Citation Nr: 21068962 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 20-18 240 DATE: November 17, 2021 ORDER The application to reopen a claim of service connection for psychiatric disability is granted. The application to reopen a claim of service connection for gynecological disability is granted. REMANDED Entitlement to service connection for psychiatric disability, to include posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for gynecological disability is remanded. FINDINGS OF FACT 1. The Veteran's claims of service connection for psychiatric disability (characterized as PTSD and depression) and gynecological disability (characterized as gynecological system disease) were originally denied in an October 1997 rating decision; service connection for psychiatric disability was denied on the basis that there was no medical evidence of any such disability that was related to service; service connection for gynecological disability was denied on the basis that the disability was not related to service; the Veteran did not appeal this decision within one year of its issuance and new and material evidence was not received within that year. 2. An application to reopen the claim of service connection for psychiatric disability (characterized as PTSD) was denied in a July 1999 rating decision on the basis that new and material evidence was not received; the Veteran did not appeal this decision within one year of its issuance and new and material evidence was not received within that year. 3. An application to reopen the claims of service connection for psychiatric disability and gynecological disability (characterized as gynecological disease, to include adhesions) was denied in a May 2004 rating decision on the basis that new and material evidence was not received; the Veteran did not appeal this decision within one year of its issuance and new and material evidence was not received within that year. 4. An application to reopen the claim of service connection for psychiatric disability (characterized as PTSD) was denied in a July 2005 rating decision on the basis that new and material evidence was not received; the Veteran did not appeal this decision within one year of its issuance and new and material evidence was not received within that year. 5. Evidence received since the May 2004 and July 2005 agency of original jurisdiction (AOJ) decisions includes information that was not previously considered and which relates to unestablished facts necessary to substantiate the claims of service connection for psychiatric disability and gynecological disability, the absence of which was the basis of the previous denials. CONCLUSIONS OF LAW 1. The AOJ's October 1997, July 1999, May 2004, and July 2005 decisions that denied the claims of service connection for psychiatric disability and gynecological disability are final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156(a)-(b), 19.52(a), 20.1103. 2. The evidence received since the May 2004 and July 2005 AOJ decisions is new and material and reopening of the claims of service connection for psychiatric disability and gynecological disability is therefore warranted. 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 January 1975 to May 1977. These matters come before the Board of Veterans' Appeals (Board) from an August 2017 rating decision. As for characterization of the issues on appeal, claims of service connection for psychiatric disability and gynecological disability were initially denied by way of a final October 1997 rating decision. Where the claim in question has been finally adjudicated, the Board must initially determine whether new and material evidence has been submitted with regard to the claims of service connection for psychiatric disability and gynecological disability. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Only where the Board concludes that new and material evidence has been received does it have jurisdiction to consider the merits of these claims. Hickson v. West, 11 Vet. App. 374, 377 (1998). Therefore, the Board has included the issues of whether new and material evidence has been received to reopen the claims of service connection for psychiatric disability and gynecological disability. Application to Reopen Prior to February 19, 2019, an AOJ decision denying a claim which that became final could not thereafter be reopened and allowed. 38 U.S.C. § 7105 (d)(3) (2012). The exception to this rule was 38 U.S.C. § 5108, which provides that 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 was defined as existing evidence not previously submitted to VA, and material evidence is defined as 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 (a). The newly presented evidence is presumed to be credible for purposes of determining whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the purpose of determining whether new and material evidence has been presented to reopen a claim, the evidence for consideration is that which has been presented or secured since the last time the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The rules relating to finality in effect for legacy cases apply when addressing the finality of decisions issued prior to enactment of the Appeals Modernization Act (AMA). Davidson v. McDonough, No. 20-2947, 2021 U.S. App. Vet. Claims LEXIS 1819 (Oct. 13, 2021) ("At the outset, the Court acknowledges that the Board issued its decision under the Appeals Modernization Act (AMA), and that § 3.156(b) applies only to legacy claims. But appellant's October 2010 claim and the September 2011 and July 2013 rating decisions at issue all predate the AMA's February 19, 2019, effective date); Veitz v. McDonough, No. 20-3139, 2021 