Citation Nr: 18128564 Decision Date: 08/22/18 Archive Date: 08/22/18 DOCKET NO. 14-30 654 DATE: August 22, 2018 ORDER Whether new and material evidence has been received to reopen the previously denied and final claim of service connection for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. FINDING OF FACT The Veteran has provided evidence of a present diagnosis of PTSD. CONCLUSION OF LAW New and material evidence having been received, the claim of entitlement to service connection of PTSD is reopened. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1977 to December 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In September 2015, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. 1. Whether new and material evidence has been received to reopen the previously denied and final claim of service connection for posttraumatic stress disorder (PTSD) is granted. If a claim was previously denied by a RO or Board decision, and that RO or Board decision became final, then the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Even if the RO (in a rating decision, statement of the case, or supplemental statement of the case) has already determined that new and material evidence has been submitted, in the appeal, a new and material evidence analysis must still be completed by the Board. The requirement for the submission of new and material evidence is a jurisdictional prerequisite in order for a claimant to obtain review of a previously denied and final decision. 38 U.S.C. §§ 5108, 7104(b). Therefore, even though the RO de facto reopened the claim in its November 2011 rating decision, the Board is under the statutory obligation to conduct a de novo review of the new and material evidence issue prior to adjudicating the underlying claim. Under 38 C.F.R. § 3.104 (a), a decision of the rating agency shall be final and binding... as to conclusions based on the evidence on file at the time VA issues written notification in accordance with 38 U.S.C. § 5104. A determination on a claim by the Agency of Original Jurisdiction (AOJ), of which the claimant is properly notified, is final if an appeal is not timely perfected. 38 C.F.R. § 20.1103. A decision becomes final one year after its issuance, unless a notice of disagreement is filed. 38 C.F.R. § 20.302 (a). If a notice of disagreement is filed, and a statement of the case is subsequently issued, a Substantive Appeal must be filed within 60 days from the date that the AOJ mails the statement of the case to the appellant, or within the remainder of the 1-year period from the date of the mailing of the underlying rating decision, which ever period ends later. 38 C.F.R. § 20.302 (b). In general terms, “new” evidence is evidence that was not of record at the time that the prior final RO or Board decision was issued. “Material” evidence is evidence that addresses the element(s) of service connection that were deficient (and therefore the basis of denial) in the prior final RO or Board decision. See 38 C.F.R. § 3.156 (a). The United States Court of Appeals for the Federal Circuit (Federal Court) has indicated that evidence may be considered new and material if it contributes, “to a more complete picture of the circumstances surrounding the origin of a Veteran’s injury or disability, even where it will not eventually convince the Board to alter its rating decision.” Hodge v. West, 115 F. 3d. 1356, 1363 (Fed. Cir. 1998). The Veteran’s initial claim of service connection for PTSD was denied in a January 2005 rating decision. The claim was denied because there was no evidence of an in-service incurrence of any psychiatric issues, and no present diagnosis of PTSD. That decision was not appealed and it subsequently became final. The Veteran sought to reopen the claim in September 2010. In support of that claim he submitted VA treatment records indicating a present diagnosis of PTSD. VA also sought and obtained an examination which confirmed a diagnosis of PTSD. His subsequent VA treatment records continue to list PTSD as a current diagnosis. The Veteran’s examination and treatment reports are new in that they were not of record at the time of the prior denial. They are material in that they address a previously deficient criteria of service connection, namely, a presently diagnosed disability. As such, the Board finds that new and material evidence has been submitted, and the claim of service connection for PTSD should be reopened. To this limited extent, the appeal is granted. REASONS FOR REMAND 1. Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. Inasmuch as the Board regrets any further delay in the adjudication of the claim on appeal, a remand is necessary as the claims file does not appear to be complete. With his VA Form 9 (Appeal to the Board of Veterans’ Appeals), the Veteran’s attorney submitted an argument which referred to a medical opinion rendered by the Veteran’s treating psychologist provided on February 15, 2012. After careful review, the Board cannot locate the actual opinion in the claims file. It appears that it was likely submitted with the Veteran’s notice of disagreement in March 2012. Although a copy of the notice of disagreement is of record, it was submitted along with a status request in 2013 – the original notice of disagreement as timely submitted is also not of record, which leads the Board to believe that any evidence submitted at that time may be missing, to include the above referenced medical opinion. Considering this, the Board will remand the claim so as to ensure a complete claims file. The matter is REMANDED for the following action: 1. Contact the Veteran and request that he submit any additional evidence in support of his claim. Specifically, a letter should be sent to the Veteran and his attorney requesting any evidence submitted with the March 2012 notice of disagreement, to include a copy of the February 2012 medical opinion referenced by the attorney in the statement accompanying his VA Form 9. 2. The RO should ensure that all documentation received to date has been associated with the Veteran’s electronic claims file. Any outstanding VA treatment records should be obtained and associated with the record. (Continued on the next page)   3. If evidence is obtained suggesting that a current diagnosis of PTSD or of another acquired psychiatric disorder may be related to service but such evidence is not in itself sufficient to enable an allowance of the benefit sought on appeal, then arrange for a psychiatric examination of the Veteran. The examiner is to opine whether it is at least as likely as not that any diagnosed psychiatric disorder is due to or the result of active service. If PTSD is diagnosed and related to service, the specific stressor incident on which the diagnosis is based should be noted. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Pryce, Associate Counsel