Citation Nr: 20002992 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 18-09 549 DATE: January 14, 2020 ORDER New and material evidence having been received, the claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), and to include as secondary to service-connected disabilities, is reopened. To that extent only, the appeal is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, and to include as secondary to service-connected disabilities, is remanded. Entitlement to a disability rating in excess of 50 percent for bilateral defective hearing is remanded. FINDINGS OF FACT 1. An October 2009 rating decision, in pertinent part, confirmed and continued the previous denial of the Veteran’s claim of entitlement to service connection for PTSD. The Veteran did not appeal this denial, and no new and material evidence was submitted within the appeal period as to this issue; thus, the decision became final. 2. The evidence received since the final October 2009 rating decision is not cumulative or redundant of the evidence of record, does relate to an unestablished fact, and does raise a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder. CONCLUSIONS OF LAW 1. The October 2009 rating decision, which confirmed and continued the previous denial of entitlement to service connection for PTSD, is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been received; the claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, and to include as secondary to service-connected disabilities, is reopened. 38 U.S.C. §§ 5107, 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters The Veteran had honorable active duty service with the United States Army from November 1967 to November 1969. The Veteran received the Vietnam Service Medal with two Bronze Service Stars and the Vietnam Campaign Medal, among other commendations. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran has claimed service connection specifically for PTSD. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claimant seeks service connection for the symptoms of a disability, regardless of how those symptoms are diagnosed or labeled. Therefore, the claim has been recharacterized as one of entitlement to service connection for an acquired psychiatric disorder, to include PTSD. The issue has thus been restated. New and Material Evidence Governing regulations provide that an appeal consists of a timely filed notice of disagreement (NOD) in writing and, after a statement of the case (SOC) has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. Rating actions from which an appeal is not timely perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). New evidence means existing evidence not previously submitted to agency decision-makers. Material evidence means existing 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 prior final denial of the claim sought to be reopened and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court has emphasized that the final sentence of 38 C.F.R. § 3.156(a), especially the phrase “raise[s] a reasonable possibility of substantiating the claim,” does not create a third element or separate determination in the reopening process, but is a component of the question of what is new and material evidence. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (noting that 38 U.S.C. § 5108 requires only new and material evidence to reopen). Shade further holds that 38 C.F.R. § 3.156 “suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim[.]” Id. Further, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, and regulations do not require new and material evidence as to each previously unproven element of a claim. Id. Rather, the Board should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. Id. The Court has elaborated on what constitutes “new and material evidence.” New evidence is not that which is cumulative of other evidence already present in the record. In determining whether new and material evidence has been submitted, the Board must consider the specific reasons for the prior denial. Evans v. Brown, 9 Vet. App. 273, 283 (1996). See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. at 273. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Whether new and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, and to include as secondary to service-connected disabilities. The Veteran seeks to reopen his claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, and to include as secondary to service-connected disabilities. By way of background, in an October 2009 rating decision, the RO, in pertinent part, confirmed and continued the previous denial of entitlement to service connection for PTSD, as the evidence did not show a current diagnosis. The Veteran did not appeal the October 2009 decision or submit additional evidence within one year. Thus, the October 2009 decision became final. Then, in March 2015, the Veteran filed a request to reopen his claim of entitlement to service connection for PTSD. In a June 2015 rating decision, the RO, in pertinent part, again confirmed and continued the previous denial of entitlement to service connection for PTSD. Following a request for reconsideration filed in June 2015, the RO reconsidered the claim and again denied entitlement to service connection for PTSD in an October 2015 rating decision. The Veteran filed a NOD in November 2015. Thus, based on the procedural history, the last prior final denial was issued in October 2009. The evidence before VA at the time of the October 2009 decision consisted of the Veteran’s service treatment records, VA treatment records, a July 2009 VA examination report, and the Veteran’s lay assertions. The evidence associated with the claims file relating to an acquired psychiatric disorder following the October 2009 decision includes additional VA treatment records and a March 2015 private Disability Benefits Questionnaire (DBQ), which show a diagnosis of PTSD. Additionally, VA provided a psychiatric examination in June 2015. The Board finds that this evidence is new, as it was not previously of record. It is also material because it tends to relate to a previously unestablished fact necessary to substantiate the underlying claim of service connection. Consequently, the claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, and to include as secondary to service-connected disabilities, is reopened. REASONS FOR REMAND Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, and to include as secondary to service-connected disabilities, is remanded. The Veteran contends that he is entitled to service connection for an acquired psychiatric disorder, to include PTSD, and to include as secondary to his service-connected disabilities. The Board notes that the record reflects conflicting medical evidence as to whether the Veteran has a current diagnosis of PTSD. On VA psychiatric examination in July 2009, the examiner concluded that the Veteran did not meet the criteria for PTSD under the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). VA implemented DSM-5, effective August 4, 2014, and the Secretary, VA, determined that DSM-5 applies to claims certified to the Board on and after August 4, 2014. 79 Fed. Reg. 45,093, 45, (Aug. 4. 2014). The RO certified the Veteran’s appeal to the Board in February 2018; hence; DSM-5 is for application in this claim. Contrary to the July 2009 VA examiner’s conclusion, a March 2015 private DBQ provided by A.F., a licensed clinical social worker (LCSW), provides a diagnosis for PTSD. However, the record does not provide an adequate rationale to support such a diagnosis under the DSM-5. