Citation Nr: 20007763 Decision Date: 01/29/20 Archive Date: 01/29/20 DOCKET NO. 17-24 447 DATE: January 29, 2020 ORDER The claim for service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), bipolar disorder, panic disorder, and agoraphobia, is reopened. REMANDED Entitlement to service connection for the Veteran’s psychiatric disorder is remanded. FINDINGS OF FACT 1. The Veteran’s claim for entitlement to service connection for his psychiatric disorder was previously denied in a rating decision of August 2009. 2. The denial of service connection for the Veteran’s psychiatric disorder was confirmed and continued in a rating decision of April 2012. 3. The evidence received since the August 2009 rating decision is not cumulative and redundant of the other evidence of record and raises a reasonable possibility of substantiating the Veteran’s claim. CONCLUSION OF LAW New and material evidence has been received to reopen the issue of service connection for the Veteran’s psychiatric disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1984 to July 1987 and from January to June of 1991. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of April 2012 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. Following the rating decision on appeal, the Veteran timely filed his notice of disagreement (NOD) in February 2013. The RO issued a statement of the case (SOC) in February 2016 and a supplemental statement of the case (SSOC) in April 2017. The Veteran’s timely appeal to the Board followed in May 2017. The Veteran testified before the undersigned VLJ via videoconference in December 2019. A transcript of the hearing is of record. 1. Whether new and material evidence has been received to reopen the issue of service connection for the Veteran’s psychiatric disorder. As previously noted, the RO implicitly found that the Veteran had submitted new and material evidence by addressing his claim on the merits in the rating decision on appeal. However, under the legacy system of regulations, the Board reviews the RO’s findings de novo and must still address the issue of new and material evidence in its adjudication. See 38 C.F.R. § 3.104 (2018); cf. 38 C.F.R. § 3.104. Generally, “[if] new and material evidence is presented or secured with respect to a claim which has been disallowed, [VA] shall reopen the claim and review the former disposition of the claim.” 38 U.S.C. § 5108 (2018). “New evidence is evidence not previously part of the actual record… [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. However, new and material evidence can be sufficient to reopen a claim if it can satisfy at least one previously unproven element thereof. See Shade v. Shinseki, 24 Vet. App. 110, 120 (2010) (holding that regulations do not require evidence “as to each previously unproven element of a claim”) (emphasis added). The elements of service connection are the existence of a present disability, the in-service incurrence or aggravation of a disease or injury, and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (2004). The Veteran submitted stressor statements in July 2010 and underwent an additional VA examination in October 2010. The Board therefore finds that additional evidence was submitted in support of the first and second Shedden factors and that the Veteran has presented new and material evidence sufficient to reopen his claim for entitlement to service connection for a psychiatric disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS FOR REMAND 1. Entitlement to service connection for the Veteran’s psychiatric disorder. The Veteran’s most recent VA examinations on this issue were conducted in October 2010 and March 2016. Both of these VA examiners diagnosed the Veteran with bipolar disorder and alcohol abuse disorder, which they opined predated the Veteran’s military service. See October 2010 VA Examination Report at 15-17; see also March 2016 VA Examination Report at 3, 8. Both VA examination reports discussed the Veteran’s pre-military history of substance abuse; the March 2016 VA examination further discussed stressor events the Veteran reported he experienced during adolescence. See March 2016 VA Examination Report at 3. However, the Board finds that neither VA examination report is adequate to support adjudication. Where a veteran’s conditions are not noted upon examination at entrance, that veteran is presumed sound unless there is clear and unmistakable evidence that such conditions predated, and were not aggravated by, such service. 38 C.F.R. § 3.304(b). The VA examinations found symptoms and stressors that predated the Veteran’s service, but neither examination report addressed whether such findings clearly and unmistakably supported the conclusion that the Veteran’s psychiatric disorder predated his service. See October 2010 VA Examination Report at 15-17; see also March 2016 VA Examination Report at 8. Neither did they address the possibility that any psychiatric disorders predating the Veteran’s active duty service were aggravated by such service. Id. The Board is mindful of regulatory constraints on its ability to remand for further development, which “should not be undertaken when [the] evidence present is sufficient for this determination.” 38 C.F.R. § 3.304(c); see also McLendon, 20 Vet. App. at 81 (noting that the final analytical step in considering whether a VA examination is warranted is whether there is “insufficient competent medical evidence on file for the Secretary to make a decision on the claim”). The Board notes that the Veteran submitted VA treatment records of January 2013 in which a treating physician diagnosed PTSD “related to exposure to military combat stressors.” See February 2013 NOD at 4; see also January 2014 VA Medical Records at 45-46. However, these treatment records do not address the Veteran’s pre-military history of stressor events and substance abuse, nor explain why it is at least as likely as not that the Veteran’s psychiatric disorder is due to or aggravated by his active duty service as opposed to the pre-military history identified in the VA examinations. Id. The Board therefore finds that the January 2013 VA medical records are likewise inadequate to support adjudication of the Veteran’s claim. Furthermore, the Veteran testified at his hearing that he anticipated acquiring additional evidence in the imminent future. See Transcript at 4 (providing expectation of additional records “today” from “[the] Psychiatric Intake Center”). The Board is mindful of its responsibility to ensure that its decisions are based, in pertinent part, “on the entire record in the proceeding and upon consideration of all evidence and material of record[.]” 38 U.S.C. § 7104(a). This matter is therefore REMANDED for the following action: 1. Obtain any updated treatment records not yet associated with the Veteran’s claims file. If necessary, request that the Veteran authorize the release of such records. Once obtained, associate such records with the Veteran’s claims file. 2. Provide the Veteran’s updated claims file, including a copy of this remand, to an appropriately-qualified examiner. The examiner shall review the claims file and provide an opinion as to whether the Veteran’s psychiatric disorder clearly and unmistakably existed prior to his active duty service. If so, the examiner shall further opine as to whether the Veteran’s psychiatric disorder was clearly and unmistakably not aggravated by his service; in other words, whether any aggravation was clearly and unmistakably due only to the natural progress of the disease. 3. If the examiner does not find that the Veteran’s psychiatric disorder clearly and unmistakably existed prior to service, then the examiner shall provide an opinion as to whether it is at least as likely as not that the Veteran’s psychiatric disorder existed during service or is due to his active duty service. If the examiner cannot provide such an opinion without resorting to mere   speculation, the examiner shall explain why a more conclusive opinion cannot be reached. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Blore, 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.