Citation Nr: 21076130 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 18-46 528 DATE: December 22, 2021 ORDER New and material evidence having been received, the claim of service connection for a psychiatric disorder is reopened. REMANDED Service connection for a psychiatric disorder. DECISION The Veteran served on active duty from October 1979 to October 1985. The case is on appeal from a May 2016 rating decision. The Veteran testified at a Board hearing in December 2021. Whether new and material evidence has been received to reopen a previously denied claim of service connection for a psychiatric disorder. Earlier, by an April 2010 rating decision, the claim of service connection for posttraumatic stress disorder (PTSD) was denied. The Veteran did not appeal the decision. After a claim to reopen, service connection for a psychiatric disorder was denied in a December 2012 rating decision. Notice of this decision was sent to the Veteran later in December 2012 at his last address of record. The Veteran did not appeal the December 2012 rating decision. Also, new and material evidence was not received within one year of the December 2012 decision. Thus, it became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.1103. After an April 2016 claim to reopen, service connection for a psychiatric condition was again denied in a May 2016 rating decision. The Veteran did not appeal the May 2016 rating decision denial. However, additional VA medical records were created, with a May 2016 assessment by a neuropsychologist containing pertinent evidence stating that the Veteran meets the criteria for a PTSD diagnosis. See May 31, 2016 medical CAPRI document. This evidence was constructively before VA. See Lang v. Wilkie, 971 F.3d 1348 (2020). Because this is new and material evidence, it needed to be considered with the then-pending April 2016 claim. Additionally, there has been new and material evidence to reopen the claim. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS FOR REMAND Service connection for a psychiatric disorder. The Board has recharacterized the Veteran's claim more broadly as one for service connection for a psychiatric disorder, to include PTSD, major depressive disorder (MDD), and unspecified anxiety disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran contends that he developed PTSD during service stemming from multiple events. He asserts that in February 1980, he was attacked by two soldiers in a bathroom while stationed at Fort Lewis. See December 2009 correspondence. He also contends that while stationed in Panama in 1984, he was assaulted and robbed by knifepoint by 4 to 5 men, which led to substance abuse and hospitalization while in Panama. See October 2017 notice of disagreement (NOD) and December 2021 Board testimony. At a different time he was punched while watching TV in the dayroom, requiring stitches at the hospital. Id. VA medical records show treatment for various psychiatric disorders. In October 2009 he was hospitalized for suicidal ideation with diagnoses of MDD and social anxiety disorder. In May 2016, he underwent an evaluation by a neuropsychologist, in which the Veteran described the various claimed assaults while in service, and was assessed as meeting the criteria for PTSD with the Panama incident listed as the identified source of trauma. In February 2018 and August 2018 medical CAPRI documents, his diagnosis of PTSD included the descriptor of being robbed at knifepoint in Panama. The Veteran has not yet undergone a VA psychiatric examination. Given the information, the Veteran should be afforded a VA examination on remand as the low threshold for obtaining an examination has been met. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Additionally, the Board notes that, unfortunately, the Veteran's service treatment records (STRs) are unavailable for review. In October 2012, the Veteran was notified that his active duty STRs were unavailable for review, and that all efforts to obtain the needed information had been exhausted, further attempts were futile, and the record is not available. In appeals where a veteran's STRs are unavailable, there is a heightened obligation to assist the veteran in the development of the case, a heightened obligation to explain findings and conclusions, and a heightened duty to carefully consider the benefit of the doubt rule. See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005). Finally, the Board also notes that evidence in the claims file indicates additional service in the Army National Guard and/or Army Reserve. It is unclear whether complete requests with the appropriate dates were conducted for these records, and should upon remand. In light of the remand, updated VA treatment records should be obtained. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all potential periods of both ACDUTRA and INACDUTRA service in the Army National Guard and/or Army Reserve. Make another request for Army National Guard and/or Army Reserve STRs and SPRs accordingly, to include with the appropriate state adjutant general's office. Associate all documents and/or information obtained with the claims file. 2. Notify the Veteran that he may submit additional lay statements from himself and/or other individuals with first-hand knowledge of the claimed incidents and the impact such may have had on the Veteran. 3. Obtain updated VA treatment records since August 2018. 4. Thereafter, schedule the Veteran for a VA psychiatric examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) by an appropriate medical professional. The entire claims file must be reviewed by the examiner. The examiner should then: (a) Identify all of the Veteran's psychiatric disorders experienced during the claims period, to include whether he meets the criteria for PTSD. If PTSD is not diagnosed, it should be explained why this diagnosis is not appropriate. (b) If PTSD is diagnosed, identify the stressor(s) upon which the diagnosis is based. This should include an opinion as to whether the claimed in-service stressor(s) at least as likely as not (probability of 50 percent or greater) actually occurred, and whether the Veteran's current symptoms are related to that claimed stressor(s). (c) For each currently diagnosed psychiatric disorder other than PTSD, the examiner should offer an opinion as to whether it is at least as likely as not (probability of 50 percent or greater) that any such disorder had its onset during, or is otherwise related to, the Veteran's active duty military service including periods of ACDUTRA. The examiner is asked to specifically consider and address: (1) the current diagnoses of record, to include PTSD, MDD, and unspecified anxiety disorder; (2) the lay statements of the Veteran and any submitted statements in support, of the claimed events, onset of symptoms, and persistent mental health symptoms; (3) the May 2016 VA assessment stating that he meets the criteria for PTSD with the assault incident in Panama as the index trauma identified; and (4) the February 2018 and August 2018 VA treatment records noting a diagnosis of PTSD from Panama in 1984 when held up at knifepoint. The examiner should provide rationale for all opinions expressed, including by citing to the record. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Morford, 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.