Citation Nr: 19190894 Decision Date: 12/03/19 Archive Date: 12/03/19 DOCKET NO. 18-11 403 DATE: December 3, 2019 ORDER New and material evidence having been submitted, the claim of entitlement to service connection for an acquired psychiatric disability is reopened. REMANDED Entitlement to service connection for an acquired psychiatric disability, to include post-traumatic stress disorder (PTSD), a mood disorder, and a nightmare disorder, is remanded. FINDINGS OF FACT 1. A March 2013 rating decision denied the Veteran’s service connection claim for an acquired psychiatric disability. Although the Veteran was notified of the decision, he did not appeal. 2. The evidence submitted by the Veteran subsequent to the March 2013 rating decision in support of reopening his service connection claim for an acquired psychiatric disability relates to a previously unestablished fact necessary to substantiate the claims and is neither cumulative nor redundant of the evidence previously submitted into the record. CONCLUSIONS OF LAW 1. The March 2013 rating decision is final. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. §§ 20.1100, 20.1103. 2. New and material evidence sufficient to reopen the claim of service connection for an acquired psychiatric disability has been received. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1152, 5108, 7103, 7104, 7105, 7111; 38 C.F.R. §§ 3.156, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the U.S. Army from March 1965 to March 1967, including service in Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2017 rating decision issued by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran testified before the undersigned at a hearing held in October 2019; a transcript of that hearing is of record. The Veteran’s service connection claim for his acquired psychiatric disability was previously considered and denied in a March 2013 rating decision. However, as set forth more fully below, new and material evidence sufficient to warrant the reopening of such claims has been received, thus warranting their reopening. See 38 C.F.R. § 3.156(a). New and Material Evidence having been submitted, the claim of entitlement to service connection for an acquired psychiatric disability, to include PTSD, a mood disorder, and nightmare disorder, is reopened. Rating decisions from which an appeal is not perfected become final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. An appeal consists of a timely filed notice of disagreement in writing, and, after a statement of the case has been furnished, a timely filed substantive appeal. See 38 C.F.R. § 20.200. In any case involving a finally denied claim, the Board must address whether new and material evidence has been received sufficient to reopen the denied claim before addressing the merits of the claim, regardless of whether the AOJ has already addressed the question of reopening. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). New evidence is defined as evidence not previously submitted to agency decisionmakers and which is 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. See 38 C.F.R. § 3.156(a). In order to be considered material, the new evidence must, either by itself or when considered with previous evidence of record, (1) relate to an unestablished fact necessary to substantiate the claim; and (2) raise a reasonable possibility of substantiating the claim. See id. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim requires consideration of whether the newly submitted evidence could reasonably substantiate any previously unestablished element of the claim were it to be reopened. See Shade, 24 Vet. App. at 121. However, finality attaches once a claim for benefits is disallowed, not when a particular theory is rejected. See Bingham v. Nicholson, 421 F.3d 1346, 1348-50 (2005). Accordingly, a new theory of causation for a disease that was the subject of a previously denied claim cannot be the basis of a new claim absent a presentation of new and material evidence or of clear and unmistakable error. See Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008); 38 U.S.C. §§ 7103(a), 7104(a), (b), 7111(a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is generally presumed, unless it is inherently false or untrue or, if in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). In this case, the Veteran contends that new and material evidence has been submitted sufficient to warrant reopening of his service connection claim for an acquired psychiatric disability, and for the reasons set forth below, the Board agrees. As stated above, the Veteran’s service connection claim for his acquired psychiatric disability was previously denied in a March 2013 rating decision on the grounds that the record lacks evidence of a current psychiatric diagnosis of PTSD or of a link between the Veteran’s current nightmare disorder and his active military service. The Veteran was notified of the March 2013 rating decision denying his claims. Although the Veteran filed a notice of disagreement concerning some of the claims, he did not appeal the decision concerning the acquired psychiatric disorder. Accordingly, the March 2013 rating decision became final for that issue in March 2014. See 38 C.F.R. § 20.1103, 20.200. The evidence of record pertaining to the Veteran’s acquired psychiatric disability at the time of the March 2013 rating decision consisted of the following: (1) the Veteran’s service treatment records (STRs); (2) the Veteran’s VA treatment records from July 1997 through January 2013, and from July 2000 through April 2003; (3) Vet Center treatment records from January 2012 through August 2012; (4) the Veteran’s July 2012 Statement; (5) the July 2012 Statement of the Veteran’s spouse; and (6) an August 2012 VA psychiatric examination report. In June 2016, the Veteran filed a new service connection claim for his acquired psychiatric disability, and in September 2016, additional VA treatment records were associated with the Veteran’s claims