Citation Nr: 20021270 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 15-30 291 DATE: March 25, 2020 ORDER New and material evidence has been received to reopen a claim of entitlement to service connection for a psychiatric disorder and for posttraumatic stress disorder (PTSD), and the claim is reopened. REMANDED The claim of entitlement to service connection for PTSD is remanded. The claim of entitlement to service connection for a psychiatric disorder is remanded. FINDING OF FACT 1. In an August 2013 rating decision, the RO denied service connection for PTSD and a psychiatric disorder to include, but not limited to, anxiety and depression. The Veteran did not appeal or submit new and material evidence within the one-year period thereafter. 2. Evidence received since the August 2013 rating decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the underlying claims of entitlement to service connection for a psychiatric disorder and for PTSD. CONCLUSION OF LAW 1. The August 2013 rating decision denying service connection for a psychiatric disrder to include but not limited to anxiety and depression and for PTSD is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2018). 2. New and material evidence has been received to warrant reopening of the claim of service connection for a psychiatric disorder to include but not limited to anxiety and depression and for PTSD. 38 U.S.C. §§ 5107, 5108 (2012); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1974 to August 1978. The Veteran is appealing rating decisions from August 2013 and August 2014 by the Department of Veterans’ Affairs (VA) Regional Office in St. Paul, Minnesota. The Veteran testified at a videoconference hearing in St. Paul, Minnesota in October 2018. New and material evidence has been received to reopen a claim of entitlement to service connection for a psychiatric disorder, and the claim is reopened. In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 3.104, 20.1100, 20.1103 (2017). A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108 (2012). Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285-86 (1996). 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 (2017). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. 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. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration 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, to include by triggering the Secretary’s duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117-18. Additionally, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Furthermore, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring new and material evidence. 38 C.F.R. § 3.156(c)(1). A claim is not reconsidered, however, where VA could not have obtained the records when it initially decided the claim because the records did not exist at that time, or because the claimant failed to provide sufficient information to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or any other official source. 38 C.F.R. § 3.156(c)(2). To establish service connection, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called nexus requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In an August 2013 rating decision, the RO denied service connection for an acquired psychiatric condition because there was no evidence of an event, disease or injury in service. The Veteran did not appeal that decision nor submit new and material evidence within one year. The rating decision is thus final based on the evidence then of record. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Evidence of record at the time of the August 2013 decision includes (1) service treatment records; (2) private treatment records from September 2006 to April 2007; (3) and statements in support of the Veteran’s claim from October 2012 and February 2013. Evidence submitted after the August 2013 decision includes the following: 1) additional service treatment records; 2) service personnel records; 3) a March 2015 VA examination; and (5) a June 2014 buddy statement. Reconsideration is not conducted herein as the additional STRs do not address any psychiatric condition and thus are irrelevant. The Board finds that new and material evidence has been presented. The evidence, including the June 2014 buddy statement and the March 2015 VA examination, is new because it was not previously submitted to VA. The evidence is material because it relates to unestablished facts necessary to establish the claim - evidence of a diagnosed psychiatric disorder and an in-service incident. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167. Additionally, the evidence is neither cumulative nor redundant as that evidence was not of record at the time of the prior denial. See 38 C.F.R. § 3.156(a). Further, new evidence is to be presumed credible for purposes of deciding whether a previously denied claim may be reopened. Justus, 3 Vet. App. at 513. Moreover, when considering the new evidence in conjunction with the evidence already of record, combined with VA assistance including an examination, it raises a reasonable possibility of substantiating the claim. Shade, 24 Vet. App. at 117. Accordingly, for all of the above reasons, the Veteran’s claims are reopened. REASONS FOR REMAND 1. The claim of entitlement to service connection for PTSD is remanded. First, remand is required for further development regarding the Veteran’s contentions about his in-service stressor. The Veteran contended in a February 2013 statement in support of his claim that he suffers from PTSD as a result of an in-service incident in which his superior officers ordered him to assault another marine for theft. He states that this incident left him traumatized and guilt-ridden. The Veteran also stated in an October 2012 statement in support of his claim that his PTSD may be due to events that occurred during basic training. He stated that in basic training his superiors would often force them to exercise until the floors were wet with sweat. The Veteran asserted that he witnessed a peer go into cardiac arrest multiple times from physical exertion and that he witnessed another peer jump from a third story window due to the stress. In a February 2013 