Citation Nr: 21008502 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 20-11 078 DATE: February 17, 2021 ORDER New and material evidence having been received, the application to reopen a claim of entitlement to posttraumatic stress disorder (PTSD), is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, dysthymic disorder, and major depressive disorder, is remanded. FINDINGS OF FACT 1. Service connection for PTSD was denied in a December 2015 rating decision. New and material evidence was not received within one year and the Veteran did not file a timely Notice of Disagreement with the rating decision. 2. Evidence associated with the claims file since the final December 2015 rating decision relates to unestablished facts necessary to substantiate the claims for service connection for acquired psychiatric disorder. CONCLUSIONS OF LAW 1. The December 2015 rating decision that denied service connection for PTSD is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been received to reopen the claims for service connection for acquired psychiatric disorder. 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 February 1968 to February 1969. The Veteran testified at a hearing before the undersigned in January 2021. A transcript of the hearing has been associated with the claims file. The record reflects that during the period on appeal the Veteran has been diagnosed with PTSD, anxiety disorder and depressive disorder. Thus, the Veteran's claim has been recharacterized as shown above. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Whether new and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disability. The claim of entitlement to service connection for PTSD was denied in July 2015 and December 2015 rating decisions. The December 2015 rating decision is final because the Veteran did not perfect an appeal of that decision and no new and material evidence was received within one year of that decision. Service connection for PTSD was denied in December 2015 because the Veteran did not have a confirmed diagnosis of PTSD. Of record at the time of the rating decision were service treatment records, service personnel records, VA treatment records, and private treatment records. The question before the Board is whether new and material evidence has been submitted to reopen the claim since the December 2015 rating decision. March 2017 and June 2017 rating decisions that declined to reopen the claim are not final because new and material evidence was added to the record within one year of rating decisions. See Private Provider Statement, February 2018. Thereafter, the claim was again denied in an April 2018 rating decision that is the subject of this appeal. Subsequent to the final December 2015 rating decision, a statement from a provider, dated in May 2017, indicates that the Veteran was in therapy and referenced the Veteran’s reported stressor. In another statement from a provider, dated in February 2018, it was indicated that the Veteran has been receiving treatment for chronic depression, PTSD, and paranoia. The statement further indicates an association between the Veteran’s symptoms and service during the Vietnam War. In addition, VA treatment records showing diagnoses of anxiety, depression, and mood disorder have been associated with the claims file. The Board finds this evidence is "new" in that it had not been previously submitted. Moreover, the evidence is "material" because it relates to unestablished facts necessary to substantiate the Veteran's claims; that is current diagnoses and an indication of an association with service. As such, the claim for entitlement to service connection for PTSD is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110 (2010). REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, dysthymic disorder, and major depressive disorder, is remanded. Evidence indicates that there may be outstanding relevant VA treatment records. A July 2019 VA treatment record indicates that the Veteran has been in treatment at VA since 2008. At the hearing in January 2021 the Veteran reported that he had current treatment at VA. The claim is remanded to obtain any outstanding VA treatment records dated since February 2020. The Veteran has received private treatment including from T.L. In a May 2017 statement, T.L., a private therapist, incidated that the Veteran had been in therapy since February 2016; however, treatment records from T.L. were not associated with the claims file. In October 2017 the Veteran was noted to have ongoing psychotherapy with T.L. Thereafter, in February 2018 the Veteran reported to no longer see T.L. and that he can seen the psychologist at VA. A remand is required to allow VA to obtain authorization and request complete records from T.L. The claim is also remanded to obtain a medical opinion on the nature and likely etiolgoy of any diagnosed psychiatric disability. The record shows multiple psychiatric diagnoses;however, it is unclear whether the Veteran has a current diagnosis of PTSD. In addition, VA has not yet attempted to corroborate the Veteran’s in-service stressor identified as being prevented from returning home after the death of his child. Review of the record shows multiple VA medical examinations that do not identify diagnoses or identify personality disorders. The record also contains a January 2014 opinion that found that a diagnosis was not supported, the Veteran’s anti-social behavior started in childhood and that his personality disorder was not likely to have resulted form his military service, and that it was unlikely that his military service had a significant effect on his life course. However, subsequent treatment records identify multiple psychiatric diagnoses and no examiner has opined whether any of the diagnoses are at least as likely as not related to service taking into consideration the reports of private providers in May 2017 and February 2018. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from February 2020 to the present. 2. Ask the Veteran to complete a VA Form 21-4142 for all private providers, including T.L. Make two requests for the authorized records from all private providers, including T.L., unless it is clear after the first request that a second request would be futile. 3. Attempt to corroborate the Veteran’s alleged in-service stressors, including the reported being prevented from returning home after the death of his child. If more details are needed, contact the Veteran to request the information. 4. After completion of the above, schedule the Veteran for a psychiatric examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the nature and etiology of any acquired psychiatric disability, including PTSD, anxiety disorder, and depressive disorder, found to be present. Copies of all pertinent records must be made available to the examiner for review. (a) Prior to the examination, the AOJ must specify for the examiner the stressor or stressors that it is determined are established by the record, and the examiner must be instructed that only those events may be considered for the purpose of determining whether the Veteran was exposed to one or more stressors in service. (b) The examiner should conduct the examination with consideration of the current diagnostic criteria for PTSD. The examination report should include a detailed account of all pathology present. Any further indicated special studies, including psychological studies, should be accomplished. (c) If a diagnosis of PTSD is appropriate, the examiner should specify (1) whether each alleged stressor found to be established by the evidence of record was sufficient to produce PTSD; (2) whether the remaining diagnostic criteria to support the diagnosis of PTSD have been satisfied; and (3) whether there is a link between the current symptomatology and one or more of the in-service stressors found to be established by the record by the AOJ and found to be sufficient to produce PTSD by the examiner. (d) If the examination results in a psychiatric diagnosis other than PTSD, the examiner should offer an opinion as to the etiology of the non-PTSD psychiatric disorder, to include whether it is at least as likely as not that any currently demonstrated psychiatric disorder, other than PTSD, is related to the Veteran's military service, including any verified stressors in service. In rendering the opinions, the examiner must consider and comment reports of the Veteran. A complete rationale should be given for all opinions and conclusions expressed. M.E. LARKIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Robert J. Burriesci, 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.