Citation Nr: 21031300 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 20-05 224 DATE: May 21, 2021 ORDER New and material evidence has been presented and the claim of entitlement to service connection for an acquired psychiatric disorder, including PTSD, is reopened. REMANDED Service connection for an acquired psychiatric disorder, including PTSD, is remanded. FINDING OF FACTS 1. The March 2009 Board decision denying the Veteran's service connection claim for PTSD was the last final denial. 2. Evidence received since the March 2009 Board decision is new and material and raises a reasonable possibility of substantiating the Veteran's service connection claim for an acquired psychiatric disorder, including PTSD. CONCLUSION OF LAW 1. The March 2009 Board decision denying the Veteran's service connection claim for PTSD is final. 38 U.S.C. § 7104; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence pertaining to the Veteran's claim for service connection for PTSD has been received, and the Veteran's claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty service from June 1966 to June 1968, with other periods of service in the U.S. Naval Reserve. He testified before a Veterans Law Judge at a January 2009 Board hearing. This matter is on appeal from a December 2017 rating decision. Reopening a Claim Generally, a claim that has been finally denied in an unappealed RO decision or a Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). The exception is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. Under 38 C.F.R. § 3.156 (b), "new" and "material" received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. The U.S. Court of Appeals for Veterans Claims (Veterans Court) has interpreted 38 C.F.R. § 3.156 (b), as preventing an unappealed RO decision from becoming final if new and material evidence is received within one year of notice of the decision and is not addressed. Young v. Shinseki, 22 Vet. App. 461, 469 (2009). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156 (a). 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. Id. New and material evidence can be neither cumulative nor redundant of the evidence already of record and must raise a reasonable possibility of substantiating the claim. Id. Here, the last final denial of the Veteran's claim was the March 2009 Board decision. At the time of the decision, the record consisted of service treatment records and post service treatment records showing a diagnosis of PTSD. However, as the Veteran's reported stressors could not be verified, service connection for PTSD was denied on the merits. Evidence received since the March 2009 Board decision includes new VA treatment records reflecting other psychiatric diagnoses in addition to PTSD, the Veteran's statements to his physician that his military service caused his current emotional problems, new development made by the AOJ in attempts to verify the Veteran's stressors, and Social Security Administration records reflecting a diagnosis of depression and schizophrenia. Accordingly, the Board finds that the Veteran has submitted new and material evidence pertaining to his service connection claim for PTSD and the matter is reopened. REASONS FOR REMAND Service connection for an acquired psychiatric disorder is remanded. The Veteran is currently seeking service connection for PTSD. Applying the holding in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board will expand the issue on appeal as one to include any diagnosed psychiatric disability. The Veteran contends that he experienced multiple traumatic events in service which caused the development of his current psychiatric disorders. First, he asserted he fell 100 feet into the water when he was chipping paint from the bottom of the flight deck. The fall and the impact on to the water surface caused a lasting distressing emotion, which has currently manifested into flashbacks. See VA 21-0781 Statement in Support of Claim dating September 2016. Second, he indicated that sometime on April 20, 1967, the USS Boxer collided with the Plymouth Rock (LSD-29). The impact caused him to fall 40 to 50 feet forward, onto the lower deck. He sustained injuries to his legs and was carried to sick bay. He was transported to Chelsea Naval Hospital. Even upon returning to the duty on deck, his legs remained severely swollen. At present, he continues to have nightmares about the collision. See VA 21-0781 Statement in Support of Claim dating September 2016. Third, the Veteran also asserted that while in service, he experienced racism and was beaten by fellow service members. He described that black servicemen were subjected to "blanket parties," in which they were beaten with soap or rocks in addition to being demeaned and belittled. These experiences have continued to cause painful memories that affect his psyche. See VA 21-0781 Statement in Support of Claim dating May 2019. His military personnel records show that he is in receipt of the National Defense Service Medal with duty assignment on the USS Boxer. The Board notes that AOJ had previously attempted to verify the identified stressors. However, DPRIS responses were negative. In response to the Veteran's first identified stressor, a research of the 1968 command history, the April and May 1968 deck logs, and the casualty data did not reveal any information about the Veteran's fall or injuries. While there was a record of a man overboard on April 21, 1968, the man was named John A. K. See DPRIS Response dating October 2017. With regard to the Veteran's second claimed stressor, service treatment records do in fact, show that he was medically treated in April 1967 for his left knee and in May 1967 for "swelling both legs x2 YRS - consult to Chelsea." However, the 1967 command history, and the April to May 1967 deck logs showed that the USS Boxer was located in the U.S. Naval Shipyard in Boston, Massachusetts. There was no documentation showing a collision between the USS Boxer and the USS Plymouth Rock. In fact, deck logs submitted for the USS Plymouth Rock showed that the vessel was in Virginia and Florida between April and May 1967. While the Board finds that two of his reported stressors could not be verified, the Veteran has described events in which he was a target of racial attacks. VA treatment records clearly show psychiatric diagnoses which include PTSD, depression, anxiety, and delusional disorder. His Social Security Administration records also show a diagnosis of schizophrenia spectrum and other psychotic disorders. The Veteran has referred to his military experience, including alleged racism, as one of the causes of his current psychological problems. For example, a VA psychology note in June 2006 showed that the Veteran expressed feelings of betrayal and was tearful after talking about his military experience and his childhood. A December 2018 VA psychiatry note details the Veteran's allegations involving racism and harassment. In December 2019, the Veteran reported struggling with recurring nightmares about being drowned or chased by others, believing that the dreams are related to his military service. As the Veteran has a current diagnosis of a psychiatric condition and has related them to his military service, the Board finds that a medical opinion is required to determine whether a nexus exists. Thus, the matter is remanded to afford the Veteran a VA examination. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records pertaining to the Veteran's acquired psychiatric disorder. 2. Schedule the Veteran a VA examination to determine the etiology of his psychiatric disorder(s). In doing so, the VA examiner is asked to do the following: (a.) Determine by diagnosis the Veteran's current psychiatric disorder(s). The examiner must consider and address the Veteran's prior diagnoses of PTSD, depression, anxiety, delusional disorder, and schizophrenia. (b.) For each diagnosed psychiatric condition, determine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's psychiatric disorder is caused by or related to his military service. Why or why not? In doing so, the examiner should consider the Veteran's reports related to his alleged experiences with racism in service. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Yeh, Associate 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.