Citation Nr: 20028816 Decision Date: 04/24/20 Archive Date: 04/24/20 DOCKET NO. 16-54 831 DATE: April 24, 2020 ORDER Petition to reopen entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), based on the receipt of new and material evidence is granted. REMANDED Entitlement to a noninitial disability rating in excess of 30 percent for service-connected bronchial asthma is remanded. Entitlement to service connection for an acquired psychiatric disability, to include PTSD, is remanded. FINDINGS OF FACT 1. The February 2009 rating decision that denied entitlement to service connection for an acquired psychiatric disability (characterized as generalized anxiety disorder, immature personality disorder (claimed as depression) (congenital or development personality disorder, not aggravated)) has become final. 2. Evidence received since the final February 2009 rating decision is new and material, and raises a reasonably possibility of substantiating the Veteran’s claims of entitlement to service connection for an acquired psychiatric disability, to include PTSD. CONCLUSIONS OF LAW 1. The February 2009 rating decision denying entitlement to service connection for an acquired psychiatric disability (characterized as generalized anxiety disorder, immature personality disorder (claimed as depression) (congenital or development personality disorder, not aggravated)) is final. 38 U.S.C. § 7104 (2018); 38 C.F.R. § 20.1103 (2018). 2. New and material evidence sufficient to reopen the Veteran’s claims of entitlement to service connection for an acquired psychiatric disability, to include PTSD, has been received, and the claim is reopened. 38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1973 to March 1975. These matters come before the Board of Veterans’ Appeals (Board) on appeal from October 2015 and April 2018 rating decisions issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran and hs daughter presented sworn testimony before the undersigned Veterans Law Judge at a June 2019 Travel Board hearing. A copy of the hearing transcript has been associated with the Veteran’s electronic claims file. Petition to reopen entitlement to service connection for an acquired psychiatric disability, to include PTSD, is granted. The preliminary issue for resolution before the Board is whether new and material evidence has been received sufficient to reopen the Veteran’s previously denied claims of entitlement to service connection for an acquired psychiatric disorder. 38 C.F.R. § 3.156(a) (2018). In order to reopen a claim which has been denied by a final decision, the Veteran must present new and material evidence. 38 U.S.C. § 5108 (2018). New evidence means 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(a) (2018). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Moreover, the Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. See Shade v. Shinseki, 24 Vet. App. 110 (2010) (holding that it would be illogical to require that a veteran submit medical nexus evidence when he has provided new and material evidence as to another missing element). The Veteran was previously denied entitlement to service connection for an acquired psychiatric disability (characterized as generalized anxiety disorder, immature personality disorder (claimed as depression) (congenital or development personality disorder, not aggravated)) in a February 2009 rating decision. The Veteran did not file a Notice of Disagreement or new and material evidence relevant to the claim within the one-year period following notification of the rating decision. 38 C.F.R. §§ 3.156(b), 20.201, 20.302 (2018). Consequently, the February 2009 rating decision became final. 38 C.F.R. § 20.1103 (2018). The Board has considered the application of 38 C.F.R. § 3.156(c) to this claim. Any newly received service department records were either irrelevant to the claim or were redundant/duplicative of evidence already received and considered at the time of the February 2009 disallowance of the claim. See Kisor v. Shulkin, 869 F.3d 1360, 1368-69 (Fed. Cir. 2017) (accepting VA’s interpretation that the term “relevant” as used in 38 C.F.R. § 3.156(c) means noncumulative and pertinent to the matter at issue in the case), vacated on other grounds sub nom. Kisor v. Wilkie, 139 S. Ct. 2400 (2019). Moreover, the Veteran’s attorney has not identified or cited to any evidence that would warrant reconsideration under 38 C.F.R. § 3.156(c) (2018). Thus, the claim shall not be reconsidered under 38 C.F.R. § 3.156(c) (2018) and the Board shall continue its new and material evidence analysis in accordance with 38 C.F.R. § 3.156(a) (2018). In the February 2009 rating decision, the RO denied the claim because the evidence failed to demonstrate that the Veteran’s acquired psychiatric disability was incurred in or aggravated by his active duty service. Since the February 2009 rating decision, additional evidence in the form of VA treatment records, an April 2018 VA examination, and the Veteran’s June 2019 Board testimony has been received. This evidence is new as it was not available, and thereby considered, in the February 2009 rating decision, and it is material, as it addresses the current disability and medical nexus elements of a service connection claim. The Board concludes that the newly submitted evidence satisfies the low threshold