statement, the Veteran provided the names of the superior officers who ordered him to assault another marine as well as the name of the marine who was assaulted. A June 2014 buddy statement provided by a marine who knew about the incident also confirmed that the marine that was assaulted went AWOL following this incident. The Veteran stated that a female marine had overheard the commotion and made a complaint to the Marine Corps Criminal Investigation Division (C.I.D.). The Veteran reports that he was called in for questioning by the C.I.D. Remand is required in order to obtain personnel records from the 29 Palms Marine Corps base as well as any records associated with the Veteran from C.I.D. Second, remand is also required in order to obtain an adequate VA examination. In March 2015 the Veteran was afforded a VA examination for his psychiatric conditions. The examiner concluded that the Veteran did not have PTSD under the DSM-V criteria. The examiner also opined that the Veteran may be malingering due to his inconsistent reports. The examiner failed, however, to address a July 2014 letter from the Veteran’s VA physician which stated that the Veteran was diagnosed with PTSD in January 2014 and had been undergoing treatment in a PTSD program at the Minneapolis VA for several years. The physician also stated that the Veteran had been receiving evidence-based treatment for his PTSD and confirmed the Veteran’s PTSD diagnosis. A VA examination should be provided in order to address the conflicting diagnosis from the Veteran’s treating VA physician and to address the Veteran’s alleged malingering. 2. The claim of entitlement to service connection for a psychiatric disorder, to include as secondary to service-connected bilateral hearing loss and a skin disorder, is remanded. Remand is required for a VA examination to determine whether the Veteran’s psychiatric disorder is caused or aggravated by his service-connected conditions. The Veteran contends that his psychiatric condition was caused by the aforementioned incidents from his time in basic training. In the alternative, the Veteran also asserts that his anxiety and depression may be caused by his several other service-connected disabilities. Namely, the Veteran asserts that the difficulties he experiences due to his service-connected bilateral hearing loss and service-connected skin disorder contributes to his psychiatric disorder. The Veteran was diagnosed with anxiety disorder not otherwise specified in a March 2015 VA examination. In the March 2015 VA examination, the examiner opined that the Veteran’s anxiety was likely due to his medical conditions, namely his recent heart attacks. However, the examiner failed to address whether his anxiety could also be caused or aggravated by any of the Veteran’s service-connected health conditions. The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. Obtain the Veteran’s service treatment records. Specifically, the Veteran’s separation examination. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified, and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. Provide the Veteran the notice required by 38 C.F.R. § 3.304(f)(5) for claims of service connection based on an in-service assault stressor. This letter must afford the Veteran the opportunity to identify or submit any additional pertinent evidence in support of his claim, or to advise VA of the potential source or sources of evidence other than his service records, or evidence of behavioral changes that might constitute independently verifiable credible supporting evidence of his purported in-service stressors. The Veteran must be provided with specific examples of corroborating alternative evidence. 4. Request records from the Marine Corps Criminal Investigation Division regarding any incidences or actions related to the Veteran while at 29 Palms Marine Corps base in 1974. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 5. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his psychiatric disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. First, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that each diagnosed psychiatric disorder had onset in, or is otherwise related to, active military service. Second, the examiner must also provide an opinion whether it is at least as likely as not (50 percent or greater probability) that each diagnosed psychiatric disorder is caused or aggravated by his service connected bilateral hearing loss and/or basal cell carcinoma. Third, for each diagnosed psychiatric disorder other than PTSD, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the disorder had onset in, or is otherwise related to, active military service, to include the alleged in-service incidents regarding the assault. The examiner must address the following: 1) the Veteran’s statements in support of his claims from October 2012 and February 2013; 2) the Veteran’s October 2018 Board hearing testimony; 3) the June 2014 buddy statement; and 4) the 2015 VA examination report. 6. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of claimed PTSD. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. First, the examiner must specifically determine if PTSD is present. Second, if the Veteran has a present diagnosis of PTSD, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that PTSD is related to a verified in-service stressor. Third, if stressor verification is not accomplished and a diagnosis of PTSD is deemed appropriate, the examiner must provide an opinion as to whether it is at least as likely as not (i.e., a probability of at least 50 percent or more) that the Veteran exhibited symptoms and behaviors consistent with behavioral changes expected to follow from the claimed personal assault, and if so, whether PTSD is related to the alleged incident. The examiner must address the following: 1) the Veteran’s assertions of in-service stressors including buddy statements; 2) the 2015 VA examination report; and 3) the July 2014 letter provided by the Veteran’s treating VA physician. 7. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2018). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ashley Ki 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.