Citation Nr: 21002898 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 17-55 254 DATE: January 19, 2021 ORDER New and material evidence having been presented, the claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is reopened. To this limited extent only, the appeal of that issue is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. Entitlement to a total disability rating based on individual unemployment due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's claim of service connection for PTSD was first denied in a February 2005 rating decision that was not appealed; no further evidence relevant to the Veteran's service connection claim was submitted for a period of one year following the February 2005 rating decision. 2. The Veteran’s claim of service connection for PTSD was again denied in a November 2006 rating decision that was not appealed; no further evidence relevant to the Veteran's service connection claim was submitted for a period of one year following the November 2006 rating decision. 3. Evidence relevant to the PTSD claim was submitted since the November 2006 rating decision, and was not previously considered by agency decision makers; is neither cumulative nor redundant of the evidence already of record; relates to unestablished facts; and raises a reasonable possibility of substantiating the Veteran's claim for service connection for an acquired psychiatric disorder, to include PTSD. CONCLUSION OF LAW New and material evidence has been received since the November 2006 denial became final; the criteria for reopening the previously denied claim for PTSD have been met. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty with the United States Marine Corps from April 1972 to April 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned at a hearing in November 2020. This appeal is advanced on the Board's docket pursuant to 38 C.F.R. § 20.902(c) (2019); 38 U.S.C. § 7107 (a)(2) (2012). The Veteran filed a claim for service connection for PTSD. As the Veteran is not expected to have the medical knowledge to describe the universe of his claim, the Board has recharacterized his claim of service connection for PTSD as one of service connection for an acquired psychiatric disorder, to include PTSD. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). New and Material Evidence 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; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision, or new and material evidence is received during the appeal period after the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. A determination of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider an underlying claim. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Therefore, regardless of the Agency of Original Jurisdiction’s (AOJ) action, the Board must address the question of whether new and material evidence has been presented to reopen a claim of service connection. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). The threshold is low and does not require new and material evidence regarding each element of the claim that had not been proved in the prior final decision. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For purposes of determining whether new and material evidence has been received to reopen a finally adjudicated claim, the recently submitted evidence will be presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New evidence is defined as 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 Veteran filed his initial claim of service connection for PTSD in June 2004. The RO denied service connection for that claim in a February 2005 rating decision based on a finding that there was no evidence of a current diagnosis of PTSD nor a corroborated in-service stressor. VA notified the Veteran of that decision in a February 2005 notice letter. The Veteran did not submit any additional evidence respecting the claim or a notice of disagreement with the decision within one year of that notice letter. The Veteran submitted correspondence in May 2006 requesting the RO reopen the February 2005 rating decision. The RO denied reopening the Veteran’s claim for service connection for PTSD in a November 2006 rating decision based on a finding that the Veteran did not submit new and material evidence. VA notified the Veteran of the decision in a November 2006 notice letter. The Veteran did not submit any additional evidence respecting the claim or a notice of disagreement with the decision within one year of that notice letter. As no timely notice of disagreement or new and material evidence was received during the appeal period following the November 2006 notice letter, the November 2006 rating decision became final. See 38 C.F.R. §§ 3.156 (b), 20.200, 20.201, 20.1103; Buie v. Shinseki, 24 Vet. App. 242, 252 (2010). New and material evidence is therefore required to reopen the claim of service connection for PTSD. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Since the November 2006 rating decision, evidence of multiple psychiatric diagnoses has associated with the record. Therefore, the Board finds that new and material evidence which tends to substantiate the Veteran's claim of service connection for an acquired psychiatric disorder, previously claimed as PTSD, has been received in this case, and the claim is reopened. See 38 C.F.R. § 3.156 (a); Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (medical evidence indicating a medical opinion is warranted is sufficient to reopen a claim). REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder, previously claimed as PTSD, is remanded. Service connection for PTSD requires medical evidence diagnosing the condition; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 4.125. The provisions of 38 C.F.R. § 4.125 (a) require that a diagnosis of a mental disorder conform to the American Psychiatric Association’s Diagnostic and Statistical Manual, Fifth Edition (DSM-V). If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. If a stressor claimed by a veteran is related to the veteran’s fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran’s symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, “fear of hostile military or terrorist activity” means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran’s response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304 (f). The medical evidence of record contains several psychiatric diagnoses for the Veteran, ranging from PTSD to depression to substance abuse to schizophrenia. Several medical opinions appear to attribute a current diagnosis of PTSD to the Veteran’s military service, based on the Veteran’s reported stressors. The record does not show, however, that the Veteran engaged in combat with the enemy. Therefore, his stressors must be corroborated by credible supporting evidence. Moreover, there is evidence of other psychiatric diagnoses of record, such as depression, which would not require a confirmed stressor in order to establish service connection, but no etiology opinion has been obtained regarding these diagnoses. Therefore, the Board finds that a remand is warranted to provide the Veteran with an examination to determine the etiology of his current psychiatric disorders and, if necessary, to attempt to corroborate his claimed PTSD stressors. Entitlement to a total disability rating based on individual unemployment due to service-connected disabilities (TDIU) is remanded. As entitlement to a TDIU is dependent in large part on the Veteran’s service-connected disabilities, the Board finds that the Veteran’s TDIU claim is inextricably intertwined with the claim for service-connection for PTSD that is being remanded and must be remanded as well. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination with a psychiatrist or psychologist to identify any psychiatric disability the Veteran has had at any point during the course of the appeal, to include PTSD, depression, and schizophrenia. The claims file must be made available to and be reviewed by the clinician in conjunction with the examination. If clinician finds that the Veteran has not met the criteria for a diagnosis of PTSD at any point during the course of the appeal, the clinician must explain why the PTSD diagnoses of record are not valid. For each psychiatric disability diagnosed at any point during the appeal period, to include depression, the clinician must opine as to whether it is at least as likely as not (a probability of 50% or higher) related to the Veteran’s military service. If PTSD is diagnosed at any point during the appeal period, the examiner must identify the stressor or stressors upon which the diagnosis of PTSD is based. The clinician is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the clinician rejects the Veteran's reports, he or she must provide a reason for doing so. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 2. If PTSD is diagnosed based on a non-combat stressor, the AOJ must take appropriate steps to attempt to corroborate the stressor. If more details are needed, contact the Veteran to request the information. If there is still insufficient information to verify the alleged stressor, issue a Formal Finding outlining the steps taken to assist the Veteran and notify the Veteran of VA’s inability to verify the alleged stressor. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Zachery S.C. Luce, 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.