Citation Nr: 21021218 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 16-41 777 DATE: April 12, 2021 ORDER New and material evidence has been received and the claim for service connection for posttraumatic stress disorder (PTSD) is reopened. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. FINDINGS OF FACT 1. A 2012 rating decision denied a claim for service connection for PTSD; the Veteran did not appeal the decision or submit new and material evidence during the appeal period, and the decision is final. 2. Some of the evidence added to the record since the 2012 final denial is new and relates to an unestablished fact necessary to substantiate 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 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1975 to August 1979. This matter comes before the Board of Veterans’ Appeals (Board) from a May 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Veteran filed a claim for PTSD. However, in light of the evidence of record, the Board has recharacterized the claim as entitlement to service connection for an acquired psychiatric disorder, to include PTSD, pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2012). 1. Whether new and material evidence has been received to reopen a claim for service connection for PTSD The Veteran’s initial claim for service connection for PTSD was denied in a September 2009 rating decision. The Veteran did not perfect an appeal within one year of the decision, and the decision is final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 19.52 (2020). Thereafter, in January 2010, the Veteran submitted a request to reopen the claim for service connection for PTSD, which was denied in a May 2012 rating decision. The May 2012 rating decision denied the claim on the basis that there was no credible supporting evidence that the claimed in-service stressor occurred. The Veteran did not perfect an appeal or submit new and material evidence during the appeal period, and the May 2012 rating decision is final. See Id. The Veteran submitted the present request to reopen the claim for service connection for PTSD in 2013. In the May 2014 rating decision that is the subject of this appeal, the RO denied reopening the claim because the evidence of record did not establish that the claimed in-service stressor occurred. Regardless of the RO’s actions, the Board has an obligation to make an independent determination of its jurisdiction. Barnett v. Brown, 8 Vet. App. 1 (1995), aff’d, 83 F.3d 1380 (Fed. Cir. 1996). Generally, if a claim of entitlement to service connection was previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as existing evidence not previously submitted to agency decision makers. 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. 38 C.F.R. § 3.156(a). New and material evidence can be construed as that which would contribute to a more complete picture of the circumstances surrounding the origin of a Veteran’s disability or injury, even when it would not be enough to convince the Board to grant the claim. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The threshold to reopen a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117-120 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). After reviewing the record, the Board finds that new and material evidence has been received to warrant reopening a claim for service connection for PTSD. The May 2012 final decision denied reopening the claim for PTSD because there was insufficient evidence to confirm combat service or substantiate that the claimed in-service stressor had occurred. The RO considered the service treatment records, which do not show any complaints, treatment or diagnosis of a psychiatric disorder; service personnel records, which do not signify combat duty; the Veteran’s statements in support of the claim; a 2010 statement from the Veteran’s mother pertaining to the claimed in-service stressor; a 2010 VA PTSD examination report reflecting a clinical diagnosis of PTSD; VA treatment records reflecting ongoing psychiatric treatment and a reported history of the claimed in-service stressor; and a 2012 Joint Services Records Research (JSRRC) Team report indicating the claimed in-service stressor event could not be verified. Substantive evidence added to the record since May 2012 include the Veteran’s statements and 2020 Board hearing testimony; a 2012 buddy statement from a fellow soldier describing the claimed in-service stressor; VA treatment records; security administration disability benefits records and VA memoranda in 2014 indicating the claimed stressor could not be verified. This evidence is presumed credible solely for purposes of new and material evidence analysis. See Justus, supra. Some of the evidence is new. It is also material as it contributes to a more complete picture surrounding the origins of the Veteran’s PTSD and claimed in-service stressor. Accordingly, the Board finds that new and material evidence has been received, and the claim for entitlement to service connection for PTSD is reopened. See Shade, 24 Vet. App. 110. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD The Veteran seeks service connection for a psychiatric disorder (claimed as PTSD), which he alleges is related to an in-service stressor incident involving the death of a sergeant during a training exercise. The Board notes that the Veteran underwent a January 1980 VA examination, which is with the year following service discharge, and was diagnosed with adjustment reaction of adult life and a possible pre-psychotic picture. During the examination, the Veteran reported that he received psychiatric treatment during service. The Veteran’s service treatment records do not contain any psychiatric clinical records. As psychiatric service treatment records may be kept separately from other service treatment records, a remand to request any such psychiatric treatment records is needed. The medical evidence shows the Veteran has been diagnosed during the appeal period major depressive disorder with psychotic features, as indicated by 2016 VA treatment records. The Board finds that a VA examination and opinion are needed to address whether this disability is related to service. Updated treatment records should also be requested. The matters are REMANDED for the following actions: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his claimed psychiatric disability. After securing any necessary releases, request any relevant records identified that are not duplicates of those associated with the claims file. In addition, obtain updated VA treatment records since August 2016. If any requested records are unavailable, the Veteran should be notified of such. 2. Request in-service psychiatric treatment records through official sources. If additional information is needed from the Veteran to request such records, the Veteran should be asked to provide it. All efforts to obtain such records should be documented in the claims file. If the requested records do not exist or cannot be obtained, the Veteran should be notified of such. 3. After completing the requested development, schedule the Veteran for a VA mental disorders examination to determine the nature of any current psychiatric disability and to obtain an opinion as to whether such is directly related to service. The claims file must be reviewed by the examiner in conjunction with the examination. All indicated tests should be conducted, and the results reported. After examining the Veteran and reviewing the claims file, the examiner should identify all psychiatric disorders present and respond to the following: For any diagnosed psychiatric disorder other than PTSD, to include major depressive disorder with psychotic features, opine whether it is at least as likely as not (50 percent probability or greater) that the condition arose during active duty service or is otherwise related to active duty service. The examiner should explain why or why not, to include addressing whether the disorder is a maturation of the January 1980 VA examiner’s diagnoses of adjustment reaction of adult life and possible pre-psychotic picture. A rationale should be provided for the opinions expressed. 4. If the claim remains denied, issue a supplemental statement of the case. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. C. Birder 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.