Citation Nr: 21069372 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 18-21 240 DATE: November 18, 2021 ORDER New and material evidence having been received, the claim for service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) is reopened. REMANDED Service connection for an acquired psychiatric disability, to include PTSD is remanded. FINDING OF FACT By a final December 2004 rating decision, the Veteran's claim for service connection for PTSD was denied. Evidence received since then raises a reasonable possibility of substantiating the claim for service connection. CONCLUSIONS OF LAW 1. The December 2004 rating decision denying service connection for PTSD is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.1103. 2. The criteria for reopening a previously denied claim of service connection for PTSD have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served honorably on active duty in the United States Army from June 1979 to June 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In Clemons v. West, 206 F.3d 1401, 1403 (Fed. Cir. 2000), the United States Court of Appeals for the Federal Circuit clarified how the Board should analyze claims for PTSD and other acquired psychiatric disorders. As emphasized in Clemons, though a veteran may only seek service connection for PTSD, the veteran's claim "cannot be limited only to that diagnosis but must rather be considered a claim for any mental disability that may be reasonably encompassed." Id. Therefore, the Board will address whether service connection is warranted for an acquired psychiatric disorder, however diagnosed. The issues have been recharacterized accordingly. New and Material Evidence Service connection for PTSD was denied in a December 2004 rating decision. The Veteran did not appeal the issue of PTSD, and new and material evidence was not submitted within the appeal period. Accordingly, the December 2004 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 19.52. To reopen a previously and finally disallowed claim, new and material evidence must be submitted by the claimant or secured by the VA with respect to that claim since the last final denial, regardless of the basis for that denial. VA defines "new and material evidence" as follows. "New evidence" means evidence not previously submitted to agency decision makers, and "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. 38 C.F.R. § 3.156(a). To warrant reopening, the new evidence must neither be 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. Id.; see Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (holding that there is a "low threshold" for reopening). The credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The RO previously denied the Veteran's claim for service-connection for PTSD due to there being no relation between the Veteran's PTSD and service. The Veteran's claims file now includes a January 2019 mental health evaluation summary that the Veteran submitted containing a positive nexus opinion for the Veteran's PTSD. The Board finds that this new evidence is not cumulative or redundant of the evidence previously of records, relates to an unestablished fact necessary to substantiate service connection, and raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). This evidence satisfies the low threshold requirement for new and material evidence, and the claim is reopened. See Shade v. Shinseki, 24 Vet. App. 110 (2010). REASONS FOR REMAND Service Connection Evidence indicates that there may be outstanding relevant VA treatment records. In a February 2004 VA interim treatment study, it is noted that the Veteran has been receiving treatment at the Hampton VA Medical Center for symptoms of PTSD since 1991. However, treatment records from the 1990s are not associated with the claims file. Any VA treatment records are within VA's constructive possession, and are considered potentially relevant to the issue on appeal. A remand is required to allow VA to obtain them. In two April 2015 statements, the Veteran reported in-service stressors involving personal assaults. Specifically, he reported that he was assaulted multiple times by service-members during his service in Germany. A remand is required to allow VA to attempt to corroborate the Veteran's reported stressors and send the Veteran notification as required under 38 C.F.R. § 3.309(f)(5). More information is needed to allow the Board to make a fully-informed decision. One of the Veteran's claimed stressors for PTSD is an assault by Germans that he contends were members of a terrorist organization. The Veteran has submitted documents on German terrorist groups and contends that members from these groups assaulted him, threatened him, and engaged in small arms fire at his site in Germany. A stressor involving fear of hostile terrorist activity can be verified by a Veteran's lay statements alone if a VA psychiatrist, or pscyhologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service. 38 C.F.R. § 3.304. The claims file does contain an opinion from a private psychologist finding that the Veteran's PTSD is related to his physical assaults, but they are not a VA psychologist nor are they contracted with VA and as such the Board cannot rely on this examination to verify that the Veteran's stressor occurred. Though the Veteran underwent an examination in January 2018, the examiner did not answer any questions regarding the Veteran's claimed stressors as they doubted the validity of the Veteran's stressors. It is not the position of the examiner to determine the credibility of the Veteran. That question is for the adjudicator. As the Veteran's claimed stressor may be due to fear of terrorist activity, an examination is necessary to determine whether the claimed stressor is sufficient to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor. As such, a remand is necessary to obtain a new examination. Lastly, the Board has expanded the claim to include any acquired psychiatric disability. In a February 2018 mental health initial evaluation, the Veteran was diagnosed with unspecified anxiety disorder and unspecified depressive disorder. During this mental health initial evaluation the Veteran described his service along with his civilian life. The Veteran is competent to describe the circumstances of his service. As such, a remand is necessary to obtain an opinion on whether these diagnoses are related to his service. The matter is REMANDED for the following actions: 1. Obtain the Veteran's VA treatment records for the period from January 1991 to the Present. 2. Send the Veteran notice required for PTSD claims based on personal assaults and allow time for a response. Then, attempt to corroborate the Veteran's in-service stressors based on personal assault, including multiple assaults by service-members during his service in Germany. If more details are needed, contact the Veteran to request the information. 3. After the Veteran's reported stressors have been developed, schedule the Veteran for a psychiatric examination to determine the nature and etiology of any posttraumatic stress disorder (PTSD). If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. If the Veteran is diagnosed with a personality disorder and PTSD - The examiner must opine whether the PTSD was at least as likely as not superimposed on a personality disorder during active service and resulted in additional disability. If the Veteran's stressor is based on an in-service personal assault - The examiner must opine whether the evidence of record, including the Veteran's lay statements, and the Veteran's service records, corroborate the claim that a personal assault occurred in service (38 C.F.R. § 3.304(f)(5)). If the examiner finds that evidence indicates that a personal assault occurred during the Veteran's active service, the examiner must opine whether any PTSD is at least as likely as not related to the in-service personal assault. If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease, to include assaults by fellow service-members, assaults by suspected terrorists, and fear of terrorist activity during service. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Chandeck, 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.