Citation Nr: 20042394 Decision Date: 06/23/20 Archive Date: 06/23/20 DOCKET NO. 17-37 114 DATE: June 23, 2020 ORDER As new and material evidence has been received, the claim for service connection for an acquired psychiatric disorder, to include posttraumatic disorder (PTSD), is reopened. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. FINDINGS OF FACT 1. In a May 2010 rating decision, the RO denied service connection for PTSD. 2. The Veteran filed a May 2011 notice of disagreement and the RO issued an April 2014 statement of the case readjudicating the claim; however, the Veteran did not perfect an appeal to the Board by filing a timely substantive appeal. 3. Evidence received since the May 2010 denial (and April 2014 readjudication) relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The May 2010 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 2. The criteria for reopening of the claim for service connection for an acquired psychiatric disorder, to include PTSD, have been met. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1987 to October 1991. This matter is on appeal before the Board of Veterans Appeals (Board) from a January 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Claim to reopen for service connection for an acquired psychiatric disorder, to include PTSD. Service connection for PTSD was initially denied by a May 2010 rating decision. The underlying basis for the denial was a lack of a current diagnosis of PTSD, the lack of chronic psychiatric problems in service, the lack of a demonstrated link between any current psychiatric disorder and military service and the lack of a corroborated stressor event in service. The Veteran filed a May 2011 notice of disagreement and the RO issued an April 2014 statement of the case (SOC) readjudicating the claim; however, the Veteran did not perfect an appeal to the Board by filing a timely substantive appeal. The Veteran’s attorney subsequently filed a petition to reopen the claim in November 2014. In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to VA. 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 and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See 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). Evidence received since the May 2010 denial with readjudication of the claim by the April 2014 SOC includes a June 2017 VA mental health admission intake assessment and May 2020 argument from the Veteran’s attorney. At the June 2017 assessment, the Veteran was diagnosed with trauma and stressor disorder, unspecified, along with rule out PTSD, in part because of his reported in-service stressor of witnessing a fellow shipmate suffering a serious head injury when a steam line exploded. In the May 2020 argument, the Veteran’s attorney reported additional stressor events, which had not previously been reported by the Veteran, including witnessing a friend suffer burns across his entire front while attempting to refuel a hot jet and members of his squad dying when they were crushed inside a small boat that was returning from shore to their ship during very inclement weather. The intake assessment relates to an unestablished fact necessary to substantiate the claim, as it shows a diagnosis of a current acquired psychiatric disorder, which may be linked to service. The attorney argument also relates to an unestablished fact necessary to substantiate the claim, the presence of additional in-service stressors, which could potentially support a diagnosis of PTSD or other current psychiatric disability linked to service. Taken together, under the low legal threshold involved, this evidence raises a reasonable possibility of substantiating the claim. Shade, 24 Vet. App. 110 (2010). Accordingly, the newly received evidence is new and material and the claim for service connection for an acquired psychiatric disability, to include PTSD, may be reopened. 38 C.F.R. § 3.156. REASONS FOR REMAND In May 2020 argument, the Veteran’s attorney asserted that a November 2014 VA psychiatric consultation showed evidence that the Veteran’s current psychiatric disability is related to in-service stressor events. However, the claims file does not appear to include the psychiatric consultation referenced by the Veteran’s attorney. In this regard, the claims file contains CAPRI records dated from December 2015 to June 2017 but does not appear to contain VA mental health treatment records prior to December 2015 or subsequent to June 2017. Accordingly, as the November 2014 VA psychiatric consultation report referenced by the attorney appears pertinent to this appeal and as VA treatment records are more generally considered to be constructively of record, a remand is required so that all outstanding VA mental health treatment records may be obtained. Bell v. Derwinski, 2 Vet. App. 611 (1992). Also, in May 2010, the RO made a formal finding that the record contained insufficient information to attempt to obtain corroboration of any stressor events occurring in service. However, in a May 2011 statement, the Veteran identified some stressor events with sufficient specificity to potentially allow for corroboration. The Veteran reported that in August 1989, while serving aboard the USS Midway, a “Catapult steamline” exploded and seriously injured a shipmate, J.W.J. The Veteran noted that he was in the vicinity of the explosion and saw that the explosion “took off about an inch off the top of (“J.W.J’s) head.” The Veteran indicated that he stayed with the victim until the medics arrived. He