Citation Nr: 20004776 Decision Date: 01/23/20 Archive Date: 01/21/20 DOCKET NO. 17-49 447 DATE: January 23, 2020 ORDER New and material evidence having been received, the claim of entitlement to service connection for an acquired psychiatric disorder, previously claimed as entitlement to service connection for posttraumatic stress disorder (PTSD), is reopened. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. FINDING OF FACT A January 2012 rating decision denied the Veteran’s claim seeking service connection for PTSD; the Veteran did not appeal and no new and material evidence was received within the appeals period. CONCLUSION OF LAW New and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric, previously claimed as entitlement to service connection for PTSD. 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 October 1961 to October 1964. This matter is before the Board of Veterans' Appeals (Board) on appeal of an April 2016 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). A hearing was held before the undersigned in April 2019. Whether new and material evidence has been received A January 2012 rating decision denied the Veteran’s claim for service connection for PTSD. The Veteran did not file a notice of disagreement, and VA did not receive additional evidence regarding the claim within one year of notice of the decision. Thus, the January 2012 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.302. VA may review a previously denied claim if new and material evidence is submitted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence is defined as existing evidence not previously submitted to the VA, and material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). 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 must raise a reasonable possibility of substantiating the claim. Id. The Court of Appeals for Veterans Claims (Court) held the phrase “raises a reasonable possibility of establishing the claim” must be viewed as “enabling rather than precluding reopening.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The Court emphasized that 38 C.F.R. § 3.156 “does not require new and material evidence as to each previously unproven element of a claim.” Id. at 120. The Court further explained the provisions of 38 C.F.R. § 3.156(a) creates a “low threshold” for finding new and material evidence that is favorable to the claimant. Id. New evidence is sufficient to reopen a claim when it would trigger VA’s duty to provide an examination. See Shade, 24 Vet. App. at 118-19 (indicating new evidence raises a “reasonable possibility of substantiating the claim” if when considered with the old evidence it would at least trigger VA’s duty to assist by providing a medical opinion). A determination of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider an underlying claim. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Therefore, regardless of the AOJ’s action, the Board must address the question of whether new and material evidence has been presented to reopen a claim of service connection. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). In January 2012, the Veteran’s claim for service connection for PTSD was denied, in part, because there was no current evidence of a diagnosis of PTSD. Since this prior final denial, VA treatment records including a September 2015 VA BHIC Mental Health Assessment and a September 2016 Neuro-Psychology Consult have been associated with the claims file. These records indicate a diagnose of PTSD. As such, new evidence, which relates to the basis for the prior denial and raises a reasonable possibility of substantiating the claim, has been presented and reopening is warranted. See 38 C.F.R. § 3.156. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder is remanded. As a preliminary matter, the Board notes the Veteran’s December 2015 claim sought service connection for PTSD and trauma. VA medical records note active problems include PTSD, major depressive disorder (MDD), and mild cognitive impairment. The Board notes that the scope of the Veteran’s mental health disability claims includes any mental health disability that may reasonably be encompassed by his description of the claim, reported symptoms, and other information of record. See Clemons v. Shinseki, 23 Vet. App. 1, 4-6 (2009). Accordingly, the Board has recharacterized the issue on appeal as entitlement to service connection for an acquired psychiatric disorder. There appear to be relevant medical treatment records which are not yet associated with the claims file. VA’s duty to assist requires reasonable efforts to ensure all relevant treatment records have been obtained and associated with the claims file. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). VA must also obtain relevant records from Federal departments or agencies. See 38 C.F.R. § 3.159(c)(2). The Veteran testified to receiving recent treatment at a private emergency room in Denver, Colorado. Additionally, an October 2010 statement from the Veteran reports he received treatment for PTSD at the Fitzsimons Army Hospital in Denver, Colorado. Recent private emergency room records and Fitzsimons Army Hospital records are not associated with the file. There is no indication of any efforts to obtain the outstanding records. Accordingly, a remand is required to assist the Veteran is obtaining outstanding relevant treatment records. Generally, service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110 ; 38 C.F.R. § 3.303. The evidence must show (1) the existence of a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection for PTSD requires (1) medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between a veteran’s present symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128, 139 (1997). If stressors which support a PTSD diagnosis are based on combat, fear of hostile military or terrorist activity, or prisoner-of-war experience, in some instances the Veteran’s statements alone may be sufficient to establish the occurrence of the claimed stressors. Otherwise, “credible supporting evidence that the claimed in-service stressor occurred” is required. See 38 C.F.R. § 3.304(f). A medical opinion is adequate where it is based upon consideration of the full medical history and describes a disability in sufficient detail so that the Board's evaluation will be fully informed. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The duty to assist requires VA to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with military service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Here, the Veteran submitted a May 2019 private psychiatric evaluation. The examiner, Q. A-S., PhD., diagnosed depression, PTSD and neurocognitive difficulties. He opined these conditions began during the Veteran’s active service while he worked in a military hospital. While Q. A-S. described the Veteran’s current difficulties in detail, he did not explain how the conditions were onset or why they were related to the Veteran’s service. The medical opinion is insufficient to evaluate the claim. See Stefl, supra. The Veteran VA treatment records reflect current psychiatric diagnoses of PTSD, MDD, and mild neurocognitive impairment. Military personnel records, associated with the claims file, show the Veteran served as a cook at the 97th General Hospital. The Veteran submitted a February 2016 statement recalling his duties included cleaning around dead bodies in the morgue area of the hospital. He testified to feeling distress when he worked around these bodies. He explained that being around the bodies made him think that he could be in the position of the deceased service members. He described this distress as continuing from his active service to the present. The Veteran’s current diagnosis of depression, his testimony that he initially experienced distressing thoughts during service, and his report that the thoughts continued to the present, are sufficient to trigger the VA’s duty to provide an examination as to entitlement to service connection for an acquired psychiatric disorder other than PTSD. See McLendon, supra. As to service connection for PTSD, the Veteran’s reported stressors (working near dead bodies, working around hospitalized service members who later died) are not verified. The reported stressors do not fall into an exception to the requirement of verification. See 38 C.F.R. § 3.304(f). The Board notes, following the Veteran’s submission of a February 2015 stressor statement (claiming to have transported dead bodies and provided meals to sick and injured service members who later died), the RO contacted the Joint Services Records Research Center (JSRRC) and attempted to verify the events. In a May 2015 memorandum, the JSRRC Coordinator explained that these reported stressors were not verifiable because the activities constituted routine work duties. The activities would not be included in the personnel records. As the JSRRC categorized the claimed events as routine duties, the Veteran may be able to provide other evidence, including buddy statements, to corroborate the claimed stressor. Accordingly, the RO must contact the Veteran and explain how he might provide evidence which corroborates his claimed stressors, such as the names of individuals he interacted with who later died. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from September 2017 to the present. 2. Obtain the Veteran’s federal records from Fitzsimons Army Hospital. If additional information is needed, contact the Veteran. Document all requests for information as well as all responses in the claims file. If no records are available from Fitzsimons Army Hospital, note this to the file. 3. Ask the Veteran to complete a VA Form 21-4142 for any medical treatment provider who may have records relevant to this claim. Make two requests for the authorized records from any treatment provider identified, unless it is clear after the first request that a second request would be futile. 4. Contact the Veteran and provide information as to how he might provide credible supporting evidence that his claimed stressors occurred, such as the names of the service members he interacted with who later died. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any diagnosed psychiatric disorder. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including working around dead bodies during active service. If PTSD is diagnosed, the examiner must identify the stressor or stressors upon which the diagnosis of PTSD is made. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jeanne Celtnieks 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.