file, including an October 2015 treatment note reflecting a diagnosis of a mood disorder, not otherwise specified, by the Veteran’s VA psychiatrist (Dr. T). Accordingly, the Board finds that this post-March 2013 evidence constitutes new and material evidence, as it had not been submitted into the record prior to the March 2013 rating decision, and it relates to the previously unestablished but required element of a current psychiatric diagnosis. See 38 C.F.R. § 3.156(a). Moreover, the Board finds that, as a licensed VA psychiatrist, Dr. T’s psychiatric diagnosis of the Veteran constitutes competent medical evidence. See 38 C.F.R. §§ 3.159(a)(1); 4.125(a). In addition, as the record contains no evidence suggesting that the post-March 2013 evidence is inherently false or untrue, its credibility may thus be presumed. See Justus, 3 Vet. App. at 513. Accordingly, in light of the foregoing, the Board finds reopening the Veteran’s service connection claim for his acquired psychiatric disability to be warranted in this case. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disability, to include post-traumatic stress disorder (PTSD), a mood disorder, and a nightmare disorder, is remanded. Unfortunately, the Veteran’s service connection claim for an acquired psychiatric disability must be remanded for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. The Veteran contends that his current psychiatric disability is causally related to his active military service in Vietnam, including his witnessing of the death of a young child, as well as incoming enemy fire and mortar attacks. In August 2012, the Veteran was afforded a psychiatric VA examination, which culminated in a report (the August 2012 Report) declining to issue a diagnosis of PTSD on the grounds that the record lacks evidence of persistent reexperiencing of the traumatic events, persistent avoidance of stimuli associated with the trauma or numbing of general responsiveness, or persistent symptoms of increased arousal. However, the August 2012 Report failed to address relevant medical evidence in the record reflecting the existence of precisely such symptoms, including recurrent dreams of war and fighting, intrusive thoughts about Vietnam, self-isolation, and avoidance of public places and large crowds. The August 2012 Report also declined to find a nexus between the Veteran’s nightmare disorder diagnosis and his active military service, finding that although the Veteran reported a history of nightmares, such nightmares are “generalized,” are not based on “factual experiences or service in a war zone,” and do not cause the Veteran to re-experience any military trauma but failed to address the Veteran’s report of recurrent dreams of war and fighting and intrusive thoughts about Vietnam. In September 2016, the Veteran was afforded a second psychiatric VA examination which culminated in a report (the September 2016 Report) which also declined to issue a diagnosis of PTSD on the grounds that the Veteran’s symptomatology does not meet DSM-V diagnostic criteria for PTSD, again failing to address all relevant medical evidence of record. Instead, the September 2016 Report confirmed a diagnosis of nightmare disorder, opining that such diagnosis is unrelated to the Veteran’s active military service, as the evidence of record does not indicate that the Veteran was treated for a mental health condition during service, and the Veteran’s nightmares are not “factual in content,” do not “reflect traumatic living,” and are therefore unrelated to his active military service. The September 2016 Report further concluded that, although the Veteran served in Vietnam, and his reported in-service stressors satisfy Criterion A as sufficient for a PTSD diagnosis, the Veteran’s psychiatric symptomatology “does not meet criterion B, C or D;” the functional impairment caused by his nightmares is “minimal,” and it “overlaps with general medical conditions causing him to awaken frequently to void or from back pain.” However, the September 2016 Report was internally inconsistent and appeared to omit a significant amount of relevant evidence of record. First, the September 2016 Report inconsistently states that Criterion C was not satisfied by the record, despite having previously found that Criterion C was in fact satisfied by evidence of the Veteran’s “avoidance of or efforts to avoid distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s).” Second, the September 2016 Report’s also fails to reconcile its finding of insufficient PTSD symptomatology with its previous finding that the Veteran endorsed the following psychiatric symptoms: impaired memory; anhedonia; low energy; and social isolation. More importantly, the September 2016 Report further lacks sufficient support for the conclusion that the Veteran’s nightmares are unrelated to his active military service, particularly in light of his endorsement of frequent intrusive thoughts about Vietnam and recurring “Army dreams.” Third, while the September 2016 Report also notes the Veteran’s diagnosis of a mood disorder as reflected in the October 2015 VA treatment notes of the Veteran’s VA psychiatrist, the September 2016 Reports omits any discussion of whether such mood disorder is causally related to the Veteran’s active military service. Finally, the September 2016 Report omits fails to adequately address a significant portion of evidence in the record relevant to the Veteran’s psychiatric claim, including but not limited to the following: (1) September 2001 and October 2001 VA treatment notes reflecting the Veteran’s report of violent nightmares for more than 20 years; (2) the Veteran’s July 2012 statement reporting that he has suffered from violent nightmares for 35 to 40 years; (3) March 2012 Vet Center treatment records reflecting that the Veteran was receiving VA mental health treatment for anxiety, depression, and nightmares, and that his symptoms included a flat, blunted affect; fair judgment; sleep disturbance; middle insomnia; low energy level; decreased