Citation Nr: 18157670 Decision Date: 12/14/18 Archive Date: 12/13/18 DOCKET NO. 16-63 495 DATE: December 14, 2018 REMANDED Entitlement to service connection for acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran had active military service from February 1966 to January 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that in the December 2016 Form 9 the Veteran requested a hearing at a local VA Office. See December 2016 Form 9. Subsequently, in a January 2017 Form 9, the Veteran indicated that he did not want an optional Board hearing. See January 2017 Form 9. Based on the foregoing, the Board finds that the Veteran did not want an optional Board hearing as indicated in his most recent January 2017 Form 9 and as such the Board finds that the request for a hearing is deemed withdrawn. Initially, the Board finds that the September 2010 rating decision which originally denied service connection for PTSD on the basis that the record was negative for objective findings to support the Veteran had a current disability is not final, and is properly on appeal pursuant to the holding of the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Bond v. Shinseki, 659 F.3d 1362 (2011). In that case, the Federal Circuit found that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions during relevant time periods to determine whether they contained new and material evidence relevant to a pending claim, even if the new submission may support a new claim. Id. at 1362. Submission of additional evidence does not extend the period for initiation of an appeal by submission of a notice of disagreement. 38 C.F.R. § 20.304. However, under 38 C.F.R. § 3.156(b), new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). In the September 2010 rating decision, the RO denied the claim of entitlement to service connection for PTSD. Specifically, the RO determined that the Veteran did not have any current mental health diagnosis. Further, the August 2010 VA examiner determined that the Veteran did not have a medically determinable mental impairment and did not render a diagnosis. See August 2010 VA Examination. Additionally, there was no statements of in-service stressors in the file or available to the VA examiner. In the one-year period following the September 2010 rating decision, the Veteran submitted statements of in-service stressors. Specifically, the Veteran stated that he witnessed death in Vietnam and had to help dig out a bunker that collapsed on a fellow soldier after a mortar attack. As a result of his experience, the Veteran contends that he has PTSD. See November 2010 VA 21-4138 Statement in Support of Claim and April 2011 VA 21-0781 Statement in Support of Claim for PTSD. These stressors were not of record at the time of the September 2010 rating decision and were not conveyed to the VA examiner. The Board finds new and material evidence as to the Veteran’s PTSD claim was received within one year of the original September 2010 rating decision. Thus, the September 2010 rating decision is not final and is properly on appeal. Entitlement to service connection for acquired psychiatric disability, to include PTSD is remanded. The Board’s review of the claims file reveals that further action on the claim of entitlement to service connection for acquired psychiatric disability, to include PTSD, is needed. A review of the service treatment records shows that in the December 1965 pre-induction examination the Veteran endorsed frequent trouble sleeping and nervous trouble of any sort. The service treatment records showed no subsequent complaints of any psychiatric-related symptoms and in the January 1969 separation examination the Veteran was noted to have normal psychiatric condition. See March 2016 STR – Medical. A review of post-service treatment records shows that the Veteran was diagnosed with PTSD, depression, and anxiety. See November 2011 CAPRI. The Veteran argued that he has two main stressors. First, the Veteran stated that as a mail clerk/record keeper for the unit he had to identify bodies. Second, the Veteran stated that while he was at Red Beach, there were mortar and rocket attacks and he had to help dig out a bunker that collapsed on a fellow soldier. See April 2011 VA 21-0781 Statement in Support of Claim for PTSD. The Veteran argued that as a result of having to identify bodies and the mortar attack, he has PTSD. See December 2016 Form 9. The Veteran was afforded a VA examination in August 2010. The examiner determined that the Veteran did not endorse the required symptoms needed for a diagnosis for PTSD, as such no mental impairments were diagnosed. However, a review of the medical records shows that the Veteran was diagnosed with PTSD and had a history of PTSD in 2008 that the examiner did not address. See July 2010 Medical Treatment Record – Government Facility and March 2017 CAPRI. Further, after the August 2010 VA examination, the medical records also indicated that the Veteran was diagnosed with PTSD, depression, and anxiety. As the August 2010 VA examiner only addressed PTSD, the Board finds that a remand is warranted to address all acquired psychiatric disabilities. The matter is REMANDED for the following action: 1. Obtain outstanding records of pertinent medical treatment from VA or private health care providers. 2. Attempt to corroborate the Veteran’s alleged PTSD stressors, which include identifying bodies and a mortar attack on Red Beach as outlined in his April 2011 VA 21-0781 Statement in Support of Claim for PTSD. 3. Thereafter, schedule the Veteran for a VA examination by an appropriately qualified examiner to determine the nature and etiology of any current psychiatric disorder, to include PTSD, depression, and anxiety. The claims file, including a copy of this remand, must be made available to the examiner. A record of the review of the claims file should be documented in the examination report. Following the examination of the Veteran and a review of the record, the examiner must, first, identify each current psychiatric diagnosis found to be present. If PTSD is diagnosed, the examiner should identify the stressor(s) upon which such diagnosis is based. For each diagnosed psychiatric disorder, provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the disorder had its onset in service or is otherwise etiologically related to service. A detailed rationale for all opinions must be provided. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Noh, Associate Counsel