Citation Nr: 20007481 Decision Date: 01/29/20 Archive Date: 01/29/20 DOCKET NO. 17-40 104A DATE: January 29, 2020 ORDER New and material evidence having been received, the application to reopen the previously denied claim of service connection for posttraumatic stress disorder is granted. REMANDED The issue of service connection for posttraumatic stress disorder is remanded. FINDINGS OF FACT 1. The May 2013 rating decision denied service connection for posttraumatic stress disorder (PTSD). Although the Veteran was notified of the RO’s decision and his appellate rights in a May 2013 letter, he did not perfect an appeal within the applicable time period, nor was new and material evidence received within one year of the issuance of that decision. 2. The evidence received since the final May 2013 rating decision includes evidence which relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim of service connection. CONCLUSION OF LAW The May 2013 rating decision denying the claim of service connection for posttraumatic stress disorder, is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 3.104, 20.302, 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1961 to March 1965. This matter comes before the Board of Veterans’ Appeals (Board) from an October 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which denied, in pertinent part, claim of service connection for posttraumatic stress disorder (PTSD). The Veteran submitted a Notice of Disagreement (NOD) in November 2015 and a Statement of the Case (SOC) was issued in July 2017. The Veteran perfected an appeal by submitting a timely VA Form 9 in August 2017. The Veteran was notified in November 2019 that his claim of service connection for chronic lymphocytic leukemia based upon claimed herbicide exposure would be temporarily suspended. The Veteran’s representative submitted a brief on the PTSD claim in November 2019. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). 1. Whether new and material evidence was received to reopen the previously denied claim of service connection for posttraumatic stress disorder In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. For claims such as this one, filed on or after August 29, 2001, 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 must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening the claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the credibility of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). 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). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence related 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, to include by triggering the Secretary’s duty to assist. Id. at 118. Factual Background V.A. Medical Center records from June 2011 show that the Veteran had a negative screen for PTSD. In January 2012, the Veteran did not meet the criteria for a current anxiety disorder or PTSD. The Veteran did report traumatic experiences in the military, however, describing feelings of “helplessness” and strong feelings of fear “when two sailors on his ship fell into the water.” He also described a “U-boat surfacing unexpectedly and him fearing ‘something could happen and we could never know.’” The practitioner noted that the Veteran’s symptoms did not appear to be of sufficient severity, or cause marked distress, to represent “additional PTSD intervention or assessment.” Records from February 2012 show that the Veteran was diagnosed as having anxiety disorder, NOS with a GAF score of 64. The medical practitioner noted that the Veteran did not “endorse a range of symptoms of severity level associated with PTSD.” In May 2013, the RO denied service connection for PTSD citing that there is “no support for [his] claim that this condition is caused by or related to any event, disease, or injury in service.” The Veteran submitted a statement showing disagreement with the decision in June 2013. In December 2013, he contended that his PTSD was due to his service in the Republic of Vietnam. The RO issued a SOC in June 2014 continuing the denial. It cited the lack of a stressor and the lack of a current diagnosis of PTSD as the bases of the denial. The Veteran responded in December 2014, more than a year after the May 2013 rating decision and more than 60 days after the June 2014 SOC, stating that he had anger problems. He contended that his mental health problems were caused by working in the engine room as he was afraid of the ship catching fire. A private practitioner also submitted a letter in December 2014, stating that the Veteran was diagnosed as having PTSD with a GAF score of 50. Buddy statements from his mother and sister, describing the Veteran’s symptoms, were also submitted. In January 2015, the RO denied the Veteran’s application to reopen the claim of service connection for PTSD. It found that the private medical opinion “failed to show a current diagnosis related to an in-service stressor in accordance with DSM IV or DSM V.” It also found that the May 2013 rating decision became final in May 2014 as the Veteran did not file a timely appeal. In August 2015, the Veteran submitted statements describing his stressors. His stressor was “anger,” starting in the Navy, as a result of not getting enough sleep and