Citation Nr: 20009840 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 17-24 779 DATE: February 6, 2020 ORDER New and material evidence having been received, the claim for entitlement to service connection for posttraumatic stress disorder (PTSD) is reopened. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. FINDINGS OF FACT 1. An unappealed December 2007 Board decision is the last final decision that denied service connection for PTSD. 2. The evidence received since the final December 2007 Board decision is new and relates to unestablished facts necessary to substantiate the claim for service connection for PTSD. CONCLUSIONS OF LAW 1. The December 2007 Board decision denying service connection for PTSD is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.160(d), 20.302, 20.1103 (2018). 2. The criteria to reopen the service connection claim for PTSD are met. 38 U.S.C. §§ 5107, 5108 (2012); 38 C.F.R. § 3.156(a) (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant in this case, served on active duty from June 1973 to June 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran’s petition to reopen his claim for service connection for PTSD. Although the RO declined to reopen the Veteran’s PTSD claim, it is the Board’s jurisdictional responsibility to consider whether it is proper for a claim to be reopened. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). After reviewing the contentions and evidence of record, the Board recharacterizes the remanded issue as entitlement to service connection for an acquired psychiatric disorder in order to contemplate the Veteran's psychiatric symptoms, however diagnosed. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In January 2020, the Veteran and his spouse testified at a videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. 1. Whether new and material evidence has been received to reopen a claim of service connection for PTSD Rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement (NOD) with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160, 20.201, 20.302. If the Board issues a decision on appeal confirming the RO’s decision, then the Board’s decision subsumes the RO’s decision on the same issue at hand. 38 C.F.R. § 20.1104. Moreover, if the Board’s decision is not timely appealed, then it, too, is final and binding based on the evidence then of record. 38 C.F.R. § 20.1100. VA may reopen a claim that has been previously denied if new and material evidence is submitted by or on behalf of the claimant. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Regarding applications for reopening, 38 C.F.R. § 3.156(a) defines “new” evidence as evidence not previously submitted to agency decision makers and “material” evidence as 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 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(a). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179 (2003). In order to reopen a claim, it is not necessary that new and material evidence be received regarding each previously unproven element of a claim. Indeed, newly submitted evidence need not be overwhelming as a “low threshold” standard is applied. Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). In this matter, the Veteran’s original service connection claim for PTSD was denied by the RO in a February 2005 rating decision. The Veteran appealed that decision to the Board. In a December 2007 decision, the Board denied the claim because there was no confirmed diagnosis of PTSD. The Veteran did not timely appeal the December 2007 Board decision; therefore, the decision became final. 38 C.F.R. § 20.1100. Thus, the question before the Board is whether the evidence received after the final December 2007 Board decision is both new and material. The record reflects that when the Board issued its December 2007 decision, the Veteran’s claims file contained an August 2004 claim application, a May 2005 NOD, service treatment records (STRs), military personnel records, VA treatment records, and a September 2005 lay statement from the Veteran. Evidence received since the December 2007 Board decision includes a June 2015 petition to reopen, updated VA treatment records, a Statement in Support of Claim for Service Connection for PTSD and photographs received October 2015, and a January 2020 Board hearing transcript. While the Board notes that STRs were added to the claims file in November 2013 and October 2015, review of these records confirms that they are either: (1) duplicates of STRs that were in the file as of the Board’s December 2007 decision; (2) illegible; or (3) not relevant to the Veteran’s PTSD claim as they do not relate to any claimed in-service event. Therefore, the exception to finality under 38 C.F.R. § 3.156(c) does not apply. Of note, in a September 2015 VA psychology initial evaluation note, the Veteran reported he had been having “issues related to combat related experiences while he served in Desert Storm” and reported symptoms of insomnia, intrusive thoughts, nightmares, cold sweats, anger, paranoid thinking, hypervigilance, avoidance, being emotionally distant, depressed, isolating himself, poor motivation, poor attention, concentration, and memory, nervousness, chronic worries, and past suicidal ideation. He endorsed experiencing trauma and having experiences during military service that were extremely frightening, horrifying, or upsetting. The VA provider, a psychologist, made a differential diagnosis of PTSD and found that the Veteran “presented with symptoms of PTSD and anger management issues.” In an October 2015 VA biopsychosocial assessment, the Veteran indicated that he experienced combat or other traumatic events during his military service in Desert Storm in 1990, that he received friendly or hostile incoming fire from small arms, artillery, rockets, mortars or bombs, and that he “saw dead bodies.” Also, an October 2015 “PTSD Checklist” completed by a licensed clinical social worker indicated that Criteria B, C, and D of the DSM-IV criteria for PTSD were met and that a PTSD diagnosis was suggested. The Board finds that the September and October 2015 VA treatment records are new as they were not previously submitted to the RO and they are material because they related to the unestablished elements of a possible PTSD diagnosis and in-service stressors. Accordingly, the Board concludes that the evidence received after the last final decision is new and material and, for these reasons, the petition to reopen is granted. