Citation Nr: 20004849 Decision Date: 01/22/20 Archive Date: 01/21/20 DOCKET NO. 12-08 345 DATE: January 22, 2020 ORDER The claim for service connection for posttraumatic stress disorder (PTSD) is reopened. Service connection for a mental illness for purposes of establishing eligibility for VA treatment under 38 U.S.C. § 7102 is granted. REMANDED Entitlement to service connection for PTSD is remanded. Entitlement to service connection for a psychiatric disorder other than PTSD, including depression, is remanded. FINDINGS OF FACT 1. The claim for service connection for PTSD was last denied in a June 2008 rating decision, which the Veteran did not appeal. 2. Since the June 2008 rating decision was issued, new evidence has been received that favorably relates to an unestablished fact necessary to substantiate the claim; that evidence is not merely redundant of evidence previously of record, and raises a reasonable possibility of substantiating the claim. 3. The Veteran’s psychiatric disorder manifested within two years of separation from active service. CONCLUSIONS OF LAW 1. The June 2008 decision is final with regard to the denial of service connection for PTSD. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The criteria for reopening the claim for service connection for PTSD have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for a mental illness for the purpose of establishing eligibility for VA treatment have been met. 38 U.S.C. §§ 1702, 5107. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1999 to March 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions dated in July 2010 and March 2015 of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned in November 2019. A transcript is of record. Petition to Reopen Claim A determination on a claim by the agency of original jurisdiction of which the claimant is properly notified is final if no notice of disagreement (NOD) is filed within the prescribed time period, or an appeal is not perfected pursuant to 38 C.F.R. § 20.302. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103; see 38 C.F.R. §§ 20.200, 20.201, 20.302 (setting forth requirements and timeframe for initiating and perfecting an appeal under VA’s legacy appeal system). To reopen a previously and finally disallowed claim, new and material evidence must be submitted by the claimant or secured by VA with respect to that claim since the last final denial, regardless of the basis for that denial. See 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). “New and material evidence” is defined as follows. “New evidence” means evidence not previously submitted to agency decision makers, and “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. 38 C.F.R. § 3.156(a). To warrant reopening, the new evidence must neither be 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. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed, unless it is inherently false or untrue. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). PTSD Service connection for PTSD was originally denied in a March 2006 rating decision. The Veteran was notified of the decision and his appellate rights in a March 2006 letter. He did not timely appeal that decision and it became final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. He sought to reopen the claim for PTSD in February 2008. See February 2008 VA Form 21-4138. A June 2008 rating decision denied reopening the claim, finding that new and material evidence had not been submitted. The Veteran was notified of the decision and his appellate rights in a June 2008 letter. See 38 U.S.C. § 5104; 38 C.F.R. §§ 3.103, 19.25. He did not submit a timely NOD. See 38 C.F.R. §§ 20.200, 20.202, 20.302. Accordingly, the June 2008 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The June 2008 rating decision denied reopening the claim for PTSD, in part, because it found that the Veteran had not submitted sufficient evidence of an in-service stressor or a medical link between that stressor and his PTSD symptoms. Since the June 2008 rating decision was issued, the Veteran has submitted new, non-cumulative evidence regarding his in-service stressors and a link to his PTSD diagnosis. Specifically, he submitted a November 2014 witness statement by an individual who served with the Veteran regarding training in a simulated battlefield; a statement by his mother describing how his behavior changed when he returned from active service; and statements describing his in-service stressors in further detail and how they affected him. See, e.g. January 2016 VA Form 21-0781. The newly submitted evidence relates to the outstanding issues of whether there is an established in-service stressor and whether such is medically linked to the Veteran’s diagnosed PTSD. See 38 C.F.R. § 3.304(f). In conjunction with the Veteran’s diagnoses of PTSD in the VA treatment records and the findings by mental health professionals that his PTSD is related to his military service, the Board finds that the newly submitted evidence raises a reasonable possibility of substantiating the claim. Accordingly, new and material evidence has been submitted to reopen the claim for PTSD. See 38 C.F.R. § 3.156. Service connection for Mental Illness for the Purpose of Establishing Eligibility for VA treatment under 38 U.S.C. § 1702 Under 38 U.S.C. § 1702(b), any veteran of the Persian Gulf War who develops an active mental illness (other than psychosis) shall be deemed to have incurred such disability in the active military, naval or air service if the veteran develops such disability within two years after discharge or release from active service, and before the end of the two-year period beginning on the last day of the Persian Gulf War. As the Veteran served from April 1999 to March 2004, he is a veteran of the Persian Gulf War. See 38 C.F.R. § 3.2(i). In September 2005, less than two years after separation from service, he filed a claim for PTSD. There is no medical evidence of a psychiatric disorder until December 2007—more than three years after service separation—when the Veteran was diagnosed with PTSD by a VA psychologist following a detailed evaluation. He has continued to be diagnosed with PTSD since that time. See, e.g., September 2019 VA PTSD Disability Benefits Questionnaire. Although the record does not show a diagnosis of PTSD or any other mental health condition prior to December 2007, the Board finds the September 2005 claim for PTSD itself, in