Citation Nr: 18150769 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-46 119 DATE: November 15, 2018 ORDER New and material evidence having been received, the claim to reopen entitlement to service connection for acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), is granted. REMANDED Entitlement to service connection for acquired psychiatric disability, to include PTSD, is remanded. FINDINGS OF FACT 1. A June 2014 rating decision denied entitlement to service connection for an acquired psychiatric disability. The Veteran was notified of that decision, but did not initiate an appeal, and new and material evidence was not received within one year of the notice of that rating decision. 2. Some of the evidence received since June 2014, when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of service connection for acquired psychiatric disability. CONCLUSIONS OF LAW 1. The June 2014 rating decision, which denied the Veteran’s claim of entitlement to service connection for acquired psychiatric disability, is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103 (2018). 2. The evidence received since the June 2014 rating decision is new and material, and the claim of entitlement to service connection for acquired psychiatric disability is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from November 1990 to July 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from September 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). New and Material Evidence 1. New and material evidence having been received, the claim to reopen entitlement to service connection for acquired psychiatric disability is granted. In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to VA. 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 can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the “credibility” of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence, and views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Evidence “raises a reasonable possibility of substantiating the claim,” if it would trigger VA’s duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). In a June 2014 rating decision, the RO denied the claim of entitlement to service connection for acquired psychiatric disability. Specifically, the RO determined that the Veteran did not have any current mental health diagnosis. Further, the May 2014 VA examiner determined that the Veteran did not have a medically determinable mental impairment and did not render a diagnosis. See May 2014 C&P Exam. The Veteran was notified of that decision, but did not initiate an appeal. Further, no new and material evidence was received within one year of notice of that decision. Since the June 2014 rating decision, there have been multiple statements and subsequent treatment records associated with the file. Specifically, the treatment records show that the Veteran has a diagnosis of adjustment disorder with mixed anxiety and depressed mood, obsessive-compulsive disorder, possible mood disorder, and possible PTSD. See August 2015 Medical Treatment Record – Non-Government Facility. The Veteran submitted multiple statements as to his in-service stressors of being a victim of bullying by other recruits and being involved in a faulty helicopter landing. As a result of his experience, the Veteran contends that he has nightmares, anxiety, paranoia, homicidal and suicidal thoughts, feelings of hopelessness, and social avoidance. See January 2016 NOD. The Board finds that the diagnoses of psychiatric disorders are new and material evidence because they were not of record at the time of the final RO decision in June 2014. Accordingly, the Board finds this new evidence raises a reasonable possibility of substantiating the claim of entitlement to service connection for acquired psychiatric disability. As such, the claim for entitlement to service connection for acquired psychiatric disability is reopened. See Shade, 24 Vet. App. 110. REASONS FOR REMAND 1. Entitlement to service connection for acquired psychiatric disability, to include PTSD, is remanded. The Board’s review of the claims file reveals that further action on the claim of entitlement to service connection for acquired psychiatric disability, to include PTSD, is needed. A review of the service treatment records shows that in November 1990, about two weeks in his active duty, the Veteran endorsed homicidal and suicidal thoughts. As the Veteran showed no evidence of a disorder of thought content, process or perception or delusions or hallucinations, the examiner diagnosed the Veteran with no mental illness. See February 1999 STR-Medical. The service treatment records showed no subsequent complaints of homicidal or suicidal thoughts and the July 1992 separation examination showed normal psychiatric condition with no depression or excessive worry. Id. A review of post-service treatment records shows that the Veteran was diagnosed with mixed anxiety and depressed mood, obsessive-compulsive disorder, possible mood disorder, and possible PTSD. See August 2015 Medical Treatment Record – Non-Government Facility. The Veteran argued that he has two main stressors. First, the Veteran stated that he was bullied by other recruits. See October 2013 VA 21-0781a, Statement in Support of Claim for PTSD Secondary to Sexual Assault. The Veteran stated that he was even involved in an altercation in the city of Philadelphia where he was sent to jail for the first time as a sailor. See April 2014 VA 21-4138 Statement in Support of Claim. Second, the Veteran stated that he witnessed a rough helicopter landing that the rotors came inches from his body. See April 2016 Correspondence. The Veteran argued that as a result of being bullied by his shipmates and the helicopter incident, he has nightmares, anxiety, paranoia, homicidal and suicidal thoughts, feelings of hopelessness, and social isolation. See January 2016 NOD. In light of the above considerations, including the Veteran’s statement, the Board finds that the Veteran should be afforded a VA examination. The matter is REMANDED for the following action: 1. Obtain outstanding records of pertinent medical treatment from VA or private health care providers. 2. Attempt to corroborate the Veteran’s alleged PTSD stressors, which include bullying by fellow service members and witnessing a rough helicopter landing. 3. Thereafter, schedule the Veteran for a VA examination by an appropriately qualified examiner to determine the nature and etiology of any current psychiatric disorder, to include mixed anxiety and depressed mood and PTSD. The claims file, including a copy of this remand, must be made available to the examiner. A record of the review of the claims file should be documented in the examination report. Following the examination of the Veteran and a review of the record, the examiner must, first, identify each current psychiatric diagnosis found to be present since June 2015. If PTSD is diagnosed, the examiner should identify the stressor(s) upon which such diagnosis is based. For each diagnosed psychiatric disorder, provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the disorder had its onset in service or is otherwise etiologically related to service. A detailed rationale for all opinions must be provided. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Noh, Associate Counsel