Citation Nr: 18154347 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 16-43 882 DATE: November 29, 2018 ORDER New and material evidence having been received, the claim for entitlement to service-connection for posttraumatic stress disorder (PTSD) is reopened. New and material evidence having been received, the claim for entitlement to service-connection for depression is reopened. REMANDED The issue of whether new and material evidence has been received to reopen a claim for entitlement to service connection for hypertension is remanded. The issue of whether new and material evidence has been received to reopen a claim for entitlement to service connection for Hepatitis C is remanded. The issue of whether new and material evidence has been received to reopen a claim for entitlement to service connection for attention deficit hyperactivity (ADHD) and bipolar disorder is remanded. The issue of whether new and material evidence has been received to reopen a claim for entitlement to service connection for a skin condition of the face is remanded. The issue of whether new and material evidence has been received to reopen a claim for entitlement to service connection for diabetes mellitus, type II, is remanded. The issue of entitlement to service connection for PTSD is remanded. The issue of entitlement to service connection for depression, to include as secondary to service-connected tinnitus, is remanded. FINDINGS OF FACT 1. An October 2010 Board decision denied the Veteran’s claim for entitlement to service connection for PTSD; the Veteran has not submitted a motion for reconsideration of the October 2010 Board decision and did not timely appeal that decision. 2. Evidence received since the October 2010 Board decision is new and raises a reasonable possibility of substantiating the Veteran’s claim for entitlement to service connection for PTSD. 3. A September 2010 rating decision denied entitlement to service connection for depression; the Veteran did not timely appeal the denial; and new and material evidence was not submitted as to the issue within the one-year appeal period following the issuance of the September 2010 rating decision. 4. Evidence received since the September 2010 rating decision is new and raises a reasonable possibility of substantiating the Veteran’s claim for entitlement to service connection for depression. CONCLUSIONS OF LAW 1. The October 2010 Board decision is final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. 2. New and material evidence having been received, the claim for entitlement to service connection for PTSD is reopened. 38 U.S.C. §§ 1110, 5108; 38 C.F.R. §§ 3.156 (a), 3.303. 3. The September 2010 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156 (b), 20.200, 20.202, 20.302, 20.1103. 4. New and material evidence having been received, the claim for entitlement to service connection for depression is reopened. 38 U.S.C. §§ 1110, 5108; 38 C.F.R. §§ 3.156 (a), 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1983 to May 1986. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a March 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In Schroeder v. West, 212 F. 3d 1265, 1271 (Fed. Cir. 2000), the Federal Circuit held that VA has an obligation to explore all legal theories, including those unknown to the Veteran, by which the Veteran can obtain the benefit sought. Accordingly, the Veteran’s appeal as to service connection for depression has been expanded to include entitlement to service connection under the theory of secondary service connection, and has been characterized as stated above. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001); Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004). New and Material Evidence In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. An exception to this rule is provided in 38 U.S.C. § 5108, which states that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. In the absence of clear and unmistakable error, a Board decision is final unless the Chairman of the Board orders reconsideration. See 38 U.S.C. §§ 7103 (a), 7104; 38 C.F.R. § 20.1100 (a). If a claim for 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. The question of whether new and material evidence has been received to reopen a previously denied claim must be addressed by the Board in the first instance because the issue goes to the Board’s jurisdiction to reach and adjudicate the underlying claim on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and further analysis beyond consideration of whether the evidence received is new and material is neither required nor permitted. Barnett, 83 F.3d at 1384. New evidence is existing evidence not previously considered by VA. Material evidence is 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). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). 1. Whether New and Material Evidence has been Received to Reopen a Claim for PTSD The Board issued a decision in October 2010 denying the Veteran’s claim for entitlement to service connection for a PTSD. The Veteran did not appeal the decision to the Court, there has been no allegation or finding of clear and unmistakable error in the decision, and the Chairman of the Board has not ordered reconsideration of the decision. Therefore, the October 2010 Board decision is final. See 38 U.S.C. §§ 7103 (a), 7104; 38 C.F.R. § 20.1100 (a). At the time of the Board decision, there was no confirmed in-service stressor. The Veteran submitted an application to reopen the claim for entitlement to service connection for PTSD in November 2011. Evidence associated with the record since the final October 2010 Board decision includes a July 2017 Statement in Support of Claim. In the statement, the Veteran described the in-service stressor and identified the soldier who the Veteran contends died in his arms. This evidence is new in that it was not previously considered by VA. It is also material because it provides evidence that relates to an unestablished fact necessary to substantiate the claim. As such, the July 2017 statement raises a reasonable possibility of substantiating the claim. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Accordingly, the Board finds that new and material evidence has been received to reopen the Veteran’s claim for entitlement to service connection for PTSD, and the claim is reopened. 38 C.F.R. § 3.156 (a). 2. Whether New and Material Evidence has been Received to Reopen a Claim for Depression As to the Veteran’s petition to reopen a claim for entitlement to service connection for depression, the RO denied service connection for depression in a September 2010 rating decision because there was no evidence of a present disability. Thus, service connection for depression could not be established. The Veteran was notified of the decision in a letter dated September 8, 2010. The Veteran did not file a notice of disagreement with the September 2010 rating decision and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of issuance of notice of the rating decision. See 38 C.F.R. § 3.156 (b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the September 2010 rating decision became final based on the evidence then of record. