Citation Nr: 21040079 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 18-20 125 DATE: July 2, 2021 ORDER New and material evidence having been received to reopen a claim of service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), unspecified anxiety disorder, borderline personality disorder, persistent depressive disorder, and alcohol use disorder, to that extent only, the appeal is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, unspecified anxiety disorder, borderline personality disorder, persistent depressive disorder, and alcohol use disorder, is remanded. FINDING OF FACT 1. In an October 2011 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for anti-social personality disorder, claimed as bipolar disorder; the Veteran did not appeal the decision and new and material evidence was not received within the one-year appeal period. 2. Evidence associated with the record since the October 2011 decision relates to unestablished facts and raises a reasonable possibility of substantiating the claim of entitlement to service connection for an acquired psychiatric disorder. CONCLUSION OF LAW The criteria for reopening the previously denied claim for service connection for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1985 to June 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2017 rating decision issued by a VA RO. In June 2020, the Veteran testified before a Veterans Law Judge (VLJ) who has since retired. The transcript of that hearing is of record. The Veteran was notified by letter in May 2021 that the VLJ who conducted the June 2020 hearing has since left the Board and the Veteran was offered another opportunity to have another hearing before a different VLJ. Since no response was received from the Veteran within 30 days from the date of the letter, the Board will proceed to adjudicate the claim. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court of Appeals for Veterans Claims (Court) held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's reported symptoms and other information of record. Accordingly, the issue is expanded as indicated on the title page. Claim to Reopen If a claim of entitlement to 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 means existing evidence not previously submitted to agency decision-makers. 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). The credibility of the evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for reopening is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Initially, the RO denied the Veteran's claim for mental and psychological disabilities in an October 1993 and an April 1994 rating decision, finding that the Veteran failed to appear at VA examinations. The Veteran was provided notice of these decisions and his appellate rights but did not appeal the decisions or submit new and material evidence within one year of the decisions. Therefore, the decisions are final. See 38 C.F.R. §§ 3.156, 20.302, 20.1103 (1994). In August 2011, the Veteran filed a claim for bipolar disorder and anxiety. The RO denied the Veteran's claim of service connection for anti-social personality disorder, claimed as bi-polar disorder, in an October 2011 rating decision, finding that the evidence did not show a nexus between his disorder and service. The Veteran was provided notice of this decision and his appellate rights but did not appeal the decision or submit new and material evidence within one year of the decision. Therefore, the decision is final. See 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2011). The Veteran filed another claim in August 2016 for personality disorder, which was denied in a December 2016 rating decision. However, that decision was not final as the RO subsequently obtained a VA examination within one year of the decision. The evidence received since the October 2011 rating decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156. For example, an August 2017 VA treatment record shows that the Veteran is currently diagnosed with PTSD under DSM-5, and a September 2020 treatment letter from social worker E.G. indicates that the Veteran may have suffered from military sexual trauma (MST) during service. This new evidence addresses the reason for the previous denial; that is, a nexus to service, and raises a reasonable possibility of substantiating the claim. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claim is reopened and will be considered on the merits. REASONS FOR REMAND While the Board regrets the delay, additional development is necessary prior to final adjudication. As noted above, during an August 2017 VA treatment record, the Veteran was diagnosed with PTSD pursuant to DSM-5. In the November 2017 VA examination, the Veteran was also diagnosed with unspecified anxiety disorder, borderline personality disorder, persistent depressive disorder, and alcohol use disorder. The Veteran contends that his acquired psychiatric disorder was caused by his active duty service, and that he suffered from MST while in service. Specifically, the Veteran asserts that he was sexually assaulted by another soldier while stationed in Germany. See June 2020 Hearing Tr. at 2. The record indicates that a notice for an MST claim has not been sent to the Veteran. See Gallegos v. Peake, 22 Vet. App. 329, 335 (2008); 38 C.F.R. § 3.304(f)(5). He asserts that his military performance was impacted after the MST incident and he sought mental health treatment at Fort Knox, Kentucky on February 1988, July 1988, and April 1989. See December 2017 Notice of Disagreement. These mental health treatment dates are noted on his service record but does not provide information on the care received. In an August 1993 correspondence, it was noted that the Veteran's treatment record at Fort Knox had been moved to the National Personnel Records Center. These records have not been obtained. The Veteran was diagnosed with antisocial personality disorder in April 1989. In his May 1989 report of medical history that was conducted at separation, the Veteran reported taking a mental evaluation exam and also being treated for a mental condition. The Board notes that it is unclear if all the Veterans service personnel and treatment records have been obtained. Given the foregoing, the Board finds that remand is necessary in order to obtain any outstanding records, attempt to verify the Veteran's MST stressor, and obtain a VA medical opinion. The matters are REMANDED for the following action: 1. Send the Veteran notice required for PTSD claims based on personal assaults, and allow time for a response. 2. Obtain the Veteran's complete service personnel records and service treatment records. 3. Ask the Veteran to identify all outstanding treatment records relevant to his acquired psychiatric disorder claim. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken, to include notifying the Veteran of the unavailability of the records. In addition, obtain the mental treatment records from a) Fort Knox, and b) the National Personnel Records Center, for February 1988, July 1988, and April 1989. 4. Then, attempt to corroborate the Veteran's in-service stressors based on personal assault, including his report of sexual assault in Germany. If more details are needed, contact the Veteran to request the information. 5. After the above development is completed and the Veteran's reported stressors have been developed, the claims file should be sent to an appropriate examiner to offer an opinion as to whether the evidence of record, including the Veteran's lay statements, and the Veteran's service records, corroborate the claim that a personal assault occurred in service (38 C.F.R. § 3.304(f)(5)). If the examiner finds that evidence indicates that a personal assault occurred during the Veteran's active service, the examiner must opine whether the current acquired psychiatric disorder is at least as likely as not related to the in-service personal assault. The examiner is asked to discuss the significance, if any, of the Veteran's psychiatric treatments during service. In offering the opinion, the examiner should also consider the September 2020 letter from social worker E.G. (Continued on the next page) The need for an examination is left to the discretion of the examiner. A rationale for all opinions offered is requested as adjudicators are precluded from making any medical findings. 6. Readjudicate the claim. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Mathew 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.