Citation Nr: 21009162 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 20-10 452 DATE: February 19, 2021 ORDER New and material having been received, the request to open the claim for service connection for an acquired psychiatric disorder, to include anxiety and posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include anxiety and PTSD is remanded. FINDING OF FACT 1. The claim for entitlement to service connection for an acquired psychiatric disorder, to include anxiety and PTSD was denied in an March 2016 rating decision. The Veteran did not perfect an appeal of that decision and new and material evidence was not submitted within one year; the March 2016 rating decision is final. 2. Evidence submitted since the March 2016 rating decision was not previously considered and raises a reasonable possibility of substantiating the claims. CONCLUSION OF LAW Evidence received since the March 2016 rating decision is new and material, and the claim for service connection an acquired psychiatric disorder, to include anxiety and posttraumatic stress disorder (PTSD) have been met. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1963 to July 1967. Whether new and material evidence was received to reopen a claim for service connection for an acquired psychiatric disorder, to include anxiety and PTSD. Regardless of the determination by the Agency of Original Jurisdiction (AOJ) to reopen the claim, the Board must adjudicate the new and material issue to determine the Board’s jurisdiction to reach the underlying claim and to adjudicate it de novo. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). The question before the Board is whether new and material evidence has been submitted to reopen the claim. Since the March 2016 rating decision, the Veteran submitted private mental health records in July 2016 and a private medical opinion in January 2018. He also testified at a January 2021 that he was diagnosed with PTSD and pertaining to his PTSD stressors. The Board finds this evidence is “new” in that it had not been previously submitted. Moreover, the evidence is “material” because it relates to an unestablished fact necessary to substantiate the Veteran’s claim. The March 2016 denial was based on the finding that the Veteran’s stressors could not be verified. However, the Veteran submitted a private opinion that he has PTSD due to his claimed stressors and he also testified at his Board hearing as to why his reported stressors may not be of record. The evidence is neither cumulative nor redundant of the evidence of record at the time of the March 2016 rating decision and raises a reasonable possibility of substantiating the claims. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110 (2010). De novo consideration of the claims is addressed in the remand below. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder, to include anxiety and PTSD is remanded. The Board is unable to make an informed decision on claim because the January 2020 VA medical opinion is inadequate. The examiner provides a positive opinion but appears to rely on a previous inadequate January 2018 opinion from the Veteran’s private provider to support the opinion. The accompanying Disability Benefits Questionnaire (DBQ) documented the Veteran’s reported stressor, but states that the Veteran’s stressor does not meet “fear of hostile military action” because, his “stressor is related to enemy encounters without enemy fire.” However, the examiner does not discuss whether the Veteran’s reported stressors describe circumstances where he was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others. 38 C.F.R. § 3.304(f)(3). The Veteran has reported incidents where he, as a member of a submarine crew during the Vietnam war, was in a submarine that was near crush depth in effort to avoid detection by a hostile military force. The Veteran said personnel had to remain still and silent at battle stations, for three to four days because a hostile enemy force was searching for the submarine in the waters above. The claim is remanded to obtain a medical opinion as to whether these reported stressors rise to the level fear of hostile military action due to circumstances that involved a threat to the physical integrity of the Veteran or others. Id. Updated treatment records must also be obtained. The matters are REMANDED for the following action: 1. Ask the Veteran to identify any providers who treated for any psychiatric complaints since service. He should specifically identify the Vet Center he reportedly saw within the last several years. Take all appropriate action to obtain records from identified providers. 2. After completion of the above, schedule the Veteran for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the nature and likely etiology of any and all acquired psychiatric disorders. Copies of all pertinent records must be made available to the examiner for review. If the examiner determines that an opinion cannot be provided without an examination, one should be scheduled. After reviewing the record, the examiner is asked to answer the following question: (a) Identify all diagnosed psychiatric disorders. (b) If the Veteran is diagnosed with PTSD, the examiner must (i) explain how the diagnostic criteria are met and (ii) opine whether it is at least as likely as not related to a fear based stressor as a result of his Vietnam service; specifically the Veteran’s experience aboard the submarine. The examiner must specifically comment on whether the Veteran’s reported stressors rise to the level of a circumstance that involved a threat to the physical integrity of the veteran or others to mee the definition of fear of hostile military action. (c) For any other acquired psychiatric disorders diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to the Veteran’s service, to include the experience described. A complete rationale must be provided for all opinions offered. A complete rationale must be provided for all opinions, citing to supporting factual data and medical literature, as appropriate. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training) and note what, if any, additional evidence would permit such an opinion to be made. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. G. Perkins, 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.