Citation Nr: 20036701 Decision Date: 05/28/20 Archive Date: 05/28/20 DOCKET NO. 17-08 913 DATE: May 28, 2020 ORDER 1. The appeal to reopen a claim of service connection for a psychiatric disability is granted. REMANDED 2. Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD), depressive disorder, anxiety disorder, and other specified trauma and stressor-related disorder, is remanded. 3. Entitlement to service connection for osteoarthritis is remanded. 4. Entitlement to service connection for fibromyalgia is remanded. 5. Entitlement to service connection for headaches is remanded. FINDING OF FACT 1. An unappealed May 2011 rating decision declined to reopen a claim for a psychiatric disorder (claimed as adjustment disorder with depressed features), finding essentially that the evidence continued to fail to show that such disability is etiologically related to his service. 2. Evidence received since the May 2011 decision includes the Veteran’s new claim of service connection for a psychiatric disability (now claimed as PTSD); evidence of a new acquired psychiatric disability diagnosis (unspecified depressive disorder with anxious distress; and his acounts of previously unreported details of an alleged stressor event in service; relates to an unestablished fact necessary to substantiate the claim of service connection for a psychiatric disability; and raises a reasonable possibility of substantiating such claim. CONCLUSION OF LAW New and material evidence has been received, and the claim of service connection for an acquired psychiatric disability may be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from January 1986 to January 1990 and from February 2, 1991 to May 1, 1991. These matters are before the Board of Veterans’ Appeals (Board) on appeal of a January 2016 and an April 2016 Department of Veterans Affairs (VA) rating decisions. The January 2016 rating decision denied service connection for each of the disabilities at issue; the April 2016 rating decision reconsidered the PTSD issue upon receipt of additional evidence, and continued the denial of service connection for PTSD. In May 2019, a videoconference hearing was held before the undersigned; a transcript is in the record. As a preliminary matter, the Board notes that the dates of the Veteran’s second period of service raise a question regarding the applicability of 38 U.S.C. § 1112; 38 C.F.R. § 3.309(a) chronic disease presumptive provisions for that period of service, inasmuch as a raw calculation of the duration of that period showed it amounted to 88 days (albeit that the period is listed as 3 months on the pertinent DD-Form 214). The matter requires a formal finding whether for purposes of eligibility to the presumption based on duration of that period of service (see 38 C.F.R. §3.307(a)(1), that period of service may be extended (e.g. to include travel periods) so as to meet the § 3.307(a)(1) requirement. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is received. 38 U.S.C. § 5108. “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 (a). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The United States Court of Appeals for Veterans Claims (CAVC) has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold requirement. The CAVC interpreted the language of 38 C.F.R. § 3.156 (a) and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding opening”. See Shade v. Shinseki, 24 Vet. App. 110 (2010). A May 2011 rating decision declined to reopen a claim for service connection for a psychiatric disorder (claimed as adjustment disorder with depressed features), which was previously denied (since a September 1999 rating decision) essentially based on a finding that any acquired psychiatric disability shown was not shown to be etiologically related to the Veteran’s service. He did not appeal that decision or submit new and material evidence within the following year, and it became final. 38 U.S.C. § 7105. For evidence to relate to an unestablished fact necessary to substantiate the claim, and be considered new and material, it would have to be evidence received since the May 2011 rating decision that tends to show he has an acquired psychiatric disability that may be related to his service. Evidence added to the record since May 2011 includes statements by the Veteran of previously unreported details of a stressor event in service; in a September 2015 statement, he reported incidents involving hostile military or terrorist activity in Kuwait City. The AOJ then arranged for a VA examination which found he did not meet the criteria for a diagnosis of PTSD, but also assigned him a new psychiatric diagnosis of unspecified depressive disorder with anxious distress. In sworn testimony at the hearing before the undersigned (which is presumed credible for the purpose of reopening) the Veteran asserted that he was seen at a VA facility for treatment of depression within a year following his discharge from the 1991 period of active duty service. Together, the evidence of a new diagnosis of a chronic acquired psychiatric disability, with the account of a stressor event in service, and the Veteran’s sworn hearing testimony identifying VA treatment, records of which are outstanding (and if existing likely would have bearing on the etiology of the currently diagnosed acquired psychiatric disability), considering the “low threshold” standard for reopening endorsed by the CAVC in Shade, is new evidence that pertains to unestablished facts necessary to substantiate a claim of service connection for a variously diagnosed psychiatric disability, and raises a reasonable possibility of substantiating the claim. Accordingly, the Board finds that the evidence received since the May 2011 rating decision is both new and material and that the claim of service connection for a variously diagnosed psychiatric disability may be reopened. REASONS FOR REMAND 2. Entitlement to service connection for a variously diagnosed psychiatric disability on de novo consideration. Because medical evidence in the record shows various psychiatric diagnoses, and considering the guidance in Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009), the issue is expanded to encompass any psychiatric disability shown, however diagnosed. At the May 2019 hearing, the Veteran testified he was treated for depression at the Louisville VA medical center (VAMC) within a year following his separation from service in May 1991. A May 2011 VA memorandum includes a finding of unavailability of VA treatment records indicating that records from 1991 through 1997 are not available. However, a close review of the claims file found that records received from Louisville VAMC (including just a couple of days prior to the formal finding) include a handwritten referral to a mental health clinic for evaluation of depression in January 1992. Thus the record suggests that the formal finding was based on