Citation Nr: 20007521 Decision Date: 01/30/20 Archive Date: 01/29/20 DOCKET NO. 16-51 481 DATE: January 30, 2020 REMANDED Entitlement to service connection for an acquired psychiatric disorder, however diagnosed and previously claimed as posttraumatic stress disorder (PTSD), is remanded. ORDER New and material evidence having been received, entitlement to service connection for an acquired psychiatric disorder, however diagnosed and previously claimed as posttraumatic stress disorder (PTSD) is reopened. FINDINGS OF FACT 1. A September 2008 rating decision denied service connection for an acquired psychiatric disorder, identified as PTSD; the Veteran did not appeal, no new and material evidence was received within the appeals period, and the decision is final. 2. VA has received new evidence since a final September 2008 rating decision which relates to the basis for the prior denial and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW The criteria for reopening the issue of entitlement to service connection for an acquired psychiatric disorder have been met. 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 December 1984 to May 1985. He has additional service in the US Army Reserve. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a July 2014 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In November 2019, a hearing was held before the undersigned. The issues of entitlement to service connection for PTSD and entitlement to service connection for a psychiatric condition have been recharacterized as claim of entitlement to service connection for an acquired psychiatric disorder, however diagnosed, in accordance with Clemons v. Shinseki, 23 Vet. App. 1 (2009). In November 2015, the Veteran’s then representative submitted a letter, accompanied by the Veteran’s supporting statement, requesting expedited consideration of this claim. The letter and statement described a “terminal medical diagnosis.” No details of the Veteran’s condition were indicated. There is no subsequent mention of a terminal diagnosis associated with the file. This terminal condition was not noted during the November 2019 hearing. VA regulation requires appeals to be considered in docket order unless the appellant is seriously ill or is under severe financial hardship, or if other sufficient cause is shown. 38 C.F.R. § 20.900 (b). In this case, serious illness is not demonstrated and the motion to advance on the docket is denied. The claim will be considered in docket date order in accordance with VA regulation. Id. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, however diagnosed and previously claimed as posttraumatic stress disorder (PTSD). A September 2008 rating decision denied the Veteran’s claim of entitlement to 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 September 2008 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 (Agency of Original Jurisdiction) 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). The September 2008 rating decision denied entitlement to service connection for PTSD because there was no evidence this condition had been diagnosed. An August 2008 letter from A. F., the Veteran’s therapist at that time, was of record. A. F. diagnosed depression and explained that the Veteran experienced constant worry over his possible deployment in support of Operation Desert Shield/Desert Storm. Subsequently, the Veteran submitted a February 2016 letter from Dr. A. R., his psychiatrist. Dr. A. R. diagnosed major depression and explained that military service likely worsened his psychiatric symptoms because “[r]egimentation, a hierarchy, collective actions, and a code that cannot understand or relate to [a] required discipline were all stresses that [the Veteran] could not adequately deal with. The nature of military service and demands interfered with his psychological capacity to function.” This evidence is new. It is material to the issue at hand because it indicates a link between a current acquired psychiatric condition and the Veteran’s service. Dr. A. R.’s letter is sufficient to trigger VA’s duty to provide a medical examination. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Reopening is warranted. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder, however diagnosed and previously claimed as posttraumatic stress disorder (PTSD) and depression is remanded. Initially, the Board notes there appear to be outstanding relevant records which are not currently associated with the claims file. The Veteran’s form DD 214 shows his initial period of active duty was followed by reserve service. April 1994 service treatment records indicate the Veteran served in the US Army Reserve. However, the records of this reserve service, which are associated with the file, are incomplete. A remand is required to obtain any outstaning records of the Veteran’s service in the US Army Reserve. During the November 2019 hearing, the Veteran reported that he recieves Social Security disability benefits. Social Security Administration records are not associated with the claims file and these records are relevant to the claim at hand. A remand is required to allow VA to request these records. The Veteran’s November 2015 statement indicates he received a diagnosis of a terminal illness at the Boston VAMC. There are no records from any VA medical treatment facility associated with the file. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issue on appeal. A remand is required to allow VA to obtain them. Further, 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); 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, supra. As discussed above, the Veteran submitted medical evidence from his psychiatrist, Dr. A. R. This evidence shows a current diagnosis of an acquired psychiatric disorder. Dr. A. R. opined the Veteran’s psychiatric condition was aggravated by his military service. VA’s duty to provide an examination is triggered. The matters are REMANDED for the following action: 1. Obtain the Veteran’s complete service personnel records, to include all documents pertaining to his service in the US Army Reserve. Verify all active duty for training and inactive duty training dates for service in the US Army Reserve. If necessary, a request should be made to the Defense Finance and Accounting Service (DFAS). Document all requests for information as well as all responses in the claims file. 2. Obtain the Veteran’s complete service treatment records, to include documents pertaining to his service in the US Army Reserve. Document all requests for information as well as all responses in the claims file. 3. Obtain the Veteran’s federal records from the Social Security Administration. Document all requests for information as well as all responses in the claims file. 4. Obtain any outstanding VA treatment records, including any from the Boston VAMC. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any acquired psychiatric disorder. The examiner must opine whether any diagnosed acquired psychiatric disorder is at least as likely as not related to an in-service injury, event, or disease. (Continued on the next page)   If a diagnosis of PTSD, the examiner must identify the stressor or stressors upon which the diagnosis is made. If the Veteran is diagnosed with a personality disorder as well as PTSD or any other acquired psychiatric disorder, the examiner must opine whether the PTSD or other acquired psychiatric disorder was at least as likely as not superimposed on a personality disorder during active service and resulted in additional disability. 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.