Citation Nr: 18101034 Decision Date: 04/26/18 Archive Date: 04/26/18 DOCKET NO. 14-34 203A DATE: April 26, 2018 ISSUES DECIDED: 1 ISSUES REMANDED: 1 ORDER New and material evidence has been received sufficient to reopen a claim of entitlement to service connection for an acquired psychiatric disability; to include posttraumatic stress disorder (PTSD). To this extent only, the appeal is granted. FINDINGS OF FACT 1. By an August 2005 rating decision, the Veteran’s claims of entitlement to service connection for PTSD and recurrent major depressive disorder were denied. The basis of the denial was the Veteran’s failure to prove these conditions were incurred in or aggravated by military service. This rating decision became final. 2. Evidence received since the August 2005 rating decision is not cumulative or redundant, and raises a reasonable possibility of substantiating the Veteran’s service connection claims for an acquired psychiatric disorder, to include PTSD. CONCLUSIONS OF LAW 1. The August 2005 rating decision denying the Veteran’s claims of entitlement to service connection for PTSD and recurrent major depressive disorder is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. New and material evidence sufficient to reopen the Veteran’s claims of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, has been submitted; the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1967 to June 1970 and from February 1991 to July 1991. This appeal comes to the Board of Veterans’ Appeals (Board) on appeal from a June 2012 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran provided testimony before the undersigned Veterans Law Judge at a November 2017 Board hearing. A copy of the hearing transcript has been associated with the electronic claims file. The Veteran’s claim of entitlement to service connection for PTSD has been recharacterized as a claim of entitlement to service connection for an acquired psychiatric disability, to include PTSD, to afford the Veteran a sympathetic and broad review of his mental health symptoms/diagnoses. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). With respect to the Veteran’s application to reopen his previously denied claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, this application, and only this application, has been granted, as discussed below. As such, the Board finds that any error related to the Veterans Claims Assistance Act of 2000 solely with regard to the Veteran’s application to reopen this claim is now moot. The preliminary issue for resolution before the Board is whether new and material evidence has been received sufficient to reopen the Veteran’s previously denied claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD. After reviewing the evidence of record, the Board finds that new and material evidence has been submitted. The Veteran’s claims of entitlement to service connection for PTSD and recurrent major depression were last denied in an August 2005 rating decision. The RO notified the Veteran that his claims were denied that same month. In July 2006, the Veteran filed a Notice of Disagreement, and a Statement of the Case was issued in February 2007. The Veteran did not file a timely VA Form 9 Substantive Appeal within 60 days of the Statement of the Case. 38 C.F.R. § 20.302 (2017). Accordingly, the August 2005 rating decision became final. In order to reopen a claim which has been denied by a final decision, the Veteran must present new and material evidence. 38 U.S.C. § 5108 (2012). New evidence means evidence not previously submitted to agency decision makers. 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) (2017). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Moreover, a veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. See Shade v. Shinseki, 24 Vet. App. 110 (2010) (holding that it would be illogical to require that a veteran submit medical nexus evidence when he has provided new and material evidence as to another missing element). In the August 2005 rating decision, the RO reopened and denied the Veteran’s claims of entitlement to service connection for PTSD and recurrent major depression on the basis that the evidence failed to show that the disabilities were incurred in or aggravated by his active duty service. However, newly submitted evidence in the form of updated VA treatment records/ examinations showing diagnoses of major depressive disorder and other specified anxiety disorder, as well as lay statements/testimony regarding the Veteran’s symptoms, his military experiences, and his medical history, renders the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, reasonably capable of substantiation. The above cited evidence is new, as it was not previously considered in the prior final rating decision, and is material, as it relates to the unestablished fact of a medical nexus between the Veteran’s current psychiatric disorders and his active military service. The Board concludes that the newly submitted evidence satisfies the low threshold requirement for new and material evidence. Shade, 24 Vet. App. at 117-18. However, the Board cannot, at this point, adjudicate the reopened claim, as further development is necessary. This is detailed in the REMAND below. REMANDED ISSUE Entitlement to service connection for an acquired psychiatric disability, to include PTSD, is remanded for additional development. Based on the Veteran’s Board hearing testimony, this claim must be remanded to obtain relevant, outstanding VA treatment records. Through his testimony, and the presentation of his attorney, it is clear that the Veteran began treatment in the early 1980s from facilities within the VA New England Healthcare System. Then, in approximately 2012, he began treatment with VA facilities in the South Central VA Health Care Network. The Veteran has also been seen by the Pensacola Vet Center. The Board finds these VA treatment records must be obtained to justly adjudicate the Veteran’s service connection claim. At the Board hearing, the Veteran identified and discussed private mental health treatment; however, from his testimony it does not appear that these records are relevant to the claim on appeal. Nevertheless, the Veteran should be given a final opportunity to identify and obtain any relevant, outstanding private mental health treatment records. VA’s assistance in gathering such evidence shall be available upon the request of the Veteran. Further, the Board finds an additional VA psychiatric examination is necessary to identify any present acquired psychiatric disabilities experienced by the Veteran and to obtain a medical nexus opinion on whether such disabilities are related to the Veteran’s periods of active duty service. The Veteran’s attorney has indicated he is willing to comply with a Board ordered remand for a new VA examination. The matter is REMANDED for the following action: 1. Obtain and associate with the electronic claims file all archived paper and electronic records from the following facilities: (a.) All VA treatment records from the VA New England Healthcare System, 1980 to present; (b.) All VA treatment records from the South Central VA Health Care Network, 2012 to present; and (c.) All treatment records from the Pensacola Vet Center, 2012 to present. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified, this should be documented for the record, and the Veteran and his attorney must be notified. 38 U.S.C. § 5103A (2012); 38 C.F.R. §§ 3.159(c)(2) and (e) (2017). 2. Contact the Veteran and request that he idenitify and provide any and all relevant, outstanding medical records from any private mental health providers. If the Veteran seeks VA’s assistnace in gathering this evidence, he is requested to provide authorizations for VA to obtain his complete medical records from any and all of the identified providers. Thereafter, the RO should make reasonable attempts to obtain these medical records. If any of these records are unobtainable, advise the Veteran and his attorney of that fact and provide them a reasonable amount of time to obtain the records on their own, as provided in 38 C.F.R. §§ 3.159(c)(1) and(e) (2017). 3. DO NOT schedule the following VA psychiatric examination until AFTER the above development is completed to the fullest extent possible. 4. THEN, schedule the Veteran for a VA psychiatric examination to determine the nature and etiology of any acquired psychiatric disorder(s). The electronic claims file, including a copy of this REMAND, must be made available to and reviewed by the examiner. Such review should be noted on the examination report. The examiner is then requested to: (a.) Identify all current psychiatric disabilities present during the appeals period. (b.) Opine on whether the Veteran’s current psychiatric diagnoses, if any, are at least as likely as not (probability of at least 50 percent) etiologically related to his active duty military service. VA has conceded that the Veteran experienced a stressful event in service and/or fear of hostile military action stemming from his credible reports of experiencing gunfire and witnessing deaths during his active duty service in the Republic of Vietnam, to include the 1968 Tet Offensive. The examiner must provide a complete rationale for any opinion expressed that is based on the examiner’s clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner must explain why this is so and note what, if any, additional evidence would permit an opinion to be made. 5. Thereafter, the AOJ should readjudicate the Veteran’s claim. If any benefit sought remains denied, a Supplemental Statement of the Case must be provided to the Veteran and his attorney. After the Veteran and his attorney have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Galante, Associate Counsel