an incomplete review of the record. Notably, the record does not include a followup specifically for records from the mental health clinic at the Louisville VAMC (suggesting the search for outstanding VA treatment records may have been less than exhaustive); significantly, the finding noted that the Louisville VAMC did not have any records for 1989 through 2005 ( which is contradicted by the copies of such records already received. VA treatment records are constructively of record, and development for an exhaustive search for all outstanding pertinent records of the Veteran’s reported treatment is necessary. On October 2015 VA examination, the examiner opined the Veteran did not meet the PTSD diagnostic criteria under DSM-5 and diagnosed unspecified depressive disorder with anxious distress. The examiner also attributed all psychiatric symptoms to unspecified anxiety disorder. The VA examiner acknowledged an alleged stressor event in service (exposure to dead bodies and acts of war outside Kuwait City), opined the Veteran met criterion A, and that it was related to the Veteran’s fear of hostile military or terrorist activity. The examiner noted there was a question about the validity of the Veteran’s self-report based on standardized, objective psychological testing and opined “it is quite possible that the Veteran has misattributed the source of his generalized anxiety as being related to viewing the aftermath of war 24 years ago.” The examiner opined that depressive disorder with anxious distress was less likely than not related to the claimed military stressors due to the timing of onset of symptoms, content of symptoms as documented by treatment providers over the years, and by the comorbid substance use that began prior to the reported stressor of being in a war zone in 1991. The examiner did not acknowledge that based on evidence in Louisville VAMC [partial received to date] treatment records, the onset of symptoms of depression was in January 1992, if not earlier. At the May 2019 hearing, the Veteran testified that he started feeling depressed after he was sent to Kuwait. He has related that his then wife did not communicate with him while he was deployed, resulting in a divorce upon his return. An examination to clarify the diagnosis/reconcile the conflicting evidence and etiology of the Veteran’s psychiatric disability, and adjudication that encompasses all psychiatric diagnoses found 9and acknowledgement of the complete record) is necessary. 3. 4. 5. Entitlement to service connection for osteoarthritis, fibromyalgia, and headaches. VA treatment records are constructively of record and there is no evidence that any available outstanding Louisville VAMC treatment records (from 1991 to 1997, which apparently in error were certified to be unavailable) would not be pertinent to the remaining matters on appeal. Accordingly, consideration of entitlement to service connection for osteoarthritis, fibromyalgia and headaches is deferred pending development for any outstanding records of VA treatment records beginning in 1992. The matters are REMANDED for the following: 1. Review the record, arrange for any further necessary development, and then make a formal finding of fact for the record whether the duration of the Veteran’s active duty service from February 2, 1991 to May 1, 1991 meets the 90 days of continuous service requirement in 38 C.F.R. §3.307(a)(1) to establish applicability of the 38 C.F.R. §3.309(a) presumptive provisions to that period of service. Explain the basis for the conclusion reached. 2. Arrange for exhaustive development to search for, and secure for the claims file, records of the Veteran’s reported treatment at Louisville VAMC after service, beginning in late 1991 and specifically including mental health clinic records from 1992. He should be asked to submit copies of any such VA treatment records in his possession (if he does not submit any, the assumption being that he has none). The search should encompass all storage facilities where such records may have been retired (and any facilities where the records may have been transported for scanning into his electronic file). If any records are unavailable because they have been irretrievably lost or destroyed, it should be so certified (with the scope of the search described in detail), and the Veteran should be so notified. Obtain for the record complete updated (to the present, all outstanding) clinical records of all VA evaluations or treatment the Veteran has received for the disabilities at issue in this appeal. 3. Then, arrange for a psychiatric examination of the Veteran to clarify the nature and determine the likely etiology of his current psychiatric disability. The entire record must be reviewed by the examiner. The examiner should note that the Veteran was referred by a VA provider to a mental health clinic for evaluation for depression at least as early as in January 1992 (as has testified he was seen for mental health issues in 1991). The examiner should respond to the following: (a.) Identify (by diagnosis) each psychiatric disability entity found, or shown by the record since the filing of this claim in July 2014. Specifically, does the Veteran meet the DSM-5 criteria for a diagnosis of PTSD? If PTSD is diagnosed, indicate whether the diagnosis is based on a specific stressor event in service (if so, identify the stressor event(s) on which the diagnosis is based), or is based on combat or on a fear of hostile military action/terrorist activity. If PTSD is not diagnosed, identify the criteria for such diagnosis found lacking. (b.) Regarding each psychiatric disability entity other than PTSD diagnosed, opine whether it is at least as likely as not (a 50 percent or greater probability) etiologically related to the Veteran’s military service. If not, identify the etiology considered more likely. (c.) Reconcile (provide reasons for) discrepancies between psychiatric disability entities noted in the record and those found on examination. (For example, was there a misdiagnosis, did an acute psychiatric disability resolve, etc.?) The examiner must address any credibility issues raised by the Veteran’s responses on examination. Include rationale with all opinions, to include comment on (express, with, agreement or disagreement with) the opinions by the October 2015 VA examiner. 4. Then review the record, arrange for any further development indicated (suggested by any outstanding VA treatment records received pursuant to the development sought above), and then, also considering the finding made on the applicability of 38 C.F.R. §3.309(a) presumptive provisions (requested in #1 above), readjudicate the further claims on appeal (seeking service connection for osteoarthritis, fibromyalgia and headaches). GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Naumovich, 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.