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). On VA psychiatric examination in June 2015, the examiner concluded that the Veteran did not meet the criteria for PTSD under the DSM-5. Therefore, based on the foregoing, a remand is needed to obtain an opinion reconciling the conflicting evidence regarding the Veteran’s diagnosis of PTSD. It is noted that 38 C.F.R. § 3.304(f)(3) no longer requires the verification of an in-service stressor if the Veteran was in a location involving “fear of hostile military or terrorist activity.” Such a location can be evidenced by awards such as the Iraq Campaign Medal or the Vietnam Service Medal. Lay testimony alone can be used to establish the occurrence of an in-service stressor in these situations. The new regulatory provision requires that: (1) A VA psychiatrist or psychologist, or contract equivalent, must confirm that the claimed stressor is adequate to support a diagnosis of PTSD; (2) the claimed stressor is consistent with the places, types, and circumstances of the Veteran’s service; and (3) the Veteran’s symptoms are related to the claimed stressor. Id. In the present case, the Veteran was the recipient of the Vietnam Service Medal with two Bronze Service Stars and the Vietnam Campaign Medal. Furthermore, it should be determined whether the Veteran suffers from any other psychiatric disorder that is at least as likely as not a result of active military service. The July 2009 VA examiner provided a diagnosis of anxiety disorder, not otherwise specified (NOS); however, the June 2015 VA examiner concluded that the Veteran did not have a current diagnosis of anxiety or depression. Furthermore, the June 2015 VA examiner provided a diagnosis of unspecified neurocognitive disorder; however, no etiology opinion was provided. Therefore, in addition to the reasons stated above, the Board finds that a VA examination should be provided to determine whether the Veteran has a current diagnosis of any other psychiatric disorder, and if so, the etiology of any such additional psychiatric disorders. The Board notes that the Veteran is service connected for prostate cancer and bilateral defective hearing. The Board further notes that in a November 2019 informal hearing presentation (IHP), the Veteran’s representative stated that “the mindset of the Veteran has been compromised due to his prostate cancer, as well as his bilateral defective hearing…” Thus, the Board finds that the representative has raised the theory that the Veteran’s acquired psychiatric disorder is secondary to his service-connected disabilities. In light of this new theory, the Board finds that the VA examination as requested herein should also address the possible etiological connection between the Veteran’s service-connected disabilities and his claimed acquired psychiatric disorder. 2. Entitlement to disability rating in excess of 50 percent for bilateral defective hearing is remanded. The Veteran contends that he is entitled to an increased rating for his service-connected bilateral defective hearing. A review of the record shows that the Veteran most recently underwent a VA examination for his bilateral defective hearing in June 2015, over four years ago. Throughout the appeal period, the Veteran has asserted that the current severity of his bilateral defective hearing is worse than what is contemplated by the current rating. Therefore, in light of the foregoing, a more contemporaneous examination is warranted for the Veteran’s service-connected bilateral defective hearing in order to ensure that the record reflects the current severity of the disability. On remand, the Agency of Original Jurisdiction (AOJ) should make appropriate efforts to ensure that all pertinent private treatment records and any updated VA records are associated with the claims file. The matters are REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. If any record identified cannot be obtained, the Veteran and his representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. 2. After obtaining any outstanding records, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any acquired psychiatric disorder, to include PTSD. The examiner should be directed to elicit a complete history from the Veteran. a. With respect to PTSD, the examiner must confirm or rule out a diagnosis of PTSD. If it is determined that PTSD has not been present during the period of the claim, the examiner should explain why the diagnosis is not warranted. The examiner should reconcile, to the extent possible, the July 2009 and June 2015 VA examination reports, indicating that the Veteran did not meet the diagnostic criteria for PTSD, with the March 2015 private DBQ, which reflects a diagnosis of PTSD. The examiner is advised that the Veteran should be evaluated under the DSM-5 criteria. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine as to whether it is at least as likely as not related to his described in-service combat stressors. b. For any acquired psychiatric disorder diagnosed, the examiner must provide an opinion as to whether it is at least as likely as not that such disorder: i. manifested during, or as a result of active military service, to include his combat experience; ii. was caused by his service-connected prostate cancer and/or bilateral defective hearing; or, iii. was aggravated beyond its natural progression by his service-connected prostate cancer and/or bilateral defective hearing The examiner should note that the Veteran was diagnosed with anxiety disorder NOS during the July 2009 VA psychiatric examination. Additionally, he was diagnosed with unspecified neurocognitive disorder during the June 2015 VA psychiatric examination. The examiner is informed that aggravation here is defined as any increase in disability. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. The examining physician/specialist is to be asked to provide information to demonstrate that they are qualified to offer the above requested opinion (such as a curriculum vitae or similar demonstrable documentation (which may be redacted as deemed warranted)). This information is to be associated with the Veteran’s claims file. 3. Then, schedule the Veteran for an audiology examination to determine the current severity of his service-connected bilateral defective hearing. The Veteran’s claims file and a copy of this remand must be provided to the examiner for review. The examiner is to perform all necessary tests and studies, and provide pure tone threshold values and speech discrimination percentages using the Maryland CNC test. The examiner should also describe the Veteran’s reported effects of the Veteran’s bilateral defective hearing disability on his functioning. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. The examining physician/specialist is to be asked to provide information to demonstrate that they are qualified to offer the above requested opinion (such as a curriculum vitae or similar demonstrable documentation (which may be redacted as deemed warranted)). 4. After completing the above, and any other development deemed necessary, the Veteran’s claims should be readjudicated based on the entirety of the evidence. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is remanded to the Board. A. SOLOMON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Y. MacDonald, Associate Counsel 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.