Citation Nr: 18153237 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 16-43 359 DATE: November 27, 2018 ORDER New and material evidence having been received, entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), social phobia, and major depressive disorder, is reopened. REMANDED Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, social phobia, and major depressive disorder is remanded. FINDING OF FACT Evidence received since the May 2012 rating decision is new and material regarding the issue of service connection for PTSD. CONCLUSION OF LAW 1. The May 2012 rating decision that denied the service connection for PTSD is final. 38 U.S.C. § 7104(b) (2012); 38 C.F.R. § 20.1104 (2017). 2. The criteria for reopening the Veteran's previously denied claim of service connection for PTSD have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1984 to October 1984 and from April 1986 to December 2005. These matters come before the Board of Veterans' Appeals (Board) on appeal from July 2010 (right ankle) and September 2014 (PTSD) rating decisions by the Department of Veterans Affairs Regional Office in Montgomery, Alabama. In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the scope of a mental health disability claim includes any mental disorder that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record. In consideration of this holding and the diagnoses of record, the Board has recharacterized the claim to service connection for an acquired psychiatric disorder. 1. Whether New and Material evidence has Been Received, Sufficient to Reopen the Claim for Entitlement To Service Connection for an Acquired Psychiatric Disorder. The Veteran seeks to reopen the previously denied claim of service connection for an acquired psychiatric disorder. The claim was denied in a May 2012 rating decision which the Veteran did not appeal. VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a Veteran. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017); Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). New evidence is evidence not previously submitted to agency decision makers. Material evidence is 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 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). The Board must review all evidence submitted by or on behalf of a claimant since the last, final denial on any basis to determine whether a claim must be reopened. Evans v. Brown, 9 Vet. App. 273 (1996). For purposes of determining whether new evidence is material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 510 - 513 (1992). New and material evidence is not required as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). In October 2013, the Veteran filed to reopen the claim for service connection for an acquired psychiatric disorder. The RO denied that claim in a September 2014 rating decision and the Veteran filed a timely appeal. Since the May 2012 rating decision, additional evidence has been received in the form of lay statements from the Veteran and a letter from the Veteran's spouse. The lay statements from the Veteran and a letter from the Veteran's spouse are new because they have not been previously submitted. The May 2012 rating decision denied the claim in part as there was no evidence of a current diagnosis and in part as there was no evidence of a stressor or event in service. The newly submitted evidence is material because it pertains to the basis for the prior denial. Specifically, the Veteran provided in-service stressors that may relate the previously diagnosed psychiatric disorder to the Veteran’s active service. For these reasons, the Board finds that new and material evidence has been received to reopen service connection for an acquired psychiatric disorder. See 38 C.F.R. § 3.156(a). This new evidence raises a reasonable possibility of substantiating the claim; thus, this evidence is new and material and the requirements to reopen the claim under 38 C.F.R. § 3.156(a) have been satisfied. Accordingly, the Board has determined that new and material evidence has been received to reopen the claim for service connection for acquired psychiatric disorder. REASONS FOR REMAND 1. Entitlement to Service Connection for a Right Ankle Disability is Remanded. The Veteran contends that service connection is warranted for a right ankle disability. On the Veteran’s July 2005 Report of Medical History he noted ankle pain with activity. In September 2012, the Veteran underwent a VA examination to determine the etiology of any right ankle disability. The VA examiner diagnosed the Veteran with right ankle strain and degenerative joint disease of the right ankle. The VA examiner opined that the Veteran’s right ankle disabilities were less likely than not caused by the Veteran’s auto accident in service. The rationale provided was that the Veteran’s auto accident was over 20 years old and that x-ray evidence was consistent with age. In June 2014, the Veteran underwent a second VA examination to determine whether the ankle disability was secondary to his service-connected right knee disability. The VA examiner opined that the right ankle disability was less likely than not caused by the right knee disability. The rationale provided was that the knee and ankle are two separate joints and injuries to the knee do not cause the injury or disease to the ankle. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Here, a new examination is necessary because both examinations failed to address the Veteran’s 2005 examination that reported ankle pain and further failed to adequately address the question of aggravation. 2. Entitlement to Service Connection for an Acquired Psychiatric Disorder is Remanded. The Veteran contends that service connection is warranted for an acquired psychiatric disorder. After review of the evidence, a remand is necessary to allow the Board to make a fully informed decision. In April 2012, the Veteran underwent a VA PTSD examination. The VA examiner diagnosed social phobia and major depressive disorder. The VA examiner then opined that both conditions were less likely than not related to the Veteran’s military service. The rationales provided were that the Veteran reported experiencing social phobia since childhood and that the major depressive disorder was a result of experiencing unemployment. In July 2014, the Veteran submitted multiple stressor statements. The Veteran’s spouse also submitted a statement documenting mental health symptoms that the Veteran experiences. On his August 2016 Substantive Appeal Form, the Veteran indicated that during a 2015 private treatment he was diagnosed with PTSD. The Veteran further indicated treatment at the Highland Rivers facility. The Board notes that neither the 2015 PTSD diagnosis nor the Highland rivers treatment notes are part of the electronic claims file. A remand is necessary given the Board’s recharacterization of the claims as one for and acquired psychiatric disorder and the need to further develop the record. Further, an adequate examination is necessary. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The matters are REMANDED for the following action: 1. Contact the Veteran and ask him to provide sufficient information and necessary authorization in order to obtain copies of any outstanding treatment records by VA or non-VA health care providers for any right ankle or mental health treatment, including the 2015 private mental health treatment records and records from the Highland Rivers Facility. The letter should invite the Veteran to submit any pertinent medical evidence in support of his claim. If the Veteran provides the necessary information and authorizations, obtain any outstanding clinical records and incorporate them into the electronic claims file. 2. Associate any VA treatment records since November 2011 with the electronic claims file. 3. After completion of the above-specified development. Schedule the Veteran for a VA examination to determine the etiology of the right ankle disabilities, including degenerative joint disease. The examiner must have the appropriate expertise and be provided access to the electronic claims file. The examiner must indicate review of the claims file in the examination report. The examiner is asked to provide the following opinions: a) Is it at least as likely as not (a 50 percent probability or greater) that any current right ankle disabilities originated during the Veteran's active period of service or, is otherwise etiologically related to his active service? b) Is it at least as likely as not (a 50 percent probability or greater) any current right ankle disabilities, including degenerative joint disease had their onset within one year of separation from service? c) Is it at least as likely as not (50 percent probability or greater) that any current right ankle disabilities are caused by the Veteran's service-connected disabilities, including the right knee disability? d) If not caused by the service-connected disabilities, is it at least as likely as not (50 percent probability or greater) that any current right ankle disabilities are aggravated (worsened in severity beyond the natural progression of the disease) by the service-connected disabilities, including the right knee disability? The examiner must provide the rationale for all opinions expressed. 4. Schedule the Veteran for a VA psychiatric examination, to assess the etiology of any current mental health disabilities. The VA examiner should review the evidence associated with the record. All necessary tests and studies should be conducted. The examiner should provide the following opinions: a) Does the Veteran have a current diagnosis of PTSD? If yes, is it as likely as not that this disability was incurred due to an event in active service, to include fear of hostile military or terrorist activity that involved actual or threatened death or serious injury to the Veteran or others? b) Does the Veteran have a current diagnosis of depression, social phobia, or other psychiatric disorder? If yes, is it as likely as not (50 percent or greater probability) that this disability was incurred in, or due to the Veteran's active military service? (Continued on the next page)   A complete rationale for all opinions is required. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Teague, Associate Counsel