Citation Nr: A21020168 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 200526-87244 DATE: December 17, 2021 ORDER New and relevant evidence having been received, the claim of service connection for posttraumatic stress disorder (PTSD) should be readjudicated. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. FINDING OF FACT Service connection for PTSD was denied on the merits in a June 2019 rating decision as the evidence did not show a diagnosed disability. Evidence associated with the claims file since the June 2019 rating decision is new evidence and includes a diagnosis of PTSD. CONCLUSION OF LAW New and relevant evidence has been received such that the claim of service connection for PTSD should be readjudicated. 38 U.S.C. § 5108; 38 C.F.R. § 3.2501. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 2003 to February 2013. In February 2020, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of entitlement to service connection for PTSD most recently addressed in a June 2019 rating decision. In May 2020, the agency of original jurisdiction (AOJ) issued the supplemental claim decision on appeal, which found that new and relevant evidence had not been received. Therefore, the Board must determine whether new and relevant evidence has been received based only on the evidence of record at the time of the decision on appeal and any evidence submitted during an applicable evidentiary window. In the May 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the supplemental claim decision on appeal. 38 C.F.R. § 20.301. New and Relevant Evidence A claimant who disagrees with a prior VA decision may file a supplemental claim on a form prescribed by the Secretary any time after the AOJ issues notice of a decision. If new and relevant evidence is presented or secured with respect to the supplemental claim, the AOJ will readjudicate the claim taking into consideration all of the evidence of record. If new and relevant evidence is not presented or secured, the AOJ will issue a decision finding that there was insufficient evidence to readjudicate the claim. 38 C.F.R. § 3.2501. In determining whether new and relevant evidence is presented or secured, VA will consider any VA treatment records reasonably identified by the claimant and any evidence received by VA after VA issued notice of a decision on the claim and while the evidentiary record was closed. 38 C.F.R. § 3.2501. New evidence is evidence not previously part of the record before agency adjudicators. Relevant evidence is information that tends to prove or disprove a matter at issue in a claim. Relevant evidence includes evidence that raises a theory of entitlement that was not previously addressed. 38 C.F.R. § 3.2501(a)(1). New and relevant evidence received before VA issues its decision on a supplemental claim will be considered as having been filed in connection with the claim. 38 C.F.R. § 3.2501(a)(2). The evidentiary record for a supplemental claim includes all evidence received by VA before VA issues notice of a decision on the supplemental claim. For VA to readjudicate the claim, the evidentiary record must include new and relevant evidence that was not of record as of the date of notice of the prior decision. 38 C.F.R. § 3.2501(b). Upon receipt of a substantially complete supplemental claim, VA's duty to assist in the gathering of evidence is triggered and includes any such assistance that may help secure new and relevant evidence to complete the supplemental claim application. 38 C.F.R. § 3.2501(c). Whether new and relevant evidence has been received to readjudicate a claim of service connection for PTSD. The Veteran contends that new and relevant evidence has been submitted to readjudicate her claim of service connection for PTSD. She contends that she has a diagnosis of PTSD. This claim was originally denied in a June 2019 rating decision on the basis that the evidence did not show a current diagnosis of PTSD. The Veteran attempted to reopen her claim in February 2020. At issue is whether the Veteran has submitted new and relevant evidence since the June 2019 rating decision which shows a current diagnosis of PTSD. The Board finds that medical evidence submitted by the Veteran constitutes new and relevant evidence. In October 2019, the Veteran submitted treatment records from a private clinician showing a diagnosis of PTSD. This evidence was not of record as of the June 2019 rating decision. Therefore, the evidence is considered new. The evidence is relevant to the Veteran's claim as it speaks to the element of a current diagnosis. As new and relevant evidence has been received, readjudication is warranted. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. In order to serve the Veteran's stated interests, the Board has broadened the Veteran's PTSD claim as a claim to entitlement for service connection for an acquired psychiatric disorder, to include PTSD. