Citation Nr: 18160025 Decision Date: 12/20/18 Archive Date: 12/20/18 DOCKET NO. 17-04 960 DATE: December 20, 2018 ORDER As new and material evidence has been received, the claim for entitlement to service connection for posttraumatic stress disorder (PTSD) is reopened, and to this extent only, the appeal is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. FINDINGS OF FACT 1. The August 1999 Board decision that denied a claim for service connection for PTSD was not timely appealed and became final. 2. Evidence received since the August 1999 Board decision raises a reasonable possibility of substantiating the underlying claim for service connection for PTSD. CONCLUSIONS OF LAW 1. The August 1999 Board decision is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. §§ 20.1100, 20.1104 (2017). 2. Evidence received since the August 1999 Board decision is both new and material and the claim for entitlement to service connection for PTSD is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from July 1975 to March 1976. This matter is on appeal from an October 2014 rating decision. In April 2017, the Veteran and his spouse testified before the undersigned Veterans Law Judge in a video conference hearing. New and Material Evidence Whether new and material evidence has been received to reopen the claim for entitlement to service connection for PTSD Rating actions are final and binding based on the evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a Regional Office (RO) decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105(b), (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, 20.302(a). Unless the Chairman orders reconsideration, or one of the other exceptions to finality apply, all Board decisions are final on the date stamped on the face of the decision and are not subject to revision on the same factual basis. 38 U.S.C. § 7104; 38 C.F.R. §§ 20.1100, 20.1104. VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998); see also Manio v. Derwinksi, 1 Vet. App. 140, 145 (1991). New evidence is evidence not previously submitted to agency decisionmakers. Material evidence is 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 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). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is a low one. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened. See id. at 117-18. The Board must review all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. Evans v. Brown, 9 Vet. App. 273 (1996). For purposes of determining whether new evidence is material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is not required as to each previously unproven element of a claim. Shade, 24 Vet. App. at 120. The last prior final denial for the claim for service connection for PTSD was an August 1999 Board decision. In the August 1999 Board decision, the Board denied the claim for service connection for PTSD because the Veteran did not present evidence that he had a diagnosis of PTSD. Therefore, the Board looks to the evidence submitted since August 1999 for new and material evidence. When determining whether the evidence is new and material, the specified basis for the last final disallowance must be considered. See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). In its August 1999 decision, the Board denied the Veteran’s service connection claim because there was no medical evidence that he had a current diagnosis of PTSD. Evidence received since August 1999 includes the examination report from a September 2014 VA medical examination in which the Veteran was diagnosed with PTSD. As this evidence was not of record at the time of the August 1999 denial and it relates to an unestablished fact necessary to substantiate the Veteran’s claim, the Board finds the evidence to be both new and material. 38 C.F.R. § 3.156(a); Shade, 24 Vet. App. at 117. Accordingly, the claim for entitlement to service connection for PTSD, herein recharacterized as an acquired psychiatric disorder, to include PTSD, is reopened. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. As an initial matter, the Board notes that the evidence of record indicates that the Veteran has current diagnoses of PTSD and antisocial personality disorder. In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the scope of a psychiatric disability claim includes any mental disorder that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and other information of record. In light of the holding in Clemons, the Board has expanded the scope of the Veteran’s service connection claim to include all currently-diagnosed acquired psychiatric disorders. The Veteran underwent a VA examination in September 2014. The VA examiner diagnosed the Veteran with PTSD and antisocial personality disorder, however, she concluded that his PTSD is less likely than not related to his reported in-service stressor of experiencing military sexual trauma (MST). The examiner based her opinion, in part, on her finding that the Veteran’s military personnel and service treatment records “are silent for any discrete markers which would substantiate this claim.” However, the Board notes that the Veteran’s military personnel records detail that the Veteran exhibited substantial behavioral and performance issues during his short time in service, including going absent without leave (AWOL) at least seven times and being discharged early due to substandard performance. The VA examiner also did not address the Veteran’s other reported in-service stressor of being involved in a motor vehicle accident during service, in which he incurred injuries and resulted in him being discharged early from service. The Board finds the September 2014 VA medical opinion inadequate. The examiner based her opinion on an incomplete review of the evidence as she did not consider pertinent military personnel records. Reonal v. Brown, 5 Vet. App. 458, 460 (1993) (medical opinions based on an incomplete or inaccurate factual premise are not probative). When VA undertakes to provide a VA examination or opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, remand is necessary to obtain an addendum medical opinion that adequately addresses the etiology of any currently-diagnosed psychiatric disorders and all the Veteran’s reported in-service stressors. Finally, at the April 2017 hearing, the Veteran testified that he is currently in receipt of Social Security Administration (SSA) disability benefits due to his PTSD. As the Veteran’s SSA records may contain medical evidence pertinent to the claim on appeal, on remand, these records should be obtained and associated with the claims file. The matter is REMANDED for the following actions: 1. Contact the SSA and request the Veteran’s complete SSA records, including all underlying medical records in SSA’s possession. A copy of any request(s) sent to SSA, and any reply, to include any records obtained from SSA, must be associated with the claims file. 2. Return the Veteran’s claims file to the VA examiner who provided the September 2014 medical opinion (or another examiner if that individual is unavailable) to provide an addendum opinion. A full VA examination should not be scheduled unless it is deemed necessary by the examiner or otherwise required by the evidence. The examiner must review the claims file in its entirety, to include a copy of this REMAND, and that review must be noted in the report. Thereafter, the examiner should provide an opinion with respect to the following: (a) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s PTSD is related to the Veteran’s claimed in-service stressors, or otherwise etiologically related to any other in-service event? (b) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s antisocial personality disorder was incurred in or caused by the Veteran’s active duty service? The examiner must review the Veteran’s military personnel records and include in the requested opinion a discussion of the significance (if any) of the Veteran’s behavioral and performance issues during service, including several instances of going AWOL. The opinion must also address all the Veteran’s reported in-service stressors. The examiner should set forth a complete rationale for the conclusion(s) reached. If an opinion cannot be reached without resorting to speculation, the examiner must fully explain why that is so. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Melissa Barbee, Associate Counsel