Citation Nr: 18159982 Decision Date: 12/21/18 Archive Date: 12/20/18 DOCKET NO. 15-44 803 DATE: December 21, 2018 ORDER As new and material evidence has been submitted regarding the claim for service connection for posttraumatic stress disorder (PTSD), the Veteran’s claim is reopened. To this extent only, the appeal is granted. REMANDED Entitlement to service connection for lumbosacral or cervical strain, claimed as back condition is remanded. Entitlement to service connection for right knee strain is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for diabetes mellitus is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, bipolar disorder, and depressive disorder is remanded. Entitlement to a compensable rating for scar, left hand, post injury, prior to September 26, 2013, is remanded. Entitlement to a rating in excess of 10 percent for scar, left pinky finger, post injury, from September 26, 2013 is remanded. FINDINGS OF FACT 1. An August 2012 rating decision denied service connection for PTSD on the basis that the evidence did not show a current diagnosis of PTSD and did not support the Veteran’s claimed stressor events. 2. The Veteran did not appeal the August 2012 rating decision and VA did not actually or constructively receive documentation constituting new and material evidence within the one-year appeal period. 3. Evidence received since the time of the final August 2012 decision is new and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The August 2012 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. Evidence received to reopen the claim of entitlement to service connection for PTSD is new and material. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from January 1978 to December 1983. These matters are before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). These claims were previously before the Board in April 2015. At that time, they were remanded to allow the RO to issue a Statement of the Case. The requested Statement of the Case was issued in November 2015 and the Veteran filed a timely VA Form 9 in December 2015. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for PTSD The Veteran seeks to reopen a previously denied claim of entitlement to service connection for PTSD. VA may reopen a claim for service connection which has been previously and finally disallowed when new and material evidence has been presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996). New evidence means existing evidence not previously submitted to VA. 38 C.F.R. § 3.156(a). 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. Id. 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. Id. The United States Court of Appeals for Veterans Claims (Court) has held that new evidence may be sufficient to reopen a claim if it can contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). The Board must first determine whether the veteran has presented new and material evidence under 38 C.F.R. § 3.156(a) to have a finally denied claim reopened under 38 U.S.C. § 5108. Elkins v. West, 12 Vet. App. 209 (1999). Then the Board may proceed to evaluate the merits of the claim after ensuring that VA’s duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). To determine whether new and material evidence has been submitted, it is necessary to consider all evidence added to the record since the last time the claim was denied on any basis in conjunction with the evidence already of record. Id. Here, the Veteran first filed a claim to establish service connection for PTSD in August 2011. That claim was denied in an August 2012 rating decision. The rating decision was not appealed, and VA did not actually or constructively receive documentation constituting new and material evidence within the one-year appeal period. Accordingly, the August 2012 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In September 2013, the Veteran filed an informal claim seeking benefits for a psychiatric disorder. An August 2014 rating decision declined to reopen the claim on the basis that no new and material evidence had been submitted. Although the RO declined to reopen this claim in the August 2014 rating decision and November 2015 statement of the case, the Board must decide whether new and material evidence has been received to reopen the Veteran’s claim, as it goes directly to the Board's jurisdiction over the matter. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (holding that Board reopening is unlawful when new and material evidence has not been submitted). As the August 2012 rating decision was the final decision regarding this claim, the Board must review all of the evidence submitted since that time to determine whether the Veteran’s claim should be reopened and readjudicated on a de novo basis. The credibility of the new evidence is presumed for the purpose of determining whether the new evidence is material. Justus, 3 Vet. App. at 512-13. As such, the Board turns to the question of whether new evidence has been submitted since the final August 2012 rating decision. Evidence associated with the claims file since that time includes an October 2012 diagnosis of depressive disorder, and an August 2018 diagnosis of PTSD and depressive disorder. This evidence all qualifies as new because it was not of record at the time of the August 2012 rating decision. The Board must now determine whether this evidence also qualifies as material, such that it relates to an unestablished fact necessary to substantiate the Veteran’s claim. In undertaking this analysis, the Board notes that the evidence of record prior to the August 2012 rating decision did not include a diagnosis of PTSD. See Rating Decision - Narrative, August 2012. As such, this new evidence also qualifies as material, as it relates to an unestablished fact necessary to substantiate the Veteran’s claim, specifically it provides a diagnosis of PTSD. The Board therefore finds that new and material evidence has been received since the prior final denial of this claim in August 2012. Shade, 24 Vet. App. at 117. The claim of entitlement to service connection for PTSD is thus reopened. REASONS FOR REMAND Entitlement to service connection for a back condition; for right knee strain; for hypertension; for diabetes mellitus; for an acquired psychiatric disorder; and for entitlement to increased disability ratings for scar, left hand and scar, left pinky finger, post injury, are remanded. A June 2014 VA examination report for the Veteran’s right knee indicates that the Veteran has been receiving Social Security disability benefits since 2007. As such, there may be outstanding and relevant Social Security Administration records. A remand is required to allow VA to request these records.   The Veteran has alleged that he has a psychiatric disorder due to personal assaults experienced during service. The Board cannot make a fully-informed decision on the issue of service connection for an acquired psychiatric disorder because no VA examiner has opined whether the Veteran meets the criteria for an acquired psychiatric disorder, including PTSD, under the DSM-5, and no examiner has opined whether any acquired psychiatric disorder is at least as likely as not caused by or related to the Veteran’s military service, including any alleged personal assaults. 38 C.F.R. § 3.304(f)(5); Menegassi v. Shinseki, 638 F.3d 1379, 1382-83 (Fed. Cir. 2011) (finding that for personal assault PTSD claims, an after-the-fact medical opinion can serve as the credible supporting evidence of the stressor). The matters are REMANDED for the following actions: 1. Obtain the Veteran’s federal records from the Social Security Administration. Document all requests for information as well as all responses in the claims file. 2. Obtain updated VA treatment records from September 2018 to the present. 3. After obtaining any additional records, schedule the Veteran for a psychiatric examination to determine the nature and etiology of any psychiatric disorder, to include PTSD, bipolar disorder, and/or depressive disorder. The examiner must provide opinions on the following:   (a.) If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria under DSM-5 are met and opine whether it is at least as likely as not related to a corroborated in-service stressor, including a stressor of having his left hand hit by an iron bar during an altercation which is corroborated by a May 1981 service treatment record. In so doing, the examiner must opine whether the evidence of record, including the Veteran’s lay statements, and the Veteran’s service records, corroborate the claim that any other personal assault occurred in service (38 C.F.R. § 3.304(f)(5)). If the examiner finds that evidence indicates that any personal assault occurred during the Veteran’s active service, the examiner must opine whether any PTSD is at least as likely as not related to the in-service personal assault. (b.) 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, including the event of having his left hand hit by an iron bar during an altercation. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Dean, Associate Counsel