Nr: 18148102 Decision Date: 11/07/18 Archive Date: 11/06/18 DOCKET NO. 18-06 855 DATE: November 7, 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. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. In April 1982 and December 1982 VA rating decisions, service connection for schizophrenia paranoid type (claimed as PTSD) was denied; the Veteran was notified of these actions and of his appellate rights, but did not file a timely notice of disagreement (NOD) with respect to that issue or submit new and material evidence within a year thereafter. 2. In a September 2011 VA rating decision, the claim to reopen service connection for schizophrenia paranoid type (claimed as PTSD and depression) was denied; the Veteran was notified of this action and of his appellate rights and filed a timely NOD in February 2012; the Regional Office (RO) issued a statement of the case (SOC) in March 2015; and the Veteran did not submit a timely substantive appeal. 3. The evidence received since the September 2011 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 December 1982 VA rating decision denying entitlement to service connection for schizophrenia paranoid type (claimed as PTSD) is final. 38 U.S.C. § 7105(b), (d) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2018). 2. The September 2011 VA rating decision denying the reopening of entitlement to service connection for schizophrenia paranoid type (claimed as PTSD and depression) is final. 38 U.S.C. § 7105(b), (d) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2018). 3. New and material evidence has been received since the September 2011 VA rating decision to reopen the claim for service connection for an acquired psychiatric disability, to include PTSD. 38 U.S.C. §§ 1110, 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 1969 to June 1970. The Board has recharacterized the Veteran’s claim more broadly to an acquired psychiatric disability, to include PTSD, in order to clarify the nature of the benefit sought and ensure complete consideration of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5-6, 8 (2009). Before reaching the merits of this claim, the Board must first determine whether new and material evidence has been received to reopen a previously denied claim. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Additionally, while additional service personnel records were associated with the record in February 2012 and May 2016, these official service department records are not relevant to the claim on appeal. See 38 C.F.R. § 3.156(c) (2018). Therefore, the Board has recharacterized this issue accordingly. 1. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for an acquired psychiatric disability, to include PTSD In October 1980, the Veteran requested service connection for nervous disorder, mental disorder, and depression/drugs. In an April 1982 VA rating decision, service connection for schizophrenia paranoid type (claimed as PTSD) was denied. In a December 1982 VA rating decision, the previous denial was continued because the evidence showed the disability was the result of the Veteran’s own willful misconduct. 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 December 1982 VA rating decision is final. See 38 U.S.C. § 7105(b), (d); 38 C.F.R. §§ 20.302, 20.1103. In December 2010, the Veteran requested to reopen service connection for depression. In a September 2011 VA rating decision, the claim to reopen service connection for schizophrenia paranoid type (claimed as PTSD and depression) was denied. The Veteran was notified of this action and of his appellate rights and filed a timely NOD in February 2012. The RO issued a SOC in March 2015, but the Veteran did not submit a timely substantive appeal. Therefore, the September 2011 VA rating decision is final. See 38 U.S.C. § 7105(b), (d); 38 C.F.R. §§ 20.302, 20.1103. 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 September 2011 VA rating decision includes two VA Forms 21-0781 (Statement in Support of Claim for Service Connection for PTSD), dated in February 2016 and January 2018, in which the Veteran reported an in-service stressor while in Vietnam regarding his observation of a suicide. In a December 2016 VA Form 21-4138, the Veteran reported an additional witness to the previously reported stressor event in Vietnam. Additionally, in an August 2016 VA Form 21-4138 (Statement in Support of Claim), the Veteran reported being fearful for his life all the time during his period of active service in Vietnam, and reiterated his fear and observations of men dying while in Vietnam and currently reliving those remembrances of Vietnam in memories, flashbacks, and dreams in a June 2017 VA Form 21-4138. The Board finds that this evidence is new and material to the element of establishing an in-service occurrence, which was not established at the time of the September 2011 VA rating decision. As a result, this claim is reopened. 38 U.S.C. § 1110, 5108; 38 C.F.R. §§ 3.156(a), 3.303. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disability, to include PTSD In February 2016, the Veteran requested to reopen his claim for service connection for PTSD. During the appeal period, review of VA treatment records shows diagnoses of anxiety, PTSD, major depressive disorder (MDD), major depression, schizophrenia, cocaine use disorder, and behavioral disability in February 2016, March 2016, and July 2016. In October 2016, the Veteran underwent a VA examination for PTSD. The Veteran reported the in-service stressor regarding the suicide and that he “drove a tractor trailer hit by mortars” during service. Following the clinical evaluation, the VA examiner rendered diagnoses of cannabis induced psychotic disorder and cannabis use disorder. Review of the record, to include a September 2018 written brief the Veteran’s representative, indicates the October 2016 VA examiner did not address the previous psychiatric diagnoses, to include PTSD, of record during the appeal period, and has not considered the Veteran’s subsequently reported additional in-service stressor of being fearful for his life while in Vietnam. In light of such evidence, additional development for an addendum VA medical opinion is needed to determine the existence and etiology of any current acquired psychiatric disability, to include PTSD. See 38 C.F.R. §§ 3.303, 3.304 (2018); McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to a TDIU While the Board remands the issue of entitlement to service connection for an acquired psychiatric disability, to include PTSD, for additional evidentiary development, as discussed above, that decision may impact this claim for a TDIU. As such, these issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following actions: 1. Provide the Veteran and his representative with additional notice concerning how to substantiate the claim for a TDIU, to include completion of VA Form 21-8940. 2. Then, determine whether the Veteran’s submission of a December 2016 VA Form 21-4138 and January 2018 VA Form 21-0781 provide adequate information for an additional attempt to verify the alleged in-service stressor event of witnessing a suicide while in Vietnam. 3. If so, contact the Joint Services Records Research Center (JSRRC) and any other appropriate sources, in attempts to independently verify this alleged stressor event. Sequential requests must be made to cover a time period specified by the Veteran because the duty to assist is not limited by a requirement that a 60 day window be provided. Gagne v. McDonald, 27 Vet. App. 397 (2015). If the search for corroborating records leads to negative results, the RO must notify the Veteran. The RO should also follow up on any additional action suggested by each appropriate source contacted. Any determinations made should be documented in the record and the Veteran and his representative should be notified. 4. Then, return the Veteran’s claims file to the examiner who conducted the October 2016 VA DBQ examination for PTSD so a supplemental opinion may be provided. If that examiner is no longer available, provide the Veteran’s claims file to a similarly qualified clinician. The entire claims file and a copy of this remand must be made available to the examiner for review. A new examination is only required if deemed necessary by the examiner. The examiner must opine as to the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s acquired psychiatric disability (other than PTSD and schizophrenia), to include anxiety, MDD, major depression, and behavioral disability (even if resolved since February 2016), began during active service or is related to an incident of service, to include the Veteran’s alleged in-service stressors of witnessing a suicide and/or fearing for his life while in Vietnam. (b.) Whether it is at least as likely as not that the Veteran’s schizophrenia (even if resolved since February 2016) (i) began during active service, (ii) is related to an incident of service, to include the Veteran’s alleged in-service stressors of witnessing a suicide and/or fearing for his life while in Vietnam, or (iii) began within one year after discharge from active service. (c.) Whether it is at least as likely as not that the Veteran’s PTSD (even if resolved since February 2016), began during active service or is related to an incident of service, to include the Veteran’s alleged in-service stressors of witnessing a suicide (if verified) and/or fearing for his life while in Vietnam. 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. 5. Then, review the examination report and medical opinions to ensure that the requested information was provided. If any report or opinion is deficient in any manner, the RO must implement corrective procedures. 6. Then, readjudicate the claims. If any 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