Citation Nr: 21024568 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 16-00 185 DATE: April 23, 2021 ORDER New and material evidence having not been received, the application to reopen the claim of entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. REMANDED Whether new and material evidence has been submitted to reopen service connection for cholelithiasis is remanded. Whether new and material evidence has been submitted to reopen service connection for vision loss is remanded. Whether new and material evidence has been submitted to reopen service connection for a skin rash is remanded. FINDING OF FACT A final July 2008 rating decision denied service connection for PTSD; evidence received since that time does not raise a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has not been received to reopen the claim of entitlement to service connection for PTSD. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1969 to September 1970, including foreign service. For his meritorious service, the Veteran was awarded (among other decorations) the Vietnam Service Medal and Vietnam Campaign Medal. Regrettably, the Veteran died in September 2009, and the appellant has been recognized as a properly substituted claimant. See 38 U.S.C. § 5121A; see also October 2019 memorandum; October 2019 VA letter. Historically, these appeals were remanded by the Board in February 2021 for additional development, which has since been completed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Also in February 2021, the Board found that the Veteran had active service in the Republic of Vietnam and WAS presumed to have been exposed to herbicide agents in service. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). New and Material Evidence Currently, the appellant is seeking to reopen a service connection claim for PTSD. VA may reopen a claim for service connection which has been previously and finally disallowed when new and material evidence has been presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996). In this regard, “new evidence” means existing evidence not previously submitted to VA. “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. Taken in combination, 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). New evidence may be sufficient to reopen a claim if it can contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998); Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Thus, the Board must first determine whether new and material evidence has been submitted under 38 C.F.R. § 3.156(a) to have a claim reopened under 38 U.S.C. § 5108. Elkins v. West, 12 Vet. App. 209 (1999). Then the Board may proceed to evaluate the merits of the claim after ensuring that VA’s duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). To determine whether new and material evidence has been submitted, it is necessary to consider all evidence added to the record since the last time the claim was denied on any basis in conjunction with the evidence already of record. Historically, the Regional Office (RO) denied service connection for PTSD in a July 2008 rating decision. The Veteran did not appeal this decision or submit documentation constituting new and material evidence within the one-year appeal period, such that the July 2008 rating decision became final. Instead, the Veteran requested to reopen the claim in August 2009. The Board must now determine whether new and material evidence has been submitted since the final July 2008 rating decision sufficient for the claim to be reopened. Such a finding is not offered in this case. Since the July 2008 rating decision, new evidence has been added to the claims file, including VA and private treatment records and multiple lay statements from the Veteran’s family members. However, this new evidence does not raise a reasonable possibility of substantiating the claim, as the record is entirely silent for a diagnosis of PTSD offered in accordance with VA regulations, a separate psychiatric diagnosis, or symptoms or treatment related thereto. See 38 C.F.R. § 4.125(a); see generally VA and private treatment records (collectively showing normal mental health evaluations and recording no psychiatric disorders in the Veteran). In offering this conclusion, the Board acknowledges the Veteran’s implicit contention that he had PTSD during his lifetime. This is inadequate upon which to reopen the appeal, as the Veteran lacked the medical expertise to offer a competent diagnosis, and the competent evidence is otherwise silent for such. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). Thus, the new evidence is not material. In the absence of evidence that is both new and material, the appeal seeking to reopen a service connection claim for PTSD is hereby denied. Of final note, the appellant has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND Although the Board sincerely regrets the additional delay this will cause, further development is necessary prior to adjudicating the remaining appeals. As noted above, the Veteran had presumed exposure to herbicide agents during service. Such a finding is directly relevant to these appeals; during his lifetime, the Veteran alleged that the claimed disorders were etiologically related to the presumed exposure. The Veteran was not afforded VA examinations in connection with these appeals. Upon review of the claims file, the Board finds sufficient evidence of current disorders (prior to his death) with possible relationships to service, such that VA opinions are warranted at this time. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); see generally VA and private treatment records. The above determination is based upon the Veteran’s competency to report events capable of lay observation; however, the Board offers no findings as to his credibility at this time. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file a complete copy of the Veteran’s service personnel records, spanning his entire period of service. 2. Obtain opinions addressing the questions below.  The examiners are advised that the Veteran is deceased and cannot be evaluated. Rather, the claims file and a copy of this remand must be made available for review, and the examination reports must reflect that review of the claims file occurred.    In particular, the examiners must address the following: (a) Did the Veteran demonstrate cholelithiasis, vision loss, and/or a skin disorder (claimed as skin rash) during the period on appeal? (b) If so, is it at least as likely as not (50 percent probability or more) that the condition began in service, was caused by service, or is otherwise related to service, including presumed in-service exposure to herbicide agents? In formulating the opinions, the examiners are advised that the term “at least as likely as not” does not mean “within the realm of possibility.” Rather, it means that the weight of the medical evidence for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. A complete rationale should be provided for all opinions or conclusions expressed. It should be noted that the Veteran was competent to attest to observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the expert should provide a fully reasoned explanation. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Kovarovic, 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.