Citation Nr: 22015334 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 19-14 787A DATE: March 17, 2022 ORDER Reconsideration of the previously denied claim of entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD), is granted REMANDED Entitlement to service connection for a psychiatric disability including PTSD is remanded. FINDINGS OF FACT 1. In August 2011, the Regional Office (RO) denied service connection for an acquired psychiatric disorder to include PTSD. The Veteran did not appeal. 2. Since the August 2011 final decisions, relevant military service and personnel records have been received. 3. These additional service department records require that the claim must be reconsidered on its underlying merits. CONCLUSIONS OF LAW 1. The RO's August 2011 rating decision which denied service connection for an acquired psychiatric disorder to include PTSD is final. 38 U.S.C. § 7105. 2. The issue of entitlement to service connection for an acquired psychiatric disorder to include PTSD is subject to reconsideration on the merits. 38 U.S.C. § 5108, 7105; 38 C.F.R. §§ 3.104(a), 3.156(c), 3.160(d), 20.200, 20.1103. REASONS AND BASES FOR FINDINGS CONCLUSIONS The Veteran served on active duty in the Marine Corps from January 1987 to January 1993. He was a member of the Army National Guard from February 1994 to February 1997. In October 2021, the Veteran testified at a hearing before the Board of Veterans' Appeals (Board). Prior final claim In an August 2011 rating decision, the RO denied service connection for an acquired psychiatric disorder to include PTSD. A notice of disagreement and/or new and material evidence was not received within the subsequent one-year period following notification of the decision. See Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011). Therefore, the RO's rating decision is final. 38 U.S.C. § 7105. Prior unappealed decisions are final. However, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has held that, when "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). 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). According to the Court, the pertinent VA law requires that in order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). In addition, 38 C.F.R. § 3.156(c) provides that if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the record when VA first decided the claim, VA will reconsider the claim. In this case, additional relevant service treatment and personnel records have been received; therefore, the claim must be reconsidered. There does not have to be new and material evidence to reopen this claim according to 38 C.F.R. § 3.156(c), rather, it automatically has to be reconsidered on its underlying merits. See Vigil v. Peake, 22 Vet. App. 63 (2008). This claim thus must be remanded to the RO for, inter alia, consideration on its underlying merits. See Hickson v. Shinseki, 23 Vet. App. 394 (2010). REASONS FOR REMAND Merits consideration The Veteran contends that he has PTSD which is the result of violence and abuse from a domestic situation with his ex-wife while he was on active duty. He indicates that his ex-wife was mentally ill and engaged in physical, verbal, and mental abuse which caused him to develop his current psychiatric disability. The Board notes that the RO has undertaken multiple efforts to secure all of the Veteran's service treatment and personnel records. However, and as discussed at his hearing, there appear to be additional outstanding records relevant to the claim. The Veteran related that in approximately 1989, his ex-wife tried to kill herself with a knife and also assaulted him with the knife. He indicated that this incident was reported to the State police. He also stated that the military police were called many times, but he was told that those records were archived. The Board finds that an attempt should be made to obtain the county/state police records as well as the military police records. Additionally, the Veteran testified that he was afforded mental health treatment during active duty while stationed at Camp Lejeune between September 1991 and February or March 1992. His testimony is corroborated by the service treatment records currently associated with the record on appeal which contain a notation that the Veteran received "mental health counseling" in September 1991 and that a "secondary record" had been established. The Board notes that the service medical records always do not include records of mental health treatment, and those records are maintained with the records of a service treating facility, or a civilian treating facility. VBA Manual M21-1, IV.ii.1.D.2.a. Location of In-Service Mental Health Treatment Records. For that reason, the RO should make a separate request for any records of mental health treatment. VBA Manual M21-1, III.iii.2.D.3.a. PIES Request Codes Beginning With "C"; III.iii.2.B.4.e. How to Request Clinical Records from National Personnel Records Center (NPRC). The matters are REMANDED for the following action: 1. Undertake the necessary efforts to obtain any military police reports from Camp Lejeune from the Veteran's assignment dates at that base, as well as any civilian police records. 2. Make a request for any mental health records of mental health treatment pursuant to VBA Manual M21-1, III.iii.2.D.3.a. PIES Request Codes Beginning With "C"; III.iii.2.B.4.e. to include from the NPRC, the appropriate storage facility or service treatment facility or civilian treatment facility. Document all requests for information and all responses in the record. 3. Afford the Veteran a VA psychiatric examination. The record should be reviewed. If the Veteran has PTSD, the examiner should, (a) clearly identify the stressor(s) underlying the diagnosis, and (b) fully explain how the diagnostic criteria are met, to include comment upon the link, if any, between the stressor and the Veteran's symptoms. The examiner should also opine as to whether it is more likely than not, less likely than not, or at least as likely as not, that the Veteran has any other psychiatric disability that had its clinical onset during service or is related to any in-service disease, event, or injury. A complete rationale for any opinion expressed must be provided. 4. Readjudicate the claim on appeal on the merits in light of all of the evidence of record. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Connolly 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.