Citation Nr: 21021279 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 18-49 048 DATE: April 12, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for an acquired psychiatric disorder is reopened. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. FINDINGS OF FACT 1. An unappealed January 2010 rating decision denied claim for service connection for an acquired psychiatric disorder. 2. A September 2013 provisional rating decision denied the Veteran’s request to reopen his claim for service connection for an acquired psychiatric disorder which was reconsidered and denied in the June 2016 rating decision on appeal. 3. Evidence added to the record since the January 2010 rating decision, which was not previously of record, and which is not cumulative of other evidence of record, raises a reasonable possibility of substantiating the claim of entitlement to service connection for an acquired psychiatric disorder. CONCLUSION OF LAW The criteria for reopening the claim of entitlement to service connection for an acquired psychiatric disorder have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1973 to August 1982. This case comes to the Board of Veterans’ Appeals (Board) on appeal of a June 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office. This matter came before the Board in July 2019, at which time the Board noted multiple psychiatric diagnoses and, therefore, broadened the Veteran’s claim on appeal to include any acquired psychiatric disorder. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The July 2019 Board decision denied the Veteran’s claim to reopen service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), obsessive compulsive behavior, depression, mood disorder, suicidal tendencies, and anxiety disorder. The Veteran appealed the July 2019 Board decision to the Court of Appeals for Veterans Claims (Court). In August 2020, the Court issued a Memorandum Decision that set aside the July 2019 Board decision and remanded the issue to the Board for additional proceedings. In pertinent part, the Court found the Board erred in its determination that VA had satisfied its duty to assist as VA failed to make reasonable efforts to obtain the Veteran’s outstanding treatment records, to include VA medical records from the Bath (New York) VAMC and the James A. Haley Veterans’ Hospital (Tampa, FL) VAMC. Following the Court’s August 2020 Memorandum Decision, the Veteran submitted numerous filings to include seeking appellate review under the Appeals Modernization Act (AMA) system. The implementation date for the AMA is February 19, 2019. In this regard, contemporaneously with the Court’s Memorandum Decision, the Veteran filed a Supplemental Claim, a Request for Higher Level Review, and a VA Form 10182 Decision Review Request: Board Appeal (AMA Notice of Disagreement). All of these documents/submissions were received in September 2020. Following various correspondence from VA, the Veteran submitted a second VA Form 10182 in January 2021, and a third VA Form 10182 in March 2021. However, the modernized system does not apply to this case. First, the Veteran erroneously seeks to appeal the Court’s August 2020 Memorandum Decision. Second, the Board lacks jurisdiction to render a decision under the AMA system with respect to the rating decision on appeal. The VA decision on appeal is dated June 2016. The last action dated taken by the AOJ was the September 2018 statement of the case. The AMA only applies to VA decisions issued beginning February 19, 2019. Therefore, the Veteran’s claim will proceed under the Legacy system. Additionally, his March 2021 VA Form 10182, the Veteran identified a “November 2004” rating decision denying service connection for chronic liver disease. The AMA is again noted to only apply to VA decisions issued beginning February 19, 2019. However, a review of the record indicates that in August 2020, the Veteran filed a VA Form 21-526EZ seeking to reopen multiple claims, to include his claim to reopen his previously denied claim of entitlement to service connection for hepatitis A, and hepatitis B and C (claimed as chronic liver disease). The AOJ did not adjudicate these issues. The Veteran may resubmit his claim to reopen hepatitis A, and hepatitis B and C (claimed as chronic liver disease) to the AOJ or notify the AOJ that these issues are still pending. New and Material Evidence Having Been Received, the Claim of Entitlement to Service Connection for an Acquired Psychiatric Disorder is Reopened. Irrespective of the RO’s actions, it is the Board’s responsibility to consider whether it is proper for a claim to be reopened. Barnett v. Brown, 93 F.3d 1380 (Fed. Cir. 1996). Generally, unappealed rating decisions are final with the exception that a claim may be reopened by the submission of new and material evidence. When an appellant seeks to reopen a claim based on new and material evidence, VA must first determine whether the additional evidence is “new and material.” Second, if VA determines that new and material evidence has been added to the record, the claim is reopened and VA must evaluate the merits of the appellant’s claim in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140 (1991). In determining whether the evidence presented or secured since the prior final disallowance of the claim is new and material, the credibility of the evidence is generally presumed. Cox v. Brown, 5 Vet. App. 95 (1993). New evidence means 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 regulation does not require new and material evidence as to each previously unproven element of a claim and creates a low threshold for reopening claims. 38 C.F.R. § 3.156 (a); Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of determining whether new and material evidence has been submitted, the credibility of the new evidence is presumed; its weight is not presumed. Justus v. Principi, 3 Vet. App. 510 (1992). In a November 1983 rating decision, the RO denied service connection for a nervous condition as the evidence did not establish service connection; and denied service connection for alcohol and drug abuse finding willful misconduct. Notification of the decision was provided to the Veteran in December 1983. The Veteran did not appeal that decision and no new and material evidence was received within a year of the rating decision. Accordingly, the November 1983 decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.1103. In March 2009, the Veteran sought to reopen his previously denied claim for service connection for an acquired psychiatric disorder, to include major depressive disorder and PTSD due to military sexual trauma (MST). By rating decision dated January 2010, and after seemingly reopening the claim, service connection for an acquired psychiatric disorder was denied. The AOJ cited to a November 2009 VA examination finding that the Veteran’s acquired psychiatric disorder preexisted service. The Veteran was notified of that decision in January 2010. That decision became final. Id. In December 2011, the Veteran sought to reopen his