Citation Nr: 21074676 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 17-48 332 DATE: December 16, 2021 ORDER New and material evidence having been received, the request to reopen the claim for service connection for an acquired psychiatric disability to include posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection for an acquired psychiatric disability to include PTSD is remanded. Entitlement to service connection for a liver transplant is remanded. Entitlement to service connection for a left ankle condition, to include as secondary as due to service-connected right ankle disability is remanded. FINDING OF FACT 1. October 2013 and July 2014 rating decisions denied the Veteran's service connection claim for an acquired psychiatric disability, to include PTSD. The Veteran did not submit additional evidence or appeal that decision. Thus, the July 2014 rating decision became final. 2. The evidence added to the record since the July 2014 rating decision raises a reasonable possibility of substantiating the claim of entitlement to service connection for an acquired psychiatric disability, to include PTSD. CONCLUSION OF LAW The criteria for whether new and material evidence has been received to reopen a claim for service connection for an acquired psychiatric disability to include PTSD have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1981 to June 1998. Whether new and material evidence has been received to reopen a claim for service connection for an acquired psychiatric disability to include PTSD Regardless of the determination by the Agency of Original Jurisdiction (AOJ) to reopen the claim, the Board must adjudicate the new and material issue to determine the Board's jurisdiction to reach the underlying claim and to adjudicate it de novo. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The Veteran's initial claims for service connection for acquired psychiatric disability to include PTSD were denied in October 2013 and July 2014 rating decisions because there was no evidence the Veteran sought treatment for any psychiatric complaints during service and that the Veteran's record did not support any PTSD stressors. The Veteran did not initiate an appeal or submit new and material evidence during the appeal period and that decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b); 20.302, 20.1103. The question before the Board is whether new and material evidence has been submitted to reopen the claim. The Board finds that there has, and the claim should be reopened. Since the October 2013 and July 2014 rating decisions, VA added military personnel records to the Veteran's file in September 2015 documenting that the Veteran operated in hostile environments as special forces member. The "new" in that it had not been previously submitted. Moreover, the evidence is "material" because it relates to an unestablished fact necessary to substantiate the claims. The October 2013 and July 2014 denials were based on the no evidence of an in-service stressor to support a PTSD diagnosis. The evidence submitted is neither cumulative nor redundant of the evidence of record at the time of the October 2013 and July 2014 rating decisions and raises a reasonable possibility of substantiating the claims. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110 (2010). The claim for service connection for an acquired psychiatric disorder, to include PTSD is reopened. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disability to include PTSD is remanded. The Board is unable to make an informed decision on the issue of an acquired psychiatric disorder to include PTSD because additional development is necessary. The Board notes that an October 2015 administrative decision states that the Veteran's in-service stressor for PTSD could not be confirmed. The record does not reflect that the AOJ sought, nor has the Veteran submitted the requisite PTSD stressor statement. The basis of the administrative decision was because the Veteran did not respond to a request to provide additional information to effectively conduct a DPRIS record search to confirm the Veteran's in-service stressor. However, the administrative decision did not discuss the military personnel records received September 2015 document narrow time windows where the Veteran operated in hostile conditions, to include operations involving injuries. In a June 1989 Army Achievement Medal, the award specifically discusses the Veteran's use of his Emergency Medical Technician skills during a mission. The Board notes that special forces often operate in a classified environment, therefore mission or operational details may not be available to VA. However, the Board finds that this information could be used in an attempt to confirm the Veteran's stressor. Additionally, there is also enough evidence to invoke VA's duty to assist in getting the Veteran a VA examination to identify whether he has an acquired psychiatric disability to include PTSD and whether it is causally related to his service. On remand, with the Veteran's assistance, the AOJ should make all reasonable attempts to obtain a PTSD stressor statement from the Veteran and then attempt to confirm his stressor. Additionally, the Veteran should be scheduled for a VA examination for his acquired psychiatric disorder. 2. Entitlement to service connection for a liver transplant is remanded. The Board is unable to make an informed decision on the issue of service connection for a liver transplant because additional development is necessary. The Veteran's medical treatment records obtained from the Social Security Administration (SSA) document that the reason the Veteran required a liver transplant in July 2015 was due to acute ethanol alcohol (ETOH) hepatitis. One of the Veteran's providers specifically states in a pre-transplant medical record that the Veteran "experienced much military trauma and had bouts in his life where he abused alcohol as a maladaptive coping mechanism." Therefore, the Board finds that the service connection claim for a liver transplant is inextricably intertwined with the Veteran's acquired psychiatric disorder claim, and therefore must be adjudicated after the acquired psychiatric disorder claim is decided. 