Citation Nr: 21001465 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 14-42 203 DATE: January 8, 2021 ORDER New and material evidence has been received to reopen the claim for service connection for posttraumatic stress disorder (PTSD) and adjustment disorder with depressed mood; to that extent only, the appeal is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder to include PTSD is remanded. FINDING OF FACT 1. An October 2010 rating decision denied a claim for service connection for PTSD and adjustment disorder with depressed mood; the Veteran did not appeal the decision or submit new and material evidence during the appeal period, and the decision is final. 2. Some of the evidence added to the record since the October 2010 final denial is new and relates to an unestablished fact necessary to substantiate the claim for service connection for PTSD and adjustment disorder with depressed mood. CONCLUSION OF LAW New and material evidence has been received to reopen the claim for service connection for PTSD and adjustment disorder with depressed mood. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Army Reserves and National Guard with active duty from December 2003 to March 2005 and active duty for training from February 2003 to July 2003 and September 2006 to December 2006. This matter comes before the Board of Veterans’ Appeals (Board) from a December 2012 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). In February 2018, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. This matter was previously before the Board in July 2018, when it was remanded for additional evidentiary development. The Veteran’s claim has been recharacterized as entitlement to service connection for an acquired psychiatric disorder, pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2012). Reopening Previously Denied Claims The Veteran’s initial claim for service connection for PTSD was denied in an October 2010 rating decision. At that time, the RO characterized the issue as entitlement to service connection for PTSD and adjustment disorder with depressed mood. The Veteran did not initiate an appeal of that decision or submit new and material evidence within one year following the decision, and the decision is final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 19.52, 20.1103 (2020). The Veteran filed the current claim to establish service connection in March 2012. In the December 2012 rating decision that is the subject of this appeal, the RO denied reopening the claimed PTSD and adjustment disorder with depressed mood because the evidence did not show the presence of a current PTSD diagnosis or that the diagnosed adjustment disorder with depressed mood was related to service. In a November 2014 statement of the case, the RO reopened the claim for PTSD but denied service connection on the merits; and denied reopening service connection for adjustment disorder with depressed mood. Regardless of the RO’s actions, the Board has an obligation to make an independent determination of its jurisdiction. Barnett v. Brown, 8 Vet. App. 1 (1995), aff’d, 83 F.3d 1380 (Fed. Cir. 1996). Generally, if a claim of entitlement to service connection was 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 evidence not previously submitted to agency decision makers. Material evidence means evidence that 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 threshold to reopen a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117-120 (2010). Further, a claim will be reconsidered if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim. 38 C.F.R. § 3.156(c). New and material evidence can be construed as that which would contribute to a more complete picture of the circumstances surrounding the origin of a Veteran’s disability or injury, even when it would not be enough to convince the Board to grant the claim. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Whether new and material evidence has been received to reopen a claim for service connection for PTSD and adjustment disorder with depressed mood After reviewing the record, the Board finds that new and material evidence has been received to warrant reopening a claim for service connection for PTSD and adjustment disorder with depressed mood. The October 2010 final rating decision denied service connection for PTSD and adjustment disorder with depressed mood because the evidence did not show a clinical diagnosis of PTSD or a definitive diagnosis of adjustment disorder with depressed mood that was related to service. The RO considered the Veteran’s June 2010 statement that he received treatment for PTSD during active duty; his service personnel and treatment records, which did not show psychiatric treatment, symptoms or medical referral; VA treatment records from March 2005 to September 2010, which showed some symptoms consistent with PTSD that the Veteran related to a stressor event; and a September 2010 VA examination report, which did not show a clinical diagnosis of PTSD and showed a tentative diagnosis of adjustment disorder with depressed mood. Evidence added to the record since October 2010 includes the Veteran’s statements and February 2018 Board hearing testimony regarding events in service and current psychiatric symptoms; updated VA treatment records through September 2020; a July 2012 letter from the Social Security Administration noting a psychiatric evaluation had been scheduled; informal conference reports in June 2014; service personnel and treatment records for the period of reserve service after October 2010, which did not show psychiatric treatment or complaints; a January 2013 private examination report submitted by the Veteran indicating diagnoses of PTSD, bipolar disorder, alcohol dependence secondary to PTSD and borderline personality traits dating from childhood exacerbated by service; an August 2014 VA examination report, which did not show a diagnosis of PTSD and showed a diagnosis of alcohol use disorder; and an August 2019 VA examination report, which did not show a diagnosis of PTSD or other mental disorder and showed a diagnosis of primary alcohol use disorder. This evidence is new. It is also material as it contributes to a more complete picture surrounding the origins of the claimed psychiatric disorder. Accordingly, the Board finds that new and material evidence has been received, and the claim for service connection for PTSD and adjustment disorder with depressed mood is reopened. See 38 U.S.C. § 5108, 38 C.F.R. § 3.156; Shade, 24 Vet. App. 110, at 117-120. The underlying claim for an acquired psychiatric disability is addressed in the remand portion of this decision. REASONS FOR REMAND A July 2012 letter from the Social Security Administration notes that the Veteran filed for Social Security Administration (SSA) disability benefits and was scheduled for a psychological evaluation in July 2012. During a January 2013 private mental status examination, the Veteran reported that he had been sent to a psychological evaluation by the SSA but did not yet know the results. It does not appear that the Veteran’s SSA records have been associated with the claims file. As these records may be relevant to the Veteran’s claimed psychiatric disability, SSA records should be requested. Following a July 2018 Board remand, the Veteran underwent a VA examination in August 2019. The examiner opined that the Veteran did not meet the diagnostic criteria for PTSD and provided a diagnosis of primary alcohol use disorder. He stated that the diagnostic criteria preclude him from making other mental health related diagnoses until the Veteran had a sustained period of abstinence from alcohol. As the Board is remanding the claim for further development, and if the SSA records requested on remand indicate that the Veteran has been diagnosed with a psychiatric disorder at any time during the appeal period, the RO should obtain an addendum VA opinion that addresses whether such diagnosed disability is related to service. Updated VA treatment records should also be obtained. The matters are REMANDED for the following actions: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his claimed psychiatric disability. After securing any necessary releases, request any relevant records identified that are not duplicates of those associated with the claims file. In addition, obtain updated VA treatment records since September 2020. If any requested records are unavailable, the Veteran should be notified of such. 2. Request from the SSA any relevant records pertaining to the Veteran’s claim for disability benefits and associate these records with the claims file. If the records are not available, the claims file should be annotated to reflect such, and the Veteran notified of such. 3. If, and only if, the medical evidence obtained on remand establishes the presence of a current psychiatric disorder, provide the claims file to a VA examiner to obtain an addendum opinion on whether any diagnosed psychiatric disability, other than a personality disorder or primary alcohol abuse disorder, at least as likely as not (50 percent probability or greater) arose during service or is otherwise related to service, to include his service in an imminent danger pay area? The examiner should explain why or why not. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. C. Birder 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.