Citation Nr: 18117294 Decision Date: 07/10/18 Archive Date: 07/10/18 DOCKET NO. 15-21 097 DATE: July 10, 2018 ORDER New and material evidence having been submitted, the claim of entitlement to service connection for posttraumatic stress disorder (PTSD) is reopened; to this extent only, the Veteran’s appeal is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. FINDINGS OF FACT 1. Service connection for PTSD was denied in an October 2004 rating decision in part on the basis that there was no evidence of a disability related to service. 2. The Veteran did not file a notice of disagreement for the October 2004 rating decision, and that decision became final. 3. Evidence received since the October 2004 rating decision relates to unestablished facts necessary to substantiate the service connection claim for an acquired psychiatric disorder, to include PTSD. CONCLUSION OF LAW New and material evidence has been received, and the Veteran’s claim for service connection for PTSD is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in May 1975, and from December 1976 to December 1982. This matter comes before the Board of Veterans’ Appeals (Board) from a May 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office in New York, New York. In May 2017, the Veteran testified before the undersigned Veterans Law Judge via videoconference. A transcript of that hearing is of record. The Veteran’s claims for entitlement to service connection for tinnitus and entitlement to service connection for bilateral sensorineural hearing loss were granted in an April 2015 rating decision. The Veteran did not file a notice of disagreement for their assigned evaluations and, therefore, those claims are not before the Board. The Board notes that the issue on appeal was characterized as entitlement to service connection for PTSD. However, in light of the evidence of record, the Board has recharacterized the issue more broadly to ensure complete consideration of the claim. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6, 8 (2009). New and Material Evidence Service connection for PTSD was initially denied in an October 2004 rating decision. The RO noted that the Veteran had a current diagnosis of PTSD and psychosis not otherwise specified, but the evidence of record did not show that PTSD that was caused by or occurred in service. A claim which has been finally denied may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c) (2012). The exception to this rule is 38 U.S.C. § 5108 (2012), which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2017). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). The evidence received since the October 2004 rating decision includes testimony from the Veteran’s May 2017 Board hearing, and a statement from a fellow serviceman indicating that he and the Veteran witnessed a stabbing while in service. The evidence is new as it was not previously considered and material as it pertains to an unestablished fact of the claim, i.e., evidence of an in-service stressor; therefore, raising a reasonable possibility of substantiating the claim. See Shade v. Shinseki, 24 Vet. App. 110 (2010). New and material evidence having been submitted, reopening of the previously denied claim is appropriate. REASONS FOR REMAND Acquired Psychiatric Disorder As the Veteran’s medical records establish diagnoses or persistent symptoms of an acquired psychiatric disorder, to include PTSD, and there is an indication, through assertions of the Veteran, that the disability may be related to service, the Board finds that a medical examination with an opinion is necessary to decide the claims. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 70 (2006). Specifically, a remand is required to afford the Veteran a VA examination so as to determine the nature and etiology of his PTSD. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of any current acquired psychiatric disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The claims folder should be reviewed by the examiner. The examination report should note review of these records and specifically the Veteran’s lay statements and VA treatment records. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify all current acquired psychiatric disorder(s). If any previously diagnosed psychiatric disorder is not found on examination, the examiner should address the prior diagnoses of record and indicate whether they may have resolved or been misdiagnosed. For each diagnosis identified other than PTSD, the examiner should state whether it is at least as likely as not that disorder manifested in or is otherwise related to the Veteran’s military service, including any symptomatology therein. With respect to PTSD, the RO should provide the examiner with a summary of any verified in-service stressors and instruct the examiner that only these events may be considered for the purpose of determining whether exposure to an actual in-service stressor has resulted in PTSD. The examiner should determine whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied. If the PTSD diagnosis is deemed appropriate, the examiner should address whether it is at least as likely as not (i.e. probability of 50 percent or more) that PTSD is due to exposure to an actual confirmed stressor or fear of hostile military or terrorist activity. Fear of hostile military or terrorist activity means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the response to the event or circumstance involved the psychological or a psycho-physiological state of fear, helplessness, or horror. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 2. After the above development has been completed, readjudicate the claim. If the benefits sought remain denied, provide the Veteran and his representative with a supplemental statement of the case, and return the case to the Board. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Daniels, Associate Counsel