light of the subsequent diagnoses, sufficient to show that the Veteran developed mental illness within two years of separation from service, resolving reasonable doubt in favor of the Veteran. See 38 C.F.R. § 3.102. In this regard, VA law recognizes that the diagnosis of a disease is not required to establish its existence or onset date, and that its presence may be shown well before the actual diagnosis by competent evidence of signs and symptoms of the disease. See Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); 38 C.F.R. § 3.303(d). Although the Veteran, as a lay person in the field of medicine and mental health, could not himself provide a competent diagnosis of PTSD, his September 2005 claim is evidence that he had a mental health condition at the time, when viewed in light of the subsequent medical records. The Board finds this is especially so given the diagnosis of PTSD about a year and three months later, which is relatively close in time to that claim. Accordingly, service connection for a mental illness for purposes of eligibility for VA treatment under 38 U.S.C. § 1702 is granted. REASONS FOR REMAND The claims for service connection for a psychiatric disorder, including PTSD and depression, are remanded for further development, as detailed below. The Veteran’s service treatment records are not in the file. A May 2010 memorandum for the file makes a formal finding that his service treatment records are unavailable, and states they were misplaced while in VA’s possession. Letters dated in September 2009 and May 2010 informed the Veteran of the missing records, and asked him to provide any in his possession. He has also been notified of types of evidence that can potentially substitute for those records. Further efforts to obtain the service treatment records are warranted. A review of the record shows that the Veteran’s service treatment records were not, in fact, misplaced by VA. Rather, the record shows he submitted them to VA in April 2004 in support of a previous claim. He requested that the service treatment records be returned once VA no longer needed them. See April 2004 VA Form 21-4138. The RO listed them as evidence in a July 2004 rating decision. A July 2004 deferred rating decision instructed that the service treatment records be returned to the Veteran per his request. The RO accordingly mailed the service treatment records back to the Veteran, as reflected in a copy of August 2004 correspondence sent to him. Unfortunately, copies of the service treatment records were not made and retained for the file. Thus, the service treatment records were not lost by VA, but rather mailed back to the Veteran. Indeed, a February 2010 letter from the Veteran’s treating physician at VA states that he reviewed the Veteran’s service treatment records, thus indicating that the Veteran made them available to that physician for review. Therefore, there is every indication they have been in the Veteran’s possession. A September 2019 request from the Veteran to VA for his service treatment records raises the possibility that he no longer has them, but the Board finds another effort is warranted. See September 2019 VA Form 21-4138. On remand, the Veteran should be informed that VA returned his service treatment records to him in August 2004. He should be again requested to submit any service treatment records in his possession. In addition, although there is every indication that the Veteran has, or at least used to have, his service treatment records, a request for such records should be made to the VA Records Management Center (RMC). The file does not show that such a request has been made. Regarding the claim for PTSD, the Veteran has recently provided more detail about his reported in-service stressors in March 2016 and December 2019 VA Forms 21-0781. He had not previously filled out those forms, and the RO had made a formal finding that there was insufficient information to assist in verification of these stressors, including by submitting a request to the U.S. Army and Joint Services Records Research Center (JSRRC). See May 2010 Memorandum. Now that the Veteran has provided additional detail regarding his stressors, the agency of original jurisdiction (AOJ) should determine whether there is sufficient information to submit a request for verification to the JSRRC, or whether the stressors may otherwise be verified. Regarding the claim for depression, a VA examination was performed in February 2015. In the examination report, the examiner opined that the Veteran’s depression was a symptom of PTSD, and not secondary to his service-connected wrist condition. The Board finds that a new examination and opinion are warranted. Regardless of whether the Veteran’s PTSD is manifested by depression, a medical examination and opinion should be obtained to determine whether he also has depression or any other psychiatric disorder directly linked to service or caused or aggravated by his service-connected wrist condition. The matters are REMANDED for the following action: 1. Inform the Veteran that VA had returned his service treatment records to him in August 2004, at his request. He should again be invited to submit any service treatment records in his possession. A request should also be submitted to the RMC for the Veteran’s service treatment records. 2. Add to the file any outstanding VA treatment records pertaining to the Veteran dated since June 2019. 3. Review the March 2016 and December 2019 VA Forms 21-0781 and determine whether they provide sufficient information to attempt verification of any of the Veteran’s reported in-service stressors, including via the JSRRC. If not, a formal finding to that effect should be made in a memorandum for the file. 4. Arrange for a new VA examination and medical opinion regarding the claim for depression, as specified below. After reviewing the file and examining the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran has a psychiatric disorder, including depression, directly linked to his active service. The examiner should also provide an opinion as to whether the Veteran’s depression is at least as likely as not caused or aggravated by his service-connected wrist condition, regardless of whether it is found to also be a symptom of PTSD (as stated in the February 2015 examination report). P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Rutkin, 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.