Citation Nr: 21067134 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 18-34 985 DATE: November 3, 2021 ORDER The claim to reopen service connection for posttraumatic stress disorder (PTSD) or other mental disorder is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder to include PTSD is remanded. FINDINGS OF FACT 1. In a February 2012 rating decision, the RO denied the Veteran's claim of entitlement to service connection for PTSD or other mental condition; the Veteran filed a timely notice of disagreement (NOD) but did not complete the appeal with the filing of a timely substantive appeal following the issuance of a statement of the case (SOC) dated November 2012. 2. The evidence received since the February 2012 rating decision, by itself or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claim for service connection for PTSD or other mental condition. CONCLUSIONS OF LAW 1. The February 2012 rating decision denying service connection for PTSD or other mental condition is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. Since the February 2012 rating decision, new and material evidence has been received with respect to the Veteran's claim of entitlement to service connection for PTSD or other mental condition; therefore, the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1999 to February 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board hearing in July 2021. A transcript of the hearing has been associated with the claims folder. New and Material In general, rating decisions that are not timely appealed are final. See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 20.1100, 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured to that claim. "New" evidence means evidence not previously submitted to the agency decision-maker. "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 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. See 38 C.F.R. § 3.156(a). The threshold for determining if there is new and material evidence is low. See Shade v. Shinseki, 24 Vet. App. 110 (2010). In the determination of whether new and material evidence has been received, the credibility of the evidence is to be presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The RO denied service connection for PTSD or other mental condition in a February 2012 rating decision. In essence, there was no evidence that the Veteran had PTSD or other mental condition that was related to service to include a verified stressor. The Veteran filed a timely NOD to the February 2012 rating decision that denied this claim but did not complete his appeal with the filing of a timely substantive appeal following the issuance of a SOC dated November 2012. The February 2012 rating decision therefore became final. At the time of the prior final rating decision in February 2012, the record in pertinent part included the Veteran's service treatment records as well as post-service treatment records and the Veteran's statements. The Veteran's service treatment records were absent complaints of or treatment for a mental condition. A post-service mental health evaluation dated March 2011 from St. Joseph's Neighborhood Center Counseling and Community Work documented diagnoses of PTSD and generalized anxiety disorder. The Veteran reported in statements dated June 2011 that during service in 1999, while in boot camp he was instructed to run around a service member who collapsed and died due to a heat stroke. He also reported that he had to protect another service member from suicide. He further reported that a service member and drill instructor were killed in 1999 due to an accident while in training with grenades. He did not provide names of any of the service members involved in these incidents. As the February 2012 rating decision is final, new and material evidence is therefore required to reopen the claim. In reviewing the evidence added to the claims folder since the February 2012 denial, the Board finds that additional evidence has been submitted which is sufficient to reopen the Veteran's claim. Specifically, during the July 2021 Board hearing, the Veteran testified that he was part of the honor guard for a friend of his who died in Iraq. See the July 2021 Board hearing transcript, page 4. He also testified that he was harassed by drill instructors which in part caused his current psychiatric disorder. Id. at pgs. 6-7. As indicated above, the Veteran's previous claim was denied because there was no evidence of a current mental condition related to service to include an in-service stressor. As the new evidence potentially indicates such, the Board finds that the new evidence relates to an unestablished fact necessary to substantiate the claim. As new and material evidence has been received, the claim for service connection for PTSD or other mental condition is reopened. REASONS FOR REMAND Service connection for an acquired psychiatric disorder. The Veteran contends he has an acquired psychiatric disorder to include PTSD that is related to service, to include in-service stressors. As to the in-service stressors, the Veteran has reported multiple in-service stressors that caused his current acquired psychiatric disorder. First, he reports that he served as part of the honor guard following the accidental death of a marine during service in Iraq. He provided the name of this person. He has also reported that during service in 1999, while in boot camp he was instructed to run around a marine who collapsed due to a heat stroke. This marine was reported to be a "casualty." He also reported that he had to be on suicide watch. He further reported that a marine and drill instructor were reported as "casualties" in 1999 due to an accident training with grenades. He did not provide names of any of the service members involved in these incidents. The Board further notes that the Veteran has received treatment for PTSD and generalized anxiety disorder following separation from service. As such, the Board finds that the Veteran should be provided a VA examination on remand to determine the etiology of any current acquired psychiatric disorder. Finally, the Veteran testified during the July 2021 Board hearing that he has received mental health treatment for his acquired psychiatric disorder to include VA treatment and from Dr. Landsman and St. Joseph's Neighborhood Center Counseling and Community Work. See the July 2021 Board hearing transcript, pgs. 10, 12. A review of the record reveals that all of these records have not been associated with the claims folder. Accordingly, these records should be requested and associated with the claims folder. The matter is REMANDED for the following action: 1. After securing any necessary release obtain any outstanding medical treatment records, to include records identified during the July 2021 Board hearing to include from Dr. Brad Landsman, St. Joseph's Neighborhood Center Counseling and Community Work, and Aurora Institute Accelerated Human Development. Any VA records should also be associated with the claims file. 2. Thereafter, request from the appropriate repository verification of the Veteran's reported PTSD stressors, in particular his serving as part of the honor guard for the person identified during the July 2021 hearing (pg. 3 ) as dying during service in Iraq. 3. After the above development is completed, schedule the Veteran for a VA examination by an appropriately qualified examiner to determine the likely etiology of any acquired psychiatric disorder. Based on the review of the claims file and after conducting the examination, the examiner should note any psychiatric diagnoses found. If PTSD is diagnosed, the examiner should note the stressor(s) upon which such diagnosis was based. For any other acquired psychiatric noted on examination, the examiner is asked to provide an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the Veteran has an acquired psychiatric disorder that is related to service. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached should be provided. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Kamal, 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.