Citation Nr: 18155342 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 18-29 776 DATE: December 4, 2018 ORDER New and material evidence has been received sufficient to reopen the claim of entitlement to service connection for posttraumatic stress disorder (PTSD). Entitlement to service connection for an acquired psychiatric disorder, variably diagnosed as PTSD and unspecified depressive disorder is granted. REMANDED Entitlement to service connection for Parkinson's disease, to include secondary to Agent Orange exposure is remanded. FINDINGS OF FACT 1. A May 2015 rating decision denied service connection for an anxiety disorder claimed as PTSD. The Veteran was notified of his rights but did not appeal or submit new and material evidence within the applicable one-year appellate period. 2. Evidence submitted since the May 2015 rating decision was not previously of record and relates to an unestablished fact necessary to decide the claim of service connection for an acquired psychiatric disorder. 3. The Veteran’s unspecified depressive disorder cannot be satisfactorily disassociated from his active service. CONCLUSIONS OF LAW 1. The May 2015 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. As new and material evidence has been received, the criteria to reopen the previously denied claim of service connection for PTSD have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 3. Resolving all doubt in the Veteran’s favor, the criteria for service connection for an acquired psychiatric disorder, variably diagnosed as an unspecified depressive disorder have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Army from April 1966 to January 1968, including service in the Republic of Vietnam. These matters come before the Board of Veterans’ Appeals (the Board) on appeal from a July 2017 rating decision issued by a Department of Veteran’s Affairs (VA) Regional Office (RO). In that decision, the RO inter alia, denied service connection for Parkinson’s disease, and found that new and material evidence had not been received to reopen the previously denied claim of service connection for an anxiety disorder claimed as PTSD. New and material evidence has been received sufficient to reopen the claim of service connection for PTSD. The Veteran filed his original claim for service connection for PTSD in December 2014. In May 2015, the RO issued a rating decision denying service connection. The basis for the denial was that the Veteran’s symptoms did not warrant a PTSD diagnosis. Because the Veteran did not appeal the decision or submit new and material evidence within one-year appellate period, the May 2015 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. After a decision becomes final, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 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 cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable probability of substantiating the claim. 38 C.F.R. § 3.156(a). Newly submitted evidence is generally presumed to be credible for the purposes of reopening a claim. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is not required as to each previously unproven element of a claim to reopen. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Id. at 117-18. The evidence of record in May 2015 included military personnel records, service treatment records (STRs), a March 2015 statement in support of the claim for PTSD, VA treatment records from April 2014 through April 2015, and VA examination conducted in April 2015. As mentioned above, the Veteran did not appeal the May 2015 rating decision and it became final. Evidence received subsequent to the May 2015 rating decision includes VA treatment records dated March 2016 to June 2017, a January 2017 statement in support of the claim, a June 2017 statement in support of the claim, VA Disability Benefits Questionnaire dated June 2017, and VA examination dated June 2017. These records reflect that the Veteran has been diagnosed with an unspecified depressive disorder and continues to have symptoms related to trauma experienced in service. This evidence was not in existence at the time of the May 2015 rating decision, and relates to an unestablished fact necessary to substantiate the claim. Thus, the evidence is new and material. Overall, this evidence is not redundant or duplicative, and raises a reasonable possibility of substantiating the claim. Therefore, reopening of the claim for service connection for PTSD is warranted. Entitlement to service connection for an acquired psychiatric disorder to include post-traumatic stress disorder (PTSD) (previously evaluated as other specified anxiety disorder). The Veteran is seeking service connection for PTSD. However, if a veteran is seeking service connection for PTSD but is diagnosed with other psychiatric disorders, then his pending PTSD claim will also encompass all such diagnosed psychiatric disorders raised by the record. Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009). As such, and keeping in mind the obligation of the Board to construe the Veteran’s claim liberally, the Veteran’s claim is re-characterized to include all diagnosed acquired psychiatric disorders, including PTSD and unspecified depressive disorder. Robinson v. Shinseki, 557 F.3d 1355 (2009); 38 C.F.R. § 20.202. Establishing service connection generally requires competent evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. 