Citation Nr: 22039633 Decision Date: 07/12/22 Archive Date: 07/12/22 DOCKET NO. 17-56 288A DATE: July 12, 2022 ORDER New and material evidence having been received, the petition to reopen the previously denied claim for entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service connected right knee degenerative arthritis with patellofemoral pain syndrome, is remanded. FINDINGS OF FACT 1. An unappealed June 2011 rating decision denied entitlement to service connection for PTSD. 2. The evidence associated with the claims file subsequent to the June 2011 rating decision is not cumulative or redundant of the evidence previously of record and does relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for PTSD. CONCLUSION OF LAW The June 2011 rating decision that denied entitlement to service connection for PTSD is final; new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for PTSD. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1997 to December 2001 and October 2004 to December 2005, to include service in Iraq and Kuwait from December 2004 to November 2005. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) Nashville, Tennessee. Jurisdiction of this appeal is currently with the RO in Columbia, South Carolina. The Veteran testified at a hearing before the undersigned Veterans Law Judge of the Board in February 2022. A transcript of the hearing has been associated with the claims file. Relevant to the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, such was originally adjudicated by the RO as a claim for entitlement to service connection for PTSD only. However, in Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that, in determining the scope of a claim, the Board must consider the claimant's description of the claim; symptoms described; and the information submitted or developed in support of the claim. In light of the Court's decision in Clemons, the Board has recharacterized the issue on appeal as entitlement to service connection for an acquired psychiatric disorder. Petition to Reopen PTSD The Veteran seeks reopening the previously denied claim of entitlement to service connection for PTSD. Specifically, the Veteran asserts that he has PTSD as a result of stressors during service that included running over crowds of people while traveling in a convoy, seeing an improvised explosive device (IED) explode and damage a truck, and as secondary to his service-connected right knee disorder. See e.g., Board hearing transcript February 9, 2022. As a threshold matter, the Board must determine whether new and material evidence has been submitted to reopen a previously denied claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial) A rating decision becomes final when it has not been appealed within the prescribed time period and when no additional material evidence was received within a year of the decision; the decision is not subject to revision on the same factual basis. 38 U.S.C. § 7105(b); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In order to reopen a claim, there must be added to the record "new and material evidence." 38 U.S.C. § 5108. 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 neither be cumulative or 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. The law provides that new and material evidence necessary to reopen previously and finally disallowed claims must be secured or presented since the time that the claims were finally disallowed on any basis, not only since the time the claims were last disallowed on the merits. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). 38 C.F.R. § 3.156(a), which defines new and material evidence, requires that evidence raise a reasonable possibility of substantiating the claim in order to be considered "new and material," and defines material evidence as evidence, that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. The Court has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). When there is an approximate balance of positive and negative evidence as to any issue material to the determination of a matter, VA will resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). The Veteran's original claim for entitlement to service connection for PTSD was received by VA in October 2010 and was originally denied in a rating decision decided in June 2011. Specifically, the June 2011 rating decision indicated that the neck disorder was denied based on a finding that his claimed in-service stressor could not be verified, and that he did not have a diagnosis of PTSD. As a result, his claim was denied. Evidence considered in the June 2011 rating decision included his claim for service connection, his service treatment and personnel records, continuing post-service treatment records, and his DD Form 214. In June 2011, the Veteran was advised of the decision and his appellate rights. However, no further communication regarding his claim for entitlement to service connection for PTSD was received until July 2014, when VA received a petition to reopen such claim. Therefore, the June 2011 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no relevant evidence pertaining to the Veteran's claim for service connection was received or was in the constructive possession of VA prior to the expiration of the appeal period stemming from June 2011 rating decision. See also Lang v. Wilkie, 971 F.3d 1348 (2020); Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). Moreover, no additional service records (warranting reconsideration of the claim) have been received at any time. See 38 C.F.R. § 3.156(c). Although additional Veteran's service personnel records and service treatment records were associated with the record after the issuance of the June 2011 rating decision, these records do not show that the Veteran's PTSD diagnosed nor did they show that such were incurred in by service or is otherwise related to his service. Specifically, the additional service records are relevant only as to the Veteran's dates of service and annual physical health assessments. Therefore, these service records are not relevant to the issue before the Board. Accordingly, the Board will not reconsider the Veteran's claim