Citation Nr: 21003524 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 17-43 442 DATE: January 21, 2021 ORDER New and material evidence having been received, the claim to reopen service connection for a psychiatric disorder is granted. REMANDED Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression, anxiety, adjustment disorder, and alcohol use disorder, is remanded. FINDINGS OF FACT 1. The claim of entitlement to service connection for a psychiatric disorder was denied in a January 2013 rating decision, and the Veteran did not perfect an appeal nor submit new and material evidence within one year. 2. New and material evidence has been received since the last prior final decision. CONCLUSIONS OF LAW 1. The January 2013 rating decision denying service connection for a psychiatric disorder is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2019). 2. New and material evidence has been received that warrants reopening of the claim of service connection for a psychiatric disorder. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1989 to June 1993, with service in Southwest Asia. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2016 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in an October 2019 hearing. New and material evidence having been received, the claim to reopen service connection for a psychiatric disorder is granted. In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103. A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285-86 (1996). 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. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary’s duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117-18. Additionally, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Furthermore, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring new and material evidence. 38 C.F.R. § 3.156(c)(1). To establish service connection, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called nexus requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In a January 2013 rating decision, the RO denied service connection for PTSD because an April 2013 VA examiner assessed that the Veteran’s condition did not meet the criteria for PTSD. The Veteran did not appeal or submit new and material evidence within one year. The rating decision is thus final based on the evidence then of record. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Evidence of record at the time of the January 2013 decision includes the service treatment records (STRs) and an April 2010 VA examination. There, the Veteran asserted two in-service stressors, including missile attacks and witnessing mutilated bodies. The examiner determined that the Veteran did not meet the criteria for a diagnosis of PTSD, and although they did diagnose the Veteran with alcohol dependence in full sustained remission, they provided a negative nexus opinion stating that there was not enough information to causally link his drinking to his in-service stressors. Evidence submitted after the January 2013 includes the Veteran’s lay statements, a November 2015 private diagnosis of PTSD, a February 2016 VA examination, VA treatment records, and October 2019 Board hearing testimony. The STRs include an endorsement of depression or excessive worry, nervous trouble, and periods of unconsciousness. In a November 2015 statement, the Veteran asserted a third in-service stressor, claiming that his convoy came under friendly fire. A November 2015 letter from a private examiner provided a diagnosis of PTSD. Lay statements from the Veteran’s mother, friend, and brother submitted in February 2016 and February 2017 all describe the Veteran as shy and timid before service, but after service he turned to drinking, and had anger problems. Multiple VA treatment records, including one in July 2019, include diagnoses for PTSD and persistent depressive disorder. And during his October 2019 Board hearing, the Veteran asserted that while in service after leaving Southwest Asia, he began drinking to help him cope and sleep. He also explained how there was one incident where he pulled a gun on a fellow service member. The Board finds that new and material evidence has been presented. The evidence is new because it was not previously submitted to VA. The evidence is material because it relates to unestablished facts necessary to establish the claim, including evidence of behavioral changes after active duty and a new diagnosis of PTSD. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167. Additionally, the evidence is neither cumulative nor redundant as that evidence was not of record at the time of the prior denial. See 38 C.F.R. § 3.156(a). Further, new evidence is to be presumed credible for purposes of deciding whether a previously denied claim may be reopened. Justus, 3 Vet. App. at 513. Moreover, when considering the new evidence in conjunction with the evidence already of record, combined with VA assistance including an examination, it raises a reasonable possibility of substantiating the claim. Shade, 24 Vet. App. at 117. Accordingly, for all of the above reasons, the Veteran’s claim is reopened. However, evidence that is sufficient to reopen a claim may not be sufficient to grant the benefit being sought. See generally Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). As explained in the remand section below, additional development is necessary before the merits of the Veteran’s claim for service connection for a psychiatric disorder can be addressed. REASONS FOR REMAND Entitlement to service connection for a psychiatric disorder is remanded. Remand is required for a new VA examination. Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Generally, a medical opinion should address the appropriate theories of entitlement. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). When a Veteran has provided competent lay statements of an in-service injury, the examiner must consider and address them when developing his rationale. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (holding that when the Veteran has provided lay testimony of an in-service injury, an examiner cannot ignore that lay evidence and base his or her opinion that there is no relationship to service on the absence of in-service corroborating medical records). The Veteran underwent a VA examination in April 2012. There, the Veteran reported childhood abuse by his stepfather, and experiencing missile attacks on base, and seeing dead bodies while in Southwest Asia. The Veteran explained that when he returned from the Persian Gulf, he had a lot of anger, began drinking heavily, and had difficulty keeping jobs and maintaining relationships as a result. The examiner determined that the Veteran did not meet the criteria for a diagnosis of PTSD, and instead diagnosed him with alcohol dependence in full sustained remission. The examiner provided a negative nexus opinion, stating that because the Veteran did not specifically describe drinking in order to manage anxiety, intrusive thoughts, or other mental disorder symptoms, it is not sufficient to causally link his drinking