Citation Nr: 18156169 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 16-02 077 DATE: December 7, 2018 ORDER New and material evidence having been submitted, the claim for entitlement to service connection for an acquired psychiatric disability, to include PTSD, is REOPENED. REMANDED Entitlement to service connection for an acquired psychiatric disability, to include PTSD, is REMANDED for additional development. FINDINGS OF FACT 1. Service connection for an acquired psychiatric disability was initially denied in an unappealed May 1989 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. 2. A September 2003 Department of Veterans Affairs (VA) Regional Office (RO) rating decision denied the Veteran’s claim of service connection for a psychiatric disability finding that new and material evidence had not been received to reopen the previously disallowed claim; the Veteran was notified of the decision and apprised of his right to appeal, but did not file a timely appeal or submit new and material evidence within one year of the notice of decision. 3. Evidence received since the September 2003 rating decision is neither cumulative nor repetitive of facts that were previously considered, and raises the possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The May 1989 and September 2003 rating decisions denying service connection for an acquired psychiatric disability are final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 3.105 (2017). 2. The criteria for reopening the claim of service connection for an acquired psychiatric disability have been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service with the U.S. Army from August 1971 to June 1972. During this time, he was awarded the Vietnam Service Medal and the National Defense Service Medal. These matters come to the Board of Veteran’s Appeals (Board) on appeal from a February 2013 rating decision from the Department of Veterans Affairs (VA) regional office (RO) in St. Petersburg, Florida. The Board notes that the record reflects various psychiatric diagnostic impressions, including PTSD, depression NOS, anxiety disorder NOS, paranoid schizophrenia, schizoaffective disorder, and psychosis NOS. See, e.g., June 2010 VA Initial PTSD Evaluation (diagnosing the Veteran with paranoid schizophrenia, schizoaffective disorder, psychosis NOS, and polysubstance abuse in remission); November 2010 Social Security Administration Psychiatric Review Technique (SSA Form SSA-2506-BK) (diagnosing the Veteran with depression NOS, anxiety disorder NOS, as well as a personality disorder); May 2012 Tampa Vet Center Correspondence and Private Opinion (diagnosing the Veteran with PTSD); January 2013 VA Initial PTSD Examination Disability Benefits Questionnaire (DBQ) (diagnosing the Veteran with psychosis NOS and personality disorder NOS with paranoid features). Because the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the Veteran’s description of the claim and reported symptoms and all other information of record, the Board finds that it is more appropriate to characterize his mental health claims broadly, as a single claim of entitlement to service connection for an acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). New and Material Evidence The Veteran’s claim for entitlement to service connection for an acquired psychiatric disability, at the time characterized as a “nervous condition,” was initially denied by the St. Petersburg RO in a May 1989 rating decision, as the claimed condition was “due to the Veteran’s own willful misconduct.” The record does not show that the Veteran appealed this decision. The Veteran filed to reopen his claim for entitlement to service connection in July 2003. In support of his petition to reopen the initial denial, the Veteran stated that he had additional treatment records to submit as evidence for his claim. See September 2003 Statement in Support of Claim (VA Form 21-4138). However, the St. Petersburg RO continued its previous denial of the Veteran’s claim for entitlement to service connection in a September 2003 rating decision, citing a lack of new and material evidence. The Veteran did not appeal this decision, and it became final. The Veteran again filed to reopen his claim for entitlement to service connection in April 2012. In the process of developing this claim, the RO obtained new medical evidence consisting of the Veteran’s VA treatment records generated after the September 2003 rating decision, social security records including separate diagnoses of the Veteran’s psychiatric condition, as well as private treatment records including a private medical opinion from the Veteran’s therapist that he suffers from PTSD as a result of his military service. See, e.g., November 2010 Social Security Administration Psychiatric Review Technique (SSA Form SSA-2506-BK); May 2012 Tampa Vet Center Progress Notes and Private Opinion. Prior to making a determination with respect to the Veteran’s claim of service connection, the Board must first determine whether new and material evidence has been submitted sufficient to reopen the claim. A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence is defined as 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). The Board is aware that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Moreover, the Court of Appeals for Veterans Claims explained this standard is intended to be a low threshold. Id. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Following a review of the evidentiary record, the Board finds the Veteran’s private treatment records and medical opinion as well as his SSA records generated after the issuance of the September 2003 rating decision to constitute “new” evidence, as they were not available at the time of that decision. Moreover, the Board finds that this new evidence is material, as it suggests that there may be a connection between the Veteran’s psychiatric disability and his active service. Therefore, the Board finds there is sufficient evidence to reopen the previously-denied claim for entitlement to service connection for an acquired psychiatric disability, to include PTSD. REASONS FOR REMAND While the Board sincerely regrets the delay, a remand is required for additional development before the Board may make determinations on the merits of the claims currently on appeal. Specifically, the Board finds that a new psychiatric examination is warranted. In this regard, in January 2013, a