for service connection for PTSD pursuant to 38 C.F.R. § 3.156(c). The Veteran filed the instant petition to reopen the previously denied claim for entitlement to service connection for PTSD that was received by VA in July 2014. Additional evidence received since the June 2011 rating decision includes a December 2015 private Disability Benefits Questionnaire (DBQ) report showing a diagnosis of PTSD and unspecified depressed mood. The Board finds that the newly received evidence added to the record is new, as it was not previously considered by VA, and it is not duplicative and material as it specifically addresses the reason the claim was previously denied. Specifically, the evidence shows the Veteran has a diagnosis of PTSD. In addition, at his February 2022 Board hearing, the Veteran testified that his PTSD was caused or aggravated by his service-connected right knee disorder. See Board hearing transcript, February 9, 2022. Therefore, presuming the credibility of the above newly associated evidence, the Board finds that new and material evidence has been presented sufficient to reopen the Veteran's claim of entitlement service connection for PTSD. Accordingly, reopening of such claim is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Service Connection Acquired Psychiatric Disorder The Veteran seeks entitlement to an acquired psychiatric disorder. As noted above, the Veteran testified as to his in-service stressors, and that his acquired psychiatric disorder was caused or aggravated by his service-connected right knee degenerative arthritis with patellofemoral pain syndrome. The Veteran was afforded a VA examination in December 2014. At that time, the VA examiner opined that the Veteran's claimed acquired psychiatric disorder was less likely than not incurred in or caused by his in-service injury, event, or illness. In this regard, the VA examiner noted that the Veteran did not meet all necessary criteria under the Diagnostic and Statistical Manual of Mental Disorders (5th Ed.) (DSM-V) for PTSD related to active service. The VA examiner noted that the Veteran had adjustment disorder unspecified, that was first noticed in 2010 which was five years after separation from active service and that was secondary to post-military health and family issues. The Veteran was afforded a VA examination in April 2015. At that time, the VA examiner opined that the acquired psychiatric disorder was less likely than not secondary to his right knee disorder. The VA examiner reiterated the rationale provided in the December 2014 VA medical opinion. A December 2015 private DBQ report reflects a diagnosis of PTSD and unspecified depressed mood. An opinion as to the nature and etiology of the claimed acquired psychiatric disorder was not provided at this time. The Board finds the December 2014 and April 2015 VA medical opinions inadequate to decide the claim. In this regard, the VA examiners did not provide supporting rationale for the conclusions reached, but rather, provided only a conclusory statement that his claimed acquired psychiatric disorder was not related to his service without further elaboration. In addition, the VA examiner also seemed to rely solely on the lack of a diagnosis of PTSD during service. To the extent that this examiner appears to have relied on an absence of a diagnosis of PTSD in service, medical opinions with such rationale are inadequate. Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (2006); Jandreau v. Nicholson, 492 F.3d 1372 (2007); see also Dalton v. Nicholson, 21 Vet. App. 23 (2007) (an examination was inadequate where the examiner did not comment on a Veteran's reports of an in-service injury and instead relied on the absence of evidence in a Veteran's service treatment record to provide a negative opinion). Finally, the December 2014 VA examiner only provided an opinion as to secondary service connection but failed to provide an opinion as to whether the acquired psychiatric disorder was caused or aggravated by his service-connected right knee disorder. See El-Amin v. Shinseki, 26 Vet. App. 136 (2013). Accordingly, the Board concludes that the Veteran should be afforded a new VA examination to determine the nature and etiology of his claimed acquired psychiatric disorder. Where VA provides a veteran with an examination in a service connection claim, the examination and medical opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The matter is REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, schedule the Veteran for a VA examination with a psychiatrist or psychologist to determine the etiology of the claimed acquired psychiatric disorder. The record, to include a copy of this Remand, should be made available to the examiner, and all indicated tests should be conducted. Further physical examination is left to the discretion of the examiner. First, the examiner is asked to identify and diagnose any and all currently present acquired psychiatric disorders. Thereafter, the examiner is asked to furnish an opinion with respect to the following questions: (A) For each acquired psychiatric disorder currently diagnosed, is it at least as likely as not (approximately a 50 percent or greater probability) that such acquired psychiatric disorder had its onset during any period of service, or is otherwise related to such period of service? The examiner should specifically address the Veteran's contentions that his stressful or traumatic experiences while serving in Iraq and Kuwait. (B) For each acquired psychiatric disorder currently diagnosed, is it at least as likely as not (approximately a 50 percent or greater probability) that such acquired psychiatric disorder was caused and or aggravated by his service connected right knee degenerative arthritis with patellofemoral pain syndrome? A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must 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), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (Continued on the next page) The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resorting to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mariah N. Sim, 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.