Citation Nr: 21026968 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 17-62 206 DATE: May 4, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for posttraumatic stress disorder (PTSD) is reopened; to that extent only, the appeal is granted. REMANDED Entitlement to service connection for a psychiatric disability, to include PTSD, is remanded. Entitlement to a compensable rating for bilateral hearing loss is remanded. FINDINGS OF FACT 1. An April 2010 rating decision denied entitlement to service connection for PTSD based on finding there was not a diagnosis of PTSD based on a verified in-service stressor. A June 2012 rating decision found new and material evidence had not been received to reopen the matter. 2. Since the June 2012 rating decision became final, evidence relating a diagnosis of PTSD to the Veteran's service has been received. This evidence relates to an unestablished fact necessary to substantiate the claim of service connection for PTSD, and it raises a reasonable possibility of substantiating such claim. CONCLUSION OF LAW New and material evidence has been received to reopen the claim of entitlement to service connection for PTSD; thus, the Veteran's petition to reopen his claim is granted. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from October 1968 to October 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. The Veteran and his spouse testified at a hearing before the undersigned in September 2020. New and Material Evidence Generally, if a claim for service connection has been 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 decisionmakers. "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. New and material evidence can be neither cumulative, nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has interpreted the language of 38 C.F.R. § 3.156(a) as creating a "low" threshold and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 110 (2010). Despite any prior determination reached by the RO regarding the claims on appeal, under the legacy appeal system, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). An April 2010 rating decision denied entitlement to service connection for PTSD based on finding there was not a diagnosis of PTSD based on a verified in-service stressor. A June 2012 rating decision found new and material evidence had not been received to reopen the matter. The Veteran did not perfect appeals of these decisions or submit new and material evidence within the year following each determination, and they became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 19.20, 20.1103. As previously noted, a final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. The Veteran submitted a petition to reopen his claim in March 2018. The pertinent evidence of record in June 2012 included the Veteran's service treatment records; VA treatment records; the Veteran's lay statements regarding his claimed in-service stressors; and statements from the Veteran's wife and daughter regarding his psychiatric symptoms. Evidence received since the June 2012 rating decision became final includes VA treatment records that show a treating social worker diagnosed PTSD based on the Veteran's reports of military sexual trauma (MST). As the opinion provides for the possibility that the Veteran has PTSD that is related to his service, the Board finds that this new evidence received relates to an unestablished fact necessary to substantiate the claim for service connection for PTSD, and raises a reasonable possibility of substantiating such claim. The Board accordingly finds that new and material evidence has been received to reopen the claim of service connection for PTSD. To that extent only, the appeal is granted. The reopened claim will be addressed in Remand section below. REASONS FOR REMAND 1. Entitlement to service connection for PTSD is remanded. Initially, given that post-service treatment records show multiple psychiatric disorders, including generalized anxiety disorder, panic disorder, depression, and PTSD, have been diagnosed, the Board has recharacterized the reopened claim of service connection for PTSD to includes all psychiatric disorders. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that claims for service connection for PTSD also encompass claims for service connection for all psychiatric disabilities afflicting a Veteran based on a review of the medical evidence). The Veteran contends he has PTSD based on several in-service stressors. His VA treatment records show a treating psychologist diagnosed PTSD in November 2009, but the reported in-service stressors were not verified. In June 2015, a VA social worker diagnosed PTSD based on the Veteran's report of MST. VA treatment providers have also diagnosed generalized anxiety disorder, panic disorder, and depression. Unfortunately, the Veteran has not been afforded a VA examination in connection with this claim. Under these circumstances, the Board finds remand is necessary to afford the Veteran a VA examination to ascertain the nature and etiology of any psychiatric disorders. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121,124 (1991) (holding that where the record does not adequately reveal the current state of that disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination). 2. Entitlement to a compensable rating for bilateral hearing loss is remanded. The Board regrets the additional delay in adjudication it will cause but finds this issue must be remanded for a new examination. The Veteran underwent a VA audiological evaluation in August 2015. He reported at the September 2020 Board hearing that he believed the hearing loss had increased in severity since that time. Accordingly, the Board finds that a remand to schedule an updated examination is required. See Snuffer v. Gober, 10 Vet. App. 400 (1997) (holding that the Veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any psychiatric disorder. The claims file should be made available and reviewed by the examiner. Following consideration of the evidence of record (both lay and medical), the examiner is asked to address the following: For each psychiatric disorder diagnosed, provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) any such disability originated during active service or is otherwise etiologically related to active service. In providing an answer to the above question, the examiner should consider and discuss, among other things, the June 2015 VA treatment record that shows a VA social worker diagnosed PTSD based on the Veteran's report of MST. The examiner should also consider the fact that to establish service connection for any acquired psychiatric disorder other than PTSD, the Veteran does not need to have a verified in-service stressor. The examiner must include in the medical report the rationale for any opinion expressed. 3. Schedule the Veteran for a VA examination with a suitably qualified medical professional to address the severity of his bilateral hearing loss. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner must include in the medical report the rationale for any opinion expressed. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board William A. Skowronski, 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.