Citation Nr: 18152170 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 16-38 947 DATE: November 21, 2018 ORDER New and material evidence having been received, the claim of service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD) and dysthymia (claimed as anxiety) is reopened and to that extent the appeal is granted. REMANDED Entitlement to service connection for a psychiatric disorder, to include PTSD as secondary to military sexual assault, and/or dysthymia/depressive and anxiety disorders, is remanded. FINDING OF FACT 1. The Board last denied service connection for a psychiatric disorder in August 2004; the Veteran did not submit a timely motion for reconsideration or timely appeal that decision to the United States Court of Veterans Claims (Court), and therefore that decision is final. 2. New and material evidence that raises a reasonable possibility of substantiating the claim of service connection for a psychiatric disorder has been received since the final August 2004 Board decision. CONCLUSIONS OF LAW 1. The August 2004 Board decision that denied service connection for a psychiatric disorder is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1100. 2. The criteria for reopening the claim of service connection for a psychiatric disorder, to include PTSD, dysthymia, and anxiety disorders, are met. See 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1972 to June 1973. These matters are before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). On appeal, the Board has broadened the Veteran’s claim in this case to encompass a claim for any psychiatric disorder, to include PTSD and dysthymia, in order to more accurately characterize the scope of the claim. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). As a final initial matter, the Board acknowledges that the file contains a Rapid Appeals Modernization Program (RAMP) Opt-in Election Form dated June 2018. However, this appeal had already been activated at the Board by that date and it is therefore no longer eligible for the RAMP program. A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision, or unaddressed new and material evidence is received during the appeal period of the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302, 20.1103. The withdrawal of an appeal is deemed a withdrawal of the notice of disagreement and of the substantive appeal. 38 C.F.R. § 20.204(c). If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as 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. 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(a). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Historically, the Board denied service connection for a psychiatric disorder, to include dysthymia, in an August 2004 Board decision. The Veteran did not file a motion for reconsideration with the Board as to that decision, nor did the Veteran timely appeal that decision to Court. Instead, the Veteran filed to reopen service connection for a psychiatric disorder in October 2004. The Agency of Original Jurisdiction (AOJ) denied reopening that decision in June 2009; the Veteran was informed of that decision in a June 2009 notice letter. The Veteran did not submit any notice of disagreement with that decision within one year of that notice letter; however, the Veteran did file to reopen service connection for that claim in April 2010, and the AOJ again denied reopening service connection for a psychiatric disorder in October 2011 rating decision. The Veteran was informed of that decision in an October 24, 2011 letter. The Veteran again filed to reopen service connection for a psychiatric disorder, to include PTSD on October 23, 2012, just within the one-year period following the notification letter. The AOJ again denied that claim in an August 2013 rating decision, which is the subject of this appeal. The Board reflects that, as the Veteran did not ask for reconsideration of the August 2004 Board decision, nor did he timely appeal that decision to the Court, the August 2004 Board decision is final. See 38 C.F.R. § 20.1100. New and material evidence is therefore required to reopen the claim of service connection for a psychiatric disorder. See 38 U.S.C. § 5108; Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); 38 C.F.R. § 3.156. The Board reflects that since the August 2004 final Board decision, the Veteran has repeatedly attempted to state that his psychiatric disorder, to include his PTSD—which the record indicates he has attempted to get VA clinicians to change his diagnosis to prior to February 2018—due to his “hardship” discharge due to worrying about his grandmother; the Veteran’s VA treatment records specifically demonstrate that the Veteran claimed that worrying about his grandmother in service was a stressor that caused his PTSD. The records further demonstrate that the VA clinicians disagreed that the Veteran had a PTSD diagnosis on that basis, and noted that the Veteran continued to have dysthymia and anxiety disorders instead. The Board notes that, generally, such evidence is not new and material and is considered redundant evidence that was of record at the time of the August 2004 Board decision. Nevertheless, in February 2018, the Veteran was shown to have been given a diagnosis of PTSD in this case due to military sexual trauma; those records indicate that the Veteran stated he was sexually assaulted by his Drill Sargent during military service. The Board reflects that no VA examination has been performed which addresses this new and material evidence regarding the presence of a psychiatric disorder, PTSD, due to service, claimed military sexual trauma. The Board reflects that the evidence since the August 2004 final Board decision is therefore new and material and has a reasonable possibility of substantiating the claim; additionally, the evidence raises the necessity of obtaining a VA examination in this case under 38 C.F.R. §3.304(f)(5). Accordingly, the Board finds that new and material evidence has been received and to that extent the appeal is granted at this time. See 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (medical evidence which indicates that a medical opinion is warranted is sufficient to reopen a claim). REASONS FOR REMAND As noted above, it appears that the Veteran has been diagnosed with PTSD due to claimed military sexual assault during military service. No VA examination which addresses this claimed personnel assault stressor during military service has been addressed as required under 38 C.F.R. § 3.304(f)(5). Accordingly, this claim must be remanded in order for such to be accomplished. See 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). On remand, the Board also finds that any outstanding service records and VA treatment records should also be obtained. See 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016) (where the Veteran “sufficiently identifies” other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information); Bell v. Derwinski, 2 Vet. App. 611 (1992). The matter is REMANDED for the following action: 1. The AOJ should attempt to obtain through official sources any of the Veteran’s service treatment, clinical (inpatient) treatment, and personnel records that are not currently associated with the claims file. If after all efforts to obtain those records have been made and such are found to be unavailable and further attempts to obtain those records would be futile, such should be noted in a memorandum of unavailability which is placed in the claims file and the Veteran should be so notified. 2. Obtain any and all VA treatment records not already associated with the claims file from the Central Arkansas VA Healthcare System, or any other VA medical facility that may have treated the Veteran, and associate those documents with the claims file. 3. Ensure that the Veteran is scheduled for a VA examination with an appropriate examiner in order to determine whether any current psychiatric disorder is related to military service. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. Following review of the claims file and examination of the Veteran, the examiner should identify all psychiatric disorders currently found under the DSM-V, to include any PTSD and/or dysthymia/depressive and anxiety disorders. If PTSD is diagnosed, the examiner should specify the incident or stressor with which that diagnosis is being made and whether such stressor occurred during military service. For each psychiatric disorder found, to include PTSD and/or dysthymia/depressive and anxiety disorders, the examiner should provide an opinion regarding whether each disorder more likely, less likely, or at least as likely as not (50 percent or greater probability) began in or is otherwise related to military service, to include any allegations of the military sexual trauma/assault by his Drill Sargent. In addressing that alleged incident, the examiner should discuss whether the evidence in the Veteran’s service personnel records and any other evidence of record, particularly the noted evidence-types in 38 C.F.R. § 3.304(f)(5), corroborates the occurrence of sexual assault during service. The examiner should also specifically discuss the Veteran’s claims that any of his psychiatric disorders are related to his worry for his grandmother during military service, which led to his discharge from service, as such relates to a stressor or incident in service regarding etiology due to service. Finally, the examiner should also discuss any lay statements of record regarding onset of symptoms and any continuity of symptomatology since onset and/or since discharge from service. The examiner should also consider any other pertinent evidence of record, as appropriate. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. M. Williams, Associate Counsel