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.1105. Evidence associated with the record since the final September 2010 rating decision includes an August 2012 letter from the VA New Jersey Health Care System. The letter states that the Veteran has a current diagnosis of major depressive disorder. This evidence is new in that it was not previously considered by VA. It is also material because it provides evidence that relates to an unestablished fact necessary to substantiate the claim. As such, the letter raises a reasonable possibility of substantiating the claim. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Accordingly, the Board finds that new and material evidence has been received to reopen the Veteran’s claim for entitlement to service connection for depression, and the claim is reopened. 38 C.F.R. § 3.156 (a). REASONS FOR REMAND 1. Entitlement to Service Connection for PTSD and Depression The Veteran asserts that he has PTSD due to an in-service stressor. The Veteran stated that a fellow service member died in July 1984 while drinking too much alcohol. The Veteran further stated that the fellow service member died in his arms. See Correspondence, received January 2008. A September 2009 Correspondence from the Joint Services Records Research Center (JSRRC) determined that the Veteran’s in-service stressor could not be verified because there was no evidence of a soldier choking to death in Germany in July 1984. Additionally, the JSRRC noted that there was no casualty data indicating that a soldier whose last name begins with “V” died as a non-hostile in July 1984 in Germany. The Board notes, however, that in his July 2017 statement, the Veteran stated that the initials of the soldier who died were F. C. Therefore, on remand the RO must attempt to verify the Veteran’s claimed in-service stressor using the name found in the July 2017 Statement in Support of Claim. Additionally, the Veteran has not yet been provided an in-person VA examination relating to his claim. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA’s duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. 38 U.S.C. § 5103 (d); 38 C.F.R. § 3.159. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159 (c) (4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third prong may be satisfied by lay evidence of continuity or equivocal or non-specific medical evidence). Here, a June 2017 private examination contains a current diagnosis of PTSD. Additionally, the Veteran has consistently stated that his PTSD is related to the in-service stressor of seeing his fellow service member die. Accordingly, the Board finds that the low threshold for provision of a VA examination described in McLendon has been met, and that the Veteran must be provided a VA examination to determine whether he has a diagnosis of PTSD that is linked to a confirmed in-service stressor. The Board notes that the record also shows a diagnosis of major depressive disorder that may be related to the Veteran’s active service. On remand, the VA examiner should also address whether the Veteran’s acquired psychiatric disabilities other than PTSD are causally or etiologically related to his active service. 2. Whether New and Material Evidence has been Received to Reopen Claims for Hypertension, Hepatitis C, ADHD and Panic Disorder, Skin Condition, and Diabetes Mellitus, Type II The Veteran has filed petitions to reopen claims for entitlement to service connection for hypertension, hepatitis C, ADHD and panic disorder, a skin condition of the face, and diabetes mellitus, type II. In the August 2012 letter from the VA New Jersey Health Care System, it was noted that the Veteran has been receiving treatment since June 2012. However, the most recent VA treatment records are from November 2011. VA treatment records, even if not in the claims file, are considered part of the record on appeal because they are within VA’s constructive possession. See 38 U.S.C. § 5103A (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992). On remand, updated VA treatment records must be obtained and associated with the record. The matters are REMANDED for the following actions: 1. Obtain all outstanding treatment records relevant to the matters being remanded, to include from November 2011 to the present. 2. Request that the Veteran provide more specific details concerning the service member who died in July 1984 in Germany, to include the names of people who were involved in the incident, the places where the incident occurred, and a more specific date or time frame for the incident. Review any development response from the Veteran regarding the PTSD claim and prepare a complete summary of all claimed stressors based upon review of all pertinent documents and the Veteran’s July 2017 statement. Make an appropriate request to Joint Services Records Research Center (JSRRC) for verification of any stressors, as appropriate. Any additional development recommended by JSRRC should be accomplished. If the stressor(s) cannot be verified, the AOJ should prepare a formal finding stating why verification could not be completed, and listing the steps taken in the attempt to verify the stressors. 3. After the above development, schedule the Veteran for a VA examination to determine the nature and etiology of any diagnosed psychiatric disability, to include PTSD and major depressive disorder. Provide a copy of this remand and the record to the examiner for review. Any and all tests and evaluations deemed necessary by the examiner should be performed. The examiner must address the following: (a.) Provide a diagnosis for any acquired psychiatric disability demonstrated since service, found on current examination or in the record. (b.) If there is a current diagnosis of PTSD and a verified stressor, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s PTSD is related to his confirmed in-service stressor. (c.) Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any acquired psychiatric disability other than PTSD demonstrated since service, to include major depressive disorder, had its onset in active service or is otherwise causally or etiologically related to the Veteran’s active service. (d.) If not, whether it is at least as likely as not (50 percent or greater probability) that any acquired psychiatric disability other than PTSD is proximately due to or the result of the Veteran’s service-connected disabilities, specifically to include his service-connected tinnitus. (e.) If not, whether it is at least as likely as not (50 percent or greater probability) that any acquired psychiatric disability other than PTSD was aggravated by the Veteran’s service-connected disabilities, specifically to include his service-connected tinnitus. “Aggravation” is defined as a permanent worsening beyond the natural progression of the disease. Additionally, pursuant to Atencio v. O’Rourke, 30 Vet. App. 74 (2018), the VA examiner must provide separate findings and rationales as to whether any acquired psychiatric disability other than PTSD is caused by, or aggravated by, his service-connected disability(ies). 4. After completion of the above, review the expanded record, including the evidence entered since the most recent statement of the case, and determine whether service connection for an acquired psychiatric disability, to include PTSD and major depressive disorder may be granted and whether new material evidence has been received to reopen the remaining issues on appeal. If any benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. The appropriate period should be allowed for response before the appeal is returned to the Board. L. Chu Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. G. LeMoine, Associate Counsel