Citation Nr: 21009723 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 17-31 378 DATE: February 23, 2021 ORDER The application to reopen the claim for service connection for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection for a headache disorder is remanded. Entitlement to service connection for a traumatic brain injury (TBI) is remanded. Entitlement to service connection for dementia is remanded. Entitlement to service connection for atrial fibrillation is remanded. Entitlement to service connection for a low back disorder is remanded. Entitlement to service connection for a seizure disorder is remanded. Entitlement to service connection for generalized anxiety disorder is remanded. Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. FINDINGS OF FACT 1. In an October 1991 rating decision, the RO denied service connection for PTSD; the Veteran did not appeal this decision or submit new and material evidence within the one-year appeal period. 2. Evidence received since the October 1991 rating decision, relates to an unestablished fact necessary to substantiate the claim for entitlement to service connection for PTSD. CONCLUSIONS OF LAW 1. The October 1991 rating decision denying service connection for PTSD is final. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 19.129, 19.192. 2. New and material evidence has been received regarding the claim for service connection for PTSD, and the claim is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from July 1971 to May 1978. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In an October 2019 decision, the Board denied, amongst other issues, the Veteran’s claims for service connection for atrial fibrillation, low back disorder, TBI, seizure disorder, headaches disorder, anxiety disorder, and dementia, and denied reopening the claim for service connection for PTSD. In August 2020, the United States Court of Appeals for Veterans Claims (Court) vacated the Board’s denial and remanded the above referenced issues to the Board pursuant to a joint motion for partial remand (JMPR). 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for PTSD. In October 1991, the RO denied the Veteran’s claim for entitlement to service connection for PTSD. The Veteran was notified of this denial, but did not appeal, and did not submit new and material evidence within the one-year appeal period. Therefore, this denial became final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. In its October 1991, denial, the RO indicated the reason for denial was there was no evidence of PTSD. In an August 2017 VA treatment record, the Veteran was diagnosed with PTSD. In a February 2018 treatment record the Veteran was noted as being diagnosed with PTSD, following military combat. In March 2019, a psychiatrist confirmed the Veteran has PTSD. The Veteran submitted a request to reopen the previously denied claim of service connection for PTSD. In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade, supra. Moreover, in determining whether this low threshold is met, VA should not limit its consideration to 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 alternative theory of entitlement. Id. at 118. The evidence received since the October 1991 denial includes VA treatment records noting the Veteran to have PTSD, as well as statements in support of his contention that PTSD is related to service. These statements in support of PTSD, and indications of a current condition, could reasonably substantiate the claim. Accordingly, as the new evidence relates to the basis for the prior denial, and raises a reasonable probability of substantiating the claim, reopening of the claim is warranted. REASONS FOR REMAND 2. Entitlement to service connection for a headache disorder is remanded. 3. Entitlement to service connection for TBI is remanded. 4. Entitlement to service connection for dementia is remanded. 5. Entitlement to service connection for atrial fibrillation is remanded. 6. Entitlement to service connection for a low back disorder is remanded. 7. Entitlement to service connection for a seizure disorder is remanded. 8. Entitlement to service connection for generalized anxiety disorder is remanded. 9. Entitlement to service connection for PTSD is remanded. The record indicates the Veteran is in receipt of SSA benefits due to the issues on appeal. A May 2009 VA medical record states the Veteran has Social Security disability for PTSD, related to his time in Vietnam. The Veteran reported in January 2011 as being disabled since 1990 as a result of his TBI. A July 2012 VA treatment record indicates the Veteran reported he did not work because of concentration, and inability to complete tasks. There are no Social Security Administration (SSA) records in the claims file. A remand is needed to attempt to obtain SSA records. The record also reveals the Veteran received treatment for PTSD at the Pensacola Florida VA Vet Center beginning in 1988 (in an undated Vet center record received December 2012, stating the Veteran was first seen in June 1988). However, the records obtained from the Pensacola Vet Center in December 2012, only cover a period from November 1992 to September 1994, and did not include records from June 1988 to October 1992. A remand is necessary to obtain records for the period from June 1988 to October 1992. An examination is needed to determine if the Veteran suffers from an acquired psychiatric disorder, PTSD and generalized anxiety disorder, and the etiology thereof. The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran’s claims file all ongoing private and VA treatment records, in particular from the Pensacola Florida VA Vet Center from June 1988 to October 1992. 2. Obtain Social Security Administration records. 3. Schedule the Veteran for appropriate examinations for acquired psychiatric disorder, to include PTSD, and generalized anxiety disorder. The examiner is asked to answer the following: Is it at least as likely as not that any diagnosed acquired psychiatric disorder, to include PTSD and generalized anxiety disorder, is related to his service? (Continued on the next page)   The examiner is asked to provide a rationale for any opinions rendered. 4. Perform any additional development deemed necessary following receipt of the SSA and treatment records. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Skiouris, 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.