Citation Nr: 21004807 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 17-13 602 DATE: January 28, 2021 ORDER New and material evidence having been received, entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety, and depression, is reopened. REMANDED Entitlement to service connection for a psychiatric disorder, to include PTSD, anxiety, and depression, is remanded. FINDINGS OF FACT 1. In a September 2010 rating decision, the VA Regional Office (RO) denied the Veteran’s service connection claim for PTSD. The Veteran was notified of the decision and his appellate rights, but he did not appeal or submit new and material evidence within the one-year period thereafter. 2. The evidence received since the September 2010 rating decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the Veteran’s claim for service connection for PTSD. CONCLUSIONS OF LAW 1. The September 2010 rating decision that denied the Veteran’s claim for entitlement to service connection for PTSD is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 2. The evidence received since the September 2010 rating decision is new and material, and the claim of entitlement to service connection for PTSD is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the U.S. Army from September 1973 to August 1976. In July 2018, the Board remanded this issue to translate documents the Veteran provided. As these documents have since been translated, the Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. New and material evidence having been received, entitlement to service connection for a psychiatric disorder, to include PTSD, anxiety, and depression, is reopened. Although a decision is final, a claim will be reopened if new and material evidence is presented. 38 U.S.C. § 5108. 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. 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. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence need not relate specifically to the reason why the claim was last denied; rather it need only relate to any unestablished fact necessary to substantiate the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Additionally, the phrase “raises a reasonable possibility of substantiating the claim” is meant to create a low threshold that enables, rather than precludes, reopening. Id. at 117. Reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. at 117. Notwithstanding the foregoing, 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 and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. § 3.156(c)(1) (2017). Such official service department records include, but are not limited to, records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the Veteran by name. Such records do not include any records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source. 38 C.F.R. § 3.156(c)(2). With respect to the claim for entitlement to service connection for PTSD, since the final September 2010 rating decision, the Board has received additional evidence regarding these claim, including a May 2017 lay statement that details the Veteran’s claimed PTSD stressors. This evidence is new because it was not of record at the time of the final rating decision in September 2010. As to whether the evidence is material, the Board notes that the Veteran’s claimed stressor regarding a soldier in his unit dying from a boating accident was already considered in the September 2010 rating decision. However, the Veteran’s second claimed stressor, a solider in his unit losing both of his arms in a car accident, has not yet been considered. Therefore, the evidence regarding the second stressor is material as it relates to a claimed in-service stressor and nexus. Accordingly, the Board finds this new evidence raises a reasonable possibility of substantiating this service connection claim. See Shade, 24 Vet. App. 110. REASONS FOR REMAND 1. Entitlement to service connection for a psychiatric disorder, to include PTSD, anxiety, and depression, is remanded. The Veteran contends that he has a mental health condition that is related to his military service. To support his argument, in a May 2017 correspondence, he submitted lay statements concerning his stressors in service. Specifically, he reported that he witnessed two separate accidents: (1) a soldier in his unit dying from a boating accident, and (2) a solider in his unit losing both of his arms in a car accident. See May 2017 correspondence. Under the duty to assist, a medical examination or medical opinion is considered necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent medical evidence of a currently diagnosed disability or persistent or recurrent symptoms of a disability; (2) establishes that the Veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with an established event, injury or disease in service or with another service-connected disability. McClendon v. Nicholson; 38 C.F.R. § 3.159(c)(4). In the instant case, the Veteran’s VA treatment records note an assessment of PTSD and anxiety, and the Veteran has asserted an in-service incurrence and a link, which are sufficient to meet the low bar set by McClendon. However, the record is not sufficient to decide the claim the Veteran has not undergone a VA examination for this service connection claim. As such, the Board finds that the duty to assist has been triggered. Accordingly, a remand is necessary to obtain a VA examination to assess the nature and etiology of the Veteran's claimed psychiatric disorder, to include PTSD and anxiety. The matters are REMANDED for the following action: 1. Attempt to corroborate the Veteran's claimed in-service PTSD stressors, to include the stressor of a solider in his unit losing both of his arms in a car accident. If more details are needed, contact the Veteran to request the information. After acquiring this information and obtaining any necessary authorizations, the AOJ should make reasonable efforts to obtain and associate any relevant records with the claims file. 2. Then, schedule the Veteran for a VA examination by an appropriate clinician for his claimed psychiatric disorder, to include PTSD, anxiety, and depression. The examiner must review the claims file. The examiner should determine all psychiatric disorders present, including whether the Veteran has PTSD, anxiety disorder or depression. Then, for each diagnosed psychiatric disorder, the examiner is asked to provide a response to the following: Is the Veteran’s identified psychiatric disorder at least as likely as not (50 percent probability or greater) related to service, including any verified stressors. The examiner should provide a rationale to support all opinions provided. In providing the requested opinion, the examiner should consider the Veteran’s description of his in-service stressors as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported symptoms in service and thereafter represented the onset of his current disability, this should be noted. 3. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. E. Grossman, 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.