Citation Nr: 21006476 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 19-35 330 DATE: February 4, 2021 ORDER The petition to reopen the previously denied claim of entitlement to service connection for a psychiatric disorder is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and a depressive disorder is remanded. FINDINGS OF FACT 1. Most recently, in an unappealed July 2014 rating decision, the RO denied a claim for entitlement to service connection for a mental condition, to include anxiety and depression. 2. Evidence received since the July 2014 rating decision was not previously considered by agency decision makers; is not cumulative and redundant of evidence already of record; relates to an unestablished fact; and raises a reasonable possibility of substantiating the Veteran’s claim for a psychiatric condition. CONCLUSIONS OF LAW 1. The July 2014 rating decision, which denied a claim for entitlement to service connection for a mental condition, is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. The criteria to reopen the claim of entitlement to service connection for a psychiatric disorder have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1976 to June 1979 and from September 1982 to September 1989. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ); a transcript is of record. The Board notes that claims for an increased rating for gastroesophageal reflux disorder (GERD) and a total disability rating based on individual unemployability have recently returned to the Board following its most recent remand. However, as those issues were previously addressed in a hearing by a different VLJ, those issues will be addressed in a separate decision. The Veteran was informed of such at the November 2020 hearing. The claim of entitlement to service connection for PTSD has been recharacterized as shown on the title page. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Whether new and material evidence has been submitted to reopen the previously denied claim of entitlement to service connection for a psychiatric disorder. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. The evidence need only relate to one unestablished fact necessary to substantiate the claim to be material. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). 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. 38 C.F.R. § 3.156(a). When determining whether the submitted evidence meets the definition of new and material, VA must consider whether the new evidence, when considered with the evidence of record, at least triggers VA’s duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Shade, 24 Vet. App. at 118. For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Service connection for a substance abuse disorder was denied in a May 2010 rating decision on the basis that the disorder was not considered a disability. Most recently, service connection for a mental condition, to include anxiety and depression, was denied in a July 2014 rating decision on the basis that the condition did not occur in and was not caused by service. The Veteran did not initiate an appeal of that decision and thus, it became final. 38 U.S.C. § 7105; 38 U.S.C. §§ 20.302, 20.1103. No evidence was constructively or physically of record within one year of the July 2014 determination. 38 C.F.R. § 3.156(b); see also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011). While additional service treatment records (STRs) were added to the record in February 2015, these records were irrelevant to the issue on appeal. Thus, 38 C.F.R. § 3.156(c) is inapplicable. See Kisor v. Wlkie, 969 F.3d 1333 (Fed. Cir. 2020) (holding that under 38 C.F.R. § 3.156(c)(1), in order to be “relevant,” the service record at issue must speak to a matter in dispute and therefore affect the outcome of the case). In determining whether new and material evidence is required to reopen a claim, the focus must be on whether the evidence amounts to a new claim “based upon distinctly diagnosed diseases or injuries” from the claim considered in the prior final decision. Velez v. Shinseki, 23 Vet. App. 199, 204 (2009); Boggs v. Peake, 520 F.3d 1330, 1335-36 (2008); see generally Murphy v. Wilkie, 983 F.3d 1313 (Fed. Cir. 2020). In the instant case, while the Veteran’s present claim initially was characterized as a claim specifically for PTSD, which the Veteran expressly excluded from this most recent previously denied claim, most of the diagnoses (i.e. a substance abuse disorder and a depressive disorder) currently present were also of record at the time of the Veteran’s previous claims. Additionally, the Veteran reported some of the same symptoms, mainly depression, and general psychiatric issues during the course of all of his claims. See January 2009 record from the Social Security Administration (SSA) (“[e]ver since I left the military my mind has been messed up”). It appears that while the Veteran may have claimed specific conditions previously and presently, his ultimate intention was to seek service connection for his psychiatric condition, however variously claimed and diagnosed. Thus, the claim presently on appeal is a continuation of the Veteran’s previous claims and new and material evidence is required. At the time of the July 2014 rating decision, the pertinent evidence of record included STRs, VA treatment records, SSA records, and military personnel records. Since the most recent final denial in July 2014, VA treatment records, additional STRs, statements from the Veteran, a March 2018 and May 2018 VA fee-based examination report, and correspondence from the Veteran’s VA treating provider were added to the record. As this evidence was not before VA or considered in the prior denial, it is new. The VA examination reports address whether the Veteran has a psychiatric disorder that is related to his active service. As this evidence relates to whether the Veteran’s psychiatric disorder is related to service, an unestablished fact necessary to substantiate the claim, it is material. Accordingly, new and material evidence has been received. The request to reopen the prior denial is granted. 38 C.F.R. § 3.156. To this limited extent only, the appeal is granted. