Citation Nr: 22018963 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 18-44 949 DATE: March 30, 2022 ORDER New and material evidence having been received, the claim of entitlement to service connection for an acquired psychiatric disorder is reopened. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and an anxiety disorder, is remanded. FINDINGS OF FACT 1. The April 2015 rating decision denying service connection for an acquired psychiatric disorder was not appealed and became final. 2. The additional evidence received since that last final decision was not previously submitted to agency decisionmakers, is neither cumulative nor redundant of the evidence previously of record, and raises a reasonable possibility of substantiating the claim for service connection for an acquired psychiatric disorder. CONCLUSIONS OF LAW 1. The April 2015 rating decision, which denied the Veteran's claim of entitlement to service connection for a psychiatric disability, is a final and binding determination based on the evidence then of record. 38 U.S.C. § 7105 ; 38 C.F.R. §§ 20.200, 20.1103. 2. New and material evidence has been received since the April 2015 rating decision to reopen the service connection claim for a psychiatric disorder. 38 U.S.C. § 5108 ; 38 C.F.R. § 3.156 (a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from July 1990 to July 1994. In November 2021, the Veteran before the undersigned Veterans Law Judge at a videoconference hearing. A copy of the transcript has been associated with the claims file. 1. New and material evidence having been received, the claim of entitlement to service connection for an acquired psychiatric disorder is reopened. A September 2011 rating decision originally denied the Veteran's claim for service connection for his asserted psychiatric pathology, and a letter dated that same month notified the Veteran of the decision and of his appellate rights. See 38 C.F.R. § 19.25. He did not appeal. See 38 C.F.R. §§ 19.20, 19.21, 19.22, 19.52, 20.200, 20.201, 20.202, 20.203 (setting forth requirements and timeframe for initiating and perfecting an appeal under VA's legacy system). Moreover, new and material evidence was not received within one year of the September 2011 rating decision. See 38 C.F.R. § 3.156(b); Young v. Shinseki, 22 Vet. App. 461, 466 (2009). Accordingly, the September 2011 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.156(a); 3.160(d); 20.1103. The Veteran again claimed service connection for a psychiatric condition, and the claim was again denied in an April 2015 rating decision. A letter dated the same month notified the Veteran of the decision and of his appellate rights. See 38 C.F.R. § 19.25. He did not appeal. See 38 C.F.R. §§ 19.20, 19.21, 19.22, 19.52, 20.200, 20.201, 20.202, 20.203. Moreover, new and material evidence was not received within one year of the April 2015 rating decision; the evidence on which the reopening of this claim is based is not dated until several years later, as shown below. See 38 C.F.R. § 3.156(b); Young, 22 Vet. App. at 466; see also Evans v. Brown, 9 Vet. App. 273, 282-3 (1996) (providing that new and material evidence must have been associated with the file since the last prior final denial of the claim, whether the denial was on the merits or on procedural grounds). Accordingly, this rating decision is final, and new and material evidence is therefore required to reopen the claim. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(a); 20.1103. New and material evidence has been received concerning the issue of entitlement to service connection for an acquired psychiatric disorder in the form of the Veteran's sworn testimony at his November 2021 Board hearing concerning the psychologically stressful events that he experienced during his active service, as well as the nature, onset, and duration of his psychiatric symptoms. At the time of the April 2015 rating decision, such evidence was not of record. Accordingly, this evidence relates to an unestablished fact necessary to reopen the claim and raises a reasonable possibility of establishing service connection. See 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110, 117-121 (2010) (noting that the new-and-material-evidence standard does not require proof of all the elements for a given claim on appeal, just presentation of reasonable possibility of substantiating an element that was basis for prior denial, which is a "low threshold"). Therefore, reopening is warranted. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and an anxiety disorder, is remanded. The Veteran asserts that he has an acquired psychiatric disorder that had its onset during, or is otherwise related to, his active service, to include psychologically stressful events that he experienced during active duty. In this regard, as indicated above, the Veteran offered extensive testimony at his November 2021 Board hearing regarding the current nature and in-service onset of his psychiatric symptoms, and further detailed a number of psychologically stressful events during his active service. See November 2021 Board Hearing Transcript. The Board notes that the Veteran is competent to report experiencing psychiatric symptoms, including anxiety, insomnia, and other sleep disturbances, during and since his active service. See Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that a Veteran is competent to report what occurred during service because he is competent to testify as to factual matters of which he has first-hand