Citation Nr: 21008721 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 17-26 159 DATE: February 17, 2021 ORDER Whether new and material evidence has been submitted to reopen a previously denied claim of service connection for an anxiety disorder is granted, to that extent only. REMANDED Entitlement to service connection for an acquired psychiatric disorder to include an anxiety disorder and posttraumatic stress disorder (PTSD), is remanded. FINDINGS OF FACT 1. In a final October 2014 rating decision, the Regional Office (RO) denied the Veteran’s claim for entitlement to service connection for an anxiety disorder. That decision is final. 2. Evidence associated with the record since the final October 2014 rating decision is new and material as it pertains to the claim for service connection for an acquired psychiatric disorder. CONCLUSIONS OF LAW 1. The October 2014 rating decision denying service connection for an anxiety disorder final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. 2. The evidence received since the October 2014 rating decision, is new and material and the claim for service connection is reopened. 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 July 1997 to July 2000. This matter comes before the Board of Veteran’s Appeals (Board) from a December 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified via videoconference before the undersigned Veterans Law Judge. A transcript of the hearing will be associated with the record. The Board has recharacterized the Veteran’s claim of service connection for PTSD, as it appears on the title page of this decision to better reflect the evidence of record, pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009). Whether new and material evidence has been submitted to reopen a previously denied claim of service connection for an anxiety disorder Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105 (c). However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. “New” evidence means existing evidence not previously submitted to agency decision-makers. “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. 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. The evidence must also raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The court has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold requirement. The Court interpreted the language of 38 C.F.R. § 3.156 (a) and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding opening.” See Shade v. Shinseki, 24 Vet. App. 110 (2010). Thus, instead of limiting consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, VA should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the final disallowance of the claim. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996); see also Graves v. Brown, 8 Vet. App. 522, 524 (1996). The evidence submitted to reopen a claim is presumed to be true for the purpose of determining whether new and material evidence has been received. Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992). By way of history, in an October 2014 rating decision, the RO denied service connection for an anxiety disorder. The Veteran did not appeal that decision and it became final. In August 2015, the Veteran presented a claim of service connection for PTSD. A December 2015 rating decision denied the claim of service connection for PTSD and continued the denial of the claim of service connection for anxiety, after reopening the claim. Since the October 2014 rating decision, new and material evidence has been associated with the claims file to include lay statements from the Veteran and articles in support of the Veteran’s claimed stressor. As these were not previously before the RO, they are not cumulative or redundant, and relate to an unestablished fact necessary to substantiate the claim of service connection for an anxiety disorder, now characterized as an acquired psychiatric disorder to include an anxiety disorder and PTSD, and constitute new and material evidence. Accordingly, the claim of service connection for an acquired psychiatric disorder is reopened. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder, to include an anxiety disorder and posttraumatic stress disorder (PTSD) is remanded. The Veteran seeks service connection for an acquired psychiatric disorder to include an anxiety disorder and PTSD. In favor of his claim, the Veteran asserts that while in service he experienced traumatic events such as the stabbing of a fellow soldier by his spouse. The Veteran asserted that he was first on the scene of this traumatic event and comforted the victim as he faded. See statement of November 2015. The Veteran has also submitted a report of casualty regarding a homicide- result of stab wounds inflicted by another individual, dated January 2000; as well as a web-article regarding the stabbing. See Web Article and Report of Casualty, both associated with the claims file in December 2015. As there is evidence in support of the Veteran’s assertion regarding the stabbing, the Board concedes this stressor occurred. In December 2015, the Veteran was administered an Initial Posttraumatic Stress Disorder (PTSD) Disability Benefits Questionnaire (PTSD DBQ). In this report the examiner noted that the Veteran’s symptoms did not meet the diagnostic criteria for PTSD under the DSM-5 but that he did meet the criteria for “other specified anxiety disorder.” The examiner opined that the Veteran’s anxiety disorder is less likely than not (less than 50 percent probability) incurred in or caused by his military service, to include the witnessed death of fellow service-member during service or any event that occurred during his deployment to Nicaragua. In favor of this opinion the examiner asserted that it appears a more likely etiology of his mental health symptoms is the onset of increased situational stressors, including his wife’s stroke in 2003. In this PTSD DBQ, the examiner noted that the Veteran’s service treatment records were not available for review. Furthermore, the examiner did not complete the section titled PTSD diagnostic criteria of the report as the examiner’s clinical opinion is that the Veteran does not meet the criteria for PTSD. See PTSD DBQ of December 2015. When VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds this medical opinion inadequate for adjudication purposes, as the examiner did not provide a complete rationale for the opinion expressed and because the examination report is incomplete. Accordingly, the Board finds the matter must be remanded, so that a new examination and medical opinion can be obtained regarding the Veteran’s psychiatric disorder. Additionally, the Board notes the Veteran’s service treatment records (STRs) were deemed unavailable by the RO in an August 2013 memorandum. However, in December 2015 a two-page file named “STR” was associated with the claims file. This document seems to be a chronological list of treatment the Veteran received while in service. It is unclear from the document if the Veteran’s STRs were located or if this document is an attempt to reconstruct the Veteran’s unavailable STRs. Upon remand the RO must attempt to verify this document, to certify its completeness and whether the Veteran’s complete STRs remain unavailable. The matters are REMANDED for the following action: 1. Attempt to verify the document named “STR” associated with the claims file in December 2015. Certify whether this document is a reconstruction of the Veteran’s unavailable STRs, its completeness, and whether the Veteran’s STRs remain unavailable. 2. Obtain any outstanding VA treatment records and associate them with the electronic claims file. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified, and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 3. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant private medical records regarding his claimed disabilities within the appellate period. Ask the Veteran to complete a VA Form 21-4142 for all private medical providers that he identifies. Make two requests for the authorized records from these medical providers unless it is clear after the first request that a second request would be futile. 4. After any additional records are associated with the claims file, schedule the Veteran for a new examination regarding his acquired psychiatric disorder (s). This examination should be provided by a different examiner than the one that completed the PTSD DBQ of December 2015. a. The examiner should provide current diagnoses for any acquired psychiatric disorders, including but not limited to, an anxiety disorder and PTSD. b. For any currently diagnosed acquired psychiatric disorder including but not limited to an anxiety disorder and PTSD, the examiner should opine as to whether it is at least as likely as not (a 50 percent or greater probability) that it had its onset in, or is otherwise related to, the Veteran’s active service. c. The examiner should address the Veteran’s competent statements concerning an incident in service where he comforted a stabbing victim. (Continued on the next page)   d. All indicated tests and studies should be performed and all findings reported in detail. The claims file should be reviewed by the examiner, and the examination report should reflect that review. The examiner should provide a detailed rationale for the opinion and reconcile it with all pertinent evidence of record. If an opinion cannot be rendered without resorting to pure speculation, the examiner should explain why. 5. After completing the above requested actions, and any additional notification and/or development deemed warranted, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Gonzalez-Maldonado 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.