Citation Nr: 21075681 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 17-12 126 DATE: December 21, 2021 ORDER New and material evidence having been received, the claim for entitlement to service connection for an acquired psychiatric disorder to include post-traumatic stress disorder (PTSD) is reopened. REMANDED Entitlement to service connection for an acquired psychiatric disorder to include PTSD is remanded. FINDING OF FACT 1. The June 2012 rating decision denying the Veteran's claim to reopen the issue of entitlement to service connection for an acquired psychiatric disorder to include PTSD is final. 2. New and material evidence has been received; the issue of entitlement to service connection for an acquired psychiatric disorder to include PTSD is reopened. CONCLUSION OF LAW The criteria for reopening of the previously denied claim for entitlement to service connection for an acquired psychiatric disorder to include PTSD have been met. 38 U.S.C. §§ 1110, 5108; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1968 to July 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal of a June 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues denied in this decision. The Veteran should not assume that evidence that is not explicitly discussed in this decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). New and Material Evidence Reopening Issues Legal Criteria In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In addition, a Board decision is final unless the Chairman of the Board orders reconsideration. See 38 U.S.C. §§ 7103(a), 7104; 38 C.F.R. § 20.1100(a). An exception to these rules is provided in 38 U.S.C. § 5108, which states that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 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). If the Board finds that no such evidence has been offered, that is where the analysis must end, and further analysis beyond consideration of whether the evidence received is new and material is neither required nor permitted. Barnett, 83 F.3d at 1384. New evidence is existing evidence not previously considered by VA. Material evidence is 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). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). The United States Court of Appeals for Veterans Claims (Court) held that the Board must first determine whether the appellant has presented new and material evidence under 38 C.F.R. § 3.156(a) to have a finally denied claim reopened under 38 U.S.C. § 5108. Then, if new and material evidence has been submitted, the Board may proceed to evaluate the merits of the claim, but only after ensuring that VA's duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The Court has also held that the law should be interpreted as enabling reopening of a claim, rather than to precluding it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The focus is not exclusively on whether evidence remedies the principal reason for denial in the last prior final decision, but on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. Id. at 118. In general, service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. For preexisting conditions noted upon entry into service, a veteran cannot bring a claim for service connection for the condition, but a veteran may bring a claim for service-connected aggravation of that condition. In such cases, 38 U.S.C. § 1153 applies and the burden falls on the veteran to establish aggravation. If the presumption of aggravation under section 1153 is applicable, the burden shifts to the government to show a lack of aggravation by establishing that the increase in disability is due to the natural progress of the disease. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b). New and material evidence having been received, the claim for entitlement to service connection for an acquired psychiatric disorder to include post-traumatic stress disorder (PTSD) is reopened The Veteran was previously denied service connection for PTSD on multiple occasions. In a rating decision of May 1996, the RO noted that the Veteran had not furnished information regarding any stressful situation in service nor had he been shown to have been diagnosed with post-traumatic stress disorder. In a decision a July 1996, the RO noted that the service medical records were negative for evidence of a nervous condition, and that the claim remained denied in the absence of a supportable stressor and a diagnosis of PTSD. The RO again denied service connection for PTSD in a rating decision of January 1999, noting again that the evidence available for review did not establish that a stressful experience had occurred. Although the Veteran had reported a training incident in which someone was killed following an inadvertent detonation of a grenade, the Veteran had not provided sufficient details to allow corroboration of that incident. That decision was confirmed in February 1999. More recently, in a June 2012 rating decision the claim was denied because there was no new or material evidence submitted. Prior to that rating decision, in February 1999, the AOJ explained that PTSD requires medical evidence establishing a clear diagnosis of the condition, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. The Veteran did not submit a timely notice of disagreement as to the June 2012 rating decision, and new and material evidence was not received within the one-year appeal period following issuance of the June 2012 rating decision. As such, the Veteran did not complete a timely appeal of the June 2012 rating decision, and the decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.201, 20.302, 20.1103. Evidence associated with the record since issuance of the final June 2012 rating decision that is relevant to the issue of entitlement to service connection for an acquired psychiatric disorder to include PTSD includes medical records, a DBQ examination and the Veteran's testimony at the July 2021 Board hearing. The Veteran contends that his psychiatric conditions are related to his active service. He indicated that he was called a "coward" for not signing a waiver to go to Vietnam, and he witnessed a person that the did not know get blown up by a hand grenade. The Board finds that this evidence is new and material as to the previously denied claim for entitlement to service connection for an acquired psychiatric disorder to include PTSD, because it was not previously considered by VA. It is also material because the claim was previously denied because there was no link between the Veteran's acquired psychiatric disorder to include PTSD and service. This additional evidence triggers VA's duty to provide the Veteran an examination or opinion as to the claim. See Shade, 24 Vet. App. at 110. Therefore, the Board concludes that new and material evidence has been received to reopen the previously denied claim for entitlement to service connection for an acquired psychiatric disorder to include PTSD, and the claim is reopened. 38 C.F.R. § 3.156(a). REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder to include post-traumatic stress disorder (PTSD) is remanded. The Veteran contends that his acquired psychiatric disorder to include PTSD is related to service. He contends that his depression and anxiety began in service and he started drinking in order to "self soothe." The Veteran's representative indicated that the Veteran's exit examination demonstrates that the Veteran checked excessive night sweats which the Veteran believes is related to anxiety, and excessive drinking. See July 2021 Hearing Transcript. A remand is necessary to provide the Veteran with a VA examination. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matter is REMANDED for the following action: 1. Provide the Veteran an additional opportunity to provide details regarding his claimed stessor events. Thereafter, make any appropriate efforts to verify the claim stressors. 2. Schedule the Veteran for a VA examination for his psychiatric conditions. The examiner must review the claims file, including this remand. The examiner is asked to provide a response to the following: Is it as least as likely as not (50 percent probability or greater that the Veteran's acquired psychiatric disorder to include post-traumatic stress disorder (PTSD) is related to an in-service, event, disease, or injury? The examiner must note and address the Veteran's contention that he self-soothed during service using alcohol, to treat his depression and anxiety during active military service. 3. A complete rationale must be provided for any opinion or conclusion expressed. The clinician must note that a lack of contemporaneous medical evidence does not, in and of itself, render lay evidence not credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). If the examiner is unable to provide any requested opinion, he or she must provide a thorough explanation. 4. The AOJ must review this opinion to ensure it is adequate and complies with the Board's specific remand directives herein. If deficient in any manner, corrective action must be taken at once. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that AOJ compliance with Board remand directives is not discretionary or optional). 5. After completing the above, and conducting any further development deemed necessary, readjudicate the claims. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative must be provided a Supplemental Statement of the Case and be given an adequate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Quist 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.