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder is remanded. To date, VA has not obtained a competent medical examination and opinion addressing the Veteran’s claimed acquired psychiatric disorder. As previously mentioned, in a September 2015 VA psychology initial evaluation note, the Veteran reported he had been having “issues related to combat related experiences while he served in Desert Storm” and reported symptoms of insomnia, intrusive thoughts, nightmares, cold sweats, anger, paranoid thinking, hypervigilance, avoidance, being emotionally distant, depressed, isolating himself, poor motivation, poor attention, concentration, and memory, nervousness, chronic worries, and past suicidal ideation. He endorsed experiencing trauma and having experiences during military service that were extremely frightening, horrifying, or upsetting. The VA provider, a psychologist, made a differential diagnosis of PTSD and found that the Veteran “presented with symptoms of PTSD and anger management issues.” In an October 2015 VA biopsychosocial assessment, the Veteran indicated that he experienced combat or other traumatic events during his military service in Desert Storm in 1990, that he received friendly or hostile incoming fire from small arms, artillery, rockets, mortars or bombs, and that he “saw dead bodies.” Also, an October 2015 “PTSD Checklist” completed by a licensed clinical social worker indicated that Criteria B, C, and D of the DSM-IV criteria for PTSD were met and that a PTSD diagnosis was suggested. Given the possible PTSD diagnosis and evidence of in-service stressors, a VA examination should be afforded to him. McClendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the matter is REMANDED for the following action: 1. Complete any necessary development to corroborate the Veteran’s reported stressors, to include: (a) An incident that occurred on November 15, 1990 in the Persian Gulf to unit HHC 1/8 CAV in which one of the unit’s personnel carriers was hit by an Iraqi tank round, killing U.S. soldiers. (b) An incident that occurred in December 1990 in Saudi Arabia to unit HHC 1/8 CAV in which Saudi missiles were fired and hit the town to which the Veteran’s convoy was en route to pick up food and supplies. (c) An incident that occurred in November 1990 in Saudi Arabia to unit HHC 1/8 CAV on the “highway of death” with burned bodies in trucks and bodies run over by tanks. (d) Any other stressor(s) raised by the record. 2. Ensure that all outstanding VA treatment records are associated with the claims file. 3. Then, provide the Veteran with a VA examination by an appropriate examiner to determine the nature and etiology of any currently diagnosed psychiatric disorder. The claims file, and a copy of this Remand, must be made available to and be reviewed by the examiner. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail. After a thorough review of the record and examination of the Veteran, the examiner is asked to respond to the following: (a) Elicit from the Veteran and the record the history of his mental health during and since his active service. Although a complete review of the record is imperative, the examiner’s attention is called to the following: ** December 2002 VA treatment records. See positive depression screening and Veteran’s endorsement of 6 months of depression, anhedonia, and easiness to anger. ** May 2005 VA nursing immunization note. See Veteran’s statement that he has felt depressed for 10 years but with his faith is able to cope. (b) Identify all currently diagnosed psychiatric disorders and, if possible, the onset of same. Clarify whether the Veteran meets the DSM-5 diagnostic criteria for PTSD, addressing the following evidence: ** June 2007 VA nursing outpatient note. See positive screening for PTSD. ** September 2015 VA psychology initial evaluation note. See Veteran’s report he had been having “issues related to combat related experiences while he served in Desert Storm” and symptoms of insomnia, intrusive thoughts, nightmares, cold sweats, anger, paranoid thinking, hypervigilance, avoidance, being emotionally distant, depressed, isolating himself, poor motivation, poor attention, concentration, and memory, nervousness, chronic worries, and past suicidal ideation. He endorsed experiencing trauma and having experiences during military service that were extremely frightening, horrifying, or upsetting. The VA provider, a psychologist, made a differential diagnosis of PTSD and found that the Veteran “presented with symptoms of PTSD and anger management issues.” ** October 2015 VA biopsychosocial assessment. See Veteran’s indication that he experienced combat or other traumatic events during his military service in Desert Storm in 1990, that he received friendly or hostile incoming fire from small arms, artillery, rockets, mortars or bombs, and that he “saw dead bodies.” ** October 2015 VA mental health diagnostic study note. See “PTSD Checklist” completed by a licensed clinical social worker indicating that Criteria B, C, and D of the DSM-IV criteria for PTSD were met and that a PTSD diagnosis was suggested. ** November 2015 VA addendum. See VA psychiatrist’s opinion, based on a chart review, that since no VA provider documented significant impairment to the Veteran’s occupational or social functioning, “engagement in care in the specialized PTSD clinic is not necessarily indicated in this patient’s treatment.” ** December 2015 to March 2017 VA treatment records. See Dr. M.H.’s findings that the Veteran had some symptoms of PTSD but did not appear to meet the full criteria. ** January 2020 Board hearing transcript. See Veteran’s testimony that he believed he was being treated by Dr. M.H. for PTSD “[b]ecause of the medication that he prescribed to me and some of the questions that were asked of me,” stating he did not feel comfortable talking to Dr. M.H. about “what I had seen and what happened to me while I was deployed,” indicating that he witnessed death while serving in the military, was shot at, was around other soldiers in his unit who were shot and killed, had to pick up Iraqi bodies and “had [them] on my truck for at least three or four days until we could get to a part to turn them in,” endorsement of problems sleeping, nightmares, irritability impacting his employment and personal relationships, and use of alcohol or drugs to cope. If PTSD is diagnosed, indicate the stressor(s) relied upon to render the diagnosis. (c) Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any of the Veteran’s current psychiatric disorders had their onset during service or are otherwise related to it. A complete rationale should be provided for all opinions. 4. Lastly, readjudicate the claim on appeal. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. M. Gill, 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.