Citation Nr: 20052951 Decision Date: 08/10/20 Archive Date: 08/10/20 DOCKET NO. 16-31 664 DATE: August 10, 2020 ORDER The application to reopen the claim of service connection for mental disorder due to traumatic stress also claimed as anxiety, depression, and chronic adjustment disorder is granted. REMANDED Entitlement to service connection for right shoulder disability is remanded. Entitlement to service connection for left leg disability is remanded. Entitlement to service connection for right leg disability is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. Whether new and material evidence has been received to reopen the claim of service connection for degenerative joint disease is remanded. FINDING OF FACT 1. In a March 2011 rating decision, the Agency of Original Jurisdiction denied service connection for mental disorder due to traumatic stress also claimed as anxiety disorder, depression and chronic adjustment disorder. The Veteran was notified of his appellate rights and expressed disagreement, but did not perfect an appeal to the Board. 2. Evidence received since the March 2011 rating decision was not previously submitted to agency decision-makers and relates to an unestablished fact necessary to substantiate the claim for service connection for mental disorder due to traumatic stress also claimed as anxiety disorder, depression and chronic adjustment disorder. CONCLUSION OF LAW 1. The March 2011 rating decision by the Agency of Original Jurisdiction that denied entitlement to service connection for mental disorder due to traumatic stress also claimed as anxiety disorder, depression and chronic adjustment disorder is final. 38 C.F.R. §§ 19.52, 20.1103. 2. New and material evidence has been received to reopen the claim of service connection for mental disorder due to traumatic stress also claimed as anxiety disorder, depression and chronic adjustment disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1976 to September 1976. 1. The application to reopen the claim of service connection for mental disorder due to traumatic stress also claimed as anxiety, depression, and chronic adjustment disorder If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 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). The credibility of the evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for reopening is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The most recent final decision denying service connection for a psychiatric disorder was issued in March 2011. The Agency of Original Jurisdiction (AOJ) denied the Veteran’s claim of service connection for mental disorder due to traumatic stress also claimed as anxiety disorder, depression and chronic adjustment disorder, finding that the evidence does not show the condition began in service or was caused by service. The Veteran was provided notice of this decision and his appellate rights. The Veteran expressed disagreement and a statement of the case (SOC) was issued, but he did not perfect an appeal to the Board within 60 days of the SOC being mailed. Therefore, the decision is final. See 38 C.F.R. §§ 19.52, 20.1103. The evidence received since the March 2011 rating decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156. For example, in a May 2015 statement, the Veteran reported that it feels like he meets up with his First Sergeant from service that reportedly treated poorly, and that he constantly has anxiety and long bouts of depression. This new evidence addresses the reason for the previous denial; that is, a nexus to service. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claim is reopened and will be considered on the merits. REASONS FOR REMAND 1. Entitlement to service connection for right shoulder disability is remanded. 2. Entitlement to service connection for left leg disability is remanded. 3. Entitlement to service connection for right leg disability is remanded. 4. Whether new and material evidence has been received to reopen the claim of service connection for degenerative joint disease is remanded. Upon review of the evidence of record, the Board finds remand is warranted to obtain outstanding medical records in the custody of a Federal department or agency. The Veteran provided a copy of a Social Security Administration (SSA) Administrative Law Judge (ALJ) decision that granted the Veteran benefits due to multiple impairments. See correspondence received May 21, 2012. The ALJ decision discussed SSA obtained consultative examinations and medical records that may be related to all of the Veteran’s current VA claims. VA has not sought these records from SSA, which may support the Veteran’s claims. Furthermore, the Board acknowledges that these records are with a Federal facility and that VA has an increased obligation in regard to obtaining records in the custody of a Federal department or agency. 