sex drive; intrusive thoughts; jumpiness; feelings of detachment from others; anxiety; loss of interests; sense of a foreshortened future; and fleeting thoughts of suicide on occasion, without plans or intent; (4) May 2012 Vet Center treatment records reflecting the Veteran’s report that his nightmares center around “war and fighting;” and (5) July 2012 Vet Center treatment records reflecting the Veteran’s report of the following: (a) feeling guilty about Vietnam; (b) thinking about Vietnam “daily” (“I will never forget that horrible place”); (c) drinking heavily upon returning from Vietnam; and (d) promising his wife he would seek mental health treatment after more than 40 years of violent nightmares, anxiety, and suffering. When VA undertakes to provide a VA examination or obtain a VA medical opinion, it must ensure that the examination or opinion is adequate, which in this context requires that an examination report sufficiently inform the Board of a medical expert’s judgment on a medical question, rely upon accurate factual premises, including the Veteran’s lay statements regarding symptomatology, and present a fully articulated, sound rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Moreover, the reliance by a medical opinion upon a significant factual inaccuracy renders it devoid of any probative value. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). Accordingly, as the September 2016 Report lacks internal consistency and fails to consider a significant portion of relevant evidence regarding the extent of the Veteran’s psychiatric symptoms, the Veteran’s claim must be remanded for another VA examination to consider all the relevant evidence of record, including the Veteran’s lay statements and his VA treatment records, and to determine whether his current psychiatric symptomatology is related to his reported in-service stressors and thus entitled to service connection. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). In addition, the Board notes that the Veteran reported to the September 2016 VA examiner that he received mental health treatment from the Huntington Vet Center as recently as 2016; however, although such treatment records are considered to be within constructive custody of VA and to trigger an obligation that they be obtained, no Vet Center treatment records more recent than July 2012 have been associated with the Veteran’s claims file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992); 38 U.S.C. § 5103A(c). Accordingly, upon remand, any missing treatment records must be obtained, including any treatment records generated by a Vet Center, so that the Veteran’s claim can be properly adjudicated. See Bell v. Derwinski, 2 Vet. App. 611, 612-13 (1992); 38 C.F.R. § 3.159. Accordingly, this matter is REMANDED for the following action: 1. Send VA Form 21-4142 to the Veteran and his representative to authorize the release of any outstanding records, including the Vet Center treatment records covering the period from July 2012. Allow the Veteran and his representatives a reasonable period of time to respond. Include with VA Form 21-4142 a letter containing the following: (i) a request that the Veteran or his representative identify all VA and non-VA health care providers, other than those already associated with the Veteran’s claims file, who have treated or evaluated him since service for his psychiatric disabilities; and (ii) clearly state that the Veteran’s authorization is necessary in order to obtain any identified treatment records, including those from any Vet Center from which the Veteran received treatment. Vet Center medical records are considered federal records in VA’s constructive custody and are not retrievable through CAPRI. 2. After securing the proper authorizations, the AOJ should undertake the appropriate efforts to obtain and to associate with the claims file any outstanding private or VA treatment records, including the Veteran’s Vet Center treatment records from July 2012, as well as any relevant and outstanding VA or private treatment records. If any records sought are not obtained, a written statement to that effect should be incorporated into the record. 3. After the above development and any additionally indicated development has been completed, schedule the Veteran for a VA psychiatric examination with an appropriate clinician other than the August 2012 or September 2016 VA examiners to determine the nature and etiology of the Veteran’s claimed acquired psychiatric disability. The entire claims folder should be made available and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. The examiner is requested to provide an opinion as to whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran’s acquired psychiatric disability, to include PTSD, a mood disorder, or a nightmare disorder, is due to or otherwise causally or etiologically related to his military service, to include the Veteran’s reported stressors during his deployment to Vietnam. In offering these assessments, the examiner must not only discuss the disorders diagnosed on current examination, but also any psychiatric disorder or disability diagnosed during this appeal. The examiner is asked to expressly address all relevant evidence including but not limited to the following: (a) The lay statements submitted by the Veteran and his spouse; (b) The Veteran’s VA treatment records, including his VA psychiatrist (Dr. M)’s diagnosis of a mood disorder; (c) October 2016 VA treatment notes indicating that the Veteran has been diagnosed with chronic PTSD status post combat, and that he was treated at a Vet Center in 2012; and (d) The Veteran’s Vet Center treatment records describing the onset and breadth of his psychiatric symptomatology. (Continued on the next page)   The examiner must include a rationale with all opinions, citing to supporting clinical data/medical literature as appropriate. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Marsdale The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.