knowledge); Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology). However, the Veteran has not been provided a VA examination to determine the nature and etiology of his claimed psychiatric pathology. Considering the Veteran's competent assertions concerning his in-service stressful experiences, in light of his competent testimony concerning the onset and continuity of psychiatric symptoms during and since his active service, and in the absence of evidence necessary to decide the claim, the Board finds that a VA examination and opinion are warranted to determine the nature and etiology of his claimed acquired psychiatric disorder. See McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006) (reflecting that VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim; and further finding that the threshold for determining whether the evidence indicates the current disability may be related service is a low one); 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). Additionally, as the case is being remanded, the Veteran should be given another opportunity to identify any records of private medical treatment that he would like to submit or have VA obtain, including specifically the records, referenced by the Veteran during the November 2021 Board hearing, from his treating physician, with whom the Veteran discussed his mental health complaints. See November 2021 Board Hearing Transcript. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the Veteran's claims file. 2. Send a letter to the Veteran requesting him to identify any relevant outstanding private treatment records and any other relevant evidence pertaining to his claim for service connection for an acquired psychiatric disorder, to include the records from his private treating physician referenced during the November 2021 Board hearing. He should be invited to submit this evidence himself or to request VA to obtain it on his behalf. Authorized release forms (VA Form 21-4142) should be provided for this purpose. If the Veteran properly fills out and returns any authorized release forms for private records identified by him, reasonable efforts should be made to obtain such records and associate them with the VBMS virtual file. At least two such efforts should be made unless it is clear that a second effort would be futile. If attempts to obtain any records identified by the Veteran are not successful, he must be notified of this fact and all efforts to obtain them must be documented and associated with the claims file. 3. Thereafter, upon receipt of all additional records, and any additional notification and/or development deemed warranted, schedule the Veteran for a VA examination with an appropriate clinician to assist in determining the nature and etiology of his claimed psychiatric disorder. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The entire claims file and a copy of this REMAND must be made available to the examiner prior to the examination. The examiner must note in the examination report that the evidence in the claims file has been reviewed. The examiner should elicit a full history from the Veteran. The examination should include any necessary diagnostic testing or evaluation. All pertinent symptomatology should be reported in detail. After eliciting a full history from the Veteran, conducting a complete review of the claims file (including all available private and VA medical treatment records and lay statements and testimony of record), performing an examination of the Veteran, and completing any clinically indicated diagnostic testing, the examiner should diagnose and describe in detail all current psychiatric disorders found to be present. As to each psychiatric disorder identified on examination or diagnosed during the pendency of the claim, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed psychiatric disorder had its clinical onset during active service or is related to any in-service disease, event, or injury, including the psychologically stressful events reported by the Veteran at the November 2021 Board hearing. In providing the requested opinion, the examiner should note that that the Veteran is competent to report the onset and duration of his symptoms as well as his medical history. Accordingly, the examiner must consider all lay assertions. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. In this regard, the Board emphasizes that the Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding symptomatology and medical history must be specifically acknowledged and considered in formulating any opinions concerning the onset, duration, and severity of any identified disability. If the Veteran's reports regarding his history of symptoms of and treatment for any diagnosed disability are rejected, the examiner must provide a reason for doing so. All examination findings, along with the complete explanation for all opinions expressed, must be set forth in the examination report. If the examiner is unable to answer any question without a resort to speculation, then he or she should so indicate and provide a rationale for why an answer could not be provided. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 4. Following completion of the above directive, review the claims file to ensure compliance with this remand. If any examination report does not include adequate responses to the specific opinions requested, it must be returned to the examiner for corrective action. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. McCabe, 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.