Citation Nr: 18106908 Decision Date: 06/01/18 Archive Date: 05/31/18 DOCKET NO. 13-23 899 DATE: June 1, 2018 ORDER New and material evidence has been received to reopen a claim for entitlement to service connection for posttraumatic stress disorder (PTSD); to that extent, the appeal is granted. REMANDED Entitlement to service connection for an acquired psychiatric disability is remanded. FINDINGS OF FACT 1. The Veteran’s service connection claim for PTSD was previously denied in an October 2008 Board decision. The Veteran did not appeal this decision; nor has he asserted clear and unmistakable error in this decision. 2. The evidence submitted since the October 2008 Board decision is not cumulative or redundant and raises a reasonable possibility of substantiating the underlying claim for service connection for PTSD. CONCLUSIONS OF LAW 1. The October 2008 Board decision is final regarding the issue of service connection for a PTSD. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2017). 2. New and material evidence has been received since the Board’s October 2008 decision sufficient to reopen the Veteran’s claim of service connection for PTSD. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1969 to December 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In February 2014 and March 2016, this claim was remanded to provide the Veteran a Travel Board hearing. A hearing was scheduled to be held in May 2018. The Veteran failed to appear for that hearing and did not provide request that the hearing be rescheduled or good cause for this failure to appear; therefore, his hearing request is deemed to have been withdrawn. 38 C.F.R. § 20.704(d). In light of the dysthymia, depression, and generalized anxiety diagnoses contained in the evidence, the Board has broadened the Veteran’s PTSD claim to include any acquired psychiatric disorder. Clemons v. Shinseki, 23 Vet. App. 1 (2009). 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for posttraumatic stress disorder (PTSD). In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing 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). In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans v. Brown, 9 Vet. App 273, 283 (1996); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The provisions of 38 C.F.R. § 3.156 (a) create a low threshold, with the phrase “raises a reasonable possibility of substantiating the claim” enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened. See Shade v. Shinseki, 24 Vet. App. 110 (2010). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Service connection for a psychiatric condition was denied in an August 2004 rating decision. The Veteran appealed the decision and the appeal was denied by the Board in October 2008. The Board found that the Veteran’s reported stressors had not been corroborated and thus denied the claim for service connection. Pertinent evidence received since the October 2008 Board decision includes lay statements from the Veteran, an October 2011 VA examination and, notably, a December 2011 statement from the JSRRC conceding one of the Veteran’s claimed stressors. This evidence is presumed credible for the purpose of determining whether new and material evidence has been submitted. See Justus v. Principi, 3 Vet. App. 510 (1992). The Board finds that the evidence submitted since the October 2008 Board decision is new and material. This evidence is new in that it was not previously considered by agency decisionmakers. It is also not cumulative or redundant of the evidence previously of record. Moreover, it raises a reasonable possibility of substantiating the claim. Accordingly, reopening of the claim of entitlement to service connection for PTSD is warranted. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disability is remanded. Remand is warranted for additional development, to include obtaining an adequate VA opinion regarding the etiology of the Veteran’s acquired psychiatric disability. As discussed in the introduction above, the Veteran’s claim has been recharacterized as entitlement to service connection for an acquired psychiatric disability, as VA treatment records reflect diagnoses of PTSD, dysthymia, depression, and generalized anxiety disorder. Among the Veteran’s claimed in-service stressors was an incident where one of the Veteran’s shipmates severely injured his leg on a gun mount. Though the RO could not verify the Veteran’s alleged in-service stressor, a December 2011 statement from the JSRRC indicated that a Veteran with a similar, nearly-identical name was service-connected for an injury affecting dorsiflexion (group XII) of foot prior to his 1991 death and on that basis conceded that the Veteran’s claimed in-service stressor took place. Therefore, the Board finds that remand is necessary for an addendum opinion regarding the nature and etiology of the Veteran’s acquired psychiatric disorders, to include PTSD, which takes into consideration the concession of an in-service stressor. The Court has held that once VA undertakes the effort to provide a medical examination or opinion, it must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). Given the above, another examination is necessary. The matter is REMANDED for the following action: 1. Obtain any relevant and outstanding VA treatment records and associate them with the electronic claims file. 2. Upon completion of directive #1, afford the Veteran a VA psychiatric examination conducted by a psychiatrist or psychologist in order to determine the current nature and etiology of his acquired psychiatric disorder(s). The electronic claims file, to include a copy of this remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted and the examiner should identify all of the Veteran’s acquired psychiatric disorders. The examiner must elicit from the Veteran a detailed history of the alleged in-service events. Upon review of the claims file and examination of the Veteran, the examiner should provide an opinion as to the etiologies of any acquired psychiatric disorders found to be present. With respect to each diagnosed acquired psychiatric disorder, the examiner should offer an opinion on the following: Is it at least as likely as not (i.e., 50 percent or greater probability) that the acquired psychiatric disorder was incurred in, caused by, or is otherwise related to, the Veteran’s service? If PTSD is diagnosed, please detail the stressor(s) on which this diagnosis is based. A complete rationale must be provided for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he/she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Thompson, Associate Counsel