Citation Nr: 21029952 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 15-00 980 DATE: May 17, 2021 ORDER New and material evidence has been received to reopen a claim for entitlement to service connection for posttraumatic stress disorder (PTSD). REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. FINDINGS OF FACT 1. In December 2009, VA denied entitlement to service connection for PTSD; the Veteran did not appeal this decision and new and material evidence was not received within the one-year appeal period. 2. New evidence received since the December 2009 rating decision relates to an unestablished fact and raises a reasonable possibility of sustaining a claim of entitlement to service connection for PTSD. CONCLUSION OF LAW The December 2009 rating decision that denied entitlement to service connection for PTSD is final; new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1972 to September 1975. This claim is before the Board of Veterans Appeals (Board) from an August 2013 rating decision by the Department of Veteran's Affairs (VA) Regional Office (RO). The August 2013 rating decision declined to reopen the issue of entitlement to service connection for PTSD. The Veteran timely appealed and requested a Board video conference hearing at his local RO. The Veteran was notified in March 2019 that his hearing was scheduled for April 1, 2019, however the Veteran did not appear. In the March 2019 correspondence from the VA to the Veteran, he was informed that if he did not appear for his hearing, he must submit a request to reschedule, in writing, with an explanation as to why the hearing was missed and why he was not able to reschedule prior to missing the hearing. The Veteran was informed that he needed to submit this request within 15 days of the missed hearing. In February 2020 the Veteran made a telephone inquiry regarding his appeal. By letter on June 2, 2020, the Board notified the Veteran that the hearing was cancelled because he did not appear and "If you wish to reschedule that hearing, you must submit a motion in writing explain the reasons why you did not appear." On June 9, 2020, the Veteran called in response to the letter and requested his hearing be rescheduled but did not offer an explanation as to why the hearing was missed. Neither a motion in writing nor an explanation for failing to appear has been received. As a proper motion to reschedule has not been received and no explanation has been provided for missing the hearing, the hearing request is treated as withdrawn and the Board will adjudicate the appeal. 38 C.F.R. § 20.603. 1. New and material evidence has been received to reopen a claim for entitlement to service connection for PTSD. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). "New" evidence means existing evidence not previously submitted to agency decisionmakers. "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. 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 new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the United States Court of Appeals for Veterans Claims interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold. In a December 2009 rating decision, VA denied entitlement to service connection for PTSD based on a finding that the record did not contain supporting evidence showing that the Veteran's claimed in-service stressor occurred. The Veteran did not appeal this decision and new and material evidence was not received within the one-year appeal period. Thus, the decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In January 2012, the Veteran requested to reopen his claim. In an August 2013 rating decision, VA determined that new and material evidence had not been received to reopen a claim of service connection for PTSD. Relevant evidence added to the record since the final December 2009 rating decision includes the Veteran's February 2012 to August 2012 VA outpatient mental health records from the Fayetteville VAMC. This evidence is new as it was not previously considered. In the Veteran's VA outpatient records the Veteran continually discusses the stressors he experienced in service that lead to his current PTSD. The Veteran provides timeframes for the stressor that had not previously been provided. This assertion regarding the timeframe of his primary stressor was not previously considered by any decision maker and speaks directly to an unestablished element of the claim, an in-service occurrence or injury. This is material in that it relates to an unestablished fact and raises a reasonable possibility of substantiating the service connection claim. Moreover, new evidence will raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Shade, 24 Vet. App. at 117. As explained below, the Board finds that the duty to provide an examination has been triggered by the evidence. The claim is reopened. REASONS FOR REMAND 1. Entitlement to service connection for PTSD is remanded. The Veteran claimed and the RO has adjudicated the issue as entitlement to service connection for PTSD. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) held that claims of service connection for psychiatric disability encompass claims for all psychiatric disorders that are reasonably raised by the record. Therefore, the Veteran's claim encompasses his multiple diagnoses during the appeal period. Therefore, the Board has recharacterized the claim on appeal as reflected on the title page. The Veteran asserts that his PTSD is a result of an altercation with a Sargent in 1974 while in service that resulted in the Veteran being confined for "30 to 45 days" for his "safe keeping." See April 2009 statement in support of claim. The Veteran stated he was experiencing nightmares, flashbacks, and sleepless nights due to the incident. Id. No VA examination has been provided for this claim. The Board finds that the duty to assist is triggered and a VA examination is needed for this claim. Consistent with the VA's duty to assist, under McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006), a VA medical examination must be provided when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). The Veteran was diagnosed with "non-combat PTSD" in a January 2009 VA outpatient record. VA treatment records dated during the appeal period show varied psychiatric diagnoses, including PTSD, substance abuse, major depressive disorder, psychosis, and depression. This is competent evidence of a current disability. As stated above, the Veteran asserted in his original claim to service connection that his PTSD is a result of being confined in the brig for 30 to 45 days after a physical fight with a Sargent while in service. Specifically, the Veteran states that the confinement, for his "safe keeping," significantly affected him while in service and has continued through to the present. In a February 2012 VA nursing assessment, the Veteran recounted the details of the altercation with the Sargent and his confinement, stating his confinement occurred in 1974. See CAPRI records received 6/14/2012. The Veteran's military records show a period of confinement in February 1974 marked as awaiting action by higher authority, but no further explanation was provided. See military personnel record received 10/15/2009. Furthermore, the Veteran stated that his PTSD symptoms did not begin until 1975, shortly after the incident in question and his separation from service, indicating a possible relation between the incident in question and the onset of his mental health symptoms. As there is evidence of a current disability, an in-service event, and an indication that the current disability may be associated with the in-service event, remand for a VA examination is required as there is insufficient medical evidence of record to make a decision on the claim. McLendon, 20 Vet. App. 79. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his psychiatric disability. The examiner must review the entire claims file. The examiner is asked to provide a response to the following: (a.) Identify all psychiatric diagnoses present in Veteran at any time since January 2012. A diagnosis of PTSD should be ruled in or ruled out using DSM-5 criteria. (b.) For each identified diagnosis, is it at least as likely as not related to service, including being in an altercation that resulted in confinement to the brig? In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. (Continued on the next page) Provide a rationale to support all opinions. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Associate Counsel, S. Conti 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.