Citation Nr: 21012240 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 12-21 353 DATE: March 3, 2021 ORDER New and material evidence has been received sufficient to reopen a previously denied and final claim of service connection for posttraumatic stress disorder (PTSD) and the appeal is granted to this extent only. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and major depressive disorder, to include as proximately due to or the result of service-connected migraine headaches, is remanded. FINDINGS OF FACT 1. A March 2000 rating decision denied service connection for PTSD, the Veteran received notice of the decision and he did not file a timely appeal. 2. Evidence received since the March 2000 rating decision is not cumulative, it relates to an unestablished fact necessary to substantiate the claims and it raises a reasonable possibility of substantiating the claims. CONCLUSIONS OF LAW 1. The March 2000 denial of the claim for service connection for PTSD is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. §§ 3.156, 20.1100 (2020). 2. New and material evidence has been received to reopen the previously denied and final claim of service connection for PTSD. 38 U.S.C. §§ 5103, 5103A, 5107, 5108 (2012); 38 C.F.R. § 3.156 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from September 1969 to June 1971. In October 2015, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that is of record. This matter was most recently Remanded in February 2019. Whether new and material evidence has been received to reopen a previously denied claim of service connection for PTSD. In general, rating decisions that are not timely appealed are final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.1103, 20.1105. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured to that claim. New evidence is evidence not previously submitted to agency decision makers. Material evidence means existing evidence which, 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. The credibility of the evidence is presumed and the threshold for submission is low. Justus v. Principi, 3 Vet. App. 510, 513 (1992); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). The Board first notes in its review of the record a final decision denying the claim for service connection for PTSD was issued in March 2000. A notification letter for the denial was sent to the Veteran 9 days later in March 2000. As directed in August 2003 and June 2005 Board Remands, a Statement of the Case (SOC) was issued in March 2006, but the Veteran did not file a timely substantive appeal. Thus, the march 2000 rating became final. Thereafter, the Veteran filed a claim in February 2010 to reopen the previously denied claim. The Agency of Original Jurisdiction (AOJ) did so in its August 2010 rating decision, then denied it on the merits. However, as stated, the August 2010 rating decision stated the claim was now considered reopened and proceeded to deny it. That originally lead to the instant appeal. Therefore, the March 2000 rating decision is the last final decision denying the claim. Regardless of a decision by the AOJ to reopen the claim, the Board must make its own determination, as this in turn establishes the Board’s jurisdiction to reach the underlying claim and to adjudicate it de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff’g, 8 Vet. App. 1 (1995)). On this basis and looking to the March 2000 rating decision and notification letter, new and material evidence would consist of medical evidence establishing a clear diagnosis of PTSD, credible supporting evidence of his claimed stressors, as there is no evidence that he served in combat, and a link established by medical evidence between current symptomatology and the claimed in-service stressors. Since the March 2000 rating decision, as the last final decision, the record now includes a March 2010 lay statement of the Veteran’s wife, describing symptoms during 40 years of marriage, numerous outpatient treatment notes at VA in the period from November 1999 through July 2010 and a December 2020 VA examination and opinion for PTSD. The Board finds this evidence was not of record at the time of the March 2000 final rating decision and is therefore new. Moreover, it is material, as it provides information possibly supporting the Veteran’s assertions and thereby presents a reasonable possibility of substantiating the claim. The evidence is neither cumulative nor redundant of the evidence previously of record and it is pertinent to the issues on which the Veteran’s claim will turn. For these reasons, the claim is reopened. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and major depressive disorder, to include as proximately due to or the result of service-connected migraine headaches. In its February 2016 remand, the Board identified nine documents and records, reviewed by the AOJ in its August 2010 rating decision, but which were not in the claims file. It further identified five “essential” documents which also did not appear in the file, making a total of 14 documents and records missing from the claims file. Although the February 2016 Remand noted that it had been determined that an additional temporary file for the Veteran does not exist, the Board remanded the case with specific instructions to locate and/or rebuild the claims file for the issue on appeal; to take several specific steps in searching for and reconstructing lost files, conforming to VA procedures; and to make it “ascertainable that a verifiable, reasonably exhaustive search for the original evidence and documents has