Citation Nr: 18156955 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 16-40 394 DATE: December 11, 2018 ORDER Whether new and material evidence has been submitted to reopen the previously denied claim of entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. Entitlement to service connection for a left arm disorder is remanded. FINDINGS OF FACT 1. An unappealed November 2002 rating decision denied service connection for PTSD. 2. The evidence pertaining to the Veteran’s PTSD submitted subsequent to the November 2002 rating decision was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The November 2002 rating decision that denied service connection for PTSD is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been submitted to reopen the Veteran’s claim for service connection for PTSD. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from July 1968 to July 1970, to include service in the Republic of Vietnam (Vietnam) during the Vietnam War. These issues are on appeal from a July 2015 rating decision. The Board has expanded the PTSD issue to include all of the Veteran’s current psychiatric diagnoses. 1. Whether new and material evidence has been submitted to reopen the previously denied claim of entitlement to service connection for PTSD. The Agency of Original Jurisdiction (AOJ), by a decision entered in November 2002, denied the Veteran’s claim of entitlement to service connection for PTSD. The AOJ notified the Veteran of its decision and of his appellate rights in a letter dated in November 2002, but he did not initiate an appeal of the AOJ’s decision within one year. New and material evidence was also not received within a year of the decision. 38 C.F.R. § 3.156(b). As a result, the AOJ’s decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. Accordingly, the claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Evidence is considered “new” if it was not previously submitted to agency decision makers. “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 to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). In the November 2002 rating decision, service connection for PTSD was denied because the Veteran did not have a current diagnosis of PTSD. The evidence received since the AOJ’s decision includes a VA examination for housebound status, VA treatment records, and lay statements. This evidence was not before adjudicators when the Veteran’s claim was last denied in November 2002, and it is not cumulative or redundant of the evidence of record at the time of that decision. It also relates to an unestablished fact necessary to substantiate the claim for service connection for PTSD, and raises a reasonable possibility of substantiating the claim. Specifically, the VA treatment records and the examination document a current diagnosis of PTSD. Accordingly, the claim is reopened. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. Evidence indicates that there may be outstanding relevant VA treatment records. In his original February 2002 PTSD claim, the Veteran reported that he was treated at the VA Medical Center (VAMC) in Beckley, West Virginia, since December 1969. The VA treatment records from Beckley contained in the claims file are dated since January 1991, and attempts have not been made to obtain earlier dated records. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issue on appeal. A remand is required to allow VA to obtain them. More information is needed to allow the Board to make a fully-informed decision. Although a June 2016 VA treatment record documents a diagnosis of PTSD, it is unclear whether the Veteran has a current PTSD diagnosis under the DSM-5. Further, assuming the Veteran does have a current PTSD diagnosis, no examiner has opined whether the diagnosis is at least as likely as not related to the Veteran’s related to the Veteran’s fear of hostile military or terrorist activity from his Vietnam service. The Veteran failed to report for a VA psychiatric examination in July 2015. In October 2015, he requested that his examination be rescheduled because he did not receive notice of the examination date. The VA psychiatric examination was rescheduled in July 2016, and the Veteran failed to report for the examination. The examination request states that a letter notifying the Veteran of the examination was mailed out on July 7, 2016. However, this letter is not located in the claims file. It is thus unclear if the Veteran received notification of this examination. Upon remand, another attempt to afford the Veteran a VA psychiatric examination is necessary. 2. Entitlement to service connection for a left arm disorder is remanded. The Board cannot make a fully-informed decision on the issue because the Veteran has not been afforded a VA examination to determine the nature of his chronic left arm pain. See VA treatment record dated September 2015. The Veteran’s July 1968 military entrance examination documents a broken left arm prior to service. In his April 2015 claim and in his August 2015 Notice of Disagreement, the Veteran argued that he broke his left arm during service. Based on the aforementioned, a VA examination and medical opinion must be obtained upon remand. The matters are REMANDED for the following actions: 1. Obtain the Veteran’s VA psychiatric treatment records (to include those from the VAMC in Beckley, West Virginia), for the period from December 1969 to December 1990. 2. After making attempts to obtain the above records, schedule the Veteran for a psychiatric examination to determine the nature of any acquired psychiatric disorder, to include PTSD. The Veteran and his representative must be notified of the date and time of the examination in writing, and this letter must be included in the claims file. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether the PTSD is at least as likely as not related to related to the Veteran’s fear of hostile military or terrorist activity from his Vietnam service. If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease, to include the Veteran’s Vietnam service. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature of any left arm disorder. If the Veteran does not have a diagnosis, the examiner must opine as to whether the Veteran’s left arm causes pain with functional impairment. For each diagnosis and/or pain with functional impairment, the examiner is asked to opine whether it was at least as likely as not aggravated (non-temporary increase in severity) by service (to include the Veteran’s assertions of breaking his left arm in service) and, if so, whether any increase in severity was clearly and unmistakably (undebatable) due to its natural progress. 4. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If the benefits sought are not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Shauna M. Watkins, Counsel