Citation Nr: 21063161 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 18-31 278 DATE: October 13, 2021 ORDER As new and material evidence has been submitted to reopen a claim of entitlement to service connection for posttraumatic stress disorder (PTSD) and/or a depressive disorder, the petition to reopen is granted. REMANDED Entitlement to service connection for a psychiatric disorder, to include PTSD, depressive disorder, and anxiety disorder, is remanded. FINDING OF FACT An unappealed April 2013 rating decision denied service connection for PTSD and depressive disorder; VA received no appeal or new and material evidence prior to expiration of the appeal period; subsequently received evidence includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim. CONCLUSION OF LAW An April 2013 rating decision denying service connection for PTSD and a depressive disorder is final; and new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156, 3.160(d), 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1968 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. Although it appears there is an outstanding Privacy Act request, the Board finds that there is no such request. In July 2020, the Veteran's attorney submitted a status request regarding the docketing of the Veteran's Board hearing. When associated with the claims file, that request was listed as Court Documents. See Court Documents General (July 2020). Accordingly, that same month, the Board notified the attorney that court documents had been filed in this claim. See Notification Letter (July 2020). As a result, the attorney submitted a request for a copy of those court documents. See Third Party Correspondence (July 2020). However, those "court documents" were actually a status update request from the Veteran's attorney. Accordingly, there is no actual Privacy Act request to fulfill, and the Board may proceed to adjudicate the issue on appeal. 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for PTSD and a depressive disorder. The Board concludes that an April 2013 rating decision denying service connection for PTSD and a depressive disorder is final; and new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.104, 3.156(a), (b), 20.1103. 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)). Here, an April 2013 rating decision denied service connection because a VA examiner found there was no PTSD diagnosis and depressive disorder was less likely as not related to service. VA received no appeal or new and material evidence prior to expiration of the appeal period. Therefore, the rating decision became final based on the evidence then of record. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Although there are later rating decisions, the Board finds that the most recent final denial was in April 2013. In March 2015, the Veteran filed a claim to reopen service connection for PTSD, a depressive disorder, and an anxiety disorder. See VA 21-526EZ, Fully Developed Claim (March 2015). In August 2015, the RO denied the claim for service connection for anxiety. The RO reopened and denied service connection for PTSD and a depressive disorder. See Rating Decision (August 2015). Four months later, in December 2015, the Veteran filed a claim to reopen service connection for PTSD. See VA 21-526EZ, Fully Developed Claim (December 2015). With that claim, he submitted a nexus opinion from his treating VA psychologist that appeared to address PTSD, depression, and anxiety. See Third Party Correspondence (December 2015). Due to the submission of this new and material evidence, the August 2015 rating decision was not final regarding each of the three diagnosed psychiatric disorders. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. In February 2016, the RO reopened and denied service connection for PTSD. See Rating Decision (February 2016). One day later, the Veteran submitted a Disability Benefits Questionnaire filled out by a VA psychologist. See Disability Benefits Questionnaire (DBQ) (February 2016). Due to the submission of this new and material evidence, the February 2016 rating decision was not final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. In March 2016, the Veteran filed a claim to reopen service connection for PTSD. See VA 21-526EZ, Fully Developed Claim (March 2016). The Veteran noted that in the February 2016 rating decision, the RO didn't address the evidence he had recently submitted the February 2016 DBQ. See VA 21-4138 Statement in Support of Claim (March 2016). In August 2016, the RO reopened and denied service connection for PTSD and/or depression. See Rating Decision (August 2016). The Veteran appealed this decision. See NOD (February 2017); SOC (May 2018); Form 9 (June 2018). Accordingly, and as based on the assessment above, the most recent final rating decision was in 2013 and only addressed PTSD and depressive disorder. Any anxiety disorder is not subject to the requirement of new and material evidence. Evidence of record at the time of the April 2013 rating decision includes service treatment records, service personnel records, the Veteran's lay statements, buddy statements, VA treatment records from 1996 to 1998 and from 2011 to 2013, and an April 2013 VA examination. Notably, the records contained relevant psychiatric diagnoses, but a negative nexus opinion from the VA examiner. See VA Examination (April 2013); CAPRI (July 2012); CAPRI (April 2013). The Veteran's lay statements indicated that his in-service stressor was due to his military occupational specialty as a correctional officer and that his symptoms began in service. Specifically, he related various types of harsh corporal punishment he engaged in while a prison guard and that he feared for his life during prison riots and fights. See VA Form 21-4138, Statement in Support of Claim (October 2011); VA 21-0781, Statement in Support of Claim for PTSD (April 2012). Evidence submitted after the April 2013 decision includes several submissions and opinions from the Veteran's treating psychologist dated in November 2015, February 2016, July 2017, and April 2018, a July 2016 VA examination report, statements from the Veteran, and a Defense Personnel Records Information System response regarding the presence of a riot at Fort Dix while the Veteran was present. Notably, the opinions from the Veteran's treating psychologist were that his psychiatric problems are due to service. See Third Party Correspondence (December 2020). The Board finds that new and material evidence has been presented. Specifically, the recent evidentiary submissions include positive nexus opinions, which were not previously considered by VA adjudicators that relate to unestablished facts necessary to establish the claimthat is, evidence of a relationship to service. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167. 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, the petition to reopen the claim for service connection for PTSD and a depressive disorder is granted. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depressive disorder, and anxiety disorder, is remanded. The Veteran alleges that his psychiatric symptoms began during service and have existed since that time. See Hearing Transcript (December 2020). The Veteran has also reported that his behavior during active duty while a prison guard has caused his psychiatric symptoms. See Hearing Transcript (December 2020); Third Party Correspondence (December 2020); VA Form 21-4138, Statement in Support of Claim (October 2011). Specifically, the Veteran reported that his MOS as a prisoner guard required that he mete out corporal punishment to prisoners which causes him severe guilt. For example, he reported a form of punishment called "strapping" which involved strapping a prisoner's stomach and feet and hands together. He also stated that he after a training at Fort Gordon, he was sent back to Fort Dix after a prison riot in June 1969. He stated that he had to assist in punishment of those that rioted and other prisoners. The Veteran also reported being involved in various prison fights which left him in fear for his life. See Hearing Transcript (December 2020); Third Party Correspondence (December 2020); VA Form 21-4138, Statement in Support of Claim (October 2011). The Veteran asserted that his symptoms began during service and have existed since that time. See Hearing Transcript (December 2020). He reported that after service discharge, he began using alcohol and drugs to cope with his feelings. See Hearing Transcript (December 2020). The Board finds that remand is warranted to obtain clarifying etiological opinions and to obtain Social Security Administration (SSA) records. Regarding SSA records, remand is required to attempt to obtain relevant 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, records from Federal agencies such as the Social Security Administration. 38 C.F.R. § 3.159(c)(2). A document in the claims file indicates that the Veteran may be in receipt of SSA benefits. See SHARE print screens (April 2018). It does not appear that any attempt to obtain these records was made. This must be done on remand. Regarding etiological opinions, remand is required to obtain clarification of the applicable diagnoses and explanations. 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 opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The central issue in determining probative value of a medical opinion is whether the examiner was informed of the relevant facts. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). First, the relevant diagnoses are unclear. Regarding depressive disorder, there are conflicting findings of whether this diagnosis applies or if it is in remission. The April 2013 and July 2016 VA examination reports noted diagnoses of depressive disorder. See VA Examination (April 2013); C & P Examination (July 2016). Additionally, VA treatment records contain diagnoses of depressive disorder beginning in 2012. See CAPRI (May 2018); CAPRI (July 2012); CAPRI (May 2016); CAPRI (August 2016). However, in a February 2016 Disability Benefits Questionnaire (DBQ) submitted by a VA psychologist who treated the Veteran, Dr. AC concluded that a depressive disorder was in remission, but also noted current symptoms of a depressive disorder. See Disability Benefits Questionnaire (DBQ) Veteran Provided (February 2016). Regarding PTSD, there are conflicting findings whether this diagnosis is applicable. VA treatment records dated from 1998 to 2018 contain diagnoses of PTSD. See Medical Treatment Record Government Facility (March 2016); CAPRI (March 2016); CAPRI (May 2018). Several VA treatment records, including in 2012, 2013, and 2016, indicate that those diagnoses are based on the two most recent versions of the DSM, the DSM-IV and the DSM-5. See e.g. CAPRI (July 2012); CAPRI (March 1, 2016); CAPRI (March 3, 2016). In the February 2016 DBQ, Dr. AC diagnosed chronic PTSD (military but non-combat) and specifically laid out how the Veteran met each of the diagnostic criteria. See DBQ Veteran Provided (February 2016). When assessing each diagnostic criterion, however, Dr. AC did not check enough of the symptoms to actually meet the criteria for PTSD. See DBQ Veteran Provided (February 2016). The Veteran's treating psychologist, Dr. LM, provided multiple statements, but did not clearly provide a PTSD diagnosis. The April 2013 and July 2016 VA examination reports found that the Veteran did not meet the criteria for a PTSD diagnosis. The July 2016 VA examiner opined that overall, despite a stressor that was adequate to support a PTSD diagnosis, the Veteran did not meet the criteria for PTSD. See C & P Examination (July 2016). The examiner did not provide a supporting explanation; accordingly, this opinion lacks probative value. The April 2013 VA examiner opined that the full criteria for PTSD were not met because the symptoms from service were related to depression, as they were guilty thoughts rather than re-experiencing and because there was no avoidance. See VA Examination (April 2013). But VA treatment records contain complaints