VA examiner opined that the Veteran’s reported psychological symptoms did not satisfy the criteria for PTSD. See January 2013 VA Initial PTSD Examination DBQ. Instead, the examiner diagnosed the Veteran with psychosis NOS as well as personality disorder NOS with paranoid features. Id. The examiner further opined that the Veteran’s mental health condition did not have its onset in military service, nor was it aggravated by military service, and instead “his behavioral difficulties were present prior to service.” Id. In support of this opinion, the examiner stated that the Veteran’s “behavioral instability was well-established” and “the entrance examination was undoubtedly based on self-report and most likely cursory in nature” without providing an explanation as to how he arrived at that conclusion. Id. However, a review of the Veteran’s induction examination reveals no documentation of any manifestations of psychiatric symptoms. See July 1971 Report of Medical Examination (reflecting that the examiner wrote “Good Health” in Section 25 – Physician’s summary and elaboration of all pertinent data). The Veteran also underwent private treatment in 2012 for PTSD; he submitted these records along with a private opinion from his treating therapist that he suffered from PTSD that was “directly related to his traumatic combat experiences in Vietnam.” See May 2012 Tampa Vet Center Correspondence and Private Opinion. However, the Veteran’s therapist provided this opinion without having reviewed the Veteran’s claims file; instead, the only document specified to have been reviewed was the Veteran’s DD Form 214. Id. As such, given the fact that the Veteran has been diagnosed with multiple psychiatric manifestations, in light of the VA examiner’s determination that the Veteran’s mental health condition existed prior to service in conjunction with the absence of any rationale or explanation for the conclusions drawn regarding the Veteran’s enlistment examination, the Board finds that a new VA psychiatric examination is warranted to diagnose, describe, and determine the etiology of all the Veteran’s psychiatric conditions as well as assess the conflicting medical evidence in the record. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (once VA undertakes the effort to provide a medical examination or opinion, it must provide an adequate one). The Board observes that a Veteran will be considered to have been in sound condition when examined, accepted and enrolled in service, except as to defects, infirmities, or disorders noted at entrance into service, or where evidence or medical judgment is such as to warrant a finding that an injury or disease existed prior thereto. 38 U.S.C. § 1111. Only clear and unmistakable evidence that the disability existed prior to service and was not aggravated by service will rebut the presumption of soundness. VAOPGCPREC 3-2003 (July 16, 2003). If the examiner determines that the Veteran had an acquired psychiatric disorder that existed at the time of his entry into active service, he or she should provide a detailed explanation for how the opinion was reached including citation to the record where appropriate. The matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claims file. All attempts to secure any identified records and any response received must be documented in the case file. 2. After any available records are associated with the claims file, schedule the Veteran for an additional VA examination using DSM-V criteria to determine if the Veteran currently has any mental health disorders, to include the claimed disability of PTSD. The examination should include any diagnostic testing or evaluation deemed necessary. Access to the electronic claims file must be made available for the examiner to review. The Veteran must be interviewed. The VA examiner must provide a clear explanation for the opinion, to include any comment on any credibility issues raised by the record from a medical perspective. The VA examiner must respond to the following inquiries: (a.) First, the examiner must provide diagnoses for all current and previously diagnosed psychiatric disorders found following a review of the entirety of the Veteran’s claims file. (b.) For each disorder identified, the examiner should provide an opinion as to whether the disability both clearly and unmistakably preexisted his entrance into active duty in August 1971. (c.) For each disorder that clearly and unmistakably existed prior to service, provide an opinion as to whether the disability underwent an increase in severity during service. If so, was the increase in severity due to the natural progression of the disability. (d.) For any disorder that did not clearly and unmistakably preexist the Veteran’s period of active service, is it at least as likely as not (i.e. a 50 percent chance or greater) that the disorder initially manifested in service or is otherwise etiologically-related to the Veteran’s military service. If the VA examiner finds a psychiatric disability is not etiologically-related to the Veteran’s military service, the examiner is asked to provide a clear rationale explaining their conclusion. Specifically, there must be a rationale which adequately connects data and conclusions (e.g. concluding that a diagnosis of depression is related to ongoing health concerns is not adequate. (e.) The VA examiner should determine whether the Veteran meets the DSM-V criteria for a diagnosis of PTSD. The examiner should also explicitly address the in-service stressors previously reported by the Veteran. If a PTSD diagnosis is deemed appropriate, the examiner should then opine as to whether it is at least as likely as not (i.e. a 50 percent chance or greater) that the Veteran’s current PTSD symptomatology is due to his in-service stressors. The examiner must provide a complete rationale for all opinions expressed. As part of the rationale, the examiner should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). A discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner cannot provide the requested opinions without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the specific examiner. 3. Then, the AOJ should readjudicate the claim, which, if denied, issue a supplemental statement of the case, allow the Veteran the appropriate amount of time to respond, and then return the claim to the Board. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Raj, Associate Counsel