U.S. App. Vet. Claims LEXIS 1488 (August 23, 2021) (mem dec) (Meredith, J.) (even if the RO issues a subsequent AMA decision, notice of initial decision prior to the enact of the AMA places the claim in the legacy appeals system for potential 38 § C.F.R. 3.156(b) consideration); Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain). The application to reopen claims of service connection for psychiatric disability and gynecological disability The Veteran's claims of service connection for psychiatric disability (characterized as PTSD and depression) and gynecological disability (characterized as gynecological system disease) were originally denied in an October 1997 rating decision. Service connection for psychiatric disability was denied on the basis that there was no medical evidence of any such disability that was related to service. Specifically, the AOJ explained that although the Veteran was seen for a psychiatric consultation after threatening others during service, she was not diagnosed as having PTSD or depression and the evidence was inadequate to establish that a stressful experience in service occurred. As for the claimed gynecological disability, service connection was denied on the basis that the disability was not related to service. The AOJ explained that although the Veteran had a history of a salpingectomy after service for an ectopic pregnancy and was diagnosed as having a trichomonas infection, there was no evidence of any relationship between the claimed gynecological disability and any disease or injury in service. The Veteran was notified of the October 1997 decision, she did not appeal the decision within one year of its issuance, and new and material evidence was not received within that year. Therefore, the October 1997 decision became final. See 38 U.S.C. § 7105 (d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 19.52(a), 20.1103. An application to reopen the claim of service connection for psychiatric disability (characterized as PTSD) was denied in a July 1999 rating decision on the basis that new and material evidence was not received. The Veteran was notified of this decision, she did not appeal the decision within one year of its issuance, and new and material evidence was not received within that year. Therefore, the July 1999 decision became final. See Id. An application to reopen the claims of service connection for psychiatric disability and gynecological disability (characterized as gynecological disease, to include adhesions) was denied in a May 2004 rating decision on the basis that new and material evidence was not received. The Veteran was notified of this decision, she did not appeal the decision within one year of its issuance, and new and material evidence was not received within that year. Therefore, the May 2004 decision became final. See Id. An application to reopen the claim of service connection for psychiatric disability (characterized as PTSD) was denied in a July 2005 rating decision on the basis that new and material evidence was not received. The Veteran was notified of this decision, she did not appeal the decision within one year of its issuance, and new and material evidence was not received within that year. Therefore, the July 2005 decision became final. See Id. The pertinent new evidence received since the May 2004 denial of service connection for gynecological disability and the July 2005 denial of service connection for psychiatric disability includes a May 2017 "Statement in Support of Claim for Service Connection for Post-Traumatic Stress Disorder" form (VA Form 21-0781), the report of an August 2017 VA psychiatric examination, and the Veteran's April 2018 notice of disagreement (VA Form 21-0958). This additional evidence reflects that the Veteran was diagnosed as having unspecified depressive disorder, that she reported a sexual assault in service, and that she contends that she has current gynecological disability (including sterility) that she has experienced ever since an intrauterine device was implanted during service. Therefore, the additional evidence pertains to elements of the claims of service connection for psychiatric disability and gynecological disability that were previously found to be lacking and raises a reasonable possibility of substantiating the claims by indicating that the Veteran has current psychiatric disability and possible current gynecological disability, and that these disabilities may have been incurred in service. The evidence is, therefore, new and material, and the claims of service connection for psychiatric disability and gynecological disability are reopened. REASONS FOR REMAND 1. Entitlement to service connection for psychiatric disability, to include PTSD, is remanded. The Veteran contends that she has current psychiatric disability, including PTSD, that is related to harassment and discrimination in service, as well as a sexual assault from a fellow service member. She was afforded a VA psychiatric examination in August 2017, was diagnosed as having unspecified depressive disorder, and the psychologist who conducted the examination opined that the Veteran's psychiatric disability was not likely caused by or a result of service. The August 2017 opinion is inadequate because the examiner did not provide any explanation or rationale for his opinion. Therefore, a remand is necessary to obtain an appropriate medical opinion as to whether the Veteran's claimed psychiatric disability is related to service. Also, a September 2003 Social Security Administration (SSA) inquiry and the August 2017 VA psychiatric examination report indicate that the Veteran was awarded SSA disability benefits for unspecified disability. Any outstanding