previously denied claim for service connection for an acquired psychiatric disorder, to include PTSD. In a September 2013 notice letter, which accompanied a September 2013 rating decision, the RO explained that the September 2013 rating decision was not a final rating decision and did not include appeal rights. In December 2013, the Veteran’s representative sent written correspondence requesting the issuance of a final decision. In the June 2016 rating decision on appeal, the RO reconsidered its prior decision, but continued the denial of the Veteran’s claim to reopen, upon a finding that the evidence submitted was not new and material. Evidence received since the January 2010 rating decision includes a January 2021 VA examination noting multiple psychiatric disorders to include PTSD. The examiner noted that the Veteran met the diagnostic criteria of having directly experienced a traumatic event. While the examiner did not identify the stressor supporting this finding, the examination report indicates review of the Veteran’s August 2020 statement identifying a traumatic in-service MST. This evidence is new to the record, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. Accordingly, the Veteran’s petition to reopen his claim for entitlement to service connection for an acquired psychiatric disorder is granted.   REASONS FOR REMAND Entitlement to Service Connection for an Acquired Psychiatric Disorder is Remanded. The Veteran contends that he has PTSD due to a traumatic in-service MST. See June 2012 and August 2020 statements. A January 2021 VA examination report includes a diagnosis of PTSD. The examiner found the Veteran directly experienced a traumatic event, but did not identify or otherwise address the specific stressor involved. While the examiner noted review of the Veteran’s August 2020 statement describing a traumatic MST, there is also evidence in the record indicating a traumatic event experienced by the Veteran as a child. See January 2009 treatment record, and November 2009 VA examination report. Therefore, the Board finds an additional VA examination is required for an adequate determination. Additionally, the January 2021 VA examination report notes multiple current psychiatric diagnoses, however, the report lacks etiology opinions regarding each of the Veteran’s diagnosed psychiatric disorders. Lastly, pursuant to the August 2020 Memorandum Decision, the Board finds that a remand is also necessary to obtain and incorporate the Veteran’s outstanding VA and non-VA records. Pursuant to the August 2020 Memorandum Decision, the Veteran’s VA medical records from the Bath (New York) VAMC and the James A. Haley Veterans’ Hospital (Tampa, FL) must be obtained and associated with the claims file. The Board also notes that in September 2020, he identified treatment at the Martinez VA and San Mateo VA hospitals (California); at the Miami, Gainesville, Lake City, Daytona, Jacksonville, Ft. Lauderdale, and Orlando VAMCs; and at PAR Residential Program, The Faith House (St. Petersburg, FL), the Mustard Seed Inn, The Vines Mental Health Facility, and Meridian Mental Health Facility. Therefore, all outstanding VA and non-VA medical records, or other inpatient or treatment records should be obtained on remand and associated with the claims file. The matters are REMANDED for the following action: 1. Any outstanding VA medical records, or other inpatient or outpatient treatment records, to include any records from the Bath (New York) VAMC and the James A. Haley Veterans’ Hospital (Tampa, FL); as well as from the Martinez VA and San Mateo VA hospitals (California); the Miami, Gainesville, Lake City, Daytona, Jacksonville, Ft. Lauderdale, and Orlando VAMCs; and the PAR Residential Program, The Faith House (St. Petersburg, FL), the Mustard Seed Inn, The Vines Mental Health Facility, and Meridian Mental Health Facility, as well as any other treatment records identified by the Veteran must be obtained and incorporated in the claims file. All attempts to procure such records should be documented in the file. If the AOJ cannot locate these records, it must specifically document the attempts that were made to locate the record(s), and explain in writing why further attempts to locate or obtain that record would be futile. The RO must then: (a) notify the claimant of the specific record that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given an opportunity to respond. 2. Then, provide the Veteran’s claims file to the January 2021 examiner, or a different examiner if this individual is not available, to determine the nature and etiology of any acquired psychiatric disorder. The examiner should address the following: a. Identify/diagnose any acquired psychiatric disorder that presently exists or that has existed during the appeal period. A specific opinion should be provided as to whether a diagnosis of PTSD under the DSM-5 is warranted. b. If a diagnosis of PTSD is not made, the examiner must provide rationale, to include identification of the criteria missing from a PTSD diagnosis. The examiner should also reconcile this determination with the diagnosis of PTSD that was made in the January 2021 VA examination report. c. If a diagnosis of PTSD is made, the stressor(s) supporting the diagnosis should be identified. d. The examiner must opine whether the evidence of record, including the Veteran’s lay statements, and the Veteran’s service records, corroborate/support the claim that the asserted MST occurred in service. e. The examiner must opine whether PTSD, if diagnosed, is at least as likely as not related to an in-service stressor, to include an MST. f. The examiner should also determine if is there clear and unmistakable evidence (i.e., is it undebatable) that any psychiatric disorder existed prior to the Veteran’s service. g. If the examiner determines that a psychiatric disorder existed prior to service, the examiner should also determine whether there is clear and unmistakable evidence (i.e., is it undebatable) that the disorder was not aggravated by the Veteran’s active duty service, to include the asserted in-service MST. h. For any psychiatric disorder other than PTSD that did not preexist service, the examiner should state whether it is at least as likely as not that the disorder had its onset in service or is otherwise etiologically related to the Veteran’s active service. i. For any substance abuse disorder, the examiner should state whether it is at least as likely as not that the disorder was proximately caused or underwent any incremental increase in disability, regardless of its permanence, due to an acquired psychiatric disorder. The term “incremental increase in disability” means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any “incremental increase in disability” need not be permanent. A complete rationale for any opinion must be provided. An examiner’s report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for the statement. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Smith, 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.