Citation Nr: 22015386 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 17-41 902 DATE: March 17, 2022 ORDER The application to reopen the claim for service connection for an acquired psychiatric disorder, to include PTSD is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include PTSD is remanded. FINDINGS OF FACT 1. The Veteran did not file a notice of disagreement or submit new and material evidence within one year of the January 2008 rating decision that denied service connection for an acquired psychiatric disorder. 2. The evidence associated with the claims file subsequent to the January 2008 rating decision denying service connection for an acquired psychiatric disorder, to include PTSD is new, not cumulative of evidence previously of record, and relates to an unestablished fact necessary to substantiate the claim. CONCLUSIONS OF LAW 1. The January 2008 rating decision is final. 38 U.S.C. §§ 5108, 7105 (2002); 38 C.F.R. §§ 20.302, 20.1103 (2008). 2. New and material evidence sufficient to reopen the claim of service connection for an acquired psychiatric disability has been received. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a), (c) (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training in the U.S. Army Reserve from June 1974 to October 1974 and on active duty in the U.S. Marine Corps from January 1975 to April 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board video conference hearing before the undersigned Veterans Law Judge in July 2021. A transcript of the hearing has been associated with the claims file. New and Material Evidence In general, rating decisions and Board decisions that are not timely appealed are final. See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.1103. If new and material evidence is presented or secured with respect to a claim that has been finally disallowed, the claim shall be reopened and reviewed. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Under 38 C.F.R. § 3.156, a claimant may reopen a finally adjudicated claim by submitting new and material evidence. "New" evidence is defined as 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 United States Court of Appeals for Veterans Claims has interpreted the language of 38 C.F.R. § 3.156 (a) as creating a low threshold. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159 (c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." See id. New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the AOJ by the Board without consideration in that decision in accordance with the provisions of 38 C.F.R. § 20.1304 (b)(1)), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156 (b). If it is determined that new and material evidence has been submitted, the claim must be reopened. The evidence is presumed credible for the purposes of reopening a claim, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Justus v. Principi, 3 Vet. App. 510 (1992). A finding by the Board of new and material evidence is required in order to establish its jurisdiction to review the merits of a previously denied claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also VAOPGCPREC 05-92. The Veteran requests reopening of a previously denied claim of entitlement to service connection for PTSD. See November 2019 VA 21-526EZ, Fully Developed Claim (Compensation). For the reasons explained below, the Board finds that new and material evidence has been received, and the application to reopen the claim is granted. As an initial matter, the Board notes that it has recharacterized the Veteran's claim involving an acquired psychiatric disorder more broadly to include requesting reopening his previously denied claim for service connection for PTSD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The claim for service connection for an acquired psychiatric disorder other than PTSD will be addressed separately below. A January 2008 rating decision denied the Veteran's original claim for service connection for PTSD on the basis that there was no evidence of combat service or otherwise evidence sufficient to verify his alleged stressors, including his report that while on guard duty, a guard that was being relieved pointed his revolver at the head of another guard and pulled the trigger. The Veteran also reported the soldier's brain was splattered all over him. However, the Veteran did not give the date the incident occurred. The Veteran reported it happened while he was stationed in Concord, California at the Naval Weapons Station between 1975 to 1979. The Veteran did not express timely disagreement or file new and material evidence within one year, and the January 2008 rating decision became final. See 38 U.S.C. § 7105 (c) (2002); 38 C.F.R. §§ 3.156 (b), 20.302, 20.1103 (20089). In August 2013, the Veteran filed a request to reopen the PTSD claim. A February 2014 rating decision declined to reopened the claim due to lack of new and material evidence, explaining that the evidence received was a duplicate of the Veteran's previously considered statement reporting a traumatic event and medical evidence of on-going mental health care. The RO found no evidence sufficient to verify the occurrence of reported in-service stressor. A June 2017 statement of the case continued the decision to decline to reopen the claim and did not mention the receipt of the service department records. In August 2017, the Veteran perfected a substantive appeal. Additionally, the Veteran provided testimony during a July 2021 Board hearing and submitted a report from a private consulting psychologist in dated in September and received in October 2021. At the time of the last final denial in January 2008, the evidence of record included the Veteran's service treatment and personnel records, which showed no treatment for any psychiatric complaints, a medical letter from a doctor, his service personnel records showing no combat service or combat medals, and otherwise no evidence tending to verify any alleged stressor. Since the time of the final denial in January 2008, new evidence associated with the claims file includes additional medical records reflecting diagnosed PTSD and other psychiatric disorders, a buddy statement, July 2021 hearing testimony, as well as a September 2013 duplicate statement from the Veteran in which he detailed the shooting he witnessed in-service. The new evidence also includes the consultant's September 2021 report raising the issue of service connection on a secondary basis. The Veteran's file contains a September 2021 report that is new, not cumulative, indicates a potential in-service psychiatric stressor and a secondary service connection cause. As such new and material evidence sufficient to reopen the claim for service connection for a psychiatric disorder, to include PTSD, has been received. The evidence provided addresses the previously unestablished fact, of an in-service stressor, ongoing symptomology, and a potential theory of secondary service connection. This new evidence is not redundant. Therefore, reopening of the claim for service connection is warranted. REASONS FOR REMAND Acquired Psychiatric Disorder, to include PTSD