of flashbacks and avoidance of attending temple and the February 2016 DBQ noted that the Veteran did have avoidance behaviors. See CAPRI (May 2018); DBQ Veteran Provided (February 2016). Thus, this explanation is inadequate as it conflicts with the treatment record. Accordingly, it remains unclear if there is a valid diagnosis of PTSD. Additionally, VA treatment records and the February 2016 DBQ diagnosed an anxiety disorder. See DBQ Veteran Provided (February 2016); CAPRI (August 2016); CAPRI (March 2016); CAPRI (May 2018). However, neither of the VA examination reports found an anxiety disorder, finding only a depressive disorder. See VA Examination (April 2013); C & P Examination (July 2016). The Veteran's treating psychologist, Dr. LM, provided multiple statements, but did not clearly provide an anxiety diagnosis. See Third Party Correspondence (December 2015); Third Party Correspondence (August 2017); Medical Treatment Record Government Facility (December 2020). Thus, there are competing conclusions regarding whether a diagnosis of anxiety disorder applies. Second, the etiological opinions provided are inadequate or insufficient upon which to base service connection and a clarifying opinion is necessary. The Veteran's treating VA psychologist, Dr. LM submitted November 2015, July 2017, and April 2018 statements in support of the Veteran's claim. See Third Party Correspondence (December 2015); Third Party Correspondence (August 2017); Medical Treatment Record Government Facility (December 2020). Although each of these statements suggest that the Veteran's psychiatric symptoms are due to in-service stressors, the submissions do not provide such a conclusion. See Third Party Correspondence (December 2015); Third Party Correspondence (August 2017); Medical Treatment Record Government Facility (December 2020). A February 2016 DBQ from Dr. AC, another VA psychologist that has treated the Veteran, indicated a diagnosis of depressive disorder but provided no nexus opinion. See DBQ Veteran Provided (February 2016). The April 2013 VA examiner checked a box for the finding that the claimed condition was unrelated to service, but the supporting explanation focused on the lack of a PTSD diagnosis. See VA Examination (April 2013). The examiner found that it was at least as likely as not that the depressive disorder was caused by current family dysfunction, financial problems, and guilty ruminations about the past, noting that it would require speculation to provide an opinion regarding the extent to which the Fort Dix experiences caused the disorder, noting the length of time between service and the 1996 diagnosis. See VA Examination (April 2013). This is inadequate as it does not address the Veteran's lay statements of psychiatric symptoms since service discharge. See McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016) ("the VA examiner's failure to consider [a veteran's] testimony when formulating her opinion renders that opinion inadequate."). In the July 2016 VA examination report, the examiner opined that the persistent depressive disorder was less likely as not due to the military stressor, reasoning that he reported three years of worsening mental health in 1996 and relatively better health during his absence of care until recommencing treatment in 2011. See C&P Examination (July 2016). This supporting explanation is inadequate as it does not address why this period of better mental health supports that the diagnoses of record are not due to in-service stressors. The matters are REMANDED for the following action: 1. Obtain the Veteran's records from the SSA. Document all requests for information as well as all responses in the claims file. 2. Obtain the Veteran's VA treatment records for the period from 2018 to the Present. 3. Schedule the Veteran for a VA examination for his psychiatric disorders. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression and severity of any symptoms consistent with the diagnosed disorders. The opinion should, among other things, include a discussion of the Veteran's documented history and assertions. The opinion should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). The clinician should provide an opinion, with supporting rationale, as to: (1) Which psychiatric diagnoses apply to the Veteran. Specifically, the examiner must address whether PTSD, depressive disorder, and/or an anxiety disorder are applicable. In so doing, the examiner must address the following: a) the April 2013 and July 2016 VA examination reports; b) the February 2016 DBQ from a VA psychologist diagnosing PTSD, depressive disorder (in remission), and an anxiety disorder; c) the multiple VA treatment records noting DSM-IV and DSM-5 diagnoses of PTSD, depressive disorder, and anxiety disorders; and d) the November 2015, July 2017, and April 2018 opinions from the Veteran's treating VA psychologist. (2) Whether each of the Veteran's diagnosed psychiatric disorders at least as likely as not (1) had its onset in service, or (2) is otherwise related to an in-service injury, event, or disease, to include the Veteran's reports of behavior he engaged in and was subject to as a prison guard at Fort Dix. The examiner must address the following: a) the April 2013 and July 2016 VA examination reports; b) the February 2016 DBQ from a VA psychologist diagnosing PTSD, depressive disorder (in remission), and an anxiety disorder; c) the multiple VA treatment records noting DSM-IV and DSM-5 diagnoses of PTSD, depressive disorder, and anxiety disorders; d) the November 2015, July 2017, and April 2018 opinions from the Veteran's treating VA psychologist; and e) the statements from the Veteran's daughter, son, cousin, cousin's wife, and Veteran's wife. NOTE (1): An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints. (Continued on the next page) NOTE (2): If any medical history is rejected, a complete explanation is required. 4. Ensure that the medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.M., 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.