Citation Nr: 21067653 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 17-61 291 DATE: November 4, 2021 ORDER As new and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder, the appeal to this extent is allowed. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. FINDINGS OF FACT 1. A November 1979 Board decision denied the Veteran's claim of entitlement to service connection for anxiety neurosis. 2. New and material evidence has been submitted since the last denial in November 1979, and the claim of service connection for an acquired psychiatric disorder is reopened. CONCLUSION OF LAW New and material evidence has been received since the last denial in November 1979, and the claim of service connection for an acquired psychiatric disorder is reopened. 38 U.S.C. §§ 5108, 7104(b); 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from April 1969 to November 1971. The Veteran testified at a Board hearing before the undersigned in October 2020. He was subsequently scheduled for another hearing in November 2021, however the Veterans Appeals Control and Locator System (VACOLS) shows the Veteran cancelled this hearing. The United States Court of Appeals for Veteran Claims (Court) has held (in the context of a claim for service connection for a psychiatric disorder) that a claim of service connection encompasses all pertinent symptomatology, regardless of how that symptomatology is diagnosed. Clemons v. Shinseki, 23 Vet. App. 1 (2009). However, a claim for one diagnosed disease or injury cannot be prejudiced by a prior claim for a different diagnosed disease or injury, when it is an independent claim based on distinct factual bases. Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008). In reconciling these holdings, the Court held that when varying diagnoses are involved, in considering whether the claim presented is one to reopen or is a new claim to be adjudicated on the merits, "the focus of the Board's analysis must be on whether the evidence presented truly amounts to a new claim 'based upon distinctly diagnosed diseases or injuries' or whether it is evidence tending to substantiate an element of a previously adjudicated matter." Velez v. Shinseki, 23 Vet. App. 199, 204 (2009). As will be discussed below, in November 1979 the Board denied the Veteran's claim of entitlement to service connection for anxiety neurosis. In October 2016 the Veteran filed a claim to reopen service connection for a mental disorder and during the current appeal period in statements and testimony the Veteran avers that he has had a psychiatric disorder since the 1970s. Thus, the present claim turns upon essentially the same history, factual bases, and claimed symptomatology as was considered in the prior Board decision. Thus, the Board is broadening the claim under Clemons, and considering whether new and material evidence has been submitted to reopen an acquired psychiatric disorder claim. Issue 1: Whether new and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disorder. VA law provides that a claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. 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 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). When making a determination as to whether received evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). Here, in the November 1979 decision, the Board denied service connection for anxiety neurosis based on the determination that service treatment records were devoid of any references to a psychiatric disorder and the Veteran's contention that he was treated for the disorder was not supported by the evidence of record. The evidence added to the record since the November 1979 Board decision includes the Veteran's October 2020 Board hearing transcript that reflects his testimony that his inservice stressors included seeing his fellow service members die during service. This additional evidence is neither cumulative nor redundant of the evidence of record and raises a reasonable possibility of substantiating the claim as the evidence provides information regarding the Veteran's claimed inservice stressors. Thus, the Veteran's claim is reopened. REASONS FOR REMAND Issue 2: Entitlement to service connection for an acquired psychiatric disorder, to include PTSD. On VA examination for mental disorders in February 2017, the diagnosis was unspecified anxiety disorder. On VA examination for PTSD in March 2017, the examiner opined that the Veteran did not meet the diagnostic criteria for PTSD under the DSM-5 and his current diagnoses were unspecified depressive disorder and alcohol use disorder. In an accompanying opinion in March 2017 the examiner opined that the Veteran's psychiatric disorder was less likely than not incurred or caused by service, which was over 40 years. The examiner noted that the Veteran reported being hospitalized for a psychiatric disorder in the 1970s but stated there is no documentation of this mental health treatment. However, this opinion is factually inaccurate as VA hospital records show the Veteran was hospitalized for anxiety reaction including from December 1978 to January 1979 and from January 1979 to February 1979. The Veteran also submitted a Disability Benefits Questionnaire (DBQ) examination in December 2017 whereby the examiner noted that the Veteran had psychiatric hospitalizations during and after service. This opinion also is factually inaccurate as service treatment records do not show that the Veteran was hospitalized for a psychiatric disorder during service. Thus, the Veteran should be afforded a new VA examination to determine whether he has a psychiatric disorder related to service. During the Board hearing in October 2020, the Veteran with his daughter as the interpreter testified that his inservice stressors include seeing his fellow service members die in front of him, including his officer, the medic who drowned, and a fellow service member who died from a combat wound. One death was around July 1971 another death was in October 1971. The Veteran stated that the unit he was with was D26 Engineer. On remand an attempt needs to be made to verify the Veteran's claimed inservice stressors. Further, during the Board hearing the Veteran testified that in the late 1970s he was hospitalized at the VA hospital for a psychiatric disorder. While the Veteran submitted some VA medical and hospital records from the late 1970s and some were previously of record, it is unclear if all hospital and treatment records from 1977-1979 from the VA medical facilities in Los Angeles and San Juan have been obtained. Further, during the October 2020 Board hearing the Veteran's daughter stated that the Veteran was currently receiving treatment for a psychiatric disorder from the VA Hospital in Puerto Rico. On remand an attempt needs to be made to obtain any outstanding VA medical records. By this remand the Board makes no determination, expressed or implied, as to the credibility of any statements on file. The matter is REMANDED for the following action: 1. Contact the Veteran and ask him to identify any outstanding VA hospital records and treatment records that need to be obtained, to include the current treatment records his daughter referenced during the October 2020 Board hearing. Afterwards obtain all outstanding VA medical records, to include any treatment and hospital records from VA medical facilities in Los Angeles and San Juan, including from 1977-1979. All attempts associated therewith should be memorialized in the Veteran's claims file. 2. Contact the Veteran and request that he provide information regarding the stressors on which he bases his claim for PTSD, to include descriptions, along with dates, locations, and units he was with. 3. Afterwards, and after reviewing the record and a copy of this remand, undertake the necessary development to attempt to corroborate the stressors. 4. Schedule the Veteran for a VA psychiatric examination. After reviewing the claims folder, conducting all necessary tests, and examining the Veteran the examiner is asked to do the following: a.) Identify/diagnose all current psychiatric disorders per the DSM V criteria, to include whether the Veteran meets the criteria for PTSD. b.) If the Veteran is diagnosed with PTSD per the DSM V criteria, the examiner must provide an opinion as to whether the PTSD symptoms are related to a verified inservice stressor. c.) For any psychiatric disorder other than PTSD the examiner must opine whether it is at least as likely as not (50 percent or better probability) that it is related to an in-service injury, event, or disease. For all opinions rendered, the examiner should explain the rationale. If the examiner is unable to provide an opinion, he or she should explain why. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Mac, 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.