The Veteran contends that service connection is warranted for an acquired psychiatric disorder, to include PTSD. In July 2021, the Veteran was afforded a virtual hearing. The Veteran testified that he served from 1975 to 1982. He served one year in the Army Reserves then he served in the Marines. The Veteran testified that in the Spring of 1977, he was working in security and was relieving someone of their post. The corporal being relieved was trying to take out the magazine but chambered a round that shot a person in the head. The Veteran believed the person shot was named Corporal Doyle or Dobbs. The Veteran stated that he did not have any medical records of the incident while he served in the Marines. However, the Veteran indicated after that incident his duties were not done 100 percent and he constantly had nightmares of being shot in the head. The Veteran stated he still had the nightmares but not as often. At the time of the hearing the Veteran stated that the nightmares were coming back more because he was becoming paranoid due to the level of gun violence. The Veteran stated that he did not go anywhere, don't walk anywhere, or went into crowds. The Veteran testified that he medicated with illicit drugs. He also stated that he was married for 20 years but had issues relating to anyone due to the incident and that he had not had a gun since. The Veteran stated everything was like a book being dropped on the floor, it brought back memories of the incident a little. The Veteran testified that he was taking PTSD classes and was being medicated for PTSD, depression, and anxiety. The Veteran indicated that he had to take medication to sleep because some nights he tossed and turned. He also said sometimes he woke up in cold sweats due to reappearing dreams of being shoot. The Veteran testified that he avoided people and sat with his back most of the time. He also stated that gun violence was prevalent. He indicated that he stayed in the house due to his condition. The Veteran testified that he was about to start a three-month inpatient treatment and he had social security but only for retirement purposes. See July 2021 Hearing Transcript. In September 2021, the Veteran underwent an examination by a private clinical psychologist. The psychologist noted a review of the claims file but did not indicate that he examined the Veteran in person or by electronic means. He also indicated that he reviewed relevant medical research. The examiner's report contains a heading with an electronic address and license number but no street address or indication of the state of licensure. The Veteran reported that he had never been able to hold a steady job due to the traumatic event he experienced in-service in 1975. The Veteran stated that in 1975 he was on guard duty, while standing next to another Veteran, he saw the other Veteran get shot in the head by a third person and die. The Veteran reported the same details as previously noted. In addition, the examiner noted that the Veteran's traumatic stressor qualified him for criterion A to meet DSM-V. However, the examiner noted that the Veteran met the diagnosis of PTSD and/or MDD diagnosis. Notably, the psychologist found that the disorder began in service which is contrary to any of the evidence dated in service. The Board finds this report inadequate to decide the claim. Without examining the Veteran, the psychologist made the following remarks. The Veteran had a tendency to isolate himself, withdraw, avoid others, and lacked intimacy and affection. The examiner stated that the Veteran had no social relationships or friendships, hypervigilant and got easily startled. In addition, the Veteran had near continuous depression and anxiety; became easily angry; agitated and irritable (without being provoked); and he experienced diminished pleasure in significant events and family events he enjoyed prior to service. To cope with his experience in-service, the Veteran reported that he began to self-medicate with alcohol and drugs including cocaine and marijuana. The Veteran stated that he had attended several substance abuse programs and therapy for his mental illness. In addition, the examiner indicated that in his opinion the Veteran's service-connected degenerative disc disease of the cervical spine and lumbar spine and hypertension are at least as likely as not mutually aggravated and contributed to his PTSD and to increase in symptoms and severity beyond normal progression but provided no explanation other than a reference to general research in comorbid conditions with no reference to this Veteran's detailed physical disabilities. See October 2021 Medical Treatment Record-Non-Government Facility. The Board finds that a remand is necessary to conduct further research by the service law enforcement and base agencies to verify the reported shooting and to perform a current, in-person mental health examination. The matters are REMANDED for the following action: 1. Attempt to verify the Veteran's July 2021 testimony where for the first time he narrowed the time period of the guard shooting event to the Spring of 1977, for the occurrence of his alleged traumatic in-service event; or to the year 1975 as the Veteran reported in the September 2021 private examination. The latter date is less likely as service medical records note that he reported to the Naval Weapons Station in Concord in July 1975. A request should be made to Navy Personnel Command and/or the Naval Criminal Investigation Service or other appropriate agencies to obtain information to verify the event using the Veteran's identification and that of the reported victim. Notify the Veteran and his representative of all efforts made to obtain verification of the dates and the alleged in-service stressor. 2. Schedule the Veteran for an examination by an appropriate clinician to determine what acquired psychiatric disorder, if any the Veteran has, and the nature and etiology of his acquired psychiatric disorder. The examiner must opine whether: a. Is it at least as likely as not (a 50 percent probability or greater) that his acquired psychiatric disorder (s), is caused or aggravated by service, to include the alleged in-service accident? AND b. Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's acquired psychiatric disorder, to include PTSD was caused or aggravated by his service-connected cervical and lumbar spine conditions or hypertension? Review of the entire claims file is required. The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. In addition, attention is invited to the July 2021 testimony noting that the Veteran's in-service stressor occurred in 1977; and to the September 2021 private report indicting the incident occurred in 1975 and PTSD could be a result of the Veterans service-connected conditions. Even if the service department agencies cannot verify the reported stressor, the examiner should consider all other service treatment and personnel records as possible indicatory of a traumatic experience. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Long-Ellis, 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.