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and a depressive disorder. The Veteran contends that his psychiatric condition is related to his active military service. The Board finds that additional development is needed prior to adjudication. A review of the record shows that the Veteran has attributed his psychiatric condition to three different incidents in service. First, he has attributed it to being discharged from the service. Secondly, he has attributed it to witnessing a motorcycle accident during which the victim was decapitated. Lastly, he has attributed it to the shooting of a girlfriend and suicide of her estranged husband. Although he explained that he did not directly witness the shooting, he reported he saw the bodies right after the shooting. The Veteran underwent VA fee-based examinations for his psychiatric condition in March and May 2018. At the March 2018 examination, the examiner diagnosed the Veteran with PTSD based on the reported stressor involving the motorcycle accident. However, the reported stressor involving the motorcycle accident has not been verified, and service connection for PTSD can only granted where the diagnosis is based on a verified stressor, unless one of the exceptions under 38 C.F.R. § 3.304(f)(3) apply. The Board acknowledges that the RO has not attempted to verify the reported motorcycle accident. However, after the Veteran submitted a Statement in Support of Claim for PTSD in March 2018 identifying the stressor, the RO sent the Veteran a letter in April 2018 informing him that the information provided was not enough to verify the incident and that additional information was needed, including the name of the victim. Although the Veteran did not respond to the April 2018 letter, the evidence of record indicates that the Veteran has submitted all of the information he knows regarding the stressor. See March 2018 Statement in Support of Claim for PTSD (reporting he did not know the victim); November 2020 hearing transcript (providing the same information as previously reported). The reported accident was a civilian accident that the Veteran was not involved in, and he has made clear that he does not know who the victim was. Due to the lack of corroborating information, the Board finds that this stressor is not verifiable and will not order such development on remand. At the May 2018 VA fee-based examination, the examiner only noted a diagnosis of cocaine use disorder and found that the Veteran did not meet the diagnostic criteria for PTSD. However, VA treatment records as well as records from SSA show that the Veteran also has been diagnosed with a depressive disorder. Neither of the VA examinations address whether the Veteran’s depressive disorder is related to service. In light of the foregoing, the Board finds that a remand is warranted in order to obtain an opinion that addresses whether the Veteran’s depressive disorder is related to his active service. Regarding the third alleged stressor, the Board acknowledges that in a November 2020 correspondence, the Veteran’s VA treating clinical social worker reported that the Veteran has chronic PTSD as a result of the third reported stressor, the murder of his girlfriend and her estranged husband’s suicide. However, the Board finds that the weight of the evidence indicates that the Veteran was not involved in this incident as he has reported. In this regard, the Veteran has reported that he witnessed the event. See November 2020 statement. The Veteran has also reported that the girlfriend murdered was his “greatest love” and has described the traumatic scene he saw when he arrived after the shooting. See September 2019 VA treatment record; November 2020 hearing transcript. However, a review of the record shows that the Veteran did not report this stressor until April 2018. Significantly, in an April 2014 VA PTSD assessment, the only event that the Veteran described as being traumatic in service was his discharge from service. See April 2014 VA treatment record. Additionally, at his first VA examination, the Veteran also did not report this stressor and instead only reported the motorcycle accident. Furthermore, the May 2018 VA fee-based examiner noted that the information provided was not sufficient evidence that the Veteran was involved in the murder/suicide in light of his reports that contradicted the news article provided, the fact that his report of the incident changed during the interview, and his prior denials of trauma in the past. The Board finds that the Veteran’s failure to report this incident for more than 30 years heavily weighs against his reports of involvement, particularly in light of the fact that he previously was asked about traumatic experiences that occurred in service. Had the Veteran been involved in this incident, as traumatic as the incident was, it is expected that the Veteran would have reported the incident at his April 2014 PTSD assessment or at his initial VA examination, when specifically asked about traumatic events in service. See Buczynski v. Shinseki, 24 Vet. App. 221 (2011) (citing Fed. R. Evid. 803(7) for the proposition that the absence of an entry in a record may be evidence against the existence of a fact if it would ordinarily be recorded); Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (clarifying that the absence of evidence is not negative evidence unless it is the type of information that would necessarily have been recorded). More importantly, while the Veteran has submitted a newspaper article confirming the murder/suicide occurred, the evidence weighs against a finding that the Veteran witnessed or was involved in this incident. See July 12, 1985 Houston Chronicle Article, “Woman Marine killed by estranged husband.” Accordingly, the Board finds that the events of the third alleged stressor as reported have not been verified and the November 2020 opinion is insufficient to grant this claim. The Board will not order additional development in regard to the third alleged stressor. Finally, there may be outstanding VA treatment records. At the November 2020 hearing, the Veteran reported that he began receiving treatment for his psychiatric condition from the VA Medical Center in Houston, Texas in the 1990s. However, only VA treatment records from November 2006 onward are associated with the record. On remand, the RO should attempt to obtain any outstanding VA treatment records prior to November 2006. The matters are REMANDED for the following action: 1. Request VA treatment records from the Houston VA Medical Center dated from 1990 to November 2006. The request should include non-electronic and/or archived paper records. If any of these records are in a retired or archived status, efforts should be made to acquire the records. If no records can be found, indicate whether the records do not exist and whether further efforts to obtain the records would be futile. 2. Obtain a VA medical opinion regarding the etiology of the Veteran’s depressive disorder from a qualified medical professional. The need for a physical examination is left to the discretion of the VA examiner. The examiner must review the entire claims file and a copy of this Remand. The examiner must opine whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s depressive disorder had its onset in, or is otherwise related to, active service, to include his discharge from service and/or the reported event involving a motorcycle accident. A complete rationale must be provided for all opinions expressed. The rationale must consider and discuss the pertinent evidence of record, to include the Veteran’s lay statements. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Mortimer, 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.