Citation Nr: 21009491 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 18-29 405 DATE: February 22, 2021 ORDER The petition to reopen the claim of entitlement to service connection for a chronic psychiatric disorder, is granted. Service connection for anxiety disorder is granted. REMANDED Service connection for a bilateral knee disability is remanded. Service connection for a blood disease and cranium cyst is remanded. The petition to reopen the claim of entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. An August 2015 rating decision denied service connection for PTSD, also claimed as sleep disorder, panic attacks, night sweats, nightmares and depression; the Veteran was notified of the decision and did not file a notice of disagreement or submit new and material evidence within the following one-year appeal period. 2. Evidence submitted since the August 2015 rating decision pertaining to the issue of entitlement to service connection for PTSD, also claimed as sleep disorder, panic attacks, night sweats, nightmares and depression, includes evidence that is not cumulative and redundant of prior evidence and relates to an unestablished fact necessary to substantiate the claim. 3. The Veteran’s anxiety disorder is related to his active service. CONCLUSIONS OF LAW 1. The August 2015 rating decision that denied the claim of entitlement to service connection for PTSD, also claimed as sleep disorder, panic attacks, night sweats, nightmares and depression, is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. The criteria for reopening the claim of entitlement to service connection for PTSD, also claimed as sleep disorder, panic attacks, night sweats, nightmares and depression, have been satisfied. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104 (a), 3.156. 3. The criteria for service connection for anxiety disorder are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1990 to October 1996. His DD 214 reflects service in Southwest Asia from November 1990 to March 1991. Among other decorations, he received the Kuwait Liberation Medal and Southwest Asia Service Medal with 2 Bronze Service Stars. In November 2019, the Veteran withdrew a scheduled Board videoconference hearing request. In November 2020, VA sent the Veteran a letter in error which indicated that he had requested a video Board hearing that had not yet been held and suggested that he consider a virtual tele-hearing as an alternative. However, there is no outstanding hearing request of record. In a November 2020 phone call, the Veteran responded that he withdrew his hearing request in November 2019. He requested that VA cancel the hearing and continue to process the appeal with the information already provided. 1. The petition to reopen the claim of entitlement to service connection for a chronic psychiatric disorder, to include PTSD, anxiety, sleep disorder, panic attacks, night sweats, nightmares and depression is granted. Prior unappealed RO rating decisions are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A claim which has been finally denied in an unappealed rating decision generally may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). An exception to this rule exists when new and material evidence is secured with respect to a claim which has been disallowed, in which case the Secretary shall reopen the claim and review the prior disposition. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156 (a). 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. Id. 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. Id. The Court of Appeals for Veterans Claims (CAVC) has held that the phrase “raises a reasonable possibility of establishing the claim” must be viewed as enabling rather than precluding reopening. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Id. Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA’s duty to assist or through consideration of an alternate theory of entitlement. Id. at 118. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principle, 3 Vet. App. 510, 513 (1992). Absent the submission of evidence that is sufficient to reopen the claim, the Board’s analysis must cease. The Board may not then proceed to undertake an examination of the merits of the claim. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996); McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). Regardless of whether the RO found new and material evidence to reopen a claim, the Board is not bound by such a determination and must nevertheless consider whether new and material evidence has been received. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). In this case, the Board will therefore undertake a de novo review of the petition to reopen the claim for service connection for PTSD, also claimed as sleep disorder, panic attacks, night sweats, nightmares and depression. An August 2015 rating decision denied service connection for PTSD, also claimed as sleep disorder, panic attacks, night sweats, nightmares and depression; the Veteran was notified of the decision and did not file a notice of disagreement or submit new and material evidence within the following one-year appeal period. In this regard, the August 2016 rating decision on appeal, which was issued within one year of the notice letter for the August 2015 rating decision and found that new and material evidence had not been received to reopen the claim, specified that it is based on a new claim for service connection VA Form 21-526EZ received in May 2016. In May 2016 the Veteran submitted a Va Form 21-0781Statement in Support of Claim for Service Connection for Post-Traumatic Stress Disorder (PTSD). However, that form does not contain new and material evidence as the description of the stressor section is entirely blank with only the date and country completed. Further, VA mental health treatment records associated with the record in June 2016 had previously been associated with the record. The August 2015 rating decision explained that service connection was denied because all VA PTSD screenings had been negative, and VA treatment records showed a diagnosis of anxiety that was due to work-related issues. Evidence of record at that time included the Veteran's service treatment records and VA treatment records. An August 2015 VA Initial PTSD Disability Benefits Questionnaire (DBQ) provides that the Veteran did not have a diagnosis of