to the claimed in-service stressor. However, the examiner noted situational anxiety on examination, but failed to address it in the nexus opinion. And while assessing the DSM-V criteria for PTSD, the examiner only considered as a stressor that the Veteran saw dead bodies while in service. They failed to include the Veteran’s assertion of a missile attack also during service. The Veteran underwent a new VA examination in February 2016. There, the Veteran reported childhood abuse by his stepfather, and experiencing missile attacks while on base in the Persian Gulf. The Veteran also explained that while driving through oil fields that were on fire, his convoy was attacked by friendly fire, and some vehicles were even destroyed. Following service, he worked in a maximum-security prison where he witnessed inmates being sexually assaulted, attacked, and murdered. The Veteran reported having lost jobs due to having his driver’s license revoked and his anger issues. He endorsed symptoms of depressed mood, chronic sleep impairment, disturbances of motivation and mood, and an inability to establish and maintain effective relationships. The examiner provided diagnoses of alcohol use disorder and adjustment disorder with depressed mood, but stated that the Veteran did not meet the DSM IV or V criteria for PTSD. Providing a negative nexus opinion, the examiner stated that the adjustment disorder with depressed mood is secondary to recent stressors to include finances, living situation, and weight, and is not related to military stressors. The examiner also stated that although the Veteran said that he started drinking after combat, he did not state that he is currently drinking to handle war related symptoms. However, the examiner failed to address the February 2016 statement submitted from the Veteran’s mother, where she described the changes she saw in her son after he returned from service. She explained that before he entered the military, he was very shy and timid, but when he came back, he began to drink a lot, use profanity, push the family away, and refused to talk about the war. The examiner also failed to consider the other stressor the Veteran discussed in the April 2012 VA examination, that he witnessed dead bodies while in Southwest Asia. Although the April 2012 and February 2016 examiners found no diagnosis for PTSD, the Veteran has since received one. The Veteran began attending psychiatric treatment at the VA, including group therapy sessions. In July 2019, a VA clinical psychologist assessed that the Veteran suffers from chronic PTSD, persistent depressive disorder, and alcohol use disorder. December 2019 VA treatment records indicate that the PTSD likely precipitated the development of the severe alcohol use disorder. Since the February 2016, the Veteran has submitted lay evidence, to include statements from his brother and a friend, and an article describing the role of his unit while in Southwest Asia. And finally, the Veteran provided testimony at an October 2019 Board hearing where he described his experiences at Jalibah airport, and his fear from the missile attacks and possible chemical warfare. He explained that he began to drink heavily in the fall of 1991 to help cope and sleep, and that he continues to have nightmares about service. The Veteran also described a situation where he got into trouble for pulling a gun on a fellow service member. Accordingly, remand is required for a new VA examination. Second, remand is required to obtain and associate with the claims file the Veteran’s military personnel records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, military records. 38 C.F.R. § 3.159(c)(2). VA will end its efforts to obtain records only where it concludes that the records sought do not exist or that further efforts to obtain those records would be futile, such as where the Federal department or agency advises VA that the requested records do not exist or the custodian does not have them. 38 C.F.R. § 3.159(c)(2). Although the Veteran’s STRs and DD-214 are in the Veteran’s claims file, none of his military personnel records have been associated with it. A February 2000 note indicates that his personnel records were retired to code 13, but it does not appear that the RO attempted to add them to the Veteran’s claims file. Accordingly, remand is required to obtain the Veteran’s military personnel records. Third, remand is required to obtain missing treatment records. VA’s duty to assist claimants to obtain evidence needed to substantiate a claim includes making reasonable efforts to obtain relevant private medical records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). In November 2015, the Veteran submitted a letter from a private counselor who diagnosed the Veteran with PTSD and alcohol abuse disorder. The counselor stated that the Veteran had been their patient for about a month, although, no other records have been made part of the record. July 2016 VA treatment records indicate that the Veteran was referred to VA by Vet Center where he was seeking treatment for PTSD. In an August 2017 letter, a letter from Vet Center was written on the Veteran’s behalf where they explained he had emotional readjustment problems in reaction to service in Operation Desert Storm. Other than this letter, no other records from Vet Center appear in the Veteran’s claims file. Accordingly, remand is required to obtain missing treatment records. The matters are REMANDED for the following action: 1. Obtain the Veteran’s military personnel records. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records, to include records from Vet Center and Balance Point Wellness LLC. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his psychiatric disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. (a) First, the examiner must determine all of the Veteran’s diagnosed psychiatric disorders. The examiner must specifically determine if PTSD, depression, anxiety, alcohol use disorder, and/or adjustment disorder are present. If not found, the examiner must address the prior diagnoses of PTSD, alcohol use disorder, depression, anxiety, and adjustment disorder. (b) Second, for each diagnosed psychiatric disorder, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the disorder has onset in, or is otherwise related to, active military service, to include the Veteran’s in-service stressors. (c) The examiner must address the following: 1) the April 2012 and February 2016 VA examinations; 2) the Veteran’s stressors involving a missile attack, friendly fire on his convoy, and witnessing dead bodies; 3) the lay statements from the Veteran’s mother, brother, and friend; 4) the article submitted by the Veteran in February 2017 regarding the actions of his unit while in the Persian Gulf; 5) the October 2019 Board hearing testimony; and 6) VA treatment records, including the July 2019 diagnosis of PTSD, and the December 2019 entry indicating that the PTSD precipitated the alcohol use disorder. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Rogos 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.