Citation Nr: 22041383 Decision Date: 07/19/22 Archive Date: 07/19/22 DOCKET NO. 17-67 478 DATE: July 19, 2022 ORDER New and material evidence having been received, the petition to reopen a claim of entitlement to service connection for a left leg injury is granted. New and material evidence having been received, the petition to reopen a claim of entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection for a left leg disorder, claimed as a left leg injury, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. FINDINGS OF FACT 1. An unappealed January 2013 rating decision denied the claim of entitlement to service connection for a left leg injury; the evidence associated with the claims file subsequent to the January 2013 rating decision is not cumulative nor redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claims of entitlement to service connection for a left leg injury. 2. An unappealed January 2013 rating decision denied the claim of entitlement to service connection for PTSD; the evidence associated with the claims file subsequent to the January 2013 rating decision is not cumulative nor redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claims of entitlement to service connection for PTSD. CONCLUSIONS OF LAW 1. The unappealed January 2013 rating decision denying the claim of entitlement for service connection for a left leg injury is final and new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for a left leg injury. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. § 3.156. 2. The unappealed January 2013 rating decision denying the claim of entitlement to service connection for PTSD is final and 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 CONCLUSIONS The Veteran served in active duty in the U.S. Army from September 1980 to August 1985. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a February 2022 hearing. A hearing transcript has been associated with the record. The record was held open for 90 days following the hearing to allow for the submission of additional evidence. This requested time period has now expired. The matter now returns to the Board. Relevant to the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, such was originally adjudicated by the RO as entitlement to service connection for PTSD. 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, to include PTSD. Service Connection 1. New and material evidence having been received, the petition to reopen a claim of entitlement to service connection for a left leg injury is granted. 2. New and material evidence having been received, the petition to reopen a claim of entitlement to service connection for PTSD is granted. 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 of Appeals for Veterans Claims (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. By way of background, the Veteran originally filed his claims in March 2011. A January 2013 rating decision denied both claims. The RO found that there was no evidence of record to show that there was an event, disease or injury to link the Veteran's left leg injury and psychiatric disability to service. The RO acknowledged that the Veteran's service treatment records could not be located. Evidence consisted of VA treatment records from November 2007 to April 2011 and military personnel records. The Veteran was provided notice of this decision and his appellate rights in a January 2013 letter but did not appeal the decision or submit new and material evidence within one year of the decision. Therefore, the decision is final. See 38 C.F.R. §§ 3.104, 20.302, 20.1103. Moreover, no additional relevant service records (warranting reconsideration of the claim) have been received at any time. See 38 C.F.R. § 3.156 (b), (c). The Veteran filed to reopen his claims in July 2014. The November 2014 rating decision again denied his claims for lack of new and material evidence to reopen the claim. The Veteran filed a May 2015 notice of disagreement, and the RO issued an October 2017 statement of the case denying the claims. The claims were certified to the Board in January 2018. After a thorough review of the evidence of record, the Board concludes that new and material evidence has been received since the January 2013 rating decision. Pertinent evidence received since the January 2013 rating decision consists of updated VA treatment records, statements from fellow servicemembers, hearing testimony with the undersigned Veterans Law Judge, and a VA examination regarding the nature and etiology of the Veteran's psychiatric condition. The March 2017 VA examination shows that the Veteran's psychiatric symptoms are related to service and his February 2022 hearing testimony explains how he injured his left leg while in service. This evidence is new, as it was not of record at the time of the January 2013 rating decision. It is also material because it is an unestablished fact pertaining to a nexus which is necessary to substantiate the claim. Accordingly, the Veteran has submitted new and material evidence since the RO's last final denial of his claim in January 2013, and the claim for entitlement to service connection for a left leg injury and PTSD is reopened. To that extent, the appeals are granted. REASONS FOR REMAND 1. Entitlement to service connection for left leg injury is remanded. 