Citation Nr: 21006300 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 17-28 487 DATE: February 3, 2021 ORDER As new and material evidence has been received, service connection for posttraumatic stress disorder (PTSD) is reopened. REMANDED Service connection for and acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), unspecified anxiety disorder, and other specified trauma and stressor related disorder, is remanded. FINDINGS OF FACT 1. An unappealed August 2014 rating decision denied service connection for PTSD. The Veteran did not submit a timely notice of disagreement to the rating decision, and new and material evidence was not received within one year of the notice of the rating decision. 2. New evidence received since the August 2014 final rating decision raises a reasonable possibility of substantiating the service connection claim for PTSD. CONCLUSIONS OF LAW 1. The August 2014 rating decision that denied the Veteran’s service connection claim for PTSD is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. Evidence received after the last final rating decision is new and material to the claim for service connection for PTSD, and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1979 to March 1983 and from November 1990 to May 1991. This matter comes on appeal before the Board of Veterans’ Appeals (Board) from an April 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Veteran testified before the undersigned Veterans Law Judge via videoconference hearing. A copy of the hearing transcript is of record and has been reviewed. As reflected on the title page of this decision, the Board has broadened the service connection claim for PTSD to a service connection claim for an acquired psychiatric disorder, to include PTSD, unspecified anxiety disorder, and other specified trauma and stressor related disorder, or however diagnosed. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). 1. As new and material evidence has been received, the service connection claim for PTSD is reopened. Rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement (NOD) with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160, 20.201, 20.302. An exception to the finality rule is found in 38 U.S.C. § 5108, which provides that, if new and material evidence is received with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record 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, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Here, the RO initially denied the Veteran’s service connection claim for PTSD in an August 2014 rating decision, finding that there was no evidence of an in-service event, disease, or injury and no evidence of a nexus to service. The evidence considered at the time included a VA Form 21-526EZ, service treatment records, military personnel records, and VA treatment records. The Veteran did not file a timely NOD within one year of the August 2014 rating decision, and although new VA psychiatric treatment records were in the constructive possession of VA, none of the new evidence was material to the existence of an in-service stressor or to a nexus to service. No additional new and material evidence was received within one year of the August 2014 rating decision. Thus, the August 2014 rating decision became final. See 38 U.S.C. § 7105(d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. The Veteran submitted a petition to reopen the previously denied service connection claim for PTSD in September 2014. The RO reopened the claim but again denied service connection for PTSD in an April 2015 rating decision, finding that there was no evidence of a nexus to service. New and material evidence was submitted after the April 2015 rating decision, and the RO reconsidered the claim in a December 2015 rating decision. The RO again denied the claim. Subsequently, the Veteran then submitted a timely March 2016 NOD, and this appeal ensued. Thus, the question before the Board is whether new and material evidence has been received to reopen the service connection claim since the August 2014 prior final denial. Evidence received since the August 2014 prior final denial of the claim includes a new September 2015 stressor statement, a November 2015 VA examination, and a February 2017 VA addendum opinion. This evidence, specifically the additional September 2015 stressor statement relates to the unestablished element of an in-service stressor in the prior denial. The additional evidence received since the August 2014 final denial is therefore new and material. The criteria for reopening the service connection claim for PTSD are therefore met. REASONS FOR REMAND 2. Service connection for and acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), unspecified anxiety disorder, and other specified trauma and stressor related disorder, is remanded. Further development is necessary before the Veteran’s service connection claim for an acquired psychiatric disability can be adjudicated. The Veteran contends that he was present on February 25, 1991 in Dhahran, Saudi Arabia when a SCUD missile hit barracks and killed numerous United States soldiers. He reported being evacuated to the desert and passing dead bodies and body parts from the attack. The Veteran also identified a second stressful in-service event when he was accidently left in the desert on a night convoy after his vehicle became stuck in the sand. He reported being in the desert all night, eventually being picked up by the British military and eventually being returned to his unit. See September 2013 VA treatment record, September 2015 stressor statement, November 2015 VA examination, January 2017 DRO hearing transcript, and January 2020 Board hearing transcript. First, there is no evidence in the file as to what steps the RO undertook to verify the Veteran’s identified stressors/in-service events. The Board notes that the Veteran’s military personnel records show that he was attached to the 926th Engineering Brigade, which was noted to be a combat unit. He served as a mechanic and light truck driver, and his personnel records specifically note that he served in Saudi Arabia between November 1990 and May 1991. There is no evidence of record that specifies how the RO attempted to verify the Veteran’s stressors/in-service events, except a one sentence unsupported conclusion in the December 2015 rating decision that the RO was