Citation Nr: 18149915 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 18-08 742 DATE: November 14, 2018 ORDER New and material evidence having been received, the petition to reopen a claim of service connection for posttraumatic stress disorder (PTSD) is reopened. REMANDED Entitlement to service connection for an acquired psychiatric disorder to include major depressive disorder with anxious distress, PTSD and other specified trauma and stressor related disorder is remanded. FINDING OF FACT The evidence received since the final October 2011 rating decision is not duplicative or cumulative of evidence previously of record and it raises a reasonable possibility of substantiating the Veteran’s claim of service connection for PTSD. CONCLUSION OF LAW The criteria for reopening the claim of service connection for PTSD have been met. See 38 U.S.C. §§ 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 July 1979 to August 1983. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a June 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2018, the Veteran requested the removal of his representative. The Board notes the case has been advanced on the docket pursuant to 38 C.F.R. § 20.900(c). Whether new and material has been received to reopen a claim of service connection for posttraumatic stress disorder (PTSD). Applicable law provides that a final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. 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. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final decision of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. The credibility of the evidence is presumed in determining whether new and material evidence has been submitted. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 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). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. In the present case, a rating decision in October 2011 denied service connection for PTSD. The claim was denied, in part, as there was no new and material evidence submitted regarding PTSD. It was noted that VA reviewed, among other pieces of evidence, the Veteran’s statement regarding a sexual assault in July 1981 at Ft. Riley, Kansas. The Veteran did not appeal the decision. 38 C.F.R. § 20.1103. The Veteran submitted statement, received by VA in June 2012, from his cousin that noted the event at Ft. Riley. The Board notes while this evidence is new is not material as the basic information surrounding the event was of record and it does not address a prior missing element—nexus. 38 C.F.R. § 3.156(b). Thus, the October 2011 rating decision became final. In March 2017, the Veteran filed a claim to reopen his psychiatric issue, characterizing the claim as major depressive disorder secondary to his service-connected migraine headaches, chronic left knee strain and left leg disabilities. After review of the pertinent probative evidence of record, the Board finds that new and material evidence has been submitted to reopen the claim. As will be discussed further below in the remand portion of the decision; the Veteran was afforded a VA examination for mental disorders in May 2017. The VA examiner diagnosed major depressive disorder recurrent with moderate to severe anxious distress and other specified trauma and stressor related disorder. The examiner concluded that the Veteran’s major depressive disorder was not related to his service-connected disabilities. Instead, the depression was attributed to his recent diagnosis of leukemia. However, the examiner could not determine the initial cause or onset of the major depression. The Board notes that the Veteran was diagnosed with leukemia in 2016, but during the examination he reported feelings of depression since approximately 1997. A review of the evidence of record reveals there were no VA examinations conducted in prior PTSD denials in January 2009 or January 2010. Regarding the diagnosis of other specified trauma and stressor related disorder, the VA examiner stated that PTSD should be further refined given the Veteran’s report of trauma in service, and his trauma after service regarding motor vehicle accidents. Based on the competent evidence of record the current major depression diagnosis and/or a stressor-related disorder, such as PTSD, could be directly related to his active military service. Thus, after review of the record, the Board finds that new and material evidence has been received to reopen the claim of PTSD. The May 2017 VA examination report provides material evidence that could prove the Veteran’s service connection claim. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder to include major depressive disorder with anxious distress, PTSD and other specified trauma and stressor related disorder is remanded. In May 2017, the Veteran was afforded a VA examination for mental disorders. As noted above, the examination specifically addressed whether or not his major depressive disorder was related to his service-connected migraine headaches, chronic left knee strain, and left leg disabilities. The examiner opined that the major depressive disorder was less likely than not proximately due to or the result of his service-connected disabilities. The rationale cited ongoing health problems due to his current diagnosis of leukemia as a potential cause of the exacerbation of his depression systems. However, the examiner noted that the initial cause