Citation Nr: 19129167 Decision Date: 04/16/19 Archive Date: 04/15/19 DOCKET NO. 13-21 980 DATE: April 16, 2019 ORDER New and material evidence having been received, the application to reopen the claim of entitlement to service connection for an acquired psychiatric disorder to include Posttraumatic Stress Disorder (PTSD) due to Military Sexual Trauma (MST), is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include PTSD due to MST, is remanded Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. In an unappealed March 2006 rating decision, the RO denied the Veteran’s claim of service connection for psychiatric disorder; the Veteran did not appeal this determination, and new and material evidence was not received within a year of its issuance. 2. The evidence received since the March 2006 rating decision directly relates to an unestablished fact necessary to substantiate the claim for service connection for a psychiatric disorder. CONCLUSIONS OF LAW 1. The March 2006 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. 2. New and material evidence has been received to reopen the previously denied claim of entitlement to service connection for a psychiatric disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1979 to October 1987. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In a July 2017 decision, the Board denied service connection for a psychiatric disorder and a TDIU. The Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court). In June 2018, the Court granted the parties’ Joint Motion for Remand and remanded the issues back to the Board finding the Board did not adequately explain its reasons and bases for not finding that new and material evidence had been submitted to reopen the claim of entitlement to service connection for a psychiatric disorder and that the claim for a TDIU was inextricably intertwined with the psychiatric disorder claim. New and Material Evidence 1. Acquired Psychiatric Disorder In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. An exception to this rule is 38 U.S.C. § 5108, which provides that, if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. 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). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The RO denied service connection for psychiatric disorder in a November 1987 rating decision, finding that there was no evidence of an in-service occurrence. The evidence considered at the time included service treatment records. The Veteran did not appeal the decision, and new and material evidence was not received within one year of the decision. Thus, the November 1987 decision became final. See 38 U.S.C. § 7105(d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. The Veteran’s claim for service connection for a psychiatric disorder was again denied in a January 2004 rating decision and a March 2006 rating decision finding that no new and material evidence was submitted to reopen the previously denied claim. Pertinent evidence received since the March 2006 denial of the claim includes medical opinion regarding the relationship of the Veteran’s alleged in-service MST and her psychiatric disorder. This evidence relates to the basis for the prior denial, as an in-service occurrence was an element previously unestablished. The additional evidence received since the March 2006 previous denial is thus new and material. The criteria for reopening the claim for service connection for an acquired psychiatric disorder are met. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder to include PTSD due to MST is remanded. Although the Veteran’s report of military sexual trauma was of record at the time of the prior final denial, no opinion linking that incident to her psychiatric disorders was of record until December 2018. See February 2006 medical treatment note and August 2018 medical opinion. The Veteran has stated that prior to enlistment she was diagnosed with anti-social disorder. Further, the Veteran’s treatment notes indicate that she was the victim of a childhood sexual trauma from the ages of 11 to 15 and began using alcohol and marijuana at the age of 13. The August 2018 medical opinion is sufficient to reopen the Veteran’s claim, but a clear diagnosis of the Veteran’s psychiatric disorders, and what symptoms can be associated to which disorder, is not present. Thus, a remand is necessary for a new examination. Furthermore, the Veteran states that she has been in treatment at VA facilities for nearly two decades, yet the record has very few treatment notes. Any additional records regarding the Veteran’s treatment for psychiatric disorders should be obtained. 2. Entitlement to a TDIU is remanded. Finally, because a decision on the issue of entitlement to service connection for an acquired psychiatric disorder could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. A remand of the claims for entitlement to a TDIU is required. The matter is REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from February 2006 to the Present. 2. Send the Veteran notice required for PTSD claims based on personal assaults and allow time for a response. Then, attempt to corroborate the Veteran’s in-service stressor based on personal assault, including being attacked by fellow service members. If more details are needed, contact the Veteran to request the information. 3. Schedule the Veteran for a psychiatric examination which should identify the Veteran’s psychiatric diagnoses. If the Veteran is diagnosed with PTSD, the examiner should explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. Regarding the stressor, the examiner should opine whether the evidence of record, including the Veteran’s lay statements and the Veteran’s service records, corroborate the claim that a personal assault occurred in service (38 C.F.R. § 3.304(f)(5)). If the examiner finds that evidence indicates that a personal assault occurred during the Veteran’s active service, whether any PTSD is not related to the in-service personal assault should be addressed. If any other acquired psychiatric disorders are diagnosed, the examiner should opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, or disease. In this regard, the examiner should address whether any in-service behavior noted in the service records, or as reported by the Veteran, represented an earlier presentation of any currently diagnosed psychiatric disability. The reasons for the conclusions expressed should be fully explained, and reflect consideration of the claims file, to include the Veteran’s medical history, and medical opinions already of record. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Uller, Associate Counsel