Citation Nr: 21025681 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 15-38 841A DATE: April 28, 2021 ORDER The petition to reopen the previously denied claim of entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. The petition to reopen the previously denied claim of entitlement to service connection for a nervous condition, diagnosed as schizo-affective disorder, is granted. REMANDED Entitlement to service connection for anemia is remanded. Entitlement to service connection for a psychiatric disorder, to include PTSD and schizo-affective disorder, is remanded. FINDINGS OF FACT 1. An unappealed March 2005 Board of Veterans’ Appeals (Board) decision denied service connection for PTSD. 2. The evidence pertaining to the Veteran's PTSD submitted subsequent to the March 2005 Board decision was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. 3. An unappealed August 1987 rating decision denied service connection for a nervous condition, diagnosed as schizo-affective disorder. 4. The evidence pertaining to the Veteran's schizo-affective disorder submitted subsequent to the August 1987 rating decision was not previously submitted, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The March 2005 Board decision denying the claim for service connection for PTSD is final. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1104. 2. New and material evidence has been submitted to reopen the Veteran's claim of entitlement to service connection for PTSD. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The August 1987 rating decision denying service connection for a nervous condition, diagnosed as a schizo-affective disorder, is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 4. New and material evidence has been submitted to reopen the Veteran's claim of entitlement to service connection for schizo-affective disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from August 1968 to July 1971. These issues are on appeal from an October 2013 rating decision. In May 2019, the Board denied these claims. The Veteran then died in November 2019. The Appellant is the Veteran’s surviving brother. The Appellant appealed the Board’s May 2019 decision to the U.S. Court of Appeals for Veterans Claims (Court). On June 9, 2020, the Court substituted the Appellant for the Veteran in this current appeal. See November 2020 Joint Motion for Remand (JMR). In November 2020, the Court granted a JMR and vacated the Board’s May 2019 denials regarding the above claims. NEW AND MATERIAL EVIDENCE During his lifetime, the Veteran sought to reopen his previously denied claims of entitlement to service connection for PTSD and a nervous condition, diagnosed as a schizo-affective disorder, based on the submission of new and material evidence. Evidence is considered “new” if it was not previously submitted to agency decision makers. “Material” evidence is 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). In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Whether new and material evidence has been submitted to reopen the previously denied claim of entitlement to service connection for PTSD. The Board, by a decision entered in March 2005, denied the Veteran’s claim for service connection for PTSD. The Board notified the Veteran of its decision and of his appellate rights in a letter dated in March 2005, but he did not initiate an appeal of the Board’s decision. As a result, the Board’s decision became final. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1104. Accordingly, the claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). In the March 2005 Board decision, service connection for PTSD was denied because the Veteran had not been medically diagnosed as having PTSD. The evidence received since the Board’s March 2005 decision includes VA treatment records, VA examinations, private treatment records, Vet Center treatment records, and lay statements from the Veteran. This evidence was not before adjudicators when the Veteran’s claim was last denied in March 2005, and it is not cumulative or redundant of the evidence of record at the time of that decision. It also relates to an unestablished fact necessary to substantiate the claim for service connection for PTSD, and raises a reasonable possibility of substantiating the claim. Specifically, the Court held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what evidence is new and material, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the VA Secretary's duty to assist by providing a medical opinion. Id. Since the March 2005 Board decision, a Vet Center treatment record submitted in May 2018 indicates that the Veteran was assessed with PTSD on July 11, 2017. Another Vet Center treatment record dated August 8, 2017, indicates that the Veteran had “PTSD traits of disassociation, anger, hyperarousal, and VAMC diagnosed condition.” Furthermore, the Veteran stated in his November 2015 VA Form 9 that his PTSD stressor involved the situation “when our base would get hit we would have to make a sweep [of] the perimeter to secure the base. That was very stressful and I feared for my life.” This PTSD stressor has not been considered by a VA examiner. As stated above, new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the VA Secretary's duty to assist by providing a medical opinion. Id. The Board finds that this new medical and lay evidence, when combined with the old evidence, triggers the low threshold necessary to reopen the claim for service connection for PTSD, as it triggers the VA Secretary's duty to assist by providing a medical opinion. Accordingly, new and material evidence is demonstrated, and the claim of entitlement to service connection for PTSD is reopened. 