Citation Nr: 21074393 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 18-49 641 DATE: December 15, 2021 ORDER New and material evidence having been received, the application to reopen the previously denied claim of service connection for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. FINDING OF FACT A March 2018 rating decision denied service connection for PTSD on the basis that the evidence did not show a current diagnosed disability and there was no event, disease or injury in service; the Veteran did not appeal and no new and material evidence was received prior to expiration of the appeal period; subsequently received evidence is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim. CONCLUSION OF LAW New and material evidence has been received, and the claim of service connection for PTSD may be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104(a), 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 2005 to October 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office/Agency of Original Jurisdiction (RO/AOJ). The Veteran testified before the undersigned Veterans Law Judge during a hearing in December 2021. Notwithstanding determinations by the AOJ, the question of whether new and material evidence has been received to reopen a previously denied claim must be addressed by the Board in the first instance, because the issue goes to the Board's jurisdiction to reach and adjudicate the underlying claim on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The Board has characterized the claim accordingly. 1. Petition to Reopen - PTSD The RO denied service connection for PTSD in March 2018 on the basis that the evidence did not show a current diagnosed disability and there was no event, disease or injury in service. A subsequent March 2018 letter from the AOJ notified the Veteran of this decision and of his right to appeal it within 1 year. He did not appeal the March 2018 decision, or provide new and material evidence within one year, and it became final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. [Notably, rather than disagreeing with the March 2018 rating decision, in May 2018, the Veteran submitted a claim to reopen the matter of service connection for PTSD and claims for service connection for depression, anxiety, negative social readjustment, irritability and unexplained anger outburst. In a May 2018 letter, the RO advised the Veteran his PTSD claim had been denied in the March 2018 rating decision and he had the options of submitting or identifying new and material evidence, filing a notice of disagreement with the March 2018 rating decision or identifying a clear and unmistakable error in the prior rating decision. The Veteran did not respond and, in the June 2018 rating decision on appeal, the RO denied the Veteran's May 2018 claim.] Since the March 2018 rating decision, VA treatment records include a September 2020 positive PTSD screen. As such, there is new evidence received since the March 2018 rating decision which is material with respect to the claim of service connection for PTSD. Accordingly, the claim is reopened. De novo consideration will be addressed in the remand below. REASONS FOR REMAND 1. Service Connection for an Acquired Psychiatric Disorder A remand is warranted for additional development, to include confirmation of the Veteran's claimed stressful incidents and an updated examination and opinion as to the nature and etiology of any diagnosed psychiatric disorders. In his February 2018 VA Form 21-0781, Statement in Support of Claim for PTSD, the Veteran reports that, while stationed at NAS/JRB in Fort Worth, Texas, during the period from November 2006 to May 2008, he joined the Color Guard and Honor Guard and was "called to perform burial rights for veterans who had passed naturally, in combat, and a suicide." In performing this service, the Veteran found himself surrounded by death, and stated he became numb to the funerals and performing them and was not able to sleep. He reports that he is now only able to maintain contact with other Marines or his immediate family (spouse and children only) and could not go to his mother on her death bed or attend her wake. During his February 2018 VA PTSD examination, the Veteran recalled a funeral during his service as Color Guard which stood out to him because he later learned the Marine had committed suicide. In addition, at his December 2021 Board hearing, the Veteran recalled seeing bodies of people who were killed by pirates in 2009, during his service aboard the USS Boxer. His SPRs do not show the Veteran's Color Guard or Honor Guard service and the record does not reflect any development with respect to the Veteran's alleged stressor events. Thus, remand is necessary to collect additional information to substantiate the Veteran's assertions regarding his service with the Color Guard and/or Honor Guard and seeing bodies of individuals killed by pirates while serving aboard the USS Boxer. A February 2018 VA PTSD examination report includes the finding that the "Veteran's symptoms do not meet the diagnostic criteria for PTSD under DSM-5 criteria," he "does not have a mental disorder that conforms with DSM-5 criteria" and there is "No Diagnosis" of a mental disorder. However, VA treatment records include a February 2018 Mental Health Note which notes the Veteran reported "long-standing depression and irritability;" his problems included unspecified depression, r/o (rule out) recurrent MDD (major depressive disorder), unspecified anxiety and r/o PTSD; and he had a positive depression screen. In addition, more recent September 2020 VA treatment records include a Mental Health Note which shows a positive PTSD screen. As such, remand for an updated examination and opinions is necessary. In addition, in light of the remand for the above development, as the record reflects the Veteran receives ongoing VA treatment, additional/updated treatment records should be obtained. The matters are REMANDED for the following action: 1. Please secure for the record copies of complete updated clinical records (any not already of record) of all VA and non-VA treatment the Veteran has received for his mental health symptoms. 2. After requesting any additional required information regarding his reported stressors from the Veteran, please perform development to corroborate the Veteran's reported in-service stressors, including: a) Performing funeral services as Color Guard and Honor Guard while stationed at NAS/JRB in Fort Worth, Texas, during the period from November 2006 to May 2008. b) Seeing bodies of people who were killed by pirates and brought aboard ship during his service aboard the USS Boxer in 2009. A copy of any development requests, and any reply, to include a negative reply, should be associated with the claims file. 3. The AOJ should determine and document whether a stressor has been confirmed. 4. After the development in paragraphs 1-3 is complete please obtain a medical opinion with an examination to assess the nature and etiology of his psychiatric disability, to include PTSD. a. Please identify by diagnosis all acquired psychiatric disorders during or proximate to the period on appeal since receipt of the Veteran's May 2018 claim for service connection, including PTSD, depression and anxiety. b. If the Veteran's psychiatric symptoms are diagnosed as 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 confirmed stressor or as due to fear of hostile military or terrorist activity (if seeing bodies killed by pirates while serving aboard the USS Boxer is confirmed). c. For any other diagnosed psychiatric disability, and to include (1) depression, (2) anxiety and (3) insomnia the examiner must opine, as to each, whether the diagnosed disorder is at least as likely as not related to service. A complete rationale should be given for all opinions and conclusions expressed. In the event the examiner cannot provide an opinion without resorting to speculation, it is essential that the examiner provide a rationale for this conclusion (e.g., lack of sufficient information/evidence, the limits of medical knowledge, etc.). M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K Hughes 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.