Citation Nr: 20007187 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 17-24 616 DATE: January 28, 2020 ORDER New and material evidence having been received, the petition to reopen the claim of service connection for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection for an acquired psychiatric disability, including posttraumatic stress disorder (PTSD), anxiety, depression, and insomnia, to include as secondary to service-connected tinnitus, 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 a July 2006 rating decision, the Regional Office (RO) denied service connection for PTSD. The Veteran did not file a notice of disagreement (NOD) and no new and material evidence was received within the appeal period. 2. The evidence since the July 2006 rating decision is not duplicative or cumulative of evidence previously of record and it raises a reasonable possibility of substantiating the Veteran’s claim of service connection for PTSD. CONCLUSION OF LAW The criteria for reopening the claim of service connection for PTSD have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty service from August 1966 to July 1968, including service in Vietnam. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision, which, in pertinent part, continued the previous denial of service connection for PTSD also claimed as anxiety and sleep disorder and denied entitlement to a TDIU. The Veteran and his wife testified at a hearing before the undersigned Veterans Law Judge (VLJ) in November 2019. A copy of the transcript has been reviewed and associated with the claims file. The scope of the Veteran’s mental health disability claim includes any mental disability that may be reasonably encompassed by the Veteran’s description of the claim, reported symptoms, and other information of record. See Clemons v. Shinseki, 23 Vet. App. 1, 4-6 (2009). In the present case, the evidence shows multiple possible mental health diagnoses, to include depression, anxiety, posttraumatic stress disorder (PTSD), and insomnia. Accordingly, the Board has recharacterized the issue on appeal as service connection for an acquired psychiatric disorder. Whether new and material evidence has been received to reopen the claim of service connection for PTSD. Applicable law provides that a final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. 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. 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 credibility of the evidence is presumed in determining whether new and material evidence has been submitted. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. In the present case, the claim of service connection for PTSD was denied in a July 2006 rating decision because there was no diagnosis of PTSD and no stressor statement provided. The evidence of record at the time of the July 2006 rating decision consisted of the claim form, service treatment records, DD Form 214, military personnel records, and VA treatment records. Since the July 2006 rating decision, VA treatment records, statements from the Veteran and his representative, stressor statements, hearing testimony, VA examinations, VA treatment records, and an April 2019 statement by A.W., licensed psychologist, have been associated with the claims file. After a review of the evidence, the Board finds that new and material evidence has been received to reopen the claim of service connection for PTSD. The evidence is new, as it was not part of the record at the time of the July 2006 rating decision. It is also material as it relates to an unestablished fact necessary to substantiate the claim. Specifically, an April 2019 opinion by A.W. indicates that the Veteran may have a diagnosis of PTSD that is related to his service in Vietnam. Accordingly, the evidence is new and material and the claim of service connection for PTSD is reopened. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disability, including posttraumatic stress disorder (PTSD), anxiety, depression, and insomnia, to include as secondary to service-connected tinnitus is remanded. In the present case, the Veteran submitted a claim for an acquired psychiatric disability, including PTSD, in March 2014. For VA compensation purposes, service connection for PTSD requires medical evidence diagnosing the disability in accordance with 38 C.F.R. § 4.125(a). See 38 C.F.R. § 3.304(f). Section 4.125(a) provides that, for VA compensation purposes, the diagnosis of a mental disorder must conform to the Diagnostic and Statistical Manual of Mental Disorders (4th ed.), i.e. DSM-IV. 38 C.F.R. § 4.125(a). For claims received by, or pending before the RO, on or after August 4, 2014, the provisions of 38 C.F.R. § 4.125 have been amended to require that a PTSD diagnosis conform to the Fifth Edition (DSM-5). See 38 C.F.R. §§ 4.125, 4.130; 79 Fed. Reg. 45093 (Aug. 4, 2014). The Veteran underwent a VA examination in May 2015, at which time the examiner did not find