2. Whether new and material evidence has been submitted to reopen the previously denied claim of entitlement to service connection for a nervous condition, diagnosed as a schizo-affective disorder. The AOJ, by a decision entered in August 1987, denied the Veteran’s claim for service connection for a nervous condition, diagnosed as a schizo-affective disorder. The AOJ notified the Veteran of its decision and of his appellate rights in a letter dated in August 1987, but he did not initiate an appeal of the AOJ’s decision within one year. New and material evidence was also not received within a year of the decision. 38 C.F.R. § 3.156(b). As a result, the AOJ’s decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. Accordingly, the claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson, 265 F.3d at 1366. However, under 38 C.F.R. § 3.156(c), at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, then VA will reconsider the claim. In this case, new and relevant personnel records were added to the Veteran’s claims file in November 2001, following the last final adjudication of the claim in August 1987. The new personnel records include a December 1970 psychiatric examination from the Veteran’s active duty period. This evidence is new because it has not been previously submitted and is relevant to the schizo-affective disorder claim. The personnel records were in VA’s constructive possession at the time of the August 1987 rating decision. 38 C.F.R. § 3.156(c). Accordingly, new and material evidence is demonstrated, and the claim of entitlement to service connection for schizo-affective disorder is reopened. REASONS FOR REMAND 1. Entitlement to service connection for anemia is remanded. 2. Entitlement to service connection for a psychiatric disorder, to include PTSD and schizo-affective disorder, is remanded. In his October 2013 Notice of Disagreement (NOD), the Veteran identified relevant outstanding private treatment records from Caddo Correctional Facility from December 1987 to November 1988 and from 2012 pertaining to his anemia and psychiatric disorder claims. VA received records from this facility but the records were dated in 2012 only. The AOJ should therefore have sent a second request to the facility, pursuant to its duty to assist, to obtain the 1987 to 1988 treatment records. A remand is required to allow VA to obtain authorization and request these records. Additionally, for the psychiatric disorder claim, more information is needed to allow the Board to make a fully-informed decision. It is unclear whether the Veteran had a current diagnosis of PTSD under the DSM-5 from the date of his new and material evidence claim until his death, and if so, whether the diagnosis was at least as likely as not related to an in-service stressor, to include the stressor described in his November 2015 VA Form 9. Additionally, a medical opinion regarding the currently diagnosed schizo-affective disorder has not been provided. Upon remand, a VA addendum medical opinion must be obtained. The matters are REMANDED for the following actions: 1. Ask the Appellant to complete a VA Form 21-4142 for the Veteran’s treatment at Caddo Correctional Center from December 1987 to November 1988. Make two requests for the authorized records from the Caddo Correctional Center, unless it is clear after the first request that a second request would be futile. 2. Obtain an addendum opinion from an appropriate clinician regarding the Veteran’s currently diagnosed psychiatric disorder (diagnosed prior to his death). The examiner must review the claims file. The examiner is asked to provide a response to the following: (i) Did the Veteran have a diagnosis of PTSD at any time from May 2012 until his death in November 2019? If so, the examiner must explain how the diagnostic criteria were met and opine whether it was at least as likely as not related to a verified in-service stressor, to include the Veteran’s PTSD stressor description in his November 2015 VA Form 9? (ii) If the Veteran was diagnosed with a personality disorder and PTSD from May 2012 to November 2019, then the examiner must opine whether the PTSD was at least as likely as not superimposed on a personality disorder during active service and resulted in an additional disability? (iii) Was the Veteran’s currently diagnosed schizo-affective disorder (and any other diagnosed acquired psychiatric disorders) at least as likely as not related to an in-service injury, event, or disease? (iv) Is it at least as likely as not that the Veteran’s currently diagnosed schizo-affective disorder (and any other diagnosed acquired psychiatric disorders) (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? In forming the opinions, the examiner must address: the December 1970 Psychiatric statement (contained in the personnel records); the May 1971 diagnosis of Character and Behavior Disorder; and, the May 1971 exit Report of Medical History in which he checks “depression or excessive worry.” Provide a rationale to support the opinions. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If the benefits sought are not granted to the Appellant’s satisfaction, send the Appellant a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shauna M. Watkins, 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.