Citation Nr: 21073276 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 18-05 672 DATE: December 8, 2021 ORDER New and material evidence having been received, the appeal to reopen service connection for posttraumatic stress disorder (PTSD), claimed as depression and anxiety, is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depression, and anxiety, is remanded. FINDINGS OF FACT 1. A February 2014 rating decision denied entitlement to service connection for PTSD; the Veteran did not appeal the decision or submit new and material evidence within 1 year. 2. Evidence received since the February 2014 rating decision was not previously considered by decision makers and raises a reasonable possibility of substantiating the claim for service connection for PTSD. CONCLUSIONS OF LAW 1. The February 2014 rating decision denying entitlement to service connection for PTSD is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been received to reopen the claim for service connection for PTSD. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 3.159, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from July 1985 to October 1988. This matter comes before the Board of Veterans Appeals (Board) on appeal from a January 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2021, the Veteran testified at a hearing before the undersigned. A transcript of the hearing has been associated with the claims file. New and Material Evidence Generally, a claim that has been denied in an unappealed RO or Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence is defined as evidence not previously submitted to agency decision-makers. 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 C.F.R. § 3.156 (a). The regulation does not require new and material evidence as to each previously unproven element of a claim and creates a low threshold for reopening claims. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of determining whether new and material evidence has been submitted, the credibility of new evidence, although not its weight, is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). New and material evidence having been received, the appeal to reopen service connection for PTSD, claimed as depression and anxiety, is reopened The claim for entitlement to service connection for PTSD was denied in a February 2014 rating decision. The RO indicated that there was no evidence to corroborate the Veteran's stressor and nothing to indicate his PTSD was incurred in or caused by service. The Veteran did not appeal the February 2014 rating decision or submit new and material evidence within 1 year. Accordingly, the February 2014 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The Veteran requested to reopen the claim in November 2016. The additional evidence received since the February 2014 rating decision includes the Veteran's Board hearing testimony and additional treatment records. Presumed credible, the Veteran's testimony is probative evidence that his PTSD could be related to military sexual trauma in service. Accordingly, new and material evidence has been received to reopen the claim for service connection for PTSD. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depression, and anxiety, is remanded. The Board finds that additional development is needed prior to adjudication to the issue on appeal. The record shows the Veteran has been diagnosed with PTSD and depression for which he seeks service connection. The Veteran asserts that his claimed disabilities were caused by his active-duty service. He reports his PTSD is due to military sexual trauma he experienced at Fort Sill in 1985 while in service. There is insufficient evidence, however, for the Board to render a determination on his claim, as the Veteran has not been afforded a VA examination. VA has a duty to provide an examination or obtain a medical opinion on an issue of service connection when the record 1) contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, 2) indicates that the disability or signs and symptoms of a disability may be associated with active service, and 3) the record does not contain sufficient information to make a decision on the issue. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event is a low one. McLendon, 20 Vet. App. at 83. As such, based on the record before the Board, a remand for VA examination is necessary to determine the nature and etiology of the Veteran's PTSD. Additionally, the Board notes that the Veteran's claims file reveals that there may be outstanding Social Security Administration (SSA) records that are relevant to the Veteran's claim. These Social Security records may contain evidence that pertains to the Veteran's claims before the Board. As such, VA must make efforts at this time to obtain any outstanding records. 38 C.F.R. § 3.159(c)(2); see also Baker v. West, 11 Vet. App. 163, 169 (1998) (holding that VA's duty to assist includes obtaining SSA records); Golz v. Shinseki, 590 F.3d 1317, 1323 (2010) (clarifying that VA's duty to obtain Social Security records applies only to records relevant to a Veteran's present claim). On remand, these records should be associated with the Veteran's claims file. The matters are REMANDED for the following action: 1. Appropriate efforts should be made to obtain and associate with this case file any outstanding VA medical records and all outstanding private treatment records, with all necessary assistance from the Veteran. 2. Obtain the Veteran's federal records from the Social Security Administration. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. Attempt to corroborate the Veteran's reported personal assault, described as an MST, and send the Veteran notification as required under 38 C.F.R. § 3.309(f)(5). 4. Obtain an opinion to determine the nature and etiology of the Veteran's acquired psychiatric disorder, to include PTSD, depression, and anxiety. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including a copy of this remand, the Veteran's service treatment records, post-service medical records, and statements. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. After examining the Veteran and considering his pertinent medical history and lay statements regarding his reported symptoms, the examiner should opine as to: a) Whether the claimed stressor is adequate to support a diagnosis of PTSD and whether the Veteran's symptoms are related to the claimed stressor. b) If a diagnosis of PTSD is deemed appropriate, the examiner must identify the specific stressor underlying the diagnosis and should comment upon the link between the current symptomatology and the Veteran's claimed stressor. c) If the examiner determines that the clinical evidence does not support a diagnosis of PTSD, to include that the claimed stressor does not support the diagnosis, the examiner should list all diagnosed psychiatric disorders and specifically state whether it is at least as likely as not (a 50 percent probability or greater) that any diagnosed psychiatric disorder, to include any diagnosed at any point during the period on appeal, either began during or was otherwise caused by the Veteran's military service, to include a sexual assault at Fort Sill in 1985. A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Javed, 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.