Citation Nr: 21011309 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 17-56 259A DATE: March 1, 2021 ORDER New and material evidence has been received to reopen a claim for service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), generalized anxiety disorder, and major depressive disorder, the petition to reopen is granted. FINDINGS OF FACT 1. The Veteran’s claim for service connection for PTSD and depression was denied in September 2013. He did not submit a notice of disagreement or submit new and material evidence within one year of its promulgation. 2. Evidence received since the September 2013 final denial is new and relates to an unestablished fact necessary to substantiate the claim. CONCLUSION OF LAW New and material evidence has been received to reopen the claim for entitlement to service connection for an acquired psychiatric disorder. 38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156(a) (2021). REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, generalized anxiety disorder, and major depressive disorder is remanded. REASON AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Army from July 2006 to November 2009. In August 2020, the Veteran testified before the undersigned at a Board hearing. A transcript of that hearing is of record. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Medical evidence of record contains diagnoses of major depressive disorder and generalized anxiety disorder. Thus, while the Veteran specified that he was seeking service connection for PTSD, the claim has been broadened to include other psychiatric disabilities and is re-characterized accordingly. The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record. 1. New and material evidence to reopen a claim for service connection for an acquired psychiatric disorder The Board has no jurisdiction to consider a claim based on the same factual basis as a previously disallowed claim. 38 U.S.C. § 7104 (b); King v. Shinseki, 23 Vet. App. 464 (2010); DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006) (holding that res judicata generally applies to VA decisions). However, the finality of a previously disallowed claim can be overcome by the submission of new and material evidence. See 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, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). In determining whether evidence is new and material for purposes of deciding whether a claim should be reopened, “the credibility of the evidence is to be presumed.” Savage v. Gober, 10 Vet. App. 488 (1997); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Only in cases in which the newly submitted evidence is “inherently false or untrue” does the presumption of credibility not apply. Duran v. Brown, 7 Vet. App. 216, 220 (1994). In September 2013, the RO denied the Veteran’s claim for service connection for PTSD on the basis that the medical evidence of record did not show a current disability, and that any current PTSD symptoms were not proximately due to his active service. He did not submit a notice of disagreement or submit new and material evidence within one year of its promulgation. See Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011); see also Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). Accordingly, the September 2013 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.160(d), 20.200, 20.302, 20.1103. After the September 2013 denial, the AOJ obtained the Veteran’s service personnel records. At any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring the submission of new and material evidence. 38 C.F.R. § 3.156(c). In the context of 3.156(c)(1), “[i]n order to be ‘relevant,’ a record must speak to a matter in issue, in other words, a matter in dispute.” Kisor v. Wilkie, 969 F.3d 1333 (Fed. Cir. 2020). The service personnel records do not refer to or describe a psychiatric condition or psychiatric symptoms. Therefore they are not relevant and new and material evidence is required to reopen the claim. The Veteran also submitted duplicates of some of the service treatment records that were already in his claims file at the time of the September 2013 denial. The Veteran has now submitted further medical evidence that indicates a diagnosis of an acquired psychiatric disability. Specifically, the Veteran has private medical treatment records that note a diagnosis of major depressive disorder and generalized anxiety disorder. Presuming the credibility of this evidence, this evidence is new and material. Reopening of the Veteran’s claim for service connection for an acquired psychiatric disorder based on the receipt of new and material evidence is therefore warranted. Shade v. Shinseki, 24 Vet. App. 110, 121 (2011) (holding that the phrase “raises a reasonable possibility of substantiating the claim” in applicable regulation as “enabling rather than precluding reopening”). REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, generalized anxiety disorder, and major depressive disorder Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). The Veteran completed a VA initial PTSD examination in June 2016. At examination, the Veteran was diagnosed with Cannabis Use Disorder and Antisocial Personality Disorder. The Veteran was not diagnosed with PTSD. In a June 2016 medical opinion, the VA examiner found that the Veteran did not meet the criteria for a PTSD diagnosis, and that the Veteran’s Antisocial Personality Disorder was less likely than not related to service. However, an August 2017 psychological evaluation submitted by a private treatment provider noted a diagnosis of PTSD, generalized anxiety disorder, and major depressive disorder. In addition, the Veteran’s VA treatment records also note a current diagnosis of generalized anxiety disorder and major depressive disorder. Finally, at an August 2020 hearing, before the undersigned VLJ, the Veteran asserted his anxiety and depression were caused by his period of active duty service in Iraq. The above-noted June 2016 PTSD examination and corresponding medical opinion does not discuss the etiology of the Veteran’s current generalized anxiety disorder or major depressive disorder, and does not address the Veteran’s contentions that his anxiety and depression were caused by his period of active service. Further, the medical opinion does not consider the Veteran’s subsequent PTSD diagnosis. Thus, the Board finds that the June 2016 examination and medical opinion are inadequate for determining service connection. A medical opinion is inadequate if the examiner’s rationale fails to account for pertinent evidence, to include competent lay statements describing symptoms of the disability at issue. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Buchanan v. Nicholson, 451 F.3d 1331,1335 (Fed. Cir. 2006) (noting that “lay evidence is one type of evidence that must be considered, if submitted, when a veteran's claim seeks disability benefits”). A new VA examination and medical opinion addressing the Veteran’s current acquired psychiatric disorders are necessary to comprehensively evaluate his claim for service connection. The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination with an appropriate clinician for his acquired psychiatric disorder. The examiner must provide an opinion as to whether the Veteran has PTSD. The Board notes that the Veteran’s in-service stressor of fear of hostile military activity has been conceded due to his active service in Iraq. The examiner must also opine as to the following: a. Does the Veteran have a diagnosis of generalized anxiety disorder? b. If so, is at least as likely as not (50 percent or greater probability) that the Veteran’s generalized anxiety disorder was incurred during or is related to an incident of service, including his active service in Iraq? c. Does the Veteran have a diagnosis of major depressive disorder? d. If so, is at least as likely as not (50 percent or greater probability) that the Veteran’s major depressive disorder was incurred during or is related to an incident of service, including his active service in Iraq? Although an independent review of the claims file is required, the examiner’s attention is called to the following: • The Veteran’s August 2017 private psychological evaluation noting a diagnosis of PSD, generalized anxiety disorder, and major depressive disorder. • The Veteran’s VA treatment records noting a diagnosis of generalized anxiety disorder and major depressive disorder. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. After all completed development, the AOJ should then readjudicate the claim. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case and afforded the requisite opportunity to respond before the case is returned to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Riordan, 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.