Citation Nr: 18151236 Decision Date: 11/19/18 Archive Date: 11/16/18 DOCKET NO. 16-31 049 DATE: November 19, 2018 ORDER New and material evidence having been received, the claim for entitlement to service connection for posttraumatic stress disorder (PTSD) is reopened. REMANDED Entitlement to service connection for PTSD is remanded. Entitlement to total disability individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. In a June 1998 rating decision, the VA Regional Office (RO) denied the Veteran’s claim for entitlement to service connection for PTSD. The Veteran was notified of the decision and his appellate rights, but he did not appeal or submit new and material evidence within the one-year period thereafter. 2. The evidence received since the June 1998 decision, by itself or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the Veteran’s claim for entitlement to service connection for PTSD. CONCLUSIONS OF LAW 1. The June 1998 rating decision that denied the Veteran’s claim of entitlement to service connection for PTSD is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103 (2017). 2. The evidence received since the June 1998 rating decision is new and material, and the claim of entitlement to service connection for PTSD is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Whether new and material evidence has been introduced to reopen a claim for service connection for PTSD A June 1998 rating decision initially denied the Veteran’s claim for entitlement to service connection for PTSD. The RO determined that, in the evidence for review, there was no confirmed diagnosis of posttraumatic stress disorder which would permit a finding of service connection. The RO also determined that the evidence available for review was inadequate to establish that a stressful experience occurred. The Veteran was notified of the decision and his appellate rights in the June 1998 rating decision. However, the Veteran did not file a timely Notice of Disagreement. In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. There was also no new and material evidence submitted within one year of the date of mailing of the decision. Therefore, the June 1998 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.302, 20.1103 (2017). Since the June 1998 rating decision, the Board has received additional evidence regarding the Veteran’s claim for service connection for PTSD, including additional lay statements and medical treatment records. This evidence is new and material because it was not of record at the time of the final rating decision in June 1998 and indicates that the Veteran has PTSD symptoms which may be related to his military service. The Board finds this evidence would trigger VA’s duty to provide an examination in adjudicating a non-final claim. Accordingly, the Board finds this new evidence raises a reasonable possibility of substantiating the claim of entitlement to service connection for PTSD. See Shade, 24 Vet. App. 110. REASONS FOR REMAND 1. Entitlement to service connection for PTSD is remanded. The Board finds that a new examination is necessary to clarify the Veteran’s mental diagnosis, as well as to explore its etiology. In the April 1998 VA examination, the Veteran was not diagnosed with PTSD. However, the Veteran was diagnosed with schizophrenia. The evidence of record also contains evidence of other diagnoses, such as panic disorder. The Veteran contends that he suffers from PTSD because of an event that occurred while he was in the Navy. Specifically, while aboard the USS Forrestal, the Veteran contends that, after walking into a room where three sailors were dealing in heroin, the sailors held the Veteran upside down over the fantail of the ship to drop him into the sea. Instead of dropping the Veteran into the sea, these three sailors locked him in a room and injected him with heroin for two weeks daily. While the Veteran’s records contain evidence that he was aboard the USS Forrestal, the Veteran’s military records do not contain evidence of this incident occurring. The Veteran has consistently recounted the trauma of his experience with three sailors aboard the USS Forrestal. However, the Veteran has indicated other stressors unrelated to his military service that may have caused the Veteran’s psychiatric disorders. For example, during the April 1998 VA examination, the Veteran indicated that he was physically assaulted by his father and witnessed domestic abuse when he was a child. In the 1998 VA examination, the examiner indicated that, from his experience as a former Naval officer, it would be virtually impossible for anyone to be locked up in a room and injected with drugs for two weeks aboard a naval vessel. The examiner noted that it is more likely that his story is delusional in nature which makes it highly probable that he did have at least some psychotic symptoms while on active duty. 2. Entitlement to total disability individual unemployability (TDIU) is remanded. The Veteran’s TDIU claim is inextricably intertwined with the above claim, as the outcome of that claim has direct bearing on the TDIU claim. As such, it must be remanded as well. The matters are REMANDED for the following action: 1. Conduct the appropriate development to verify the Veteran’s reported PTSD stressors. The AOJ should advise the Veteran that he may submit additional lay statements that may tend to corroborate his claimed stressors, including the dates and locations thereof. All attempts to verify the Veteran’s reported PTSD stressors must be documented in the claims file. 2. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. 3. After the preceding development is completed, the AOJ should schedule the Veteran for a VA examination to determine the nature and etiology of any psychiatric disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, including PTSD sub scales. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and statements. In addition, the examiner is requested to address the 1998 VA examiner’s statements that the Veteran may have had delusions in service. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify all current psychiatric disorders. He or she should specifically indicate whether the Veteran has schizophrenia and/or PTSD. For each diagnosis identified other than PTSD, the examiner should state whether it is at least as likely as not (a 50 percent or greater probability) that the disorder manifested in or is otherwise related to the Veteran’s military service, including any symptomatology therein. Regarding PTSD, the AOJ should provide the examiner with a summary of any verified in-service stressors, and the examiner must be instructed that only these events may be considered for the purpose of determining whether exposure to an in-service stressor has resulted in PTSD. The examiner should consider the criteria of the DSM-V in determining whether the diagnostic criteria to support the diagnosis of PTSD has been satisfied. If a PTSD diagnosis is deemed appropriate, the examiner should then comment upon the link between the current symptomatology and any verified in-service stressor. 4. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If a report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims, including the TDIU claim, must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Christine E. Grossman, Associate Counsel