Citation Nr: 22011308 Decision Date: 02/28/22 Archive Date: 02/28/22 DOCKET NO. 19-05 291 DATE: February 28, 2022 ORDER The petition to reopen the claim for service connection for an acquired psychiatric disorder is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), major depression, schizoaffective disorder bipolar type, schizoaffective personality disorder, bipolar disorder, psychotic disorder NOS, paranoid schizophrenia, and adjustment disorder with depressive features is denied. FINDING OF FACT The evidence received since the last prior final denial, to include on June 13, 2017, in the form of VA-generated treatment records, is new, because it had not been previously associated with the file, and material, because it was medical evidence of a diagnosis of PTSD, among others, in favor of the claim for service connection for an acquired psychiatric disorder. CONCLUSION OF LAW The criteria for reopening the previously denied claims of service connection for an acquired psychiatric disorder are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1985 to December 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The transcript is of record. At the hearing, the Veteran submitted statements and updated medical treatment records. New and material evidence to reopen the claim for service connection for a low back disability and an acquired psychiatric disorder. New and Material Evidence Where a claim has been finally adjudicated, a claimant must present new and material evidence in order to reopen the previously denied claim. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also Wakeford v. Brown, 8 Vet. App. 239 (1995). New evidence is that which was not previously submitted to agency decision makers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is 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 final denial, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of reopening, evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for finding new evidence that raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). VA should consider whether the newly received evidence could reasonably substantiate the claim were the claim to be reopened, including whether VA's duty to provide a VA examination is triggered. There must be new and material evidence as to at least one of the bases of the prior disallowance to warrant reopening. Shade, 24 Vet. App. at 117-20. The Veteran initially filed his claim for an acquired psychiatric disorder in March 1994. A June 1995 rating decision denied his claim. It did so because the Veteran's service treatment records were negative for complaints, findings, diagnosis, or treatment for a psychiatric disorder and that the record did not show a diagnosis for PTSD. A notice of disagreement was not filed, and new and material evidence was not received within a year of this decision. As such the June 1995 decision became final. 38 U.S.C. § 7104; 38 C.F.R. § 3.156(b). Subsequently, the Veteran filed a claim for an acquired psychiatric disorder in January 2000. A March 2000 rating decision denied his claim and noted that the Veteran did not file new and material evidence to reopen the claim. A notice of disagreement was not filed, and new and material evidence was not received within a year of this decision. As such the March 2000 decision became final. 38 U.S.C. § 7104; 38 C.F.R. § 3.156(b). Additionally, the Veteran filed a claim for an acquired psychiatric disorder in June 2010. An April 2011 rating decision denied his claim and noted that the Veteran did not file new and material evidence to reopen the claim. It was noted that the Veteran did not appear at a VA examination scheduled in November 2010. A notice of disagreement was not filed, and new and material evidence was not received within a year of this decision. As such the April 2011 decision became final. 38 U.S.C. § 7104; 38 C.F.R. § 3.156(b). The current appeal began when the Veteran submitted a formal claim for an acquired psychiatric disorder in May 2017. Since at that time his prior decision was final, he needed to submit new and material evidence to reopen the claim. The Board finds that the record showed new and material evidence to reopen the Veteran's claim in the form of new psychiatric diagnoses, PTSD amongst them. For example, post-service VA treatment records showed that the Veteran was diagnosed with PTSD, major depression, schizoaffective disorder bipolar type, schizoaffective personality disorder, bipolar disorder, psychotic disorder NOS, paranoid schizophrenia, and adjustment disorder with depressive features. See 11/19/1994 VA 10-1000, at page 1; see also 6/13/2017 CAPRI, at pages 79, 175, 345, 399, 427, 447, 461, and 477; 12/27/2018 CAPRI, at page 8. This evidence is new because it was not previously associated with the file, and material, because it tends to support the Veteran's contention of a diagnosed disability, the basis of his prior denials. Before adjudication on the merits, the Board finds that additional development is necessary, as discussed below. REASONS FOR REMAND Service Connection Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Where a disease is first diagnosed after discharge, service connection will be granted when all the evidence, including that pertinent to service, establishes it was incurred in active service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.30(d). Service connection requires evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the condition incurred or aggravated by service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The scope of a disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 4-6 (2009). The Veteran is competent to report symptoms and experiences observable by his senses. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Service connection for an acquired psychiatric disorder. After review of the record, a remand is required in this case to ensure that VA's responsibilities under the duty to assist are followed and that the Veteran is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran contends service connection for an acquired psychiatric disorder. Specifically, at the hearing, the Veteran testified that his Captain made physical threats against him and regarding an incident where "he ran up behind [him], grabbed [him] by the shirt, picked [him] up, turned [him] sideways, and threw him down on the ground." Additionally, he testified that he reported the incident to a superior, was sent to a psychiatrist, and was diagnosed with depression and was prescribed medication. Further, the Veteran testified that he felt people treated him differently after the incident; he thought that a sergeant talked to his wife on the phone and tried to make her divorce him. Moreover, he testified that while in Saudi Arabia, a patriot missile went up and intercepted a scud missile that was directed from Iraq to them, it exploded really loud, and they had to put on their chemical suits and chemical masks. He also testified that the explosion shook him up "really bad," it scared him, and as a result he