3. Entitlement to service connection for a left ankle condition, to include as secondary as due to service-connected right ankle disability is remanded. The Board is unable to make an informed decision on the issue of a left ankle disability because the February 2017 VA examination is inadequate. The February 2017 VA examiner stated that left ankle instability was suspected, indicating the Veteran has a diagnosed left ankle disability. In any event, the examiner also opined that the left ankle examination is neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repetitive use over time. Therefore, even without a diagnosis, pain that impairs functional limitation may be a compensable disability. See Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). Additionally, the examiner did not address secondary service connection to the Veteran's right ankle disability or aggravation. Since the February 2017 VA examination is inadequate a new VA examination is warranted. Barr v. Nicholson, 21 Vet. App. 303 (2007). The matters are REMANDED for the following actions: 1. Contact the Veteran and request that he submit a PTSD stressor statement to assist in confirming his PTSD stressor. 2. Then, with the Veteran's assistance contact the appropriate agency storing military records to obtain any personnel records that can assist the Veteran with corroborating his PTSD stressor. 3. Then, schedule the Veteran for a VA examination (or tele-health interview, review of the record, etc., if an in-person examination is not feasible) with an appropriate VA examiner, to determine service connection for his acquired psychiatric disorder claim. The claims file and copies of all pertinent records must be made available to the examiner. After reviewing the claims file, the examiner is asked to answer the following questions: (a) Is it at least as likely as not (50 percent probability) that any currently diagnosed psychiatric disorder was incurred in or is otherwise related to service? The examiner is advised that the Veteran is competent to provide evidence of symptomatology readily apparent to him, regardless of whether the symptoms are noted in the service medical records or on the date of examination. The examiner may NOT rely on the absence of a medical record or evidence of medical treatment as the sole rationale for any negative medical nexus opinion. (b) If (a) is answered no, is it at least as likely as not (probability of at least 50 percent) that any currently diagnosed psychiatric disorder has been aggravated by any of the Veteran's service or service-connected disabilities? The examiner is informed that aggravation here is defined as any increase in disability. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation A complete rationale must be provided for all opinions, citing to supporting factual data and medical literature, as appropriate. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training) and note what, if any, additional evidence would permit such an opinion to be made. 4. Then, Schedule the Veteran for a VA examination (or tele-health interview, review of the record, etc., if an in-person examination is not feasible) with an appropriate VA examiner, to determine service connection for his liver transplant claim. The claims file and copies of all pertinent records must be made available to the examiner. After reviewing the claims file, the examiner is asked to answer the following questions: (a) Is at least as likely as not (probability of at least 50 percent) that any currently diagnosed liver condition was caused by the Veteran's acquired psychiatric disorder. The examiner is asked to review and discuss the June 2015 treatment record (received on March 24, 2016) where the provider screening the Veteran for a liver transplant due to his having acute ETOH hepatitis, that he "experienced much military trauma and had bouts in his life where he abused alcohol as a maladaptive coping mechanism." (b) if (a) is answered no, then is it at least as likely as not (probability of at least 50 percent) that any currently diagnosed liver condition has been aggravated by any of the Veteran's service or service-connected disabilities? The examiner is informed that aggravation here is defined as any increase in disability. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation The examiner is advised that the Veteran is competent to provide evidence of symptomatology readily apparent to him, regardless of whether the symptoms are noted in the service medical records or on the date of examination. The examiner may NOT rely on the absence of a medical record or evidence of medical treatment as the sole rationale for any negative medical nexus opinion. A complete rationale must be provided for all opinions, citing to supporting factual data and medical literature, as appropriate. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training) and note what, if any, additional evidence would permit such an opinion to be made. 5. Schedule the Veteran for a VA examination (or tele-health interview, review of the record, etc., if an in-person examination is not feasible) with an appropriate VA examiner, to determine service connection for his left ankle condition. The claims file and copies of all pertinent records must be made available to the examiner. After reviewing the claims file, the examiner is asked to answer the following questions: (a) Is it at least as likely as not (50 percent probability) that any currently left ankle condition was incurred in or is otherwise related to service? The examiner is advised that the Veteran is competent to provide evidence of symptomatology readily apparent to him, regardless of whether the symptoms are noted in the service medical records or on the date of examination. The examiner may NOT rely on the absence of a medical record or evidence of medical treatment as the sole rationale for any negative medical nexus opinion. (b) If (a) is answered no, is it at least as likely as not (probability of at least 50 percent) that any currently left ankle condition has been aggravated by any of the Veteran's service-connected disabilities, to include his right ankle disability? The examiner is informed that aggravation here is defined as any increase in disability. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation A complete rationale must be provided for all opinions, citing to supporting factual data and medical literature, as appropriate. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training) and note what, if any, additional evidence would permit such an opinion to be made. Saudiee Brown Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. G. Perkins, 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.