Citation Nr: 18158639 Decision Date: 12/17/18 Archive Date: 12/17/18 DOCKET NO. 16-07 721 DATE: December 17, 2018 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression, is remanded. REASONS FOR REMAND The Veteran had active duty service from December 1969 to July 1971. The Agency of Original Jurisdiction (AOJ) certified the present appeal as an application to reopen a claim of entitlement to service connection for PTSD. The procedural history of this case shows that entitlement to service connection for PTSD was initially denied by an October 2010 rating decision. After the Veteran submitted additional evidence and requested that this denial be reconsidered, the AOJ continued the denial of this claim, as well as a claim for service connection for the purpose of establishing eligibility to treatment, in an April 2011 rating decision. The Veteran’s previous attorney filed a notice of disagreement (NOD) for both claims in February 2012; however, in a June 2012 statement, the attorney withdrew only the claim for service connection for the purpose of establishing eligibility to treatment. However, the AOJ construed this June 2012 statement as a withdrawal of the claim for entitlement to service connection for PTSD as well, and it has treated the Veteran’s subsequent statements and inquiries regarding service connection for PTSD as an application to reopen entitlement to service connection. Given this procedural history, the Board determines that the June 2012 statement by the Veteran’s former attorney was not a valid withdrawal of the claim for service connection for PTSD. Thus, the Board need not analyze as to whether new and material evidence has been submitted to reopen this claim, and the Board may proceed as to the merits of the claim on appeal. The law provides that VA must broadly consider claims and when a veteran asserts service connection, he does so for symptoms regardless of how those symptoms are diagnosed or labeled. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The record indicates that in addition to the claim of entitlement to service connection for PTSD, the Veteran has asserted that his depression disorder should be service connected as well. In fact, he filed a formal claim for service connection for depression in a May 2018 application for disability compensation and related compensation benefits (VA Form 21-526EZ). The AOJ denied this claim in a June 2018 rating decision, and the Veteran filed an August 2018 NOD disagreeing with the denial of service connection for depression. See Manlincon v. West, 12 Vet. App. 238 (1999). The record also shows that the Veteran has been diagnosed with numerous psychiatric disorders during the appeal, including an unspecified depressive disorder and depressive disorder not otherwise specified (NOS). Thus, after considering the contentions and evidence of record, the Board has re-characterized the issue of entitlement to service connection for PTSD as it is listed on the title page of this decision. The Board must remand the case for additional procedural development. The record shows that numerous relevant VA treatment records, including from April 2017, July 2017, and October 2017, were associated with the claims file since the issuance of the statement of the case (SOC) in February 2016. Generally, the Board may not consider additional evidence not previously reviewed by the AOJ unless a waiver of initial AOJ review is obtained from a claimant. Disabled American Veterans, et. al. v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003); 38 C.F.R. § 20.1304(c) (2017). Although 38 U.S.C. § 7105(e) provides an automatic waiver of initial AOJ review if a claimant submits evidence to the AOJ or the Board with, or after submission of a substantive appeal to the Board (VA Form 9), this provision is only applicable to cases where the VA Form 9 was filed on or after February 2, 2013. 38 U.S.C. § 7105(e) (2012). While the Veteran filed his VA Form 9 in February 2016, 38 U.S.C. § 7105(e) does not apply to VA-generated evidence, such as VA treatment records and VA examination reports. As there is no indication that the Veteran has waived initial AOJ adjudication of this new VA medical evidence, a remand is required in the case for the AOJ to consider the new evidence relevant to the service connection claim for an acquired psychiatric disorder, to include whether he has a current diagnosis of PTSD. The matter on appeal must also be remanded because it is inextricably intertwined with the developments the AOJ is conducting for the Veteran’s claim for service connection for depression. Specifically, in an October 2018 deferred rating decision, the AOJ indicated that it was submitting the Veteran’s claimed in-service stressor to the Joint Services Records Research Center (JSRRC) for verification. Thus, the Board will defer the issue on appeal until after that development and issue are decided, as the outcome of this development and reply from the JSRRC would impact the service connection claim for an acquired psychiatric disorder, to include PTSD and depression. The matter is REMANDED for the following actions: 1. Attempt to verify the Veteran’s claimed in-service stressor with the JSRRC. See VBMS entry with document type “VA 21-4138 Statement in Support of Claim,” received 02/18/2016, at page 1; VBMS entry with document type “Email Correspondence,” received 02/18/2016, at page 2; VBMS entry with document type “Deferred Rating (e.g. VA Form 21-6789),” received 10/02/2018, at page 1. If the JSRRC determines that insufficient information is available to verify the Veteran’s claimed in-service stressor, the JSRRC coordinator should make a formal finding that sufficient information required to verify the stressor does not exist, and such a determination should be associated with the claims file. 2. After completing the steps indicated above and any other steps or development deemed necessary, readjudicate the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depression, in light of the new evidence, including the new medical evidence associated with the claims file after February 2016. If any benefit sought on appeal remains denied, a supplemental statement of the case (SSOC) should be furnished to the Veteran and his representative, and they should be afforded a reasonable opportunity to respond. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Hodzic, Counsel