a diagnosis of PTSD according to the DSM-5 criteria. The examiner assessed the Veteran with alcohol use disorder in sustained remission and unspecified depressive disorder and found that they were not related to service, but rather, related to his current life stressors. During a June 2015 VA examination for hearing loss and tinnitus, the examiner concluded that the Veteran’s tinnitus contributed to his anxiety and sleep problems. The Veteran submitted a medical opinion by A.W., licensed psychologist, dated in April 2019. A.W. assessed the Veteran with PTSD and major depressive disorder and concluded that his PTSD was related to his traumatic experiences in Vietnam and that his major depressive disorder was secondary to his PTSD. After a review of the evidence, the Board finds that a new VA examination is warranted. In this regard, the May 2015 examiner failed to discuss the additional psychiatric diagnoses of the Veteran, including anxiety and insomnia. Furthermore, a subsequent VA examination indicated that the Veteran’s tinnitus contributed to his anxiety and sleep problems. Lastly, the Board is regrettably unable to grant service connection for PTSD based on the April 2019 opinion by A.W. given that she did not diagnose PTSD according to the criteria set forth in DSM-4 or DSM-5, but rather, utilized the Clinician Administered PTSD scale to render a diagnosis of PTSD. See 38 C.F.R. §§ 3.304(f), 4.125. Furthermore, the Veteran testified at the hearing and indicated that he received treatment for PTSD at the Vet Center. In addition, his VA treatment records indicate that he sees an outside provider for a sleep disability. Accordingly, the Board finds that RO should obtain these additional records on remand. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. The Veteran filed a claim of entitlement to a TDIU and testified at the hearing that he is unable to work, in part, due to his psychiatric disability. Accordingly, the Board finds that the issue of entitlement to TDIU is intertwined with his claim of service connection for a psychiatric disability and will defer adjudication at this time. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file the Veteran’s updated VA treatment records from October 2019 to the present. 2. Obtain and associate with the claims file the Veteran’s Vet Center treatment records. 3. Ask the Veteran to identify any pertinent private medical treatment for his psychiatric disabilities, including insomnia, and furnish the appropriate authorization(s) for the release of the medical records. If the Veteran fails to furnish the necessary release for private treatment records, he should be advised to obtain the records and submit them to the VA. 4. After completion of #1, #2, and #3, schedule the Veteran for a VA examination to determine the nature and etiology of any psychiatric disability. The claims file, including a copy of this remand, must be reviewed by the examiner and such review should be noted in the examination report. The examiner should identify and discuss all psychiatric disabilities found on examination and/or identified during the pendency of this claim, including PTSD, depression, anxiety, and insomnia. If PTSD is found by the examiner, he or she should identify the stressor(s) the diagnosis is based upon. The examiner should respond to the following: A. Is it at least as likely as not (probability of at least 50 percent) that the Veteran’s psychiatric disability was caused by his service-connected tinnitus? B. Is it at least as likely as not (probability of at least 50 percent) that the Veteran’s psychiatric disability has been aggravated (any incremental increase in disability) by his service-connected tinnitus? If aggravation is found, is there medical evidence created prior to the aggravation or between the aggravation and psychiatric disability that shows a baseline of his psychiatric disability prior to aggravation? If so, please identify. C. If the Veteran’s psychiatric disability was not caused and/or aggravated by his service-connected tinnitus, is it at least as likely as not (probability of at least 50 percent) that the Veteran’s psychiatric disability had its onset in and/or is otherwise related to his period of active duty, including his stressor(s) in Vietnam? D. If service connection is found for a psychiatric disability, please discuss the impact of the disability on his ability to work. The examiner must provide a comprehensive rationale for each opinion provided. The examiner should discuss the medical report by A.W. dated in April 2019. If the examiner does not find a diagnosis of PTSD on examination or contained in the record, he or she should discuss this opinion versus the opinion reflected by A.W. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. (Continued on the next page)   If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. (Hurley) Merrick 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.