Citation Nr: 20022548 Decision Date: 04/01/20 Archive Date: 04/01/20 DOCKET NO. 16-34 495 DATE: April 1, 2020 ORDER New and material evidence has been presented to reopen a claim of entitlement to service connection for posttraumatic stress disorder (PTSD). REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. FINDING OF FACT 1. A final June 2008 Agency of Original Jurisdiction (AOJ) rating decision denied service connection for PTSD on the basis that no new and material evidence had been submitted relating to an unestablished fact necessary to substantiate the claim, including whether the Veteran has a current diagnosis of PTSD. 2. The evidence received since the prior denial relates to unestablished facts and raises a reasonable possibility of substantiating the claim for entitlement to service connection for PTSD. CONCLUSION OF LAW Following the prior final denial of June 2008, new and material evidence has been presented to reopen the claim of entitlement to service connection PTSD. 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 1966 to November 1968. Although the Veteran’s claim was initially limited to the question of entitlement to service connection for PTSD, the medical evidence reflects additional acquired psychiatric disorders, including depression and anxiety. Therefore, the Board broadened the appeal to include service connection for an acquired psychiatric disorder, to include PTSD. See Clemons v. Shinseki, 23 Vet. App. 1, 9 (2009). 1. New and material evidence has been presented to reopen a claim of entitlement to service connection for PTSD If a claim of entitlement to service connection is denied by an AOJ decision and no notice of disagreement or additional evidence is filed within one year, that decision becomes final and generally cannot be reopened or allowed. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. Once that decision becomes final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Evidence is new and material if it: (1) has not been previously submitted to agency decision-makers; (2) by itself or in connection with evidence previously included in the record, relates to an unestablished fact necessary to substantiate the claim; (3) is neither cumulative nor redundant of evidence already of record at the time the last prior final denial of the claim sought to be opened; and (4) raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). Further, the threshold for raising a reasonable possibility of substantiating the claim is low. Shade, 24 Vet. App. at 117. Evidence may be considered new and material if it contributes “to a more complete picture of the circumstances surrounding the origin of a Veteran’s injury or disability, even where it will not eventually convince the Board to alter its rating decision.” Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). For the purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the evidence submitted since the last final AOJ or Board decision will be presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). A veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. See Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107(b)). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). However, the benefit of the doubt doctrine does not apply to a new and material analysis. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). In general, service connection is established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during periods of active service. 38 U.S.C. § 1110. Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In June 2008, the AOJ denied entitlement to service connection for PTSD on the basis that no new and material evidence had been presented since a May 2006 denial on the basis that the evidence failed to show a current diagnosis of PTSD. The evidence of record at that time included service treatment records, VA treatment records, and a Veteran statement. By letter dated June 2008, the Veteran was notified of this decision and his appellate rights. However, the Veteran did not appeal or submit new and material evidence within the one-year appeal period after notice of the decision was provided. Hence, that decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. The evidence received since the June 2008 decision includes a previously unconsidered Veteran statement, a VA examination, and additional VA treatment records suggesting a possible diagnosis of PTSD. See June 2012 Veteran Statement; February 2013 VA Treatment Records; and July 2013 VA Examination. This evidence relates to an unestablished fact needed to establish service connection (i.e., current diagnosis). Therefore, the Board finds that new and material evidence has been received and the criteria to reopen the Veteran’s claim of service connection for PTSD are met. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. Effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to “DSM-IV,” Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association, Fourth Edition (1994). The amendments replace those references with references to the recently updated “DSM-5.” As the Veteran’s claim was certified to the Board in August 2016 (i.e., subsequent to August 4, 2014), the DSM-5 is applicable to this case. More information is needed to allow the Board to make a fully-informed decision. It is unclear whether the Veteran has a current diagnosis of PTSD under the DSM-5. While the July 2013 VA examiner determined that the Veteran did not have a diagnosis of PTSD under DSM-IV, the examiner did not evaluate the Veteran under DSM-V, address relevant VA treatment records indicating positive screening for PTSD, or provide an adequate rationale for determining the diagnosed anxiety disorder is less likely than not related to service. A remand is needed to obtain an additional VA examination. The matters are REMANDED for the following action: 1. Obtain VA treatment records since December 2015 and associate them with the claims file. 2. Schedule the Veteran for an examination with a qualified psychiatrist to obtain an opinion regarding the nature and etiology of any diagnosed acquired psychiatric disorder, to include PTSD, depressive disorder, and/or anxiety disorder. If PTSD is diagnosed under DSM-5 criteria, the examiner should identify the stressor(s) supporting the PTSD diagnosis. For any acquired psychiatric disorder diagnosed under DSM-5 criteria other than PTSD, the psychiatrist should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disorder, including any diagnosed depression and/or anxiety disorder, began in service or is otherwise related to the Veteran’s military service. In addressing these issues, the psychiatrist should note that the Veteran’s description of his in-service stressors has been conceded, and should address the following: • the Veteran’s statements regarding his in-service stressors, including experiencing napalm attacks and convoy attacks, among several other combat experiences (see, e.g., October 2015 VA Treatment Records; July 2012 and April 2006 Veteran Statement;) • conflicting VA treatment records reflecting positive and negative screening for PTSD (see, e.g., February 2013 and July 2013 VA Treatment Records); • additional diagnoses of depression and anxiety (see, e.g., February 2013 and July 2013 VA Treatment Records); and • July 2013 VA examiner’s determination that the Veteran did not have a diagnosis of PTSD under DSM-IV, but failing to address relevant VA treatment records indicating positive screening for PTSD or provide an adequate rationale for determining the diagnosed anxiety disorder is less likely than not related to service. The psychiatrist is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the psychiatrist rejects the Veteran’s reports, the psychiatrist must provide a reason for doing so. A comprehensive rationale must be furnished for all opinions expressed. 3. Thereafter, readjudicate the claim. If any benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and an appropriate period of time to respond. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Howell, 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.