Citation Nr: 21027602 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 17-07 737 DATE: May 6, 2021 ORDER New and material evidence having been submitted, the claim for entitlement to service connection for an acquired psychiatric disorder, other than posttraumatic stress disorder (PTSD), is reopened. New and material evidence having been submitted, the claim for entitlement to service connection for PTSD is reopened. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. FINDINGS OF FACT 1. In a September 2013 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) denied claims for service connection for anxiety and PTSD. The Veteran was notified of that decision and of his appellate rights, but he did not appeal or submit new and material evidence within one year of such notification. 2. The evidence received since the September 2013 rating decision is not cumulative of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claims for service connection for an acquired psychiatric disorder other than PTSD and PTSD. CONCLUSIONS OF LAW 1. The September 2013 rating decision, which denied service connection for anxiety and PTSD, is final. 38 U.S.C. § 7105; 38 C.F.R. § § 3.156, 20.200, 20.201, 20.302, 20.1103. 2. The evidence received subsequent to the September 2013 rating decision is new and material, and the claims for service connection for an acquired psychiatric disorder, other than PTSD, and PTSD are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from July 1996 to July 2000 and October 2001 to October 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a virtual hearing before the undersigned Veterans Law Judge in March 2021. A transcript of that hearing has been associated with the claims file. The Board notes that the Veteran's acquired psychiatric disorder claim was initially adjudicated as two separate claims by the RO. In an April 2016 rating decision, the RO denied a claim for PTSD, finding no new and material evidence present in order to reopen the claim, and reopened a claim for anxiety, but denied the claim on its merits. A statement of the case was issued in February 2017, which again addressed the issues separately. In August 2019, the RO then issued a supplemental statement of the case, which combined the issues and characterized the issue as entitlement to service connection for an acquired psychiatric disorder. As the Board has specifically reopened the Veteran's PTSD claim in the decision below, the Board finds no prejudice to the Veteran in continuing with the characterization of the issue as entitlement to service connection for an acquired psychiatric disorder, to include PTSD. Law and Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In order to reopen a claim which has been denied by a final decision, the claimant must present new and material evidence. 38 U.S.C. § 5108. New and material evidence means evidence not previously submitted to agency decisionmakers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is 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 which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The United States Court of Appeals for Veterans Claims (Court) has held that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist. Id. at 118. In this case, the RO previously considered and denied the Veteran's claim for service connection for depression in an August 2008 rating decision. At that time, the RO indicated that the evidence of record did not support the presence of a depressive disorder related to service. The Veteran did not file an appeal or submit additional evidence in the year following the August 2008 denial of the claim. Therefore, the August 2008 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156 (b), 20.200, 20.201, 20.302, 20.1103. The Veteran then submitted a claim for an acquired psychiatric disorder in October 2012. The RO denied the claim in a September 2013 rating decision, finding no link between the Veteran's acquired psychiatric disorder and service. The RO also denied service connection for PTSD at that time, finding no diagnosis of record. The Veteran did not file an appeal or submit additional evidence in the year following the September 2013 denials. Therefore, the September 2013 rating decision is also final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156 (b), 20.200, 20.201, 20.302, 20.1103. The Veteran next submitted a claim for service connection for a psychiatric disorder in September 2015. The RO adjudicated claims for anxiety and PTSD based upon that filing. It denied both claims in an April 2016 rating decision, noting that a February 2016 VA examination found that the anxiety disorder was not related to service and that no new and material evidence had been submitted in connection with the PTSD claim. The evidence obtained since the September 2013 rating decision includes the Veteran's testimony that he was exposed to dead bodies while in-service. Such evidence was not considered at the time of the September 2013 rating decision and relates to a previously unestablished fact. Therefore, the Board finds that new and material evidence has been received in order to reopen the Veteran's claims for service connection for an acquired psychiatric disorder and PTSD. 38 C.F.R. § 3.156(a). However, as will be explained below, the Board is of the opinion that further development is necessary before the merits of the Veteran's claim can be addressed. REASONS FOR REMAND The Board finds that the Veteran should be afforded a VA medical opinion in connection with his claim, in light of the subsequent stressor information provided by the Veteran. Specifically, the Veteran provided a stressor statement to VA in April 2019 regarding being around a body of a sailor, who had died in his sleep. VA verified this stressor in July 2019. Additionally, during his March 2021 the Veteran testified that he saw the body of another sailor, who had jumped from the ship. The Board notes that the Veteran did not share these stressors with VA examiners during his March 2013 and February 2016 VA examinations. However, in giving the Veteran the reasonable benefit of the doubt and in acknowledging that VA has verified one of these stressors, the Board finds that the agency of original jurisdiction (AOJ) should attempt to verify the second stressor discussed during the March 2021 hearing and should then obtain a VA medical opinion as to whether or not the Veteran's current psychiatric disorder(s) may be related to these in-service incidents. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his acquired psychiatric disorders. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. Any outstanding VA medical records should also be obtained and associated with the claims file. 2. The AOJ should contact the Veteran for specific dates and details regarding the stressor he discussed during the March 2021 hearing. The AOJ should then contact any other appropriate entity and request verification pertaining to the Veteran's claimed stressor: that he witnessed the dead body of a sailor who had jumped off the ship. 3. After the above development has been completed, the Veteran should be afforded a VA medical opinion to determine the nature and etiology of any acquired psychiatric disorder, to include PTSD, that may be present. Only if deemed necessary by the VA examiner is an actual examination necessary. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should identify all current psychiatric disorders. For each disorder identified other than PTSD, the examiner should state whether it is at least as likely as not that the disorder manifested in service or is otherwise causally or etiologically related to the Veteran's military service. Regarding PTSD, the AOJ should provide the examiner with a summary of any verified in-service stressors, and the examiner must be instructed that only these events and any stressors related to fear of hostile military or terrorist activity may be considered for the purpose of determining whether exposure to an in-service stressor has resulted in PTSD. The examiner should determine whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied. If the PTSD diagnosis is deemed appropriate, the examiner should then comment upon the link between the current symptomatology and any verified in-service stressor. The examiner should specifically discuss the two stressors submitted by the Veteran after his last February 2016 VA examination. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. Nathaniel J. Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Rideout-Davidson, 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.