requirement for new and material evidence, and the claim is reopened. Shade, 24 Vet. App. at 117-18. However, the Board cannot, at this point, adjudicate the reopened claim, as further evidentiary development is necessary. This is detailed in the Reasons for Remand section below. REASONS FOR REMAND 1. Entitlement to a noninitial disability rating in excess of 30 percent for service-connected bronchial asthma is remanded. The Veteran seeks a noninitial disability rating in excess of 30 percent for his service-connected bronchial asthma. This claim is not ripe for final adjudication, as the electronic claims file reveals that several relevant private treatment records remain outstanding. Review of the Veteran’s VA treatment records establish he was seen at St. Vincent’s Hospital on at least three occasions during the appellate period due to exacerbations of his bronchial asthma. See 02/21/2018, 07/05/2018, and 07/16/2019 VA treatment records. Additionally, at the June 2019 Board hearing, the Veteran testified that his bronchial asthma is treated by a private pulmonologist, Dr. I.H. While the electronic claims file contains a piecemeal selection of Dr. I.H.’s treatment notes, the complete treatment records covering the entire appellate period have not been received from this provider. The Veteran has also submitted only a limited selection of private primary care records from Dr. O.A. of A.C.M.C. In light of the above, the RO is requested to undertake appropriate efforts to obtain the outstanding relevant private treatment records from these healthcare providers. See 38 C.F.R. § 3.159(c)(1) (2018). The Veteran shall also be afforded a final opportunity to identify any other private treatment records relevant to his claim, and the RO shall undertake appropriate efforts to obtain the identified medical records for evidentiary consideration. The Veteran was last afforded a VA examination assessing the severity of his service-connected bronchial asthma in June 2019. Upon remand, the RO should undertake efforts to schedule an updated VA examination, to the extent possible in light of the limitations presented by the global COVID-19 pandemic. 2. Entitlement to service connection for an acquired psychiatric disability, to include PTSD, is remanded. In the February 2018 petition to reopen, the Veteran identified “psychiatric disorder” as the disability for which he was seeking entitlement to service connection. Since then, additional VA treatment records from June 2019 have been associated with the electronic claims file. For the first time, these records document the Veteran’s allegations of military sexual trauma/personal assault and a psychiatric diagnosis of PTSD. To accurately reflect this updated medical information, the Board has broadened and recharacterized the issue on appeal as one seeking entitlement to service connection for an acquired psychiatric disability, to include PTSD. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Given this newly acquired evidence, upon remand, the RO is instructed to provide the Veteran with updated Veterans Claims Assistance Act of 2000 (VCAA) notice regarding PTSD and military sexual trauma/personal assault claims. The RO is requested to provide the Veteran with VA form 21-0781a, Statement in Support of Claim for Service Connection for PTSD Secondary to Personal Assault. The Veteran is requested to complete this form with as much detail as possible regarding his military sexual trauma/personal assault, to assist the RO in verifying and corroborating his claimed in-service stressor. The Veteran’s VA treatment records also document that the Veteran has been treated for psychiatric disabilities at Orange Park Medical Center and St. Vincent’s Hospital. While piecemeal records dated prior to 2013 have been received from these facilities, the RO is requested to undertake appropriate efforts to obtain the complete treatment records from these private facilities. See 38 C.F.R. § 3.159(c)(1) (2018). In September 2019, the Veteran presented for a VA Agent Orange Registry examination and reported that he had been diagnosed with PTSD 10 years prior at an unidentified military hospital in Philadelphia, Pennsylvania. The RO is requested to seek clarification on the identity of this military hospital and undertake reasonable efforts to obtain these missing treatment records. The Veteran shall also be afforded a final opportunity to identify any other private treatment records relevant to his claim, and the RO shall undertake appropriate efforts to obtain the identified medical records for evidentiary consideration. Upon remand, the RO is also requested to obtain updated VA treatment records from February 2020 to present. See 38 C.F.R. § 3.159(c)(2) (2018). Lastly, the Board acknowledges that the Veteran was diagnosed with immature personality disorder while on active duty service. While his September 1973 enlistment examination is silent regarding a pre-existing psychiatric disability, service treatment records document reports of “a lifelong history of impulsivity, explosiveness, acting out, and tending to blame others.” At the February 1999 and February 2009 VA examinations, the Veteran self-reported psychiatric treatment as a child for anxiety and temper outbursts. At the April 2018 VA examination, a diagnosis could not be