Citation Nr: 20022553 Decision Date: 04/01/20 Archive Date: 04/01/20 DOCKET NO. 18-46 977 DATE: April 1, 2020 ORDER The petition to reopen the claim of entitlement to service connection for posttraumatic stress disorder (PTSD) is allowed. The appeal is granted to that extent only. REMANDED Entitlement to service connection for an acquired psychiatric disorder to include PTSD is remanded. FINDINGS OF FACT 1. A December 2003 rating decision denied the Veteran’s claim of entitlement to service connection for PTSD. He did not file a timely appeal or submit any new and material evidence within the applicable appeal period. 2. The evidence received since the December 2003 rating decision is not cumulative or redundant of the evidence of record and relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for PTSD. CONCLUSIONS OF LAW 1. The December 2003 rating decision denying service connection for PTSD is final. 38 U.S.C. §§ 7104; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. 2. New and material evidence has been received since the December 2003 rating decision to reopen the claim of entitlement to service connection for PTSD, and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from September 1979 to February 1980 and from June 1996 to March 1997. This issue comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) held that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Thus, the Veteran’s reopened claim for service connection for PTSD is deemed to include an acquired psychiatric disability and has been recharacterized as entitlement to service connection for an acquired psychiatric disorder, to include PTSD. The petition to reopen the claim of entitlement to service connection for PTSD A claim may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Evidence is considered “new” if it was not previously submitted to agency decision makers. “Material” evidence is 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(a). In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the “credibility” of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence and views the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” Evidence “raises a reasonable possibility of substantiating the claim,” if it would trigger VA’s duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). In the December 2003 rating decision, the Veteran’s claim for service connection was denied based on the finding that there was no evidence that showed the Veteran served in a combat situation that resulted in the award of any of the service medals that are accepted as a conceded stressor and that there was no diagnosis for PTSD. The pertinent evidence received since the December 2003 rating decision includes VA clinical records noting treatment and diagnosis for PTSD some of which indicate a possible link to active duty and lay statements from the Veteran’s spouse regarding his mental health issues. This evidence is new and material as it pertains to an unsubstantiated fact that is necessary to substantiate the claim. Therefore, the claim is reopened. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder to include PTSD is remanded. In January 2016, a VA PTSD examination was conducted. The examiner found that the Veteran did not have a diagnosis of PTSD that conforms to DSM-5 criteria. The examiner concluded by indicating that he could not assert that it was as likely as not that the Veteran suffers from PTSD or other psychiatric disorders that are caused by or a result of military service. Significantly, the examiner did not address the evidence of record which indicates that the Veteran possibly experiences mental health symptoms. The clinical records document complaints and treatment for mental health symptoms including some which indicate a possible link to active duty. The VA clinician’s opinion regarding whether the Veteran has a mental disorder due to active duty must take into account this evidence. This is particularly so as the examiner found no evidence of any mental disorder present and the records seem to document mental health complaints. The examiner must provide an opinion as to any mental disorder noted to be present during the appeal period. Accordingly, the Board finds that a remand is necessary in order to address this pertinent evidence. The matters are REMANDED for the following action: 1. Obtain any outstanding, pertinent VA treatment records as well as any identified pertinent private treatment records and, with the Veteran’s help as required, associate them with the electronic file to the extent possible. If any identified records are not obtainable (or none exist), the Veteran should be notified, and the record clearly documented. 2. After the development set out in a paragraph one above has been conducted to the extent possible, arrange to have the claims file reviewed by a suitably qualified health care professional who should determine if the Veteran has or had a mental health disorder which is etiologically linked to active duty service. The Veteran should only be scheduled for another examination if the examiner determines such an examination is necessary. After reviewing the claims file and the results of an examination if conducted, the examiner should respond to the following questions: (a) Whether it is at least as likely as not (i.e., a 50 percent probability or greater) the Veteran has or had a mental disorder which met the DSM V diagnostic criteria at any time since September 2015. (b) for each mental disorder noted under paragraph (a) above, the examiner must provide an opinion as to whether it is at least as likely as not (a 50% or greater probability) that such disorder or disorders was incurred in or aggravated by the Veteran's active duty service. (c) If PTSD is diagnosed, the examiner must indicate what are the underlying stressor or stressors upon which the diagnosis is based. The examiner must address the clinical records which include evidence of mental health symptoms possibly being present during the appeal period. The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. The examiner is advised that the Veteran is competent to report symptoms and that his lay observations must be considered in formulating the requested opinions. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should indicate this in the examination report and provide a rationale for that determination. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Garcia 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.