Citation Nr: 18157238 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 15-11 118 DATE: December 12, 2018 ORDER New and material evidence having been received, the claim of entitlement to service connection for an acquired psychiatric disorder, previously characterized as posttraumatic stress disorder (PTSD), is reopened; the appeal is granted to this extent only. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. FINDINGS OF FACT 1. In a final rating decision issued in April 2011, the Agency of Original Jurisdiction (AOJ) reopened a previously denied claim of service connection for an acquired psychiatric disorder, characterized as PTSD, and denied such on the merits. 2. Evidence added to the record since the final April 2011 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder. CONCLUSIONS OF LAW 1. The April 2011 rating decision that reopened a previously denied claim of service connection for an acquired psychiatric disorder, characterized as PTSD, and denied such on the merits is final. 38 U.S.C. § 7105(c) (West 2002) [(2012)]; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2010) [(2017)]. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1968 to February 1970, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in January 2013 by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. At such time, the undersigned held the record open for 60 days, which was extended to November 2018, for the submission of additional evidence. Such was ultimately received in August 2018. 38 U.S.C. § 7105(e)(1). The Board notes that the April 2011 rating decision reopened a previously denied claim for service connection for PTSD and denied such on the merits; however, as such claim, as well as the current matter, is based on the same factual premise, i.e., a claim for service connection for an acquired psychiatric disorder, however diagnosed, based on the Veteran’s military service, the issue on appeal has been recharacterized as shown on the title page of this decision. Velez v. Shinseki, 23 Vet. App. 199, 204 (2009) (quoting Boggs v. Peake, 520 F.3d 1330, 1337 (Fed. Cir. 2008). 1. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, previously characterized as PTSD. By way of background, the Veteran’s claim for service connection for an acquired psychiatric disorder, characterized as PTSD, was originally denied in a May 2000 rating decision. At such time, the AOJ considered the Veteran’s service treatment records (STRs), service personnel records, and post-service treatment records. In this regard, the AOJ noted that the Veteran’s STRs were negative for any complaints, treatment, or diagnosis referable to an acquired psychiatric disorder. While they reflected a diagnosis of character disorder, such is considered a congenital or developmental defect and not subject to service connection. Further, the AOJ noted that, while current treatment records reflected a diagnosis of PTSD and the Veteran served in Vietnam, the record did not denote combat service and his claimed stressor, i.e., being pushed out of the way of gunfire by another soldier and that individual being shot instead, had not been verified. In an August 2000 rating decision, the AOJ continued to deny the Veteran’s claim after he submitted a statement in June 2000 providing additional information on his reported stressors. Specifically, he indicated that someone threw a grenade under a person’s bed in Vietnam, and he witnessed Viet Cong prisoners of war being thrown to the ground from helicopters. He also reiterated that he was pushed out the way from being shot and other individual was killed instead. However, the AOJ again asked for additional information such as approximate dates of the incidents, unit information, and other details so as to attempt to verify the stressors, but the Veteran did not provide it. Thus, his claim continued to be denied. In a May 2002 rating decision, the AOJ reviewed additional records, to include VA treatment records dated in 2001, but found that such did not warrant a change in the prior rating decisions. In this regard, while such records reflect the Veteran’s participation in the PTSD Psychosocial Residential Rehabilitation Treatment Program, there was still no evidence supporting his claimed in-service stressors. Further, in an April 2011 rating decision, the AOJ considered additional VA treatment records and a March 2011 VA examination, and reopened the previously denied claim of service connection for an acquired psychiatric disorder, characterized as PTSD, and denied such on the merits. In this regard, the AOJ noted that the Veteran’s current VA treatment records reflected diagnoses of PTSD and depression; however, the March 2011 VA examination failed to reveal a diagnosis of an acquired psychiatric disorder subject to service connection. Specifically, alcohol and cannabis dependence were diagnosed; however, such may not be service-connected as directly related to military service. In April 2011, the Veteran was advised of the decision and his appellate rights. However, he did not enter a notice of disagreement with such decision. Further, no additional evidence was received or constructively of record within one year of the issuance of such decision, and no relevant service department records have since been associated with the record. Therefore, the April 2011 rating decision is final. 38 U.S.C. § 7105(c) (West 2002) [(2012)]; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2010) [(2017)]. Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). 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 means existing evidence not previously submitted to agency decisionmakers. 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). New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. See Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence received since the final April 2011 rating decision includes additional VA treatment records, an August 2012 letter from the Veteran’s treating psychiatrist, a January 2013 VA examination, a July 2018 psychiatric evaluation from Dr. Q.A., and the Veteran’s lay statements, to include those offered at his April 2018 Board hearing. In particular, the August 2012 letter from the Veteran’s treating psychiatrist indicates that his PTSD is related to his reported stressor of a fellow soldier being shot to death in front of him and the July 2018 psychological evaluation from Dr. Q.A. reflects diagnoses of PTSD and depression related to his military service. Consequently, as the newly received evidence addresses relates the Veteran’s acquired psychiatric disorder to his military service, the Board finds that such newly received evidence is not cumulative or redundant of the evidence of record at the time of the April 2011 decision and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder. Accordingly, the Board finds that new and material evidence has been received and the Veteran’s claim for