Citation Nr: 18101728 Decision Date: 05/09/18 Archive Date: 05/09/18 DOCKET NO. 15-00 836 DATE: May 9, 2018 ISSUES DECIDED: 1 ISSUES REMANDED: 1 ORDER New and material evidence having been received, reopening of the previously denied claim of entitlement to service connection for an acquired psychiatric disorder is warranted; to this extent only, the appeal is granted. FINDINGS OF FACT 1. The September 2004 rating decision that denied the Veteran’s petition to reopen a claim of entitlement to service connection for an acquired psychiatric disorder was not appealed, nor was new and material evidence received during the appeal period. 2. The evidence received since the September 2004 rating decision is new and raises a reasonable possibility of substantiating the claim of entitlement to service connection for an acquired psychiatric disorder. CONCLUSIONS OF LAW 1. The September 2004 rating decision that denied the Veteran’s petition to reopen a claim of entitlement to service connection for an acquired psychiatric disorder is final. 38 U.S.C. § 7105(c) (2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2004). 2. New and material evidence has been received; the claim of entitlement to service connection for an acquired psychiatric disorder 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 Air Force from February 1967 to November 1988, with service in the Republic of Vietnam from March 1968 to March 1969. The Veteran was awarded the Vietnam Service Medal and Vietnam Campaign Medal, among other decorations. This case comes before the Board of Veterans’ Appeals (the Board) from a November 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Based on the statements of the Veteran, as well as the medical evidence of record, and in light of the holding in Clemons v. Shinseki, the Veteran’s claim for service connection for PTSD has been recharacterized as noted above. 23 Vet. App. 1 (2009). 1. New and Material Evidence – Acquired Psychiatric Disorder Applicable law provides that a claim which is the subject of a prior final decision may be reopened upon presentation of new and material evidence. See 38 C.F.R. § 3.156 (2017). The Board is required to address new and material claims in the first instance. Any decision that the AOJ may have made with regard to a new and material claim is non-binding on the Board. 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). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low,” and that the law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In April 2000, the Veteran filed a claim for service connection for PTSD. An August 2001 rating decision denied service connection for PTSD on the grounds that the Veteran had no confirmed diagnosis of PTSD due to any stressor which occurred in active service. The Veteran did not perfect an appeal to that decision and it became final. 38 U.S.C. § 7105(c) (1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2001). In September 2004, the Veteran filed a petition to reopen his claim for service connection for PTSD. In a February 2005 decision, the RO reopened the Veteran’s claim but denied it on the merits, finding that there was no evidence of a PTSD diagnosis rendered by psychiatrist or psychologist, or of a documented stressor. The Veteran did not file a Notice of Disagreement, submit new and material evidence during the appeal period, or assert that the decision contained a clear and unmistakable error. Thus, the decision became final. 38 U.S.C. § 7105(c) (2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2004). In December 2010, the Veteran submitted a petition to reopen his previously denied claim for PTSD. In a November 2012 rating decision, the RO reopened the Veteran’s claim but ultimately denied service connection for PTSD, finding that there was no confirmed diagnosis of PTSD or a confirmed stressor to support a diagnosis of PTSD. The Veteran appealed that decision. Since the February 2005 rating decision, Vet Center records were received as well as statements from the Veteran regarding his in-service stressors. See July 2017 Hearing Transcript, pp. 9-10. Additionally, the Veteran was afforded VA psychiatric examinations in March 2011 and September 2012. The evidence received since February 2005 is new, as it was received by VA after the issuance of the February 2005 rating decision and could not have been considered by prior decision makers. Moreover, the evidence is material, in that it provides additional context regarding the stressor events, and may trigger the duty to assist the Veteran in the development of his claim. As new and material evidence has been received, reopening of the previously denied claim of entitlement to service connection for an acquired psychiatric disorder is warranted. To that extent only the appeal is granted. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REMANDED ISSUE 1. Entitlement to service connection for an acquired psychiatric disorder. The Veteran seeks service connection for an acquired psychiatric disorder. A March 2011 VA psychiatric examination report noted the Veteran did not meet the diagnostic criteria for PTSD, but had diagnoses of parasomnia, rapid eye movement disorder type, and personality disorder not otherwise specified. Additionally, a September 2012 VA psychiatric examination report indicated the Veteran was diagnosed as having mood disorder not otherwise specified. Neither VA examiner opined whether the conditions other than PTSD were related to the Veteran’s service. Further, during the July 2017 Board hearing, the Veteran reported that his base was the subject of mortar attacks and rockets, but that there were no ground attacks while the Veteran was there. See July 2017 Hearing Transcript, pp. 9-10. Given the foregoing, remand is necessary to afford the Veteran a new psychiatric examination and obtain a nexus opinion. The matter is REMANDED for the following actions: 1. Schedule the Veteran for a VA examination with a VA psychiatrist or psychologist to determine the current nature and etiology of any diagnosed acquired psychiatric disorders. The claims folder and a copy of this remand must be made available to the examiner for review in conjunction with this examination. Any indicated tests and studies must be accomplished. All clinical findings must be reported in detail and correlated to a specific diagnosis. Following examination of the Veteran, the examiner should, in light of the examination findings and the service and post-service medical evidence of record, provide a written response to the following: a) For PTSD, if diagnosed, whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s PTSD was causally related to any corroborated stressor during his military service or to a fear of hostile military or terrorist activity during service. If PTSD is not diagnosed, the examiner should explain why the diagnosis is not supported. b) For each acquired psychiatric disorder other than PTSD or a personality disorder, to include any sleep disorder, whether it is at least as likely as not (a probability of 50 percent or greater) that the disorder is related to or had its onset during service. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term “as likely as not does” not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it.   2. After ensuring that the requested actions are completed, the AOJ should conduct any other development actions deemed warranted and readjudicate the claim on appeal. If the benefit sought is not fully granted, the AOJ must furnish a Supplemental Statement of the Case before the claims file is returned to the Board, if otherwise in order. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Pelican, Counsel