Citation Nr: 21014659 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 15-30 839 DATE: March 15, 2021 ORDER New and material evidence sufficient to reopen the claim of entitlement to service connection for posttraumatic stress disorder (PTSD) has been received, and the application to reopen is granted. REMANDED The reopened claim for entitlement to service connection for PTSD is remanded. FINDINGS OF FACT 1. In an unappealed January 2011 decision, the Board denied service connection for PTSD. 2. The evidence associated with the claims file subsequent to the January 2011 denial includes evidence that relates to an unestablished fact necessary to substantiate the claim for service connection, is not cumulative or redundant of the evidence previously of record and raises a reasonable possibility of substantiating the claim for service connection for PTSD. CONCLUSION OF LAW New and material evidence has been received to reopen the claim for service connection for PTSD 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1974 to November 1974. The Veteran testified before the undersigned Veterans Law Judge at a June 2019 Video Conference hearing. A transcript of the hearing is of record. In January 2020, the Board denied the Veteran’s claim for service connection for PTSD. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (CAVC). In a November 2020 Order, the CAVC granted a Joint Motion for Remand (JMR), which vacated and remanded the January 2020 Board decision. The case has been returned to the Board for further adjudication. The appellant was previously represented by attorney, George Theodore Sink. By a written statement, received by VA in March 2020, the above-cited attorney withdrew representation of the Veteran. Thus, the Veteran is currently unrepresented in the instant appeal. New and Material Evidence As a general rule, a previously denied claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. When a claimant seeks to reopen a final decision, the first inquiry is whether the evidence obtained after the last disallowance is "new and material." Under 38 C.F.R. § 3.156 (a), 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). The submission of "new and material" evidence is a jurisdictional prerequisite to the Board's review of such an attempt to reopen a claim. Absent the submission of evidence that is sufficient to reopen the claim, the Board's analysis must cease. See Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996); Butler v. Brown, 9 Vet. App. 167, 171 (1996); McGinnis v. Brown, 4 Vet. App. 239, 244 (1993). The United States Court of Appeals for Veterans Claims has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim, in the final sentence of 38 C.F.R. § 3.156 (a), does not create a third element in the reopening process, but is a component of the question of what is new and material evidence, rather than a separate determination to be made if evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (noting that 38 U.S.C. § 5108 requires only new and material evidence to reopen). Shade further holds that 38 C.F.R. § 3.156 "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim[.]" Id. Further, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, and regulations do not require new and material evidence as to each previously unproven element of a claim. Id. Rather, the Board should focus on whether the evidence, taken together, could at least trigger the duty to assist by providing a medical opinion. Id. See also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Simply stated, the standard is low, but it is a standard that needs to be met. When determining whether a claim should be reopened, the credibility of the newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510 (1992). If the evidence is new, but not material, the inquiry ends, and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). Once evidence is deemed new and material, the Board can proceed to review the claim based on the merits and the entire evidence of record. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for posttraumatic stress disorder (PTSD) and if so, whether the reopened claim should be granted In a January 2011 decision, the Board denied service connection for PTSD, based on a finding that the Veteran’s assertions that he developed PTSD as a result of an in-service assault wherein he sustained a head injury at the same time that he sustained an injury to his right hand were not credible, and that his report of an assault during active service, including sustaining a head injury during the assault, was inconsistent with the other lay and medical evidence of record. The Veteran did not file an appeal and the decision became final. In October 2012, the Veteran filed a petition to reopen his claim for service connection for PTSD. The pertinent evidence submitted since the January 2011 Board decision includes a July 2013 VA examination report, wherein the VA examiner opined that based on the information provided by the Veteran, in combination with the information obtained from the claims file, it is more likely than not that the Veteran suffers from PTSD, which began following the reported physical assault in service. The evidence also includes a November 2017 sworn affidavit from the Veteran’s friend, L.W., who reported that the Veteran came home with knots on his head and with problems with his hand. The Board finds that this evidence is new, in that it is not cumulative or redundant of evidence already of record. Furthermore, the evidence relates to an unestablished fact