service connection for an acquired psychiatric disorder, previously characterized as PTSD, is reopened. REASONS FOR REMAND 2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD. The Veteran contends that he has an acquired psychiatric disorder, to include PTSD, related to his military service. Specifically, in documents of record and at his April 2018 Board hearing, he reported, while he was stationed in Vietnam, he witnessed a mine explode after a truck hit it and Viet Cong prisoners of war being thrown to the ground from helicopters, and described an incident where a grenade was thrown under someone’s bed. He also stated that a civilian pushed him out the way from being shot and was killed instead, and he was generally in fear for his life and others while in Vietnam. Consequently, he claims that service connection for an acquired psychiatric disorder is warranted. As an initial matter, the Board notes that the record indicates that the Veteran is receiving Social Security benefits. In this regard, VA has a duty to obtain Social Security Administration (SSA) records when it has actual notice that the Veteran has applied for SSA benefits. Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Accordingly, on remand, the Veteran’s complete SSA records, including all administrative decision(s) on his application for SSA disability benefits and all underlying medical records should be obtained. The Veteran was afforded VA examinations in March 2011 and January 2013, and such examiners found that he did not meet the criteria for a diagnosis of PTSD or an acquired psychiatric disorder other than substance abuse. However, the examiners did not reconcile their findings with the Veteran’s VA treatment records indicating that he had a diagnosis of an acquired psychiatric disorder, to include PTSD and major depression, that was related to his military service in Vietnam. See January 2014 and August 2014 VA treatment records. Such examiners also applied the DSM-IV criteria rather than the DSM-5 criteria, which governs the Veteran’s claim. Thus, the Board finds that a remand is warranted to obtain an addendum opinion that addresses such matters. The Board notes that, in an August 2012 letter, the Veteran’s treating psychiatrist noted that the Veteran attributed his PTSD symptoms to an incident where one of his comrades pushed him out of the way of gunfire and the soldier was then shot to death. She concluded that it seemed more likely than not that the Veteran’s PTSD symptoms were related to this stressor, but did not provide a rationale, or discuss how each of the criterion for a diagnosis of PTSD were met, which is problematic in light of the conflicting findings of the VA examiners who determined that the diagnostic criteria for PTSD were not met. Further, such stressor has not been verified. Similarly, in July 2018, Dr. Q.A. opined that the Veteran’s PTSD and depression were more likely than not related to his military service; however, he did not provide a rationale for such opinion, identify the stressor the diagnosis of PTSD was based upon, or discuss how each of the criteria for a diagnosis of PTSD were met. Rather, he only provided a detailed medical history of the Veteran’s symptoms and treatment, and discussed the severity of his current acquired psychiatric disorder. Consequently, the Board cannot rely on such opinions to establish service connection for the Veteran’s claimed acquired psychiatric disorder. The matter is REMANDED for the following action: 1. Obtain the Veteran’s complete SSA records, including all administrative decision(s) on his application for SSA disability benefits and all underlying medical records, which are in SSA’s possession. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159 (e). 2. Return the record to the VA examiner who conducted the Veteran’s psychiatric January 2013 examination. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. If the January 2013 VA examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. After a review of the entire record, the examiner should provide an opinion on the following: (A) Identify all of the Veteran’s acquired psychiatric disorders that meet, or have met, the DSM-5 diagnostic criteria at any time since September 2012, or in close proximity thereto, to include PTSD and major depression, as demonstrated by the evidence of record. If the examiner finds that the Veteran does not meet the diagnostic criteria for PTSD at any time proximate to his September 2012 claim, he or she should reconcile such a finding with the evidence of record showing that the Veteran has a current diagnosis of PTSD, to include his VA treatment records, the August 2012 letter from his treating psychiatrist, and the July 2018 opinion from Dr. Q.A. (B) If PTSD is diagnosed, the examiner should offer an opinion as to whether such disorder is at least as likely as not (i.e., a 50 percent or greater probability) the result of the Veteran’s fear of hostile military activity while serving in Vietnam. In this regard, the examiner is advised that, while the Veteran reported additional stressors of witnessing a mine explode after a truck hit it, Viet Cong prisoners of war being thrown to the ground from helicopters, witnessing the aftermath of a grenade being thrown under someone’s bed, and being push out of the way of gunfire only to have the other individual be shot and killed, such have not been verified. It is noted that VA’s definition of “fear of hostile military activity” means that a veteran experienced, witnessed, or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, and the veteran’s response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. (C) For each currently diagnosed acquired psychiatric disorder other than PTSD, including major depression, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any such disorder is related to the Veteran’s military service, to include his service in Vietnam. In rendering his or her opinion, the examiner is advised that the sole basis of a negative opinion cannot be the fact that the Veteran’s service treatment records are silent as to any acquired psychiatric disorder or complaints thereof. (D) The examiner should also offer an opinion as to whether the Veteran’s in-service diagnosis of character disorder was subject to a superimposed disease or injury during service that resulted in additional disability. If so, please identify the additional disability. (E) Additionally, if it is determined that an acquired psychiatric disorder, to include PTSD and major depression, is related to the Veteran’s military service, the examiner must also opine as to whether it is at least as likely as not (probability of 50 percent or greater) that the Veteran’s currently diagnosed polysubstance dependence and substance-induced mood disorder, is caused or aggravated by such disorder. For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Clark, Associate Counsel