Citation Nr: A21010498 Decision Date: 06/10/21 Archive Date: 06/10/21 DOCKET NO. 200218-70223 DATE: June 10, 2021 ORDER Readjudication of the claim for service connection for posttraumatic stress disorder (PTSD) due to military sexual trauma is granted. REMANDED Entitlement to service connection for PTSD due to military sexual trauma is remanded. FINDING OF FACT Since an unappealed July 2016 rating decision new and relevant evidence has been received to prove or disprove the claim for service connection for PTSD due to military sexual trauma. CONCLUSION OF LAW The criteria to readjudicate the claim for service connection for PTSD are met. 38 C.F.R. § 3.2501. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1982 to January 2006. In September 2019, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested review of a July 2016 rating decision based on new and relevant evidence. In October 2019, the agency of original jurisdiction (AOJ) issued the rating decision on appeal, which found that new and relevant evidence had not been received. The Veteran timely appealed the October 2019 rating decision in February 2020 and selected the hearing lane; a hearing was held in January 2021. Therefore, the Board must determine whether new and relevant evidence has been received based only on the evidence of record at the time of the supplemental claim decision on appeal, as well as any evidence submitted by the Veteran at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). New and Relevant Evidence VA will readjudicate a claim if new and relevant evidence is presented or secured. 38 C.F.R. § 3.156 (d). Relevant evidence is evidence that "tends to prove or disprove a matter at issue in a claim." 38 C.F.R. § 3.2501. Evidence added to the record since the final July 2016 rating decision includes a diagnosis of chronic PTSD related to military sexually trauma; major depressive disorder, as noted on an August 2019 VA treatment record. The Board finds that new and relevant evidence has been added to the record and that readjudication of the claim for service connection for PTSD due to military sexual trauma is warranted. REASONS FOR REMAND Entitlement to service connection for PTSD due to military sexual trauma is remanded. Initially, as discussed above, this appeal warrants readjudication on the merits based on VA's receipt of new and relevant evidence since the final July 2016 rating decision. Because the AOJ did not find that new and relevant evidence was received, the AOJ has not yet adjudicated the claim on the merits. Generally, where the Board finds readjudication of a claim is warranted, but the AOJ did not, the case must be remanded for AOJ adjudication with consideration of the merits of the claim in the first instance unless there is a waiver from the appellant or no prejudice would result from the readjudication of the claim. See Hickson v. Shinseki, 23 Vet. App. 394, 399 (2010); see also Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993). One of the results of the recent Appeals Modernization Act (AMA) amendments is to narrow the set of circumstances in which the Board must remand appeals to the AOJ for further development instead of immediately remanding them directly. Nevertheless, even under the AMA, the Board still has the duty to remand issues when necessary to correct a pre-decisional duty to assist error, or to correct any other error by the agency of original jurisdiction in satisfying a regulatory or statutory duty, if correction of the error would have a reasonable possibility of aiding in substantiating the appellant's claim. See 38 C.F.R. § 20.802 (a). Thus, a remand for initial adjudication on the merits is necessary, as the Board is prevented from doing so in the first instance. Indeed, the Veteran has a procedural right to have one review of his appeal by the Secretary under 38 U.S.C. § 7104 (a), and the AMA amendments do not specifically revoke that right. Thus, the Board is restricted from deciding this issue on the merits because the AOJ's October 2019 rating decision on appeal did not adjudicate the issue on the merits. The AOJ is advised that it must fulfill the requisite duties attached to an adjudication of an issue on the merits including the duty to assist in the development of the claim as contemplated by the discussion in Hickson, and as such, a remand is required. In this regard, the AOJ is further reminded that the Veteran has provided an additional description of the reported in-service stressor (see VA-Form 21-0781a, Statement in Support of Claim for PTSD Secondary to Sexual Personal Assault, dated September 2019) including information regarding a potentially verifiable August 1982 in-service report of the incident and subsequent punishment of the perpetrator (dishonorable discharge); reported information regarding psychiatric treatment in 1993 in Kentucky; and the record contains VA treatment records that include a diagnosis of military sexual trauma with reported long-standing treatment for mental health problems since several months after separation from service (see, e.g., October 2006 VA PTSD screen; October 2007 VA mental health consult; August 2010 VA treatment VA treatment records). See October 2019 rating decision list of evidence. The matters are REMANDED for the following action: 1. Readjudicate the claim of entitlement to service connection for PTSD on the merits in light of all pertinent evidence and legal authority to include fulfillment of the requisite duties attached to an adjudication of an issue on the merits including the duty to assist in the development of the claim as contemplated by the discussion in Hickson, supra. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sarah B. Richmond, 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.