necessary to substantiate the claim, i.e. that the Veteran has currently demonstrated PTSD, related to his active military service, specifically, a head injury in service, sustained during the same assault where his right hand was injured. The Board notes that in the January 2011 decision, the Board found that the Veteran’s reports of sustaining a head injury during his in-service assault were not credible, and therefore, it found that the lay statement from L.W. was not new and material as to the fact of whether an in-service assault occurred because it reiterates the Veteran’s claim, and was therefore duplicative of the Veteran’s own claims. However, as noted by the parties to the JMR, evidence from sources other than the Veteran's service records, including lay statements or evidence of behavior changes may represent credible evidence that the stressor occurred. 38 C.F.R. 3.304(f)(5). As such, the Board finds that, presuming the credibility of L.W.’s affidavit, for the purposes of reopening only, the statement is both new and material. The Board also finds that the positive November 2006 VA opinion does not render the July 2013 positive VA opinion redundant and therefore, immaterial. In this regard, the July 2013 examiner conducted his own review of the claims file and interview of the Veteran and came to an independent conclusion as to the etiology of the Veteran’s PTSD. Furthermore, the credibility of the Veteran’s statements to the July 2013 VA examiner are presumed, for the purposes of reopening only, and therefore, the Board finds that the examiner’s opinion, based on those statements, is both new and material. In conjunction with the evidence currently of record, including the Veteran's reports of an in-service assault, during which he sustained an injury to his right hand and his head, and the positive medical opinion in November 2006, connecting his diagnosis to his reported assault in service, this new evidence raises a reasonable possibility of substantiating the claim. As such, the Board finds that the low threshold requirement for new and material evidence has been satisfied, and the claim is reopened. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The additional evidence demonstrates that further development is required before the claim may be considered on the merits. REASONS FOR REMAND The reopened claim for entitlement to service connection for PTSD is remanded. The Veteran reported that in November 1974, he suffered an in-service assault, during which his head and right hand were injured and that he woke up in a hospital with a cast on his right hand. See July 2008 VA Form 9, July 2016 VA Form 9, and June 2019 Video Conference hearing transcript. The record reflects that emergency room records from the Naval Training Center (NTC) Hospital for emergency services for a right-hand injury from September 1, 1974, to November 14, 1974, were requested by the regional office (RO). A response was received, indicating that the NTC closed in 1995, and that all available service treatment records (STRs) were mailed in January 2000. See October 2008 VA 21-3101 Request for Information. However, as the parties to the JMR noted, clinical records, which document inpatient treatment at a military treatment facility are distinguished from STRs, which document medical and dental care received primarily outside of a hospital. Therefore, it has not been definitively determined that the clinical records of a 1974 hospitalization do not exist. In light of the foregoing, the Board finds that VA's duty to assist has not been satisfied, and therefore a remand is necessary. The duty to assist requires that VA continue to try to obtain records in the possession of a government agency until such a search becomes futile. 38 U.S.C. § 5103A (c)(2). Under 38 C.F.R. § 3.159 (c)(2), the Secretary must make as many record requests as are necessary; a search for records is "futile" only when it becomes clear the record does not exist or is not in the possession of the custodian. Further, VA is required to make reasonable efforts to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. See 38 U.S.C. § 5103A (b)(1); 38 C.F.R. § 3.159 (c)(1). On remand, the RO should make further reasonable efforts to obtain the identified 1974 in-service treatment records from the NTC Hospital, and all responses must be associated with the claims file. The Board, by this remand, makes no determination, expressed or implied, concerning the credibility of any statements on file. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file/e-folder all relevant VA medical records not already of record. Specifically, the RO should attempt to obtain emergency room treatment records from the Naval Training Center (NTC) Hospital for emergency services for a right-hand injury from September 1, 1974 to November 14, 1974. If the RO is unsuccessful in obtaining any such identified evidence, it should document the efforts to obtain the records, and request the Veteran to provide a copy of the outstanding evidence to the extent he is able to. 2. After completion of the above, and any other development deemed necessary, review the expanded record, and readjudicate the claim. If the benefit on appeal remains denied, the Veteran should be furnished an appropriate supplemental statement of the case, afforded an opportunity to respond, and the case should thereafter be returned to the Board for further appellate review. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board F. Yankey, 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.