been undertaken, and that verifiable due diligence has been exercised in rebuilding the file in the absence of success in locating the original evidence and documents.” However, after only some efforts to obtain missing documents and records were made, the AOJ obtained copies of only a few of the missing documents and records. The Board again remanded this matter in February 2019, as the record did not reflect compliance with the Board’s February 2016 Remand, showing documented specific details of the efforts made, the actual steps taken, the responses, verifiable search procedures, and any due diligence measures undertaken for rebuilding the file. The Board’s current review of the file indicates most of the missing documents now have been obtained and associated with the file. Moreover, a series of inquiries were made and are documented in the file, thereby showing substantial compliance with the February 2016 and February 2019 Remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). However, in his correspondence found in the file at January 30, 2021, the Veteran has requested VA to obtain certain medical records and other documents which he feels will “help my case.” In its further review of the file, the Board has determined that some of these additional records are present in the file. Others are not. VA’s duty to assist contemplates that VA will help a claimant obtain records relevant to the claim, whether or not the records are in Federal custody, by making reasonable efforts to obtain them. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c). Some of the records pertain to treatment for headaches, but as the Veteran asserts in the January 30, 2021 correspondence that he has been advised by physicians that his service-connected “migraine headaches and PTSD go hand in hand” and, accordingly, the Board has characterized his claim for service connection for PTSD as including a secondary basis for the claim, those records at the least may be relevant and possibly determinative. As the Veteran has waited an excessive period for his appeal to proceed because of omissions in the initial scanning of documents into his file and subsequent missteps in the efforts to retrieve those missing documents, he must be afforded every opportunity to attain ultimate satisfaction of his claim. Consequently, for the foregoing reasons, remand is necessary for reasonable efforts to obtain the requested records. The matters are REMANDED for the following action: 1. Contact the Veteran and his representative as needed for information such as dates and locations pertaining to the following records he has requested in his hand-written correspondence, found in the claims file at January 30, 2021. This directive and the following directives should be effected simultaneously. 2. The Veteran has requested the following medical records from the period of September 1970 through June 1971: Records of hospitalization or legal confinement for attempted suicide while posted at the Bien Hoa Air Base, Republic of Vietnam. Hospitalization at Cam Ranh Bay Air Base, Republic of Vietnam. Hospitalization at the United States Navy hospital at the then Charleston Naval Air Station, Charleston, South Carolina (at present, possibly a component of Joint Base Charleston). Although the service treatment records (STRs) in the claims file do not contain the above, the AOJ should make all reasonable efforts of the usual and appropriate sort to obtain the above records, given the possibility that the above records may be in existence and stored at the relevant medical facility in which treatment was rendered, or are otherwise stored separately from service treatment records. If appropriate, the AOJ should provide the Veteran with the necessary authorization and release-of-information forms and instructions. 2. The Veteran has also requested VA to obtain and add to the file PS Forms 3971, Request for or Notification of Absence from the period in which he was employed by the United States Postal Service (for 30 years, retired 2007). The AOJ should proceed either to obtain these documents or to inform the Veteran of his responsibility to obtain them, whichever is usual and appropriate regarding such documents. If appropriate, the AOJ should provide the Veteran with the necessary authorization and release-of-information forms and instructions. 3. Additionally, the Veteran has requested the medical records from the following treatment providers for his treatment for headaches: Charles C. Greene, M.D., Ph.D., 3890 Dunn Avenue, Jacksonville, Florida 32218. Brooks Rehabilitation Center, 1034 Dunn Avenue, Jacksonville, Florida 32218. The AOJ is advised to confirm the addresses given by the Veteran and request from him relevant dates of treatment. If appropriate, the AOJ should provide the Veteran with the necessary authorization and release-of-information forms and instructions. 4. After all records are obtained and reviewed, determine whether additional psychiatric examination is indicated to ascertain whether an acquired psychiatric disorder, to include PTSD had its on set during service; or, if pertinent whether any identified acquired psychiatric disorder is proximately due to, the result of, or aggravated by a service connected disability.   5. Thereafter review the record for completion of the above, if additional steps are needed, they should be undertaken before readjudication of the case in accordance with applicable procedures. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Franke, Associate 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.