Citation Nr: 18124149 Decision Date: 08/07/18 Archive Date: 08/06/18 DOCKET NO. 15-20 741 DATE: August 7, 2018 ORDER New and material evidence has been submitted and the claim to reopen a service connection claim for post-traumatic stress disorder (PTSD) is granted. REMANDED The issue of entitlement to service connection for PTSD is remanded. FINDING OF FACT Additional evidence received since the last, final June 2008 rating decision includes a lay evidence of a reported in-service stressor, which raises a reasonable possibility of substantiating the service connection claim for PTSD. CONCLUSION OF LAW Evidence received since the last June 2008 rating decision is new and material and the service connection claim for PTSD is reopened. 38 U.S.C. §§ 5108, 7104 (West 2012); 38 C.F.R. §§ 3.104, 3.156, 20.1103 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1969 to February 1973. This appeal comes before the Board of Veterans’ Appeals (Board) from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. New and Material Evidence 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 (West 2012); 38 C.F.R. § 3.156(a) (2017); Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). New evidence is evidence not previously submitted to agency decision makers. 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). In determining whether new and material evidence has been received, VA must initially decide whether evidence associated with the claims file since the prior final denial is new. New evidence is that which was not of record at the time of the last final disallowance on any basis of the claim, and is not merely cumulative of other evidence that was then of record. 38 C.F.R. § 3.156(a). That analysis is undertaken by comparing newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. 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, 510 – 513 (1992). New and material evidence is not required as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Veteran’s service connection claim for a PTSD was last denied in a June 2008 rating decision. In this decision, the RO denied the claim because it found that the there was no evidence of a current PTSD diagnosis that could be linked to a verified in-service stressor. Since the Veteran did not perfect an appeal of the decision within one year, this rating decision became final. 38 U.S.C. § 7105(c) (West 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). Evidence received since this June 2008 rating decision includes lay evidence of a PTSD stressor of reexperiencing combat in Vietnam. See January 2011 Request for a Physical Examination Correspondence. This evidence is “new” because it had not been previously submitted and considered by VA. This new evidence is material because it is evidence of an in-service stressor event that may be correlated to the Veteran’s PTSD. The Board recognizes that this additional piece of evidence is presumed to be credible for the purpose of reopening the claims. Justus v. Principi, 3 Vet. App. 510, 512 – 513 (1992). Therefore, this additional piece of evidence, when considered in conjunction with the record as a whole, raises a reasonable possibility of substantiating the Veteran’s claim. Accordingly, since new and material evidence has been received, the service connection claim for a PTSD is reopened. REASONS FOR REMAND The Board regrets further delay, but finds that additional development is necessary before a decision may be rendered on the remaining issue on appeal. In February 2015, the Veteran underwent a VA examination for PTSD. The VA examiner determined that the Veteran’s symptoms did not meet the diagnostic criteria for PTSD. The VA examiner opined that it is not at least as likely as not that the Veteran’s PTSD is due to or the result of military service. However, the Board finds that this opinion is inadequate for determining this claim. As a rationale for his opinion, the VA examiner indicated that the Veteran’s 2007 diagnosis of PTSD was not based on a systematic assessment of PTSD symptoms and that the Veteran had never had a treatment for PTSD. However, to the contrary, the Veteran’s VA treatment records suggest that he was undergoing treatment for PTSD and/or PTSD symptoms. See February 2007 Psychological Assessment Note (reflecting a positive screen for PTSD, and that the Veteran was being followed for PTSD by mental health/psychology; and also reflecting that the Veteran presented co anxiety and depression, and reported multiple PTSD symptoms associated with his Vietnam combat experience; and that he agreed to return for individual counseling and possible group counseling for PTSD.); see also March 2007 Psychiatric Medication Management Note (reflecting that a clinical social worker, M.C. was working with the Veteran on PTSD); see, too July 2010 Psychiatric VARC Screening Note (reflecting that the Veteran reported having PTSD symptoms of nightmares about trauma, intrusive thoughts of trauma, actively avoids thinking about trauma, avoids situation that reminds him of trauma, feels constantly on guard or watchful, and is easily started). Therefore, this opinion is a based on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (A medical opinion based on an inaccurate factual premise has no probative value.); see also Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (“If the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely”) (citing Reonal). Inadequate medical examinations include examinations that contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, or provide unsupported conclusions. Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). When VA undertakes to examine a Veteran, VA is obligated to ensure that that examination is adequate. See Barr v. Nicholson, 21. Vet. App. 303 (2007). Accordingly, a remand is required for a new VA examination and nexus opinion on the presence, and if any, etiology of the Veteran’s PTSD, and/or any other mental disabilities. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination, with a psychiatrist or psychologist who has not yet evaluated the Veteran, to determine the presence, and if any, etiology of any mental disability. The VA examiner must review the claims file and must note that review in the report. All necessary tests and studies should be accomplished and all clinical findings reported in detail. A copy of this REMAND should be made available to the VA examiner. The VA examiner must undertake the following: a. Determine whether the Veteran has any diagnosable psychiatric disability, including and not limited to PTSD. b. If the Veteran has PTSD, or any other mental disability, opine as to whether it is at least as likely as not (50 percent probability or greater) related to the Veteran’s active service. (Continued on the next page)   A detailed rationale is requested for all opinions provided. If an opinion cannot be provided without resorting to speculation, provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. BISWAJIT CHATTERJEE Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD V-N. Pratt, Associate Counsel