Citation Nr: 21061791 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 18-41 417 DATE: October 5, 2021 ORDER New and material evidence has been received and the claim of entitlement to service connection for acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression has been reopened; the appeal is allowed to that extent only. REMANDED Entitlement to service connection for acquired psychiatric disorder, to include PTSD and depression, is remanded. FINDINGS OF FACT 1. By a September 2016 rating decision, the Veteran's claim of entitlement to service connection for PTSD was denied. 2. Additional evidence has been received which is not cumulative or redundant of the evidence of record at the time of the September 2016 rating decision and relates to an unestablished fact necessary to substantiate the claim for service connection for an acquired psychiatric disorder. CONCLUSIONS OF LAW 1. The September 2016 rating decision denying service connection for PTSD is final. 38 U.S.C. §§ 7104 (2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depression, and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1978 to October 1981. In May 2021, the Veteran testified at a Board hearing. The transcript is of record. The issues have been recharacterized to comport with the evidence of record. The issue of entitlement to service connection for posttraumatic stress disorder has been recharacterized as service connection of a psychiatric disorder, to include depression in accordance with Clemons v. Shinseki, 23 Vet. App. 1 (2009). New and Material Evidence A claim may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Evidence is considered "new" if it was not previously submitted to agency decision makers. "Material" evidence is 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). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the "credibility" of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Evidence "raises a reasonable possibility of substantiating the claim," if it would trigger VA's duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). Acquired Psychiatric Condition, to include PTSD and depression In a September 2016 rating decision, the Veteran's claim for service connection was denied based on the finding that the Veteran did not have a verified in-service stressor or nexus. At the time of that decision the pertinent evidence of record included the Veteran's service treatment records, VA treatment records, military personnel records and statements in support of the claim. The evidence received since the September 2016 rating decision includes VA treatment records, hearing testimony, and statements in support of the claim related to the alleged traumatic events the Veteran experienced in service. This evidence is new and material as it pertains to whether the Veteran has stressors related to his active service, which is an unsubstantiated fact that is necessary to substantiate the claim. Therefore, the claim is reopened. REASONS FOR REMAND 1. Entitlement to service connection for acquired psychiatric disorder, to include PTSD and depression is remanded. The Board notes that the VA's duty to provide a VA examination is triggered in this case. In determining whether VA's duty to assist requires a VA medical examination or medical opinion, four factors are for consideration: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.159(c)(4) (2017); see McLendon v. Nicholson, 20 Vet. App. 79 (2006). The evidence of record indicates that the Veteran has a current psychiatric diagnosis, which may be related to service. The Veteran contends that his psychiatric conditions stem from a January 1980 gas attack and a May 1980 personal assault. See May 2021 Hearing Transcript. The Veteran indicated that these stressors caused or aggravated his current psychiatric diagnoses. Specifically, the Veteran detailed an instance during service when the Veteran was on night maneuvers with bivouac and the drill sergeants threw gas grenades out. The Veteran remembers putting on his mask and next he remembers he was sitting under a tree. The next morning, the Veteran woke and his "pillow was filled with blood." Additionally, the Veteran reported that a fellow soldier pressed a knife to the side of his neck. Review of the service treatment records (STRs) reveals a January 1980 treatment where the clinician noted he or she was searching for a location of medical industry and checked the Veteran's pupils. Additionally, the STRs include a note of a bruise on the Veteran's back in May 1980. The Veteran's medical doctor provided two private opinions showing a diagnosis of PTSD and major depression, which he attributed to the Veteran's service. The examiner noted that he has interviewed the Veteran and reviewed the Veteran's history and medical records. However, the examiner does not explain how the Veteran's diagnosis of PTSD and depression related to his military service. Therefore, a VA examination to obtain an opinion to determine the etiology of any acquired psychiatric condition, to include PTSD and depression is warranted. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matter is REMANDED for the following action: 1. In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. 2. Acquire updated VA and/or private treatment records. If such records are unavailable, the Veteran's claim file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 3. Schedule the Veteran for a VA examination with a VA psychiatrist or psychologist to determine the nature and etiology of any acquired psychiatric disorder, to include PTSD and depression. The claims file should be made available to the examiner in conjunction with the examination. Any medically indicated tests should be accomplished, and all pertinent symptomatology and findings must be reported in detail. The examiner should list all psychiatric disorders present during the time period of the claim. With regard to each identified acquired psychiatric disorder present during the claim, the VA examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any diagnosed psychiatric disorder originated during or is otherwise etiologically related to the Veteran's military service. If PTSD is diagnosed, the specific stressors giving rise to the condition must be identified. In providing the requested opinions, the examiner is advised that the term "at least as likely as not" does not mean within the realm of possibility, but that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. The examiner must elicit a detailed medical history from the Veteran. The rationale must consider and discuss the Veteran's statements. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. 4. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Schmidt 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.