noted that he thought J.W.J. “wouldn’t make it” but he did ultimately survive. The Veteran also described explosions occurring in June 1990 aboard the U.S.S. Midway, which resulted in a fire where approximately 2 or 3 of his shipmates died and quite a few were injured. He noted that the explosions occurred around noontime while he was sleeping, as he was working a regular overnight shift at the time. He also noted that he was initially called to assist the damage control and the medics because the fire was close to where he was sleeping. Also, in May 2020 argument, the Veteran’s attorney reported two additional stressor events. The attorney noted an incident where the Veteran and his squad of 15 were ordered to get on a small boat to take the group from shore in Thailand back to their ship. However, the weather was bad and there were large waves. Consequently, the Veteran refused to get on the boat. The other sailors did get on the boat. When the boat reached the ship, the platform from the ship was raised and lowered, killing everyone on the small boat. The attorney also noted a second incident where the Veteran witnessed a friend and fellow shipmate sustain burns on the whole front side of his body while trying to fuel a “hot jet.” Given that the Veteran has provided approximate dates for two of the reported stressors and they involve death and/or serious injury, it appears possible to obtain corroborating evidence of their occurrence. Thus, on remand, appropriate efforts to obtain such corroboration, including information requests to JSRRC and any other appropriate source, should be made. Prior to making these efforts, the Veteran should be asked to provide more specifics concerning the two additional stressor events reported by his attorney in her May 2020 statement, including the approximate dates, the ship(s) involved and any other pertinent information. After conducting all appropriate stressor development, the Veteran should be scheduled for a VA mental health examination to assess whether he has current PTSD or another acquired psychiatric disability, which is related to service, including any corroborated stressor events occurring therein. The matter is REMANDED for the following action: 1. Obtain VA records of treatment or evaluation of psychiatric disorder dated prior to December 2015, and from June 2017 to the present. 2. Ask the Veteran to provide additional information concerning his reported stressor events in service. In particular, ask him to provide the approximate date of the accident where 15 members of his squad were killed in a small boat returning from shore in Thailand when the platform from the ship to which the boat was returning was raised and lowered on top of the boat. Also, ask the Veteran to provide the name of the ship to which the small boat was returning. Additionally, ask the Veteran for the approximate date of the accident where his friend sustained burns on the whole front side of his body while trying to fuel a hot jet. Moreover, ask the Veteran to identify the ship on which this accident occurred and the name of the friend, if known. 3. Make appropriate attempts to corroborate the Veteran’s reported stressor events. These attempts should include a request for corroboration from any appropriate source, including JSRRC, concerning the steam explosion accident injuring J.W.J. in August 1989 aboard the U.S.S. Midway and the explosions and fire aboard the USS Midway in June 1990. In regard to the June 1990 explosions and fire, the request should include asking for any available information concerning the location of the fire aboard ship, the time of day the explosions and fire occurred, and the number and types of crewmembers who were involved in the effort to extinguish the fire and to help control the amount of damage sustained to the ship. The stressor corroboration attempts should also seek information concerning the Veteran’s other reported stressor events, including the small boat getting crushed after returning from shore in Thailand and the Veteran’s friend being burned across the front while attempting to fuel a hot jet, if the Veteran has provided sufficient information concerning the details of these events (e.g. sufficiently specific approximate dates and the name(s) of the ship(s) involved). 4. After stressor development has been completed, schedule the Veteran for a VA examination by an appropriate clinician to determine the nature and etiology of any acquired psychiatric disorder, to include PTSD. The examiner should review the claims file in conjunction with the examination. This review should include the service treatment records; the service personnel records; the post-service VA mental health treatment records; the post-service private mental health treatment records; the Veteran’s May 2011 stressor statement; the Veteran’s attorney’s May 2020 argument; any documentation of record indicating whether the Veteran’s reported stressor events during service have been corroborated by JSSRC or another appropriate source; and any other information of record deemed pertinent. The examiner should render all appropriate psychiatric diagnoses. A) If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether the PTSD it is at least as likely as not related to a corroborated in-service stressor. (Continued on the next page)   B) If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to service. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Dan Brook, 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.