Citation Nr: 20006804 Decision Date: 01/27/20 Archive Date: 01/27/20 DOCKET NO. 17-51 358 DATE: January 27, 2020 ORDER 1. The appeal to reopen a claim of service connection for posttraumatic stress disorder (PTSD) is granted. REMANDED 2. Entitlement to service connection for PTSD (on de novo review) is remanded. FINDINGS OF FACT 1. An unappealed May 2014 rating decision denied the Veteran service connection for PTSD based essentially on findings there was no current diagnosis of PTSD and that any such disability could not be related to his service because there was no corroboration for his alleged stressor event. 2. Evidence received since the May 2014 rating decision includes an August 1982 newspaper article that tends to corroborate the Veteran’s alleged stressor event and a January 2015 private physician’s statement suggesting a diagnosis of PTSD; relates to unestablished facts necessary to substantiate the claim of service connection for PTSD; and raises a reasonable possibility of substantiating such claim. CONCLUSION OF LAW New and material evidence has been received and the claim of service connection for PTSD may be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty for training (ACDUTRA) in the Army National Guard from August 1, 1979 to August 13, 1979 and from July 24, 1982 to August 7, 1982 and had additional National Guard service (and is a Veteran by having established service connection for a right eye disability, a hematoma, and tinnitus based on such service). This matter is before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision that continued a denial of service connection for PTSD because there was no confirmed PTSD diagnosis. In March 2016, within a year following the December 2015 rating decision, the Veteran requested reconsideration of the December 2015 rating decision and submitted evidence including a newspaper article that supported his stressor statement. A July 2016 rating decision readjudicated the matter, considering additional evidence that included a VA PTSD examination report. Therefore, this matter is addressed as an appeal from the December 2015 rating decision. In November 2019 a videoconference hearing was held before the undersigned; a transcript is in the record. Although the Regional Office (RO) implicitly reopened the claim of service connection for PTSD (by providing an examination in June 2016 and deciding it on the merits in a July 2016 rating decision), whether new and material evidence has been received to reopen the claim must be addressed in the first instance by the Board because that issue goes to the Board’s jurisdiction to reach the underlying claim and adjudicate it de novo. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the U.S. Court of Appeals for Veterans Claims (CAVC) held that the scope of a claim of service connection for a specific psychiatric diagnostic entity encompasses other psychiatric diagnoses shown. As the CAVC further noted, however, in claims to reopen where a previous final determination was limited to a specific diagnosis, a claim of service connection for a diagnosis other than the specific one previously adjudicated is a separate and distinct claim, rather than becoming part and parcel of the claim previously finally decided. Accordingly, the scope of this claim to reopen a claim of service connection for PTSD is limited to that specific diagnosis. 1. The appeal to reopen a claim of PTSD is granted. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. New and material evidence is defined by regulation. New evidence means evidence not previously submitted to agency decision-makers. Material evidence is 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 must raise a reasonable possibility of establishing the claim. See 38 C.F.R. § 3.156(a). The CAVC has held that 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). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). An unappealed May 2014 rating decision denied the Veteran service connection for PTSD based essentially findings there was no current diagnosis of PTSD and that any such disability could not be related to his service because there was no corroboration for his alleged stressor event. He was informed of, and did not appeal, that decision, or submit new and material evidence within a year following, and it is final. 38 U.S.C. § 7105. Evidence received since the May 2014 rating decision includes an August 1982 newspaper article that tends to corroborate the Veteran’s alleged stressor event (drowning of a member of his unit) and a January 2015 private treatment record that notes a diagnosis of PTSD and suggests that it is related to his service. As service connection for PTSD was previously denied on the basis that that there was no diagnosis of PTSD diagnosis and no corroborated alleged stressor event, for evidence to be new and material in the matter, it would have to be evidence not previously of record that tends to corroborate an alleged stressor events and to show the veteran has a diagnosis of PTSD related to the event. The private medical statement relates a diagnosis of PTSD to service, and the newspaper article tends to corroborate occurrence of an alleged stressor event. Such evidence relates to unestablished facts necessary to substantiate the claim of service connection for PTSD, and raises a reasonable possibility of substantiating such claim (particularly considering the low threshold standard for reopening endorsed by the CAVC in Shade, supra). Therefore, the additional evidence received is new and material, and the claim of service connection for PTSD, may be reopened. 38 U.S.C. § 5108. De novo consideration of the claim is addressed below. REASONS FOR REMAND 2. Service connection for PTSD (on de novo review) is remanded. A January 2015 private treatment record notes a diagnosis of PTSD, and the provider suggested it is related to the Veteran’s service. The opinion is inadequate for rating purposes because the diagnosis of PTSD diagnosis was not noted to be under DSM-V criteria, and the opinion appears to be based on an inadequate review of the record or solely on the Veteran’s reports. For example, the provider stated that the Veteran was “unable to sustain social relationships” although the Veteran is married and described having a close relationship with his children. On June 2016 VA PTSD examination, the examiner found that the Veteran’s symptoms did not meet the criteria for PTSD under DSM-V and that he did not have a mental disorder that conformed with DSM-V criteria. The examiner also expressed disagreement with the January 2015 private statement and. However, at the November 2019 videoconference hearing, the Veteran testified that he had received private PTSD treatment for several years, and the November 2019 private physician’s statement notes indicates the veteran was provided treatment since December 2014. A review of the record found that most of the private treatment records are not in the claims file, and have not been sought. As they are likely to be pertinent, they must be secured. The private provider’s statement noted a diagnosis of PTSD (purportedly under DSM-V criteria) and suggested that it was related to the Veteran’s service. However, the statement did not address the June 2016 VA opinion that found no PTSD diagnosis. Development for an addendum opinion that reconciles the conflicting opinions already in the record is necessary. The matter is REMANDED for the following: Ask the Veteran to identify all providers of evaluations or treatment he received for PTSD and authorizations for VA to obtain updated, to the present, records of any such private evaluations or treatment, to specifically include from Goldsboro Psychiatric Clinic and Eastern Carolina Medical Center. Secure for the record complete clinical records (any not already in the record) of the evaluations and treatment from all providers identified. If any private records identified are not received pursuant to a VA request, the Veteran should be so notified and advised that ultimately it is his responsibility to ensure that private records are received. 2. Then arrange for the Veteran’s record to be forwarded to the June 2016 examiner (or another psychiatrist or psychologist if that provider is unavailable) for review and an addendum opinion confirming the diagnosis and regarding the etiology of the Veteran’s claimed PTSD. [If further examination of the Veteran is deemed necessary for an opinion sought, it should be arranged.] The provider should be advised of what stressor event in service is acknowledged by VA to bee corroborated, and: Opine whether the Veteran has a diagnosis of PTSD based on a corroborated stressor event in service. The rationale provided should reflect consideration of his stressor statements, hearing testimony, and the August 1982 newspaper article that documents a soldier’s drowning during the Veteran’s ACDUTRA from July 24, 1982 to August 7, 1982. The rationale should also express (with reasoning included) agreement or disagreement with the November 2019 private opinion, and citation to supporting clinical data and medical principles. If PTSD is not diagnosed or is found to not be related to service, identify the factors necessary for such diagnosis found lacking or (if diagnosed but found to be unrelated to service) the stressor event underlying the diagnosis considered to be more likely. The examiner must include rationale with all opinions. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Bayles, 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.