getting screamed at in service. He also cited feelings of isolation, fear of being cut in half with steam, sleep problems, fear of fire, fear of enemy attack, and fear of the ship sinking as stressors. His ship, the U.S.S. Cimarron, was the “oldest ship” and carried “many gallons of fuel oil.” The Veteran also alleged that his ship collided with the “U.S.S. Hassayompa” sometime between April and June of 1964, creating additional fear for his life. In October 2015, the RO reopened the claim of service connection for PTSD but continued its denial after conceding the existence of stressors in service. The RO stated that while the Veteran’s service treatment records reflected complaints, treatment, or a diagnosis similar to that claimed, the medical evidence supported the conclusion that a persistent disability was not present in service. It also cited an unnamed “VA medical opinion” that found no link between the Veteran’s diagnosed medical condition and military service. The Veteran submitted a NOD in November 2015 describing how he feared for his life on the ship, including new contentions that exposure to chemicals also contributed to his fear. In January 2016, he reiterated that his ship hit another ship in 1964. VA Medical Center records show that the Veteran had a positive screen for PTSD in August 2015 but had a negative screen in October 2016. In a July 2017 SOC, the RO continued the denial of service connection for PTSD as the “objective evidence of record does not show . . . PTSD which was incurred in or caused by military service.” In November 2019, the Veteran’s representative submitted a written brief contending that there was a current diagnosis of PTSD and that the stressors were conceded. Analysis The Veteran did not perfect an appeal within the applicable time period after the May 2013 rating decision. Thus, the May 2013 rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. The Veteran does not contend otherwise. Since the last prior final decision in May 2013, additional evidence has been added to the record, as listed above. Specifically, the additional private medical evidence diagnosing the Veteran as having PTSD, and the concession of in-service stressors by the RO, present material evidence relating to an unestablished fact necessary to substantiate the claim. Therefore, new and material evidence has been received since the May 2013 rating decision and the prior final disallowance of the claim of service connection for PTSD is reopened. Although the newly received evidence is adequate for the limited purpose of reopening the claim, given the evidence currently of record, it is not sufficient to allow the grant of the benefits sought. See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998) (material evidence is evidence that would contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant the claim); see also Shade v. Shinseki, 24 Vet. App. 110, 124 (2010) (noting that “[n]ew and material evidence is evidence that-if found credible-would either entitle the claimant to benefits or to some further assistance from the Secretary in gathering evidence that could lead to the granting of the claim. Of course, once a claim is reopened, the adjudicator may determine that the new evidence is not credible or is outweighed by other evidence”). Once a claim is reopened, the statutory duty to assist is triggered. See 38 U.S.C. § 5103. For reasons explained below, additional development is necessary before the Board may proceed to a decision on the merits. REASONS FOR REMAND 1. Service connection for posttraumatic stress disorder is remanded. The December 2014 private examiner indicated the Veteran had a PTSD diagnosis but did not state whether the diagnosis was made using the DSM-IV or DSM-V criteria. VA treatment records indicate mixed screenings for PTSD but does not indicate whether the Veteran was given a formal diagnosis which meets the criteria under DSM-V, as required for a PTSD diagnosis for claims pending before the Board (i.e., certified for appeal to the Board) after August 4, 2014. See 80 Fed. Reg. 14308 (March 19, 2015). Thus, clarification is needed on whether the Veteran has a PTSD diagnosis under the DSM-V criteria. Thus, the opinion is inadequate, and a new VA examination is warranted on remand. The matters are REMANDED for the following action: Schedule the Veteran for an examination by a VA clinician to determine the nature and etiology of any psychiatric condition, including PTSD. The clinician should review the virtual file. The clinician is to address the following: (a) Identify whether PTSD is present under the DSM-V. If no such diagnosis is warranted, please reconcile your findings with the diagnosis of PTSD in the Veteran’s private medical records and the positive PTSD screen in August 2015. (b) If a diagnosis of PTSD under the DSM-V is warranted, specify whether that diagnosis is related to the Veteran’s fear of hostile military or terrorist activity. The presence of these stressors is conceded. (Continued on the next page)   A complete rationale should be given for all opinions and conclusions expressed. If unable to provide a medical opinion, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Yun 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.