of his depression could not be determined. The Veteran has not been afforded any other VA examinations related to his mental health during the pendency of the claim. Although, the Board notes that he was denied service connection for PTSD in January 2009, January 2010 and October 2011. Initially, in January 2009 he was denied because his in-service stressors could not be verified and thus he was not scheduled for a VA examination to determine whether or not his PTSD diagnosis was related to his military service. In January 2010, he was denied again due to a lack of evidence to substantiate his in-service stressor although he was being treated for military sexual trauma (MST). Finally, he was denied in October 2011 because no new and material evidence was submitted to reopen the claim. Thus, at no point was a VA examination conducted to evaluate a direct service connection entitlement for PTSD. The May 2017 VA examination diagnosis of major depression, provides an indication that his current mental health disability could be related to his active service. The Board notes that the evidentiary history is conflicting with potential intervening events as well as potential in-service incidents that a VA examiner will need to fully explore in order to determine whether or not his active service is related to his current acquired psychiatric disorder. Specifically, the personnel records reveal the Veteran was given a Court Martial in June 1981, which resulted in a 30 day confinement. While confined, he alleges an attempted sexual assault occurred while he was in the shower. A statement from his cousin in June 2012 appears to potentially corroborate his allegations. Furthermore, treatment records from July 2004 reveal that his use of drugs began in 1982 following the shower incident and prior to his discharge in August 1983. The evidence to the contrary relates to his ability to complete the remainder of his active duty service without further incident and receive an honorable discharge, 2 years after the 30-day confinement. In addition, treatment records show multiple car accidents after service that have contributed to physical pain that could be causing his depression as opposed to the alleged military sexual trauma (MST) incident. Moreover, while not dispositive there was a lack of treatment following his service for mental health ailments. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that evidence of a prolonged period without medical complaint can be considered, along whether other factors concerning the veteran’s health and medical treatment during and after military service). Thus, based on the above, there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 81-86 (2006). Therefore, the Board finds that a remand is warranted to afford the Veteran with another VA examination. The claim is recharacterized as a claim for an acquired psychiatric disorder to include major depressive disorder with anxious distress, PTSD and other specified trauma and stressor related disorder to incorporate additional diagnoses. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (finding that what constitutes a claim is not limited by a Veteran’s assertion of his condition in the application, but must be construed based on the reasonable expectations of the non-expert claimant and the evidence developed in processing the claim). Additionally, updated VA treatment records should be associated with the record on remand. See Sullivan v. McDonald, 815 F.3d 786, 792 (Fed. Cir. 2016) (finding that because § 3.159(c)(3) expanded the VA’s duty to assist to include obtaining VA medical records without consideration of their relevance.) The matter is REMANDED for the following actions: 1. Update/Obtain VA treatment records from September 2017 to the present. Document all requests for information as well as responses in the claims file. 2. After completion of step #1, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his acquired psychiatric disorder to include major depressive disorder with anxious distress, PTSD and other specified trauma and stressor related disorder. The examiner is to provide an opinion whether it is at least likely as not related to an in-service injury, event, or disease. A comprehensive rationale is to be provided. The VA examiner is to specifically, discuss: (a.) The Veteran’s ability to complete the remaining 2 years of his enlistment without further incident after his Court Martial in June 1981 following the alleged attempted sexual assault while in confinement. Noting that his ranked was reduced from Specialist/E4 to Private/E1 after the Court Martial. Then he was able to receive promotion to Private First Class/E3 prior to his discharge in August 1983. (b.) Whether or not the 13 car accidents after his discharge from service annotated in a July 12, 2005, treatment record are intervening events that do not support his mental health disability being related to his military service. (c.) Whether or not his drug use allegedly beginning in 1982 as stated in a July 20, 2004, treatment record is an intervening event that does not support his mental health disability being related to his military service. (d.) Whether or not his drug use allegedly beginning in 1982 was at least likely as not caused by his alleged attempted military sexual assault at Ft. Riley, Kansas. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. M. Williams, Associate Counsel