38 C.F.R. § 3.303; see Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). The Veteran was a medic stationed in the Republic of Vietnam and regularly experienced death, injury, and trauma. The base he was stationed at occasionally took incoming fire or mortars. His DD Form 214 and service personnel records confirm his statements regarding where he was stationed and the role he served as a medic. In October 2014, the Veteran sought VA treatment for PTSD. He reported that he began experiencing symptoms since service after witnessing trauma in service and that the symptoms did not go away. He was treated by a VA doctor and diagnosed with PTSD, chronic with depressed anxious mood. He was prescribed and began taking Citalopram, an anti-depressant. Additionally, the Veteran began psychotherapy treatment. In April 2015, the Veteran underwent a VA examination for PTSD. The VA examiner concluded that the Veteran has residuals of PTSD but not a current diagnosis as his symptoms do not meet all of the required DSM 5 criteria. The Veteran was not diagnosed with any other mental disorder. November 2016 VA medical treatment records confirmed that the Veteran continued to receive treatment for PTSD, chronic with depressed anxious mood. He continued to take anti-depressants and participated in psychotherapy. His symptoms appeared to have improved. In July 2017, the Veteran underwent an additional VA examination for PTSD. The VA examiner concluded that the Veteran does not meet the diagnostic criteria for PTSD under DSM 5. However, the VA examiner diagnosed the Veteran with an unspecified depressive disorder. The VA examiner opined that the Veteran’s condition is not related to service due to lack of continuation in symptomatology since service and lack of treatment. The opinion is contradictory to the Veteran’s testimony as well as the VA treatment records, which illustrate that the Veteran has been receiving treatment for his acquired psychiatric disorder since October 2014. Further, the Veteran has raised issues with the adequacy of the April 2015 and July 2017 VA examinations. Because the claim is being adjudicated in the Veteran’s favor, the adequacy of the examinations will not be addressed. Based on the above, the Board finds that the evidence is at least in relative equipoise as to whether the Veteran’s acquired psychiatric disorder is related to his military service. As such, the Veteran is entitled to a service connection for an acquired psychiatric disorder, variably diagnosed as PTSD and unspecified depressive disorder. The Veteran has a present disability, as PTSD was diagnosed and treated in October 2014 and unspecified depressive disorder as diagnosed during the July 2017 VA examination. The Veteran experienced trauma during service as confirmed by his discharge records. With respect to the nexus, the Board finds it persuasive that the Veteran sought treatment with the VA for his symptoms that were attributed to trauma experienced in service. Moreover, no other etiology for the Veteran’s symptoms has been established or suggested, and there is no reason to doubt the Veteran’s credibility with respect to the onset of his observable symptoms. Under these circumstances, service connection is warranted for an acquired psychiatric disorder, variably diagnosed as PTSD and unspecified depressive disorder. REASONS FOR REMAND Entitlement to service connection for Parkinson's disease, to include secondary to Agent Orange exposure is remanded. The Veteran claims entitlement to service connection for Parkinson’s disease due to his exposure to Agent Orange during his service in the Republic of Vietnam. The Veteran’s military personnel records confirm service in Vietnam and exposure to herbicide agents is presumed. Exposure to Agent Orange is presumed for veterans who served in the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975. 38 C.F.R. §3.307(a)(iii). Service connection is presumed for certain diseases if a veteran was exposed to an herbicide agent, such as Agent Orange, during active service if the requirements of 38 U.S.C. §1116; 38 C.F.R. §3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 U.S.C. §1113; 38 C.F.R. §3.307(d) are also satisfied. 38 C.F.R. §3.309(e)(2017). The diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and early onset peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. §3.307(a)(6)(ii). Parkinson’s disease is one of the diseases listed as associated with exposure to herbicide agents. Although the Board regrets further delay, a remand is required for further development and adjudication. The record is unclear as to whether the Veteran has been diagnosed with Parkinson’s disease and clarification is necessary. The Veteran has not been afforded a VA examination with respect to Parkinson’s disease; however, an April 2015 VA medical note shows treatment for possible early Parkinson’s disease due to Parkinson-like tremor. Additionally, a January 2018 VA medical treatment record notes Parkinsonism, “probably idiopathic to Parkinson’s disease.” Finally, a May 2018 letter from a VA doctor notes that the Veteran has been evaluated and is being treated for a condition of Parkinson’s disease. The letter notes the condition as improving. All of these medical records fall short of the definitive diagnosis needed to establish a service connection. The matter is REMANDED for the following action: 1. The RO should request that the Veteran provide the names and addresses of all health care providers who have diagnosed and provided treatment for his claimed Parkinson’s disease and associated syndromes. After acquiring this information and obtaining any necessary authorization, the RO should obtain and associate these records with the claims file. 2. After completing the foregoing development, the RO should schedule the Veteran for an examination by an appropriate clinician to determine whether the Veteran has a diagnosis of Parkinson’s disease. The examiner is asked to address the findings from the April 2015 VA medical note, the January 2018 VA treatment record, and the May 2018 correspondence from a VA doctor, as summarized above. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Kuksova, Associate Counsel