38 C.F.R. § 3.159(c)(2). Remand is warranted to obtain records from the SSA. Additionally, there has been a remarkable lack of clarity from the Veteran and the Agency of Original Jurisdiction regarding the Veteran’s claimed degenerative joint disease (DJD) and “bilateral leg conditions”. While the Board recognizes that if granted service connection for DJD in one part of the body, the door may open to multiple grants of service connection related to DJD. However, the Veteran has not specified to which joint or body part the alleged DJD affects or how exactly DJD and his “leg conditions” were incurred in service, except noting without specifics that he hurt his legs and shoulder in service and was denied medical care. See September 2013 notice of disagreement. Furthermore, the SSA ALJ noted DJD of the shoulder, which raises the possibility the Veteran’s shoulder and DJD claims are the same claim. Moreover, the Veteran has not specified the type of disability that affects his legs or what part of his legs are affected. The Veteran is required to present and support his claim. See 38 U.S.C. § 5107(a); see also Sellers v. Wilkie (Fed. Cir. 2020) (decided July 15, 2020) (a claim must identify, at least at a high level of generality, the sickness, disease, or injury for which benefits are sought; discussed 38 C.F.R. § 3.160(a)(4) and noted the duty to present and support a claim preexisted the current version of 38 U.S.C. § 5107(a), which explicitly uses “present and support” language). The Board notes that the Veteran has previously claimed service connection for feet and ankle disabilities and was denied service connection for pes planus with hallux abducto valgus. See September 1990 rating decision. If these are the “bilateral leg conditions” for which the Veteran now seeks service connection, the AOJ must determine if new and material evidence has been received to reopen that claim. Therefore, upon remand the AOJ will have an opportunity to clarify the issues on appeal and adjudicated them accordingly. 5. Entitlement to service connection for an acquired psychiatric disorder is remanded. In addition to obtaining the outstanding SSA records, remand is warranted to schedule an additional examination. The Veteran attend a VA posttraumatic stress disorder (PTSD) examination in April 2016. The examiner noted medical records address schizoid personality disorder, cocaine use, personality disorder and polysubstance abuse. However, the examiner appears to have overlooked that the Veteran was also diagnosed with dysthymic disorder and major depressive disorder during the pendency of this claim. See, e.g., May 15, 2014 and September 26, 2014 VA treatment records. Furthermore, the examiner provided a nexus opinion that did not support the Veteran’s claim, but the examiner limited the opinion to schizoid personality disorder and alcohol use disorder. Additionally, the examiner opined “[i]t is less likely than not the veteran's psychiatric diagnosis was caused by UCMJ violation of duty, substandard performance of duty, and being discharged for lack of respect of military authority.” However, as the Veteran has made clear, he contends he has a psychiatric disorder related to service because of perceived racism and maltreatment, particularly by his First Sergeant. The examiner did not address this contention, except to say it is not sufficient to meet the stressor criterion for PTSD. In light of the above, remand is warranted to schedule an additional psychiatric examination that addresses the Veteran’s other diagnosed psychiatric disabilities and whether they are related to service, including due to treatment by his First Sergent. The matters are REMANDED for the following action: 1. Obtain the Veteran’s federal records from SSA. Document all requests for information as well as all responses in the claims file. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any acquired psychiatric disorder. The examiner must identify any acquired psychiatric disorder the Veteran has had during the pendency of his claim. For each identified disorder, the examiner must opine whether it is at least as likely as not related to an in-service injury or disease, including alleged maltreatment by the Veteran’s First Sergent. We make no determination as to credibility at this time. If the examiner determines the Veteran has a personality disorder, the examiner must opine whether any acquired psychiatric disorder was at least as likely as not superimposed on a personality disorder during active service and resulted in additional disability. 3. Contact the Veteran to obtain clarification on his claimed disabilities with regard to degenerative joint disease, shoulder and bilateral leg disabilities. With specificity, solicit from the Veteran what his disabilities are and why he thinks they are related to service. 4. In light of the development, adjudicate the Veteran’s claims consistent with VA law and regulations, including making a determination on new and material evidence if necessary. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Gregory T. Shannon 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.