PTSD, but did have a diagnosis of anxiety disorder unspecified. The DBQ sets forth the Veteran's claimed stressor, which he reported occurred near the front line during the Gulf War. He stated he witnessed dismembered enemy and national bodies and had to bury enemy bodies and body parts in a ditch. In an August 2015 DBQ Medical Opinion, the same VA examiner listed the decorations on the Veteran's DD 214 and opined that it was at least as likely as not that the Veteran's anxiety disorder was due to his experiences in the combat zone. The Board finds that new and material evidence has been received to reopen the claim for service connection for PTSD, also claimed as sleep disorder, panic attacks, night sweats, nightmares and depression. Evidence received after the August 2015 rating decision includes a June 2018 Review PTSD DBQ completed by a private licensed psychologist. The diagnosis was PTSD, major depressive disorder and generalized anxiety disorder. The Veteran reported 2 significant stressors, one of which was removing and burying dead and decaying bodies as they moved into position in Kuwait. The private psychologist stated that based on his experience treating these disabilities in many patients and after reviewing the pertinent records, conducting a DBQ, a history and mental status examination, it was his professional opinion, and with a high degree of certainty, that it was more likely than not (greater than 50 percent) that the Veteran's PTSD, anxiety and depression are directly related to his military service. The Board finds that the June 2018 private DBQ is new and material. It is new because it was not previously before VA. It is material because it relates to an unestablished fact necessary to substantiate the claim (i.e., that the Veteran has a current psychiatric diagnosis that is related to service) and raises a reasonable possibility of substantiating the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade, supra. See August 2015 rating decision. It tends to support the Veteran’s assertion that he now has a psychiatric disorder related to active duty. The Board finds that this new evidence meets the low threshold described by Court to enable reopening claims. See Shade, supra. Regardless of whether sufficient evidence to establish entitlement has been received at this time, the new evidence would, if true, combine with the prior evidence of record to tend to establish a previously unestablished element (a nexus between a psychiatric disability and service) in support of the claim. The Board finds that new and material evidence has been submitted on the issue of service connection for PTSD, also claimed as sleep disorder, panic attacks, night sweats, nightmares and depression, following the prior final denial of the claim. Accordingly, the Board reopens the claim at this time. 2. Service connection for anxiety disorder is granted. The Veteran contends that he now has a chronic psychiatric disorder, to include anxiety disorder, as a result of service in Southwest Asia in 1990 and 1991. In May 2016, he stated that his claimed stressor occurred in March 1991 in Kuwait. The Board concludes that the Veteran has a current disability that began during or is related to active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). As noted above, an August 2015 VA Initial PTSD DBQ provides a diagnosis of anxiety disorder unspecified and sets forth a claimed stressor which occurred near the front line during the Gulf War. In an August 2015 VA DBQ Medical Opinion, the same VA examiner listed the decorations on the Veteran’s DD 214 and opined that it was at least as likely as not that the Veteran’s anxiety disorder was due to his experiences in the combat zone. A June 2018 Review PTSD DBQ completed by a private licensed psychologist provides a diagnosis of PTSD, major depressive disorder and generalized anxiety disorder. The Veteran reported 2 significant stressors, one of which was the same noted in the August 2015 VA DBQ. The private psychologist stated that it was more likely than not (greater than 50 percent) that the Veteran’s PTSD, anxiety and depression are directly related to his military service. The Board is aware that an April 2018 VA Initial PTSD DBQ provides that the Veteran did not have a diagnosis of PTSD but did have a diagnosis of unspecified anxiety disorder. The examiner stated that he was not finding evidence that the Veteran's anxiety was related to his reported stressors or service. In light of the foregoing, the Board finds that it is at least as likely as not that the Veteran's anxiety disorder is related to active duty. The Board considers this a full grant of the benefit sought for a psychiatric disability, however diagnosed. Accordingly, the Board finds that service connection for anxiety disorder is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Service connection for a bilateral knee disability is remanded. 2. Service connection for a blood disease and cranium cyst is remanded. 3. The petition to reopen the claim of entitlement to service connection for bilateral hearing loss is remanded. These issues are remanded to obtain outstanding VA treatment records. On the May 2016 VA Form 21-526EZ, the Veteran reported treatment at the Washington DC VA Medical Center (VAMC) from January 3, 2000 to October 1, 2012. A review of the eFolder reveals that it does not include any VA treatment records dated prior to October 30, 2001, other than an October 2000 Persian Gulf Registry. Similarly, during a November 2017 hearing before a VA Hearing Officer the Veteran reported that many treatment records from the Washington DC VAMC were missing from his eFolder. He had been unable to obtain them and requested that VA obtain them. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issues on appeal. A remand is required to allow VA to obtain them. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records, to include but not limited to VA treatment records from the Washington DC VAMC for the period from January 3, 2000 to October 30, 2001, and any VA treatment records developed since October 2020. 2. Then, if and only if any further development is indicated as a result of the additional materials received on remand, such development should be accomplished. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Davitian, 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.