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (per curium). The issue of entitlement to an acquired psychiatric disorder is remanded to correct a duty to assist error that occurred prior to the May 2020 rating decision on appeal. The Veteran's service treatment records reflect that on a December 2007 post-deployment health assessment, she reported that during her deployment, she felt she was in great danger of being killed. She reported little interest or pleasure in doing things, feeling down, depressed, or hopeless, had nightmares, tried not to think about or avoided situations which reminded her of her deployment, was constantly on guard, watchful, or easily started, and felt numb or detached from others, activities, and her surroundings. She declined interest in receiving help. She reported similar feelings in a January 2009 primary care screening. She reported that she was angry over not being allowed to return to a duty station in Germany where her daughter was attending school. She reported difficulty sleeping, flashbacks, and difficulty coping with loud noises. Her physician diagnosed her with depression but noted the Veteran was resistant to treatment. Her clinician added depression, adjustment disorder with depressed mood, and ADHD to her active problem list. In July 2011, the Veteran was referred for a psychiatric assessment after her supervisor noted that the Veteran appeared very angry, was crying, and had threatened violence against others, in contrast to the Veteran's normal demeanor over the last five years. The Veteran reported she was treated for attention deficit hyperactivity disorder (ADHD) in 6th grade. She denied other psychiatric treatment except for January to February 2009, when her primary care physician diagnosed her with depression and anger at being separated from her daughter. After examining the Veteran, the clinician diagnosed occupational problems and ADHD with residual symptoms. On an August 2012 separation examination, the Veteran reported frequent trouble sleeping, depression or excessive worry, and that she had received counseling. The examining clinician noted a diagnosis of adjustment disorder and recommended further examination. An October 2012 psychiatric record reflects diagnoses of adjustment disorder with disturbance of emotions and conduct and paranoid personality disorder. The AOJ obtained an April 2019 VA examination and medical opinion prior to the May 2020 rating decision on appeal. The examiner found that the Veteran only sought treatment once during service in October 2012. The examiner indicated that after examining the Veteran and reviewing the October 2012 psychiatric record, the Veteran's symptoms did not warrant a diagnosis of PTSD. Rather, the Veteran's patterns and behavior were related to her personality disorder. In October 2019, the Veteran submitted medical records containing a June 2019 psychiatric assessment which reflects a diagnosis of PTSD. Her clinician also indicated that the Veteran's impulsivity could be explained by her earlier ADHD diagnosis. The AOJ obtained an April 2020 addendum medical opinion prior to the May 2020 rating decision on appeal. The examiner noted the diagnosis of adjustment disorder and paranoid personality disorder during service and the recent diagnosis of PTSD, but that the psychiatric assessment from her PTSD diagnosis was not associated with the record. The April 2020 examiner indicated that the diagnosis by the April 2019 VA examiner was correct as it was based on a thorough review of the record and examination of the Veteran. In contrast, the private records diagnosing PTSD did not list a stressor or consider relevant psychiatric treatment showing a history consistent with personality disorder. Thus, the April 2020 examiner concluded that the diagnosis of PTSD was incorrect and that the correct diagnosis was personality disorder only. The Board finds that the April 2019 VA medical opinion is inadequate. Specifically, the April 2019 VA examiner indicated that the Veteran only sought psychiatric treatment once during service. Thus, it does not appear that the examiner considered psychiatric treatment records and diagnoses prior to those made in October 2012. As the April 2020 VA medical opinion reconciling the conflicting diagnoses of record found that the April 2019 VA medical opinion was based on a thorough review of the record and relied on such, it too is rendered inadequate. The Board acknowledges the private treatment records dated in 2019 which show a diagnosis of PTSD. However, it is not clear from these records whether the PTSD diagnosis conforms to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) criteria. 38 C.F.R. § 4.125. As such, the records are insufficient to establish whether the Veteran has a current diagnosis of PTSD. As the AOJ obtained an inadequate VA examination and medical opinions, the Board finds that a remand is warranted to correct this duty-to-assist error. The matter is REMANDED for the following action: 1. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). The examiner should identify all diagnosed psychiatric disorders. If the Veteran is diagnosed with 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 verified in-service stressor. If the Veteran is diagnosed with a personality disorder and PTSD, the examiner must opine whether the PTSD was at least as likely as not superimposed on a personality disorder during active service and resulted in additional disability. If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease. Although a complete review of the claims file is required, the examiner's attention is drawn to a December 2007 post-deployment health assessment; a January 2009 primary care treatment note diagnosing depression and subsequent addition of adjustment disorder with depressed mood, and ADHD to the Veteran's active problem list; a July 2011 psychiatric assessment after a sudden change in the Veteran's demeanor with a diagnosis of occupational problems and ADHD with residual symptoms; an October 2012 psychiatric assessment; and June 2019 private psychiatric treatment records diagnosing PTSD and finding that the Veteran's impulsive behavior were due to her ADHD rather than to a personality disorder. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Owen, 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.