records pertaining to the Veteran's claim(s) for SSA benefits may be relevant to the issues on appeal. Hence, the AOJ should attempt to obtain any such relevant records upon remand. Moreover, a January 2007 VA psychiatry admission evaluation note indicates that the Veteran received psychiatric treatment at Holy Cross Hospital. A remand is required to allow VA to obtain authorization and request these relevant outstanding private treatment records. Lastly, the evidence indicates that there may be outstanding relevant VA treatment records. In a February 2005 statement (VA Form 21-4138), the Veteran reported that she received treatment at the Vet Center in Detroit, Michigan. These records have not yet been associated with the claims file. Also, the most recent VA treatment records in the claims file are from the Battle Creek Vista electronic records system (dated to January 2003) and the Detroit Vista electronic records system (dated to August 2013). Any VA treatment records are within VA's constructive possession, and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance). See also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). A remand is required to allow VA to obtain them. 2. Entitlement to service connection for gynecological disability is remanded. The Veteran contends that she has current gynecological disability (including sterility) that began during service when an intrauterine device was implanted and resulted in an infection, pain, and bleeding. She suggests that she has experienced gynecological problems ever since that time. Overall, the Veteran has persistent or recurrent symptoms of gynecological disability, the record indicates that the disability may be associated with service, and the record does not contain sufficient information to make a decision on the claim. Therefore, the Veteran should be afforded an appropriate examination upon remand to assess the nature of her claimed gynecological disability and to obtain an appropriate medical opinion as to whether any such disability is related to service. See 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Also, all outstanding SSA records and VA treatment records should be sought and associated with the claims file. The matters are REMANDED for the following action: 1. Ask the Veteran to identify the location and name of any VA or private medical facility where she has received treatment for psychiatric disability and gynecological disability, to include the dates of any such treatment. Ask the Veteran to complete a VA Form 21-4142 for all records of her treatment for psychiatric disability and gynecological disability from Holy Cross Hospital and any other sufficiently identified private treatment provider from whom records have not already been obtained. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran's treatment records from the Vet Center in Detroit, Michigan. 3. Obtain the Veteran's outstanding VA treatment records from the Battle Creek Vista electronic records system for the period since January 2003; the Detroit Vista electronic records system for the period since August 2013; and all such relevant records from any other sufficiently identified VA facility. 4. Contact the SSA and request a copy of that agency's decision(s) for disability and/or supplemental security income benefits and all relevant records pertaining to the Veteran's claim(s). Document all requests for information as well as all responses in the claims file. 5. After all efforts have been exhausted to obtain and associate with the claims file any outstanding SSA records and additional treatment records, schedule the Veteran for an examination by an appropriate clinician to determine whether any current gynecological disability is related to service. The examiner must opine whether any gynecological disability experienced by the Veteran since approximately June 2017 at least as likely as not (1) began during active service; OR (2) is related to an injury or disease during service, including her reported infection following the implantation of an intrauterine device and the gynecological symptoms documented in her service treatment records. The examiner must provide reasons for each opinion given. 6. After all efforts have been exhausted to obtain and associate with the claims file any outstanding SSA records and additional treatment records, obtain an addendum opinion from an appropriate clinician regarding the nature of the Veteran's claimed psychiatric disability and whether any such disability is related to service. The clinician must opine whether the Veteran has experienced PTSD at any time since approximately June 2017. If so, the clinician must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to an in-service stressor. If any stressor is based on an in-service personal assault, the clinician must opine whether the evidence of record, including the Veteran's lay statements and her service records, corroborate the claim that a personal assault occurred in service, to include whether there is evidence of behavior changes in response to the reported assault (38 C.F.R. § 3.304(f)(5)). If the Veteran has experienced any psychiatric disability other than PTSD at any time since approximately June 2017, the clinician must opine whether each diagnosed disability at least as likely as not (1) began during active service; OR (2) is related to an injury or disease during service, including the Veteran's reported harassment, discrimination, and sexual assault, and any other reported stressors in service. The clinician must provide reasons for each opinion given. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Elwood, 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.