Citation Nr: 21063314 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 15-34 446 DATE: October 13, 2021 ORDER New and material evidence having been received, the petition to reopen the previously denied claim for service connection for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection for an acquired psychiatric condition, to include depression, bipolar disorder, and PTSD is remanded. FINDINGS OF FACT 1. A final March 2008 rating decision denied the Veteran's claim for entitlement to service connection for PTSD on the basis of no corroborated in service stressor. 2. An April 2010 rating decision found that no new and material evidence had been submitted to reopen the claim. 3. The evidence added to the record since the last rating decision in April 2010 is not cumulative of the evidence previously considered, contributes to a more complete picture of the Veteran's claim for entitlement to service connection for PTSD, and creates a reasonable possibility of an allowance of the claim. CONCLUSIONS OF LAW 1. The March 2008 rating decision that denied the claim for entitlement to service connection for PTSD is final. 38 U.S.C. § 5103, 7105; 38 C.F.R. § § 3.104, 20.302, 20.1103. 2. The April 2010 rating decision that denied the application to reopen a claim for entitlement to service connection for PTSD is final. 38 U.S.C. § 5103, 7105; 38 C.F.R. § § 3.104, 20.302, 20.1103. 3. New and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder to include PTSD. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1972 to April 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in Philadelphia, Pennsylvania. In October 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript is associated with the record. In September 2019, the Board remanded the appeal to the RO for further development. 1. Whether new and material evidence has been received to reopen the previously denied claim for service connection for PTSD. The Veteran contends that he has a diagnosis of PTSD that is related to a fear of drowning during active service. He previously had contended that he had PTSD related to the death of family members. I. Legal Criteria Generally, a claim which has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § § 7104(b); 7105(c). The exception to this rule is if new and material evidence is presented or secured with respect to a claim which has been disallowed; the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. 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. The determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). II. Analysis The Veteran's claim for entitlement to service connection for PTSD was originally denied in a March 2008 rating decision for failure to show that he had been diagnosed with PTSD due to a verified in-service stressor. The evidence of record at the time of the March 2008 rating decision included the Veteran's service treatment records (STRs) from his period of service, VA treatment records, and private treatment records. The evidence had identified stressors of two family members being murdered and stresses for naval service being on the sea for greater than six months. By letter dated March 27, 2008, the Veteran was notified of the March 2008 rating decision and of his appellate rights. He did not appeal this rating decision and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of the rating decision. See 38 C.F.R. § 3.156(b). Thus, the March 2008 rating decision became final based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The Veteran submitted an application to reopen his claim in September 2009. In an April 2010 rating decision, the RO denied reopening the Veteran's claim of entitlement to service connection for PTSD, finding that the evidence submitted was not new and material to the issue on appeal. The RO also denied service connection for depression, bipolar disorder and panic attacks. The Veteran provided additional stressor details of being forced to swim in the deep end of a pool despite his fear of water. He reported developing a fear of water, including takings showers, which caused him to develop panic attacks and resorting to using drugs and alcohol. By letter dated April 16, 2010, the Veteran was notified of the March 2008 rating decision and of his appellate rights. He did not appeal this rating decision and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of the rating decision. See 38 C.F.R. § 3.156(b). Thus, the April 2010 rating decision became final based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The Veteran filed an application to reopen in March 2012. In connection with the current appeal, the Veteran submitted an October 2017 medical statement from a VA staff psychiatrist which notes treatment for bipolar disorder and "PTSD due to fear of drowning." The Board finds that the evidence received since the March 2008 rating decision is new and material evidence. The medical evidence is new in that it had not previously been considered, and did not exist at the time of the promulgation of the April 2010 rating decision. The evidence is material in that it relates to an unestablished fact, whether the Veteran's acquired psychiatric disability, claimed as PTSD, is related to his fear of drowning during his active service and raises a reasonable possibility of substantiating the claim. Shade, supra. Thus, the Board finds that new and material evidence has been received, the claim is reopened, and the Veteran's appeal to this extent is granted. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric condition, to include depression, bipolar disorder, and PTSD is remanded. Unfortunately, the Board finds that further action on the claims on appeal is warranted, even though such will, regrettably, further delay an appellate decision on these matters. VA's duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim. See 38 C.F.R. § 3.159(c)(4). In this case, the Veteran has current diagnoses of other psychiatric disorders in addition to PTSD, the record indicates that he suffered an event in service (fear of drowning), his symptoms may be associated with his service, and the record does not contain sufficient medical evidence for VA to make a decision on the claim. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; McClendon v. Nicholson, 20 Vet. App. 79 (2006). Therefore, a psychiatric examination is necessary to diagnose any current psychiatric disorder, and to determine if any such disorder is related to the Veteran's military service. Therefore, the Board finds that a remand for a VA examination addressing the nature and etiology of the Veteran's psychiatric disorders is required. The record also indicates that the Veteran continues to receive VA treatment for his psychiatric conditions, and updated VA treatment records should be obtained and associated with the claims file. The AOJ should also request that the Veteran provide the details concerning any outstanding private treatment records related to the issue being decided herein, and have the Veteran submit the necessary authorizations required to obtain any such records. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. 2. Following the receipt of outstanding records, schedule the Veteran for a VA examination with the appropriate medical professional to determine the nature and etiology of any currently-diagnosed acquired psychiatric disorder, to include depression, bipolar disorder, and/or PTSD. The entire claims file, to include a copy of this REMAND, must be provided to the examiner and reviewed in full. That review must be noted in the report. A complete history of symptoms should be elicited from the Veteran. The need for an in-person examination is left to the discretion of the examiner. The examiner should set forth all currently-diagnosed acquired psychiatric disorders, including those diagnosed during the pendency of the appeal, even if currently resolved. Thereafter, the examiner is asked to provide an opinion with respect to the following: (a) If the examiner finds that a diagnosis of PTSD is warranted, is it at least as likely as not (50 percent probability or greater) that the Veteran's PTSD is related to his claimed in-service stressor or otherwise related to any other in-service event? In responding to the above, the examiner must specifically discuss the Veteran's reported fear of drowning while serving in the Navy. (b) If the examiner determines that the Veteran does not meet the criteria for a diagnosis of PTSD, the examiner must thoroughly explain why his symptoms do not meet the criteria and attempt to reconcile this finding with the medical records which show that the Veteran has been diagnosed with PTSD by his VA treatment providers. (c) Is it at least as likely as not (50 percent probability or greater) that any currently-diagnosed psychiatric disorder other than PTSD was incurred in or caused by an in-service injury, illness, or event? The examiner is reminded that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. The examiner should reconcile prior psychiatric diagnoses which related the claimed psychiatric disorder to polysubstance disorder, bipolar disorder, and PTSD related to a fear of drowning and/or the death of two of the Veteran's family members. The examiner must provide a complete rationale for any opinions offered, citing to the examiner's own expertise, medical principals, and/or evidence in the Veteran's record, when necessary, to support the conclusion reached. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts), or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). The Board reminds the examiner that failure to comply with the examination directives outlined herein will render the opinion inadequate and will result in further remand of the Veteran's claim. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael J. O'Connor, 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.