Citation Nr: 18157029 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 15-15 269 DATE: December 11, 2018 ORDER The request to reopen the claim for entitlement to service connection for an acquired psychiatric disability, to include post-traumatic stress disorder (PTSD), also claimed as dysthymic disorder, anxiety, and depression is granted. REMANDED Entitlement to service connection for an acquired psychiatric disability, to include PTSD, also claimed as dysthymic disorder, anxiety, and depression is remanded. FINDING OF FACT 1. Service connection for dysthymic disorder, claimed also as anxiety and depression, was denied, inter alia, by the RO in a May 2008 rating decision. The Veteran filed a notice of disagreement and, in March 2015, a statement of the case was issued. The Veteran did not file a timely VA Form 9. 2. Evidence submitted since the RO’s May 2008 rating decision is relevant and probative of the issue of service connection for an acquired psychiatric disability. CONCLUSIONS OF LAW 1. The May 2008 rating decision is final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. Evidence received since the May 2008 rating decision is new and material with regard to the issue of entitlement to service connection for an acquired psychiatric disability, and the issue is reopened. 38 U.S.C. §§ 5103A, 5107, 5108 (2012); 38 C.F.R. § 3.156 (a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from June 1971 to May 1974, from July 1995 to June 1996, and from September 2005 to November 2006. In November 2018, the Veteran appeared at a travel board hearing before the undersigned Veterans Law Judge. The request to reopen the claim for entitlement to service connection for PTSD, also claimed as dysthymic disorder, anxiety, and depression is granted. A prior final decision will be reopened if new and material evidence is submitted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). If the Board determines that the evidence is new and material, the case is reopened and evaluated in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). In making this determination, the Board must look at all of the evidence submitted since the time that the claim was finally disallowed on any basis, not only since the time the claim was last disallowed on the merits. Evans v. Brown, 9 Vet. App. 273 (1996). The Board notes that the applicable regulation requires that new and material evidence is evidence which has not been previously submitted to agency decision makers which relates to an unestablished fact necessary to substantiate the claim, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled, must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). In May 2008, the RO denied, inter alia, the Veteran’s claim for service connection for dysthymic disorder, claimed also as anxiety and depression. The RO denied the issue on the basis that evidence did not show that the claimed condition was incurred in or aggravated by military service. The Veteran filed a timely notice of disagreement, and in March 2009 issued a statement of the case (SOC) continuing the denial. The Veteran did not file a timely VA Form 9, and the May 2008 rating decision became final. In May 2013, the Veteran filed to reopen his claim for service connection for a psychiatric disability. A DBQ was submitted in February 2014, which provides an opinion stating that the Veteran’s symptoms started when he returned from deployment, and that his illness is directly related to his military service. 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). As such, this DBQ cures an evidentiary defect which existed at the time of the prior denial and the Board will reopen the issue. As new and material evidence has been received, the Board concludes that the claim for entitlement to service connection for an acquired psychiatric disability, is reopened and, in this regard, the Veteran’s appeal is granted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disability, to include PTSD, also claimed as dysthymic disorder, anxiety, and depression is remanded. The Board finds that additional development is needed prior to final adjudication of the issue on appeal. First, based on testimony given at the November 2018 travel board hearing, the Board finds that there are outstanding records that must be obtained and associated with the record, to include VA treatment records and records from the Social Security Administration (SSA). In addition, the record indicates that there may be outstanding service treatment records. A July 2017 request for information states that when the Veteran reentered service, his record was returned to the Army. It was suggested that the DPRIS web be used to obtain information from official military personnel folders in the custody of the Department of Defense. It does not appear that a subsequent request was made. Accordingly, upon remand, an attempt should be made to obtain any outstanding personnel and service treatment records. Finally, the Board finds that a new VA examination is needed. The December 2013 VA examiner stated that the Veteran’s anxiety disorder is due to heart disease. However, as discussed above, there is a February 2014 DBQ stating that the Veteran’s symptoms started when he returned from deployment and that his illness is directly related to military service. However, the DBQ provides little rationale for its conclusion and does not address the December 2013 opinion. Accordingly, the Board finds that a new examination is needed in order to address a potential nexus between the Veteran’s acquired psychiatric disability and service. Therefore, the matter is REMANDED for the following action: 1. After securing any necessary consent forms from the Veteran, obtain any outstanding treatment records, to include any VA and/or private treatment records, pertaining to the issue on appeal. In addition, obtain records from the SSA pertaining to any application or award of disability benefits to the Veteran. Also, the Board notes that there may be outstanding military personnel and service treatment records. The Board directs the AOJ’s attention to a July 2017 request that suggests that the DPRIS web be used to obtain information from official military personnel folders in the custody of the Department of Defense. It does not appear that a subsequent request was made. Accordingly, upon remand, an attempt should be made to obtain any outstanding personnel and service treatment records. All efforts to obtain these records should be documented in the claim file. If any records could not be obtained, this should be noted in the claim file. 2. Upon completion of the above, schedule the Veteran for a VA examination to clarify the diagnosis of his acquired psychiatric disability and to address the etiology of any diagnosed disability(ies). For each disability diagnosed, the examiner is asked to address whether it is at least as likely as not (i.e., a 50 percent or greater probability) that it was caused by the Veteran’s active duty service or, if preexisting service, was aggravated therein. The examiner is asked to specifically address: (a) the December 2013 VA examiner’s opinion that the Veteran’s anxiety disorder is due to heart disease; and (b) the February 2014 DBQ stating that the Veteran’s symptoms started when he returned from deployment and that his illness is directly related to military service. For all examinations, all necessary development should be taken. The VA examiner should be given access to the claim file. The examiner should state that a review of the claim file was completed. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. A detailed rationale is requested for all opinions provided. 3. If upon completion of the above action the issue is denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Foster, Associate Counsel