experienced severe anxiety and paranoia regarding exposure to chemicals. In addition, he testified that he saw dead enemy soldiers on the battlefield. Furthermore, he testified that he experienced visual and auditory hallucinations while he was stationed at Fort Hood, TX. Additionally, he testified that after his reported incident with the Captain, he was depressed, started consuming alcohol, had motivation issues, and could not focus on anything or perform his duties. See 5/2/2017 VA 21-0781; see also 3/31/1994 VA 21-4138; 11/4/2020 Third Party Correspondence; 4/30/2021 Hearing Transcript, at pages 3-11. The Veteran further contends that before the incident with his Captain he excelled and was promoted; as such he contends that the above-mentioned issues, to include his behavioral reprimands were manifestations of his acquired psychiatric disorder. See 4/30/2021 Hearing Transcript, at pages 7 and 11; see also 1/18/2022 Medical Expense Reimbursement. Post-service VA treatment records showed that the Veteran was diagnosed with PTSD, major depression, schizoaffective disorder bipolar type, schizoaffective personality disorder, bipolar disorder, psychotic disorder NOS, paranoid schizophrenia, and adjustment disorder with depressive features. See 11/19/1994 VA 10-1000, at page 1; see also 6/13/2017 CAPRI, at pages 79, 175, 345, 399, 427, 447, 461, and 477; 12/27/2018 CAPRI, at page 8. Upon a July 2017 VA examination, the examiner completed a PTSD disability benefits questionnaire, reported that the Veteran did not meet the criteria for PTSD, and determined that the Veteran had a diagnosis of schizoaffective disorder, bipolar type. At the conclusion of the examination, the examiner rendered a negative nexus opinion. As rationale, the examiner stated that the Veteran did not meet the criteria for PTSD. Additionally, the examiner stated that the Veteran reported he was seen by a counselor one time; however, the examiner could not locate the record of this treatment. See 7/12/2017 C&P Examination. However, the Board finds this opinion inadequate. The examiner relied on a lack of an in-service diagnosis to justify the conclusion. Additionally, the examiner did not discuss whether the diagnosed PTSD, major depression, schizoaffective personality disorder, bipolar disorder, psychotic disorder NOS, paranoid schizophrenia, and adjustment disorder with depressive features, were due to service as these were diagnosed during the period on appeal. The Veteran's authorized representative also makes this argument. See 4/30/2021 Hearing Transcript, at pages 2 and 3. Further, the examiner did not consider the Veteran's testimony that he saw dead enemy soldiers on the battlefield, the above-mentioned in-service missile incident, and their effects, such as experiencing visual and auditory hallucinations, depression, motivation issues, and an inability to focus on anything or perform his duties. Further, his contentions that his behavioral reprimands were manifestations of his acquired psychiatric disorder. As such, on remand, the AOJ is to obtain an addendum opinion that considers the entire record, to include the Veteran's testimony and whether the diagnosed PTSD, major depression, schizoaffective personality disorder, bipolar disorder, psychotic disorder NOS, paranoid schizophrenia, and adjustment disorder with depressive features, are related to service. This matter is REMANDED for the following actions: 1. Update any outstanding VA treatment records. All requests and responses for the records must be documented. If any identified records cannot be obtained, notify the appellant of the missing records, the efforts taken, and any further efforts that will be made by VA to obtain such evidence, and allow the appellant an opportunity to provide the missing records. 2. After completing step #1, schedule the Veteran for a VA mental disorder examination with an appropriate clinician. A copy of the clams file, to include this Remand, is to be reviewed to become familiar with the Veteran's pertinent medical history. After a review of the claims file, the mental health examiner must: (a.) Compile a list of all psychiatric disorders. If the examiner disagrees with any diagnosis or lack thereof, the examiner must explain why. (b.) Then, for EACH psychiatric disorder identified, state whether it is at least as likely as not (probability of approximately 50 percent or more) that the acquired psychiatric disorder, in whole or part, had their onset in service. **The examiner is asked to address the Veteran's testimony that his Captain "ran up behind [him], grabbed [him] by the shirt, picked [him] up, turned [him] sideways, and threw me down on the ground." Additionally, he testified that he reported the incident to a superior and was sent to a psychiatrist and was diagnosed with depression and prescribed medication. Further, the Veteran testified that he felt people treated him differently after the incident; he thought that a sergeant that worked for the colonel was talking to his wife on the phone and trying to make her to divorce him. Moreover, he testified that while in Saudi Arabia, a patriot missile went up and intercepted a scud missile that was directed from Iraq to them and exploded really loud, and they instantly put on their chemical suits and chemical masks. He also testified that the explosion shook him up "really bad," scared him, and made him paranoid regarding exposure to chemicals. In addition, he testified that he saw dead enemy soldiers on the battlefield. Furthermore, he testified that he experienced visual and auditory hallucinations while stationed at Fort Hood, TX. Additionally, he testified that after his reported incident with the Captain, he was depressed, started consuming alcohol, had motivation issues, and could not focus on anything or perform his duties. See 4/30/2021 Hearing Transcript, at pages 3 through 11. The Veteran also testified that before the incident with his Captain he excelled and was promoted. See 5/23/2017 Military personnel Record, at page 3. As such he contends that the above-mentioned psychiatric issues, to include his behavioral reprimands were manifestations of his acquired psychiatric disorder. See 4/30/2021 Hearing Transcript, at pages 7 and 11; see also 1/18/2022 Medical Expense Reimbursement. Furthermore, please explicitly consider the article filed by the Veteran intitled "Schizoaffective disorder." See 4/30/2021 Correspondence. For the limited purposes of this remand and providing an opinion, the Board has found the Veteran credible to describe his in-service incidents and his continued symptoms since service. Note: A full credibility determination will be made a later date, if needed, once additional evidence has been added to the claims file.** A comprehensive rationale for all opinions is to be provided and must not be based on the lack of an in-service record of the claimed disability. All pertinent evidence, including both lay and medical evidence, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.F., 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.