Citation Nr: 21065488 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 18-41 597 DATE: October 26, 2021 ORDER New and material evidence having been received, reopening of the claim of entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection for PTSD is remanded. Entitlement to service connection for psychiatric disability other than PTSD, is remanded. FINDINGS OF FACT 1. An unappealed December 2002 rating decision denied the Veteran's claim of entitlement to service connection for PTSD, finding that no new and material evidence had been received to reopen that claim; the Veteran did not file a formal appeal of that decision. 2. The evidence received since the December 2002 rating decision includes evidence that is neither cumulative nor redundant of evidence already of record and relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for PTSD. CONCLUSION OF LAW Following the final December 2002 rating decision, new and material evidence has been presented to reopen the Veteran's claim of entitlement to service connection for PTSD. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDS AND CONCLUSIONS The Veteran served on active duty from June 1966 to May 1971, including service in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2020, the Veteran's representative made a statement before the undersigned Veterans Law Judge, which the Veteran's representative indicated satisfied the Veteran's request for a hearing. A transcript of the proceeding has been associated with the claims file. New and Material Evidence Generally, a claim that has been denied in a final RO or Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Meyer v. Brown, 9 Vet. App. 425, 429 (1996). The Veteran initially filed for service connection for PTSD in August 1988. In a December 1988 rating decision, the RO denied the Veteran's claim. The evidence did not contain records showing a diagnosis of PTSD and the Veteran did not respond to the request to describe his in-service stressor. The Veteran did not file a notice of disagreement to that claim. In 2002, the Veteran again filed for service connection for PTSD. The RO confirmed and continued the previous denial of service connection in a December 2002 rating decision, finding that new and material evidence had not been presented. As previously, there was no medical evidence of a diagnosis of PTSD, and the Veteran had not described his in-service stressors. The Veteran did not file a notice of disagreement related to this claim; thus, the decision became final. 38 U.S.C. § 4005(c); 38 C.F.R. §§ 3.104, 19.192. Since the December 2002 rating decision, evidence addressing the Veteran's psychiatric disorder has been added to the record, including a May 2016 VA examination, records from the Parma Vet Center, and a June 2017 Statement in Support of Claim. The evidence qualifies as new evidence because it was not of record at the time of the December 2002 rating decision and is not cumulative or redundant of the prior existing evidence of record. This evidence is material, in that it relates to unestablished facts necessary to substantiate the claim of entitlement to service connection for PTSD, specifically, the Veteran's claimed stressors are described, and treatment for symptoms described as consistent with PTSD. This new evidence raises a reasonable possibility of substantiating the Veteran's service connection claim. Accordingly, the Board finds that the Veteran has submitted new and material evidence sufficient to reopen a claim of entitlement to service connection for PTSD. REASONS FOR REMAND Prior to the adjudication of the Veteran's claim for service connection, additional development is necessary. In connection with his current claim, the Veteran was examined for VA purposes. After obtaining a detailed history and evaluation, the Veteran was diagnosed to have Adjustment disorder with mixed anxiety and depressed mood. Within the report, the examiner appeared to suggest this may have been present in service, although it was currently associated with the Veteran's care for his elderly mother. This should be clarified. Further, when providing the rationale for finding the Veteran did not have PTSD, the examiner in one place indicated the event most distressing for the Veteran (unscheduled 6 day field exercise simultaneous with the 6-Day Israeli-Arab War) did not meet criteria A for PTSD, (i.e. adequate to support a diagnosis of PTSD), but in another place indicated it was related to the Veteran's fear of hostile military or terrorist activity. This latter point suggested it was considered adequate to support a diagnosis of PTSD. This should be clarified. Another evaluation and opinion should be sought as detailed below. The matters are REMANDED for the following action: 1. With any necessary assistance from the Veteran attempt to obtain any additional records of his Vet Center treatment, not already associated with the claims file. 2. After the above development, schedule the Veteran for a psychiatric examination to determine the nature and etiology of any diagnosed psychiatric disorder present, to include PTSD. Based upon the examination and a review of the record the examiner should provide an opinion that states whether it is at least as likely as not (a 50 percent probability or greater) that any psychiatric disability had its onset in service, was caused by, or is otherwise related to an in-service disease or injury. If Adjustment disorder is diagnosed, the examiner should express an opinion as to whether this was present during service. If PTSD is diagnosed, the stressor(s) forming the basis of that diagnosis should be identified, and if PTSD is not diagnosed, the criteria for the diagnosis that the Veteran failed to meet should be indicated. In this regard, the examiner is asked to clarify whether the Veteran's unscheduled 6 day field exercise that was contemporaneous with the Arab-Israeli 6-Day War, meets Criterion A for a PTSD diagnosis (i.e., adequate to support the diagnosis of PTSD). The examiner should provide a complete rationale for any opinions expressed and should cite to the specific evidence of record. (Continued on the next page) 3. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Geer, 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.