Citation Nr: 18152060 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 14-42 050 DATE: November 20, 2018 ORDER New and material evidence having been received, the claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is reopened. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. FINDINGS OF FACT 1. In a decision dated February 1986, the Regional Office (RO) denied the Veteran’s claim of entitlement to service connection for PTSD. The Veteran was notified of the decision and did not appeal. 2. Evidence added to the record since the unappealed February 1986 rating decision denying entitlement to service connection for PTSD is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran’s claim. CONCLUSIONS OF LAW 1. The February 1986 rating decision denying service connection for PTSD is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2018). 2. New and material evidence has been presented to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD. 38 U.S.C. §§ 1110, 1131, 5108 (2012); 38 C.F.R. § 3.156(a), 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from August 1967 to April 1970 and from June 2002 to February 2003, with additional periods of service in the National Guard. Before reaching the merits of the claim, the Board must first determine whether new and material evidence has been received to reopen the previously denied claim. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Therefore, the Board has recharacterized the Veteran’s claim for PTSD more broadly to an acquired psychiatric disorder, to include PTSD, in order to clarify the nature of the benefit sought and ensure complete consideration of the claim. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6, 8 (2009). The Board notes that the Veteran originally requested a Board hearing with respect to his appeal. However, an October 2018 correspondence from the Veteran’s representative included a statement that essentially waived that hearing request. Therefore, the appeal is properly before the Board at this juncture. Whether new and material evidence has been received sufficient to reopen the claim of entitlement to service connection for PTSD In a February 1986 rating decision, VA denied entitlement to service connection for PTSD. The Veteran was notified of this action and of his appellate rights, but did not file a timely Notice of Disagreement or submit new and material evidence within a year thereafter; therefore, the February 1986 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. When a claim to reopen is presented VA must first determine whether the evidence presented or secured since the last final disallowance of the claim is new and material. 38 U.S.C. § 5108; 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 denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. The evidence need not relate to the specific reason why the claim was last denied; rather it need only relate to any unestablished fact necessary to substantiate the claim. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). In determining whether this low threshold is met, VA should not limit its consideration to 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, including by triggering VA’s duty to assist. Id. At the time of the February 1986 rating decision, the evidence of record included in part, the Veteran’s service treatment records, service personnel records, and some medical treatment records, including a VA psychiatric examination which documented a diagnosis of chronic PTSD. It was determined that Veteran’s claimed stressors could not be verified. Since then, review of the record shows an additional psychiatric diagnosis of major depressive disorder in VA treatment records and April 2011 VA examination report. The Board finds that this evidence reasonable raises the possibility of substantiating the claim. As a result, this claim is reopened. 38 U.S.C. §§ 1110, 1131, 5108; 38 C.F.R. §§ 3.156(a), 3.303. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder, to include PTSD According the Veteran’s April 2011 VA examination, he does not meet the criteria for a diagnosis of PTSD as his stressors have not been verified. The examiner also stated that the Veteran’s depressive symptoms began post-service, after the death of his oldest child. In October 2018, the Veteran and his representative stated that the Veteran served in combat and asserted that his claimed stressors should be conceded. In light of such evidence, an additional VA examination and medical opinions are needed to determine the existence and etiology of any current acquired psychiatric disorder, to include PTSD under the DSM-5 criteria. See 38 C.F.R. §§ 3.303, 3.304 (2018); 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014) (the DSM-5 applies to claims certified to the Board on and after August 4, 2014). Additionally, a review of the record reveals that the Veteran has received some VA and private treatment for his claimed acquired psychiatric disorder. The Board finds that it would be prudent for an attempt to obtain any outstanding treatment records be made. The matter is REMANDED for the following actions: 1. Contact the Veteran and request that he identify any private treatment facilities or providers relevant to his reported treatment for an acquired psychiatric disorder, and provide him with the appropriate release forms. Then, make appropriate efforts to obtain any outstanding records so authorized for release from any facility identified by the Veteran. Also, obtain and associate with the claims file all outstanding VA treatment records dated since October 2018. If these records cannot be located, the RO must specifically document the attempts made to locate them and notify the Veteran. 2. Then, schedule the Veteran for an examination with an appropriate clinician for his acquired psychiatric disorder, to include PTSD. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. First, the examiner must identify all currently diagnosed acquired psychiatric disorder(s), to include PTSD under the DSM-5 criteria (even if since resolved). Second, the examiner must provide an opinion for each currently diagnosed psychiatric disorder (to include major depressive disorder during the appeal period) as to whether it is at least as likely as not (50 percent or greater probability) that the disability began during active service or is related to an incident of service. 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. 3. Then, review the examination report and medical opinions to ensure that it is in complete compliance with the directives of this remand. If any report or opinion is deficient in any manner, the RO must implement corrective procedures. 4. Then, readjudicate the claim. If the decision is adverse to the Veteran, issue a Supplemental Statement of the Case (SSOC) and allow the applicable time for response. Then, return the case to the Board. T. Blake Carter Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Miller, Associate Counsel