rendered because the Veteran was uncooperative and the results of the two tests that were administered were indicative of feigning symptoms. Despite this VA examination, the Veteran’s VA treatment records document a consistent history of major depressive disorder, recurrent with psychotic features, moderate response, with cluster B personality traits, during the appellate period. In June 2019, the Veteran reported that he experienced trauma during childhood and military service. He reported that he was physically abused and neglected by both parents during childhood and as a result, he was angry and acted out. During service, the soldiers were separated based on race, and he was the only Puerto Rican in his unit. As such, he reported a persistent pattern of physical and emotional abuse – his belongings were stolen, he was beaten, and he was forced to do unsafe dirty jobs. He reported a single incident of military sexual trauma, where a fellow servicemember approached him from behind and rubbed his penis against the Veteran’s back. The soldiers continued to harass the Veteran until he attacked one of the abusers, resulting in a court-martial. In light of the complicated nature of the Veteran’s psychiatric history, the Board finds an additional VA examination and medical opinion is necessary to justly resolve the Veteran’s appeal. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from February 2020 to the present, including any pulmonary function testing. 2. Send the Veteran VCAA notice regarding PTSD claims based on military sexual trauma/personal assaults, and a blank copy of VA form 21-0781a. Request that the Veteran complete this form with as much detail as possible regarding his in-service military sexual trauma/personal assault. After a response is received, undertake appropriate efforts to corroborate the Veteran’s claimed in-service stressor based on military sexual trauma/personal assault. If more details are needed, contact the Veteran to request the information. 3. Contact the Veteran and ask him to submit authorizations to allow VA to obtain the complete private medical records from Dr. I.H, Dr. O.A. of A.C.M.C., Orange Park Medical Center, and St. Vincent’s Hospital. The Veteran should also be asked to identify, and authorize VA to obtain, any other evidence that may be relevant to his claims, but remains outstanding, to include the records from the unidentified military hospital in Philadelphia, Pennsylvania mentioned in his September 2019 VA treatment records. If the Veteran provides the requisite authorizations, the RO should undertake appropriate efforts to obtain these private treatment records in accordance with 38 C.F.R. § 3.159 (2018). 4. DO NOT PROCEED TO THE FOLLOWING DIRECTIVES UNTIL THE EVIDENTIARY DEVELOPMENT REQUESTED ABOVE IS COMPLETED TO THE FULLEST EXTENT POSSIBLE. 5. Schedule an updated VA examination to assess the severity of the Veteran’s service-connected bronchial asthma, if possible. If a VA examination cannot be conducted due to limitations presented by the global COVID-19 pandemic, please document this fact in the electronic claims file, and proceed with readjudication of the Veteran’s noninitial increased rating claim for service-connected bronchial asthma based on the evidence of record. 6. Schedule the Veteran for a VA psychiatric examination, if possible. The claims file, and a copy of this Remand, must be made available to and be reviewed by the VA examiner. **IF an in-person examination is not feasible given the circumstances surrounding the global COVID-19 pandemic, refer the case to an appropriate VA examiner for a thorough review of the record and a medical opinion. The VA examiner is requested to address the following inquiries: (a.) Verify whether the Veteran meets the DSM-5 diagnostic criteria for PTSD and major depressive disorder recurrent with psychotic features, moderate response, cluster B personality traits, during the appellate period. List any other acquired psychiatric disabilities diagnosed in accordance with the DSM-5 diagnostic criteria within the appellate period. (b.) To the extent that a personality disorder is currently diagnosed, indicate whether the personality disorder was subjected to a superimposed disease or injury in service that results in a current acquired psychiatric disorder. (c.) Also provide an opinion as to whether any currently diagnosed acquired psychiatric disability both (i) clearly and unmistakably pre-existed service, and (ii) clearly and unmistakably was not aggravated beyond its natural progression by service. (d.) If the examiner does not find that the Veteran has a current acquired psychiatric disability that both clearly and unmistakably preexisted service and clearly and unmistakably was not aggravated by service, then opine whether it is at least as likely as not (50 percent probability or greater) that any current acquired psychiatric disability was incurred in or is otherwise etiologically related to the Veteran’s active duty service. The examiner must provide a complete rationale for any opinion expressed, based on the examiner’s clinical and medical expertise; established medical principles; and references to the evidence of record, as appropriate. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Galante, 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.