Citation Nr: 18155079 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 16-38 630 DATE: December 4, 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), depression, and anxiety disorder is reopened. The appeal is granted to this extent only. REMANDED Entitlement to an acquired psychiatric disorder, to include PTSD, depression, and anxiety disorder is remanded. FINDINGS OF FACT 1. Service connection for PTSD was denied in a July 2013 rating decision that was not appealed. 2. Evidence received since the July 2013 rating decision includes evidence that that is not cumulative or redundant of the evidence previously of record and is sufficient, when considered by itself or with previous evidence of record, to raise a reasonable possibility of substantiating the claim for service connection for an acquired psychiatric disorder to include PTSD, anxiety, and depression. CONCLUSION OF LAW As new and material evidence has been received since the issuance of a final July 2013 decision, the criteria for reopening the claim for service connection for an acquired psychiatric disorder are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 2009 to March 2011. He had active duty service in Iraq from September 2010 to February 2011. This matter comes before the Board of Veterans’ Appeals (Board) from a December 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran claimed PTSD, anxiety disorder, and depression. A claim for service connection for a mental disability may encompass claims for service connection of any mental disability that may reasonably be encompassed by several factors, including the claimant’s description of the claim, the symptoms the claimant describes and the information the claimant submits or that the Secretary obtains in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Accordingly, the Board has taken an expansive view of the Veteran’s separate claims for service connection for depression, anxiety, and PTSD pursuant to Clemons and recharacterized it. Whether new and material evidence has been received for the claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder, depression, and anxiety disorder. Generally, a claim that has been denied in an unappealed Board or rating decision may not thereafter be reopened and allowed. 38 C.F.R. §§ 20.1100, 20.1103. The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). A July 2013 rating decision denied the Veteran’s claim for PTSD because the evidence did not show a confirmed diagnosis of PTSD. The Veteran did not appeal and new material evidence was not received within the appellate period; thus, the July 2013 rating decision is final. 38 C.F.R. §§ 20.200. Since July 2013, new evidence has been added to the claims file. Pertinent to this case are VA treatment records from July 2013 through June 2016. The VA treatment records indicate that the Veteran had a diagnosis of trauma related disorder in April 2015, an Axis I diagnosis of trauma related symptoms in September 2015, and an inactive chronic medical problem of PTSD with an accompanying note indicating the Veteran had a home medication regimen for his inactive PTSD in December 2015. The VA treatment records are new and material evidence. The treatment records are not redundant of past evidence and therefore new. The records are material because it goes to the unestablished fact of whether the Veteran has a diagnosis of PTSD. Therefore, the VA treatment records are new and material evidence. Since there is new and material evidence, reopening this claim is in order. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). REASONS FOR REMAND Entitlement to an acquired psychiatric disorder, to include posttraumatic stress disorder, depression, and anxiety disorder. The Veteran contends that he should be service connected for PTSD, depression, and anxiety disorder. The Veteran’s VA treatment records indicate that the Veteran has diagnoses of depression, anxiety disorder, trauma related symptoms, and inactive PTSD. The records indicate that the Veteran is treated with medication for these disorders. Further, the Veteran is currently service connected for treatment purposes only for anxiety disorder, to include depression and panic disorder under 38 U.S.C. 1702. The Veteran underwent VA examinations in December 2014 and March 2015. The December 2014 found that the Veteran did not have a current diagnosis of PTSD. The Board notes that during the examination the Veteran inadvertently did not complete the Personality Assessment Inventory (PAI), therefore his PAI could not be scored. The Veteran also underwent a force-choice symptom validity measure. The result of that test was strongly suggestive of non-credible self-report PTSD symptoms. The March 2015 examiner found the Veteran was exposed to threats of injury or death during his deployment that meets Criterion A for a diagnosis of PTSD. The examiner found the Veteran’s psychological tests results indicated over-reporting or exaggeration of symptoms and were rendered invalid. Therefore, the examiner found no diagnosis of PTSD could be made based on the results. The Board finds that another VA examination is required. The Veteran’s VA treatment records note that the Veteran has anxiety and depression. The Board cannot make a fully-informed decision on the issue of an acquired psychiatric disorder because no VA examiner has opined whether any of the Veteran’s diagnosed psychiatric disorders are etiologically related to the Veteran’s service specifically his exposure to threats of injury or death during his service. The matter is REMANDED for the following action: 1. Obtain any updated VA treatment records. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any acquired psychiatric disorders. The examiner must opine as to the following: (a.) Identify any current acquired psychiatric disorder to include, PTSD, depression, anxiety, and/or panic disorder, if appropriate. i. The examiner must address the Veteran’s VA treatment records that note diagnoses of depression, anxiety, panic disorder, and trauma related symptoms. ii. The examiner must address the VA treatment records that indicate the Veteran receives medication for an acquired psychiatric disorder. (b.) For each acquired psychiatric disorder diagnosed the examiner must opine as to whether the disorder is at least as likely as not related to an in-service injury, event, or disease, including his exposure to threats of injury or death during his deployment. i. If the Veteran is diagnosed with psychosis, then the examiner must opine as to whether the Veteran’s psychosis manifested itself within one year of separation of service. (c.) If the Veteran is diagnosed with PTSD, then the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. A full and complete rationale must be provided for all expressed opinions. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Robert Batten, Associate Counsel