Citation Nr: 21025815 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 19-21 369 DATE: April 29, 2021 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REMANDED Entitlement to service connection for acquired psychiatric disorder, to include PTSD is remanded. FINDINGS OF FACT 1. By a November 2005 rating decision, the Veteran’s claim of entitlement to service connection for PTSD was denied. 2. Additional evidence has been received which is not cumulative or redundant of the evidence of record at the time of the November 2005 rating decision and relates to an unestablished fact necessary to substantiate the claim for service connection for an acquired psychiatric disorder. CONCLUSIONS OF LAW 1. The November 2005 rating decision denying service connection for PTSD is final. 38 U.S.C. §§ 7104 (2012); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for PTSD, and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from March 1965 to March 1967. In December 2020, the Veteran testified at a Board hearing. The transcript is of record. New and Material Evidence A claim may 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). 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) (in determining whether evidence is new and material, the "credibility" of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Evidence "raises a reasonable possibility of substantiating the claim," if it would trigger VA's duty to provide an examination in adjudicating a non-final claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). Acquired Psychiatric Condition, to include PTSD In the November 2005 rating decision, the Veteran's claim for service connection was denied based on the finding that the Veteran did not have a diagnosis or a verified in-service stressor. At the time of that decision the pertinent evidence of record included the Veteran's service treatment records, VA and private treatment records, military personnel records and statements in support of the claim. The evidence received since the November 2005 rating decision includes VA treatment records, hearing testimony, service treatment records, and articles related to where the Veteran was stationed during service. This evidence is new and material as it pertains to whether the Veteran has a stressor related to his active service, which is an unsubstantiated fact that is necessary to substantiate the claim. Therefore, the claim is reopened. REASONS FOR REMAND 1. Entitlement to service connection for acquired psychiatric disorder, to include posttraumatic stress disorder The Board notes that the VA's duty to provide a VA examination is triggered in this case. In determining whether VA's duty to assist requires a VA medical examination or medical opinion, four factors are for consideration: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.159(c)(4) (2017); see McLendon v. Nicholson, 20 Vet. App. 79 (2006). The evidence of record indicates that the Veteran has a current psychiatric diagnosis, which may be related to his experience at the Guam Naval Air Station. See Military Personnel Records. The Veteran contends that his psychiatric conditions stem from his time in the Guam Naval Hospital, both as a Corpsman and a patient. See December 2020 Hearing Transcript. The Veteran indicated that his exposure to trauma and suicide caused or aggravated his current psychiatric diagnoses. Specifically, the Veteran detailed an instance during service when he was hospitalized, and he believes a solder committed suicide next to him. This was particularly distressing to the Veteran as he was a Corpsman and was “supposed to help patients.” Review of the service treatment records (STRs) reveal a period of hospitalization for acute lumbosacral strain. See October 1966 STRs. As such, a VA examination and opinion is necessary. The matter is REMANDED for the following action: 1. In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran’s assertions. Neither the Veteran’s credibility nor any lack thereof should be presumed in this remand. 2. Acquire updated VA and/or private treatment records. If such records are unavailable, the Veteran's claim file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 3. Schedule the Veteran for a VA examination with a VA psychiatrist or psychologist to determine the nature and etiology of any acquired psychiatric disorder, to include PTSD. The claims file should be made available to the examiner in conjunction with the examination. Any medically indicated tests should be accomplished, and all pertinent symptomatology and findings must be reported in detail. The examiner should list all psychiatric disorders present during the time period of the claim. With regard to each identified acquired psychiatric disorder present during the claim, the VA examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any diagnosed psychiatric disorder originated during or is otherwise etiologically related to the Veteran's military service. If PTSD is diagnosed, the specific stressors giving rise to the condition must be identified. In providing the requested opinions, the examiner is advised that the term "at least as likely as not" does not mean within the realm of possibility, but that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. The examiner must elicit a detailed medical history from the Veteran. The rationale must consider and discuss the Veteran's statements. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V. Schmidt 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.