2. Entitlement to service connection for PTSD is remanded. The Veteran generally contends that his left leg injury and PTSD stems from a stabbing injury sustained while in service. See November 2019 Appellate Brief. The Veteran's service treatment records have been proven to be unavailable after an extensive search. See January 2013 VA Memo. However, the Veteran was afforded a Disability Benefits Questionnaire for his PTSD in March 2017. The examiner diagnosed the Veteran with PTSD and somatic symptom disorder. The examiner opined that the claimed condition was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness. Reasoning that the Veteran's in service stressor is the proximal cause of his PTSD symptoms of anxiety, depression, suspiciousness, insomnia, hyperarousal, hypervigilance, and issues with concentration and memory. Inasmuch, the Veteran has stated that he had multiple stressors to include being stabbed in his left leg (see February 2022 Hearing Transcript pg. 6), seeing people being killed and tortured while on a special assignment (see May 2011 Statement in Support of Claim for PTSD), and having anxiety from trainings in a gas chamber and with a grenade (see February 2015 Correspondence). The examiner did not address which stressors, if not all, were the proximate cause of the Veteran's PTSD symptoms. It is a medical examiner's responsibility to provide a well-supported opinion so that the Board may carry out its duty to weigh the evidence of record. See NievesRodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (concluding that medical opinion is not entitled to any weight "if it contains only data and conclusions"). Therefore, this opinion is inadequate for adjudicative purposes and a new opinion is necessary on remand. Further, the Board notes that the Veteran has not been afforded a VA examination for his left leg injury. Giving that the Veteran's service treatment records are missing, VA has a heightened duty to assist the Veteran in developing his claims, to include obtaining alternate evidence. O'Hare v. Derwinski, 1 Vet. App. 365 (1991); Washington v. Nicholson, 19 Vet. App. 362 (2005). In the November 2019 Appellate Brief, the Veteran's representative argued that the Veteran retire in 2010 because of health and mental issues. Therefore, on remand, the Veteran should be afforded a VA examination based on his hearing testimony that he was stabbed in his leg while in service and his Social Security Administration (SSA) records should be obtained. The matters are REMANDED for the following action: 1. Contact the Veteran and determine whether he receives Social Security Administration (SSA) disability benefits for any service-connected disability. If so, then obtain the Veteran's federal records from SSA. Document all requests for information as well as all responses in the claims file. 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. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims 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). 3. Following the receipt of outstanding records, afford the Veteran an appropriate VA examination to ascertain the nature and etiology of his claimed acquired psychiatric disorder to include PTSD. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The need for an in-person examination is left to the discretion of the examiner. The examiner must review the claims file and note that review in the examination report. The examiner must provide an opinion regarding the following questions: (A) Identify all of the Veteran's acquired psychiatric disorders that meet, or have met, the Diagnostic and Statistical Manual of Mental Disorders criteria of the American Psychiatric Association (DSM-5) diagnostic criteria at any time since July 2014. (B) For each diagnosed acquired psychiatric disorder, is it at least as likely as not (approximately a 50 percent or greater probability) that such had its onset during service, or is otherwise related to service, to include a left leg stabbing, the Veteran's witness of fellow soldiers being killed and torture, and a traumatic training experience? A complete rationale should be provided for any opinion. If an opinion cannot be expressed without resort 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. See Jones v. Shinseki, 23 Vet. App. 382 (2010). The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 4. Following the receipt of outstanding records, afford the Veteran an appropriate VA examination to ascertain the nature and etiology of his claimed left leg injury. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The need for an in-person examination is left to the discretion of the examiner. The examiner must review the claims file and note that review in the examination report. The examiner must provide an opinion regarding the following questions: (A) Identify all disorders of the left leg that have been present at any time since July 2014. (B) With regard to each diagnosed left leg disorder, is it at least as likely as not (approximately 50 percent or greater probability) it had its onset during service, or is otherwise related to service, to include any stabbing during service? A complete rationale should be provided for any opinion. If an opinion cannot be expressed without resort 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. See Jones v. Shinseki, 23 Vet. App. 382 (2010). (Continued on the next page) The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Adeyemi, 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.