Citation Nr: 20023022 Decision Date: 04/02/20 Archive Date: 04/02/20 DOCKET NO. 19-26 812 DATE: April 2, 2020 ORDER New and material evidence having been received, the application to reopen the claim of entitlement to service connection for an acquired psychiatric disorder is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected left ear sensorineural hearing loss and tinnitus, is remanded. FINDINGS OF FACT 1. In a final decision issued in April 2015, the Agency of Original Jurisdiction (AOJ) denied service connection for an acquired psychiatric disorder, characterized as PTSD, alcohol use disorder, and alcohol induced anxiety disorder. 2. Evidence associated with the record since the final April 2015 denial, and associated April 2016 statement of the case, is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the claim of entitlement to service connection for an acquired psychiatric disorder. CONCLUSIONS OF LAW 1. The April 2015 rating decision that denied service connection for an acquired psychiatric disorder, characterized as PTSD, alcohol use disorder, and alcohol induced anxiety disorder, is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2014). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1978 to October 1995. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a decision issued in April 2018 by a Department of Veterans Affairs (VA) Regional Office. 1. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for an acquired psychiatric disorder. By way of background, VA received the Veteran’s original claim for service connection for PTSD, depressive disorder, anxiety, and insomnia in November 2014. In an April 2015 rating decision, the AOJ noted the Veteran’s service treatment records were silent for complaints, treatment, or diagnosis referable to PTSD, his VA treatment records likewise failed to show a confirmed diagnosis of PTSD, and a February 2015 VA examination found that he did not meet the criteria for a diagnosis of PTSD. Although the AOJ accepted the Veteran’s stressors related to his fear of hostile military or terrorist activity, it inevitably concluded that service connection must be denied because there was no current diagnosis of PTSD. In addition, the AOJ denied service connection for alcohol use disorder and alcohol induced anxiety disorder, claimed as depressive disorder, insomnia, and anxiety, because the evidence did not show the Veteran had a current disorder that began in military service or was caused by some event or experience in service. Later that month, the Veteran was advised of the decision and his appellate rights and entered a notice of disagreement with the denial of PTSD and “all nervous conditions” in May 2015. Following the issuance of an April 2016 statement of the case, however, the Veteran did not file a timely substantive appeal of the issue. Furthermore, no new and material evidence was physically or constructively received within the remainder of the appeal period, and no relevant service department records have since been received. Therefore, the April 2015 rating decision is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2014). Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. 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(a). New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Since the issuance of the April 2015 rating decision, additional evidence consisting of VA examination reports, VA treatment records, and lay statements has been received. In pertinent part, an August 2018 VA Progress Note and June 2019 Disability Benefits Questionnaire (DBQ) reflects a diagnosis of PTSD and the opinion of a VA Staff Psychologist, A.O-T., that the Veteran’s current symptoms of PTSD “are related to experiences lived while in service.” As such newly received evidence speaks to the bases of the prior denial, namely, the absence of a clinical diagnosis of PTSD and a nexus between a current acquired psychiatric disorder and service, the Board finds such is not cumulative or redundant of the evidence of record at the time of the April 2015 decision, and associated April 2016 statement of the case, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for an acquired psychiatric disorder. Therefore, new and material evidence has been received, and such claim is reopened. REASONS FOR REMAND 2. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected left ear sensorineural hearing loss and tinnitus. The Veteran contends he has an acquired psychiatric disorder, to include PTSD, due to several in-service stressors related to his fear of hostile military or terrorist activity while stationed in Southwest Asia, to include exposure to dead bodies and rescue missions during which he feared for his life. Alternatively, he argues that such disorder as secondary to his left ear sensorineural hearing loss and tinnitus. As noted previously, VA has accepted the Veteran’s stressors related to his fear of hostile military or terrorist activity. With respect to a current acquired psychiatric disorder, as noted above, A.O-T. found the Veteran met the DSM-V criteria for a diagnosis of PTSD in August 2018 and June 2019, and VA treatment records demonstrate a diagnosis of PTSD dating back to at least November 2015. Additionally, VA problem lists include anxiety, insomnia, and major depressive disorder. However, in February 2015, a VA examiner determined the Veteran did not meet the criteria for a diagnosis of PTSD; rather, it was determined that diagnoses of alcohol use disorder and alcohol induced anxiety disorder better described the Veteran’s symptoms. Similarly, in July 2018, a VA examiner provided diagnoses of alcohol use disorder and alcohol induced mood disorder. The record also contains conflicting medical opinions as to whether a current acquired psychiatric disorder is related to service. In February 2015 and July 2018, the VA examiners found the Veteran’s alcohol induced anxiety disorder was related to his alcohol use disorder and, therefore, a product of his willful misconduct unrelated to service, and not caused by his service-connected left ear sensorineural hearing loss and tinnitus. Conversely, A.O-T. found in August 2018 and June 2019 that the Veteran has PTSD related to his military experiences. Unfortunately, the Board finds the opinions of record, particularly in light of the multiple, often-contradictory diagnoses of record, inadequate for the purpose of determining service connection. Notably, the VA examiners either did not have the opportunity to or did not address the other diagnoses of acquired psychiatric disorders found in the VA treatment records. With respect to A.O-T.’s opinion, the record does not demonstrate a clear rationale for the opinion provided. Finally, no examiner addressed whether the Veteran’s acquired psychiatric disorder is aggravated by his left ear sensorineural hearing loss and tinnitus. Consequently, a remand is warranted for additional VA examination and medical opinion addressing whether any current acquired psychiatric disorder is related to service and/or is aggravated by such service-connected disabilities. The matter is REMANDED for the following action: Afford the Veteran an appropriate VA examination to determine the nature and etiology of any current acquired psychiatric disorder. Following a review of the record and any necessary testing, the examiner should address the following inquiries: (A) Identify all acquired psychiatric disorders that meet, or have met, the DSM-5 diagnostic criteria at any time since April 2018, or in close proximity thereto. In this regard, the examiner should address the propriety of the diagnoses of PTSD, depressive disorder, anxiety, and major depressive disorder as noted in VA treatment records and June 2019 DBQ. (B) Indicate whether the Veteran meets the DSM-5 diagnostic criteria for PTSD and, if so, whether such diagnosis is related to his fear of hostile military or terrorist activity coincident with his service in Southwest Asia. (C) For all other currently diagnosed acquired psychiatric disorders, opine whether it is at least as likely as not (i.e., a 50 percent or greater degree of probability) that such had its onset in, or is otherwise related to, the Veteran’s military service. (D) For each currently diagnosed acquired psychiatric disorder, opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) such is aggravated by the Veteran’s service-connected left ear sensorineural hearing loss and tinnitus. For any aggravation found, the examiner should state, to the best of his or her ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. M. Celli, 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.