unable to “confirm his unit was at the location on February 25, 1991 SCUD missile attack.” There is no evidence that it ever attempted to verify his stressor/in-service event of being left in the desert overnight on a convoy. On remand, the RO should undertake all necessary development to attempt to verify the Veteran’s stressors/in-service events and document these efforts and findings to the claims file. Additionally, the March 2015 and December 2015 VA medical opinions are inadequate in their current forms. First, the Board notes the Veteran was diagnosed with unspecified anxiety disorder in the February 2017 VA addendum opinion, and the examiner concluded that he was unable to opine if the anxiety disorder was as likely as not caused by or related to service. The opinion, as worded, essentially indicates the examiner cannot form a conclusion. No supporting rationale was provided. On remand, an etiology opinion should be obtained to determine whether the unspecified anxiety disorder had onset during or is otherwise related to service. Additionally, the Veteran was also diagnosed with other specified trauma or stressor disorder in the November 2015 VA examination, and a positive nexus opinion was provided. However, the RO denied service connection because the in-service events, as described above, were not noted in his military personnel or service treatment records. As discussed above, the RO’s efforts to verify the Veteran’s stressors/in-service events are inadequate. On remand, after the RO undertakes all necessary additional development to verify the in-service events as described by the Veteran, the RO should reconsider the claim. Finally, although the Veteran was diagnosed with PTSD under the Diagnostics and Statistics Manual (DSM) IV, the Veteran’s service connection claim was certified to the Board after August 4, 2014; thus, the DSM-5 applies to this claim. See 38 C.F.R. § 4.125; 79 Fed. Reg. 45,093, 45,094-096 (Aug. 4, 2014) (interim final rule); 80 Fed. Reg. 14,308 (Mar. 19, 2015) (final rule) (providing that for claims that were initially certified for appeal to the Board, the Court, or the U.S. Court of Appeals for the Federal Circuit prior to August 4, 2014, the DSM-IV will apply. For all applications for benefits received by VA or pending before the agency of original jurisdiction on or after August 4, 2014, the DSM-5 will apply). Here, although diagnosed with PTSD under the DSM-IV, the November 2015 VA examiner determined the Veteran did not meet the diagnostic criteria for PTSD under the DSM-5. The November 2015 examiner indicated the Veteran did not meet criterion C (persistent avoidance of distressing trauma-related stimuli related to the traumatic event) and criterion D (negative alteration in cognitions and mood that began or worsened after the traumatic event). However, the examiner failed to discuss the additional evidence of record, such as the Veteran’s depression, anxiety, avoidance of others, inability to get along with coworkers and walking away to avoid conflict, unexplained mood swings, difficulty attending church, nightmares, inability to tolerate crowds, unprovoked anger, history of fighting, irritability, and avoiding customers with a preference of being left alone at work, and why those symptoms are not sufficient for criteria C and D to render a PTSD diagnosis. See, e.g., September 2013, October 2014, February 2015, July 2015, October 2015, December 2015, and February 2016 VA treatment records, January 2017 DRO hearing testimony, and January 2020 Board hearing testimony. On remand, an addendum opinion as to whether the Veteran meets the diagnostic criteria for PTSD under the DSM-5, with consideration of the Veteran’s symptoms as reported in VA treatment records, the January 2020 Board hearing, and any other evidence of record, should be obtained. The matters are REMANDED for the following action: 1. Obtain any outstanding pertinent VA treatment records and associate them with the claims file. In addition, ensure the full treatment records for VA psychiatric treatment for February 8, 2016, February 22, 2016, February 23, 2016 July 21, 2016, and July 21, 2016 are associated with the claims file. See November 2016 CAPRI records without treatment notes. 2. Undertake all necessary development to verify the Veteran’s stressor/in-service events, to include (i) being present on February 25, 1991 when an Iraqi SCUD missile hit the barracks of U.S. soldiers in Dhahran, Saudi Arabia; and (ii) accidently being left in the desert on a night convoy when his vehicle became stuck in the sand, being picked up by the British military, and returned to his unit. Document all efforts to verify his stressor/in-service events and any subsequent findings to the claims file. 3. Obtain a VA addendum medical opinion from an appropriate clinician as to the nature and etiology of the Veteran’s acquired psychiatric disabilities. Whether another psychiatric examination is required is left to the discretion of the examiner. A complete copy of this remand should be provided to the examiner. After a thorough review of the claims file, the examiner should address the following: a) Provide an opinion as to whether the Veteran meets the diagnostic criteria for PTSD under the DSM-5. Specifically discuss the Veteran’s symptoms as reported in the VA treatment records, January 2017 DRO hearing, January 2020 Board hearing, and any other pertinent evidence of record as it related to criteria C and D. See November 2015 VA examination report. *Of note, the Veteran’s identified stressors have already been found to be sufficient for the fear of hostile military or terroristic activity. b) Provide an opinion as to whether it is at least as likely as not that the currently diagnosed unspecified anxiety disability had onset during or was otherwise related to service, to include his reported in-service events/stressors. c) Provide an opinion as to whether it is at least as likely as not that the currently diagnosed other trauma and stressor disability had onset during or was otherwise related to service, to include his reported in-service events/stressors. *A complete rationale must be provided for each conclusion given. (Continued on the next page)   4. Readjudicate the claim on appeal. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Harper, 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.