Citation Nr: 23040802 Decision Date: 07/26/23 Archive Date: 07/26/23 DOCKET NO. 17-57 292 DATE: July 26, 2023 ORDER As new and material evidence has been received to reopen the claim of entitlement to service connection for posttraumatic stress disorder (PTSD) with secondary alcohol dependence, the appeal to this extent is allowed. REMANDED Entitlement to service connection for PTSD with secondary alcohol dependence is remanded. FINDINGS OF FACT 1. In an October 2014 rating decision the Regional Office (RO) denied service connection for PTSD with secondary alcohol dependence; the Veteran did not timely appeal the denial; and new and material evidence was not submitted as to the issue within the one-year appeal period following the issuance of the October 2014 rating decision. 2. Evidence received since the October 2014 rating decision is new and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for PTSD with secondary alcohol dependence. CONCLUSION OF LAW New and material evidence having been received; the claim of entitlement to service connection for PTSD with secondary alcohol dependence, is reopened. 38U.S.C.§§1110, 5108; 38C.F.R.§§3.156(a), 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from May 1970 to January 1972, with subsequent service in the National Guard from November 1979 to August 1999. The issue on appeal arises from a December 2016 rating decision. In September 2022 the Veteran testified at a Board hearing before the undersigned. The Board notes that there is a separate pending appeal stream under the modernized review system, also known as the Appeals Modernization Act (AMA) for the issue of entitlement to service connection for depression. Issue 1: Whether new and material evidence has been received to reopen the claim of entitlement to service connection for PTSD with secondary alcohol dependence. VA law provides that a claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Regardless of how the RO ruled on the question of reopening, the Board must decide the matter on appeal, because reopening is a threshold jurisdictional question for the Board. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). When making a determination as to whether received evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). In a rating decision in October 2014, the RO denied service connection for PTSD with secondary alcohol dependence based on the determination that service treatment records do not contain complaints, treatment, or diagnosis for this condition. The RO found that the evidence does not show an event, disease or injury in service, noting that while medical evidence discusses symptoms of the mental condition it was not found that the Veteran experienced a stressful event in service, including fear of hostile military or terrorist activity. The RO also stated that the evidence does not show a current diagnosed disability and concluded that service connection for PTSD with secondary alcohol dependence is denied because the medical evidence fails to show the disorder was clinically diagnosed. The Veteran did not perfect an appeal of the above decision and additional new and material evidence was not received within a year following the decision. See 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). The decision is final and binding based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103. The evidence added to the record since the last final rating decision includes the Veteran's lay statements that he was personally assaulted during service. In his July 2016 PTSD stressor statement, the Veteran stated that service members who came back from Vietnam "messed" with him either with physical punishments or mental abuse. During the September 2022 Board hearing the Veteran stated that his PTSD is due to his service in the 1970s when he was threatened by men who came back from Vietnam and assaulted him. He testified that a young men tried to get into bed with him and he had to sleep with a hammer to try to keep people off of him. He indicated he was sexually assaulted. He stated that his sergeant did nothing to stop the harassment. Thus, the evidence received is neither cumulative nor redundant of the evidence previously of record and raises a reasonable possibility of substantiating the claim of service connection for PTSD with secondary alcohol dependence as it includes the Veteran's detailed lay statements that he was assaulted during service. REASONS FOR REMAND Issue 2: Entitlement to service connection for PTSD with secondary alcohol dependence. As discussed above the Veteran contends that he was sexually assaulted during service. During the September 2022 Board hearing he testified that he asked to be moved. In the July 2016 PTSD stressor statement, the Veteran stated that it took 4 to 5 months for him to be transferred from his unit and during that time the harassment continued. Service personnel records in July 1970 indicate that the Veteran was reassigned to Headquarters. In a January 2020 private opinion, the examiner opined that the Veteran's PTSD is more likely than not related to the incidents during service. The examiner, a medical doctor, noted that the Veteran's PTSD symptoms occurred after these trauma incidents. In another January 2020 opinion, rendered by a licensed clinical social worker, the examiner opined that the Veteran was treated for active symptoms of PTSD that are related to military sexual trauma. A thorough review of the claims file also shows that the Veteran has contended that his PTSD is due to being ejected from a military vehicle during National Guard service. See, e.g., November 2015 PTSD stressor statement and July 2014 clinical assessment at the Vet Center. A psychiatric examination received in September 2016 shows that the Veteran has a history of PTSD. The examiner noted that the Veteran was thrown from a jeep during service in the National Guard approximately in 1981 or 1982 and during service from 1970-1972 was sexually harassed by another man. The examiner opined that the PTSD is due to the car accident. In a statement in September 2016, which was received in October 2016, the Veteran confirmed that his inservice stressor was between April and June 1980 when he was in the Jeep accident during service. In August 2013 a statement was received from the unit administrator of the Veteran's National Guard unit, 1/119 Infantry, who recalled that during the Veteran's annual training at Fort Bragg in May 1980 a Jeep turned over and the Veteran was one of the soldiers in the accident. The Veteran also submitted a statement stating that he was thrown 25 to 30 feet out of the Jeep. Although the file includes the Veteran's service personnel and service treatment records, to include his periods of active service and National Guard service, in light of the evidence submitted that the Veteran was ejected from a military vehicle during annual training with the National Guard, the Agency of Original Jurisdiction (AOJ) should take additional steps to verify the Veteran's periods of annual duty training/active duty training (ACDUTRA) in the National Guard and attempt to corroborate the Veteran's stressor. Further, while there is a VA Memorandum dated in August 2017, which determined that the Veteran's claimed sexual assault stressor is not capable of verification, where a stressor related to PTSD involves a personal assault, VA has certain additional notice and development duties to the claimant. The record does not appear to show that the Veteran was advised of alternative sources of evidence denoted under 38 C.F.R. § 3.304(f)(5). Consequently, the Veteran must be advised of these provisions. See Bradford v. Nicholson, 20 Vet. App. 200, 205-06 (2006); see also Gallegos v. Peake, 22 Vet. App. 329, 336 (2008). By this remand, the Board makes no determination, express or implied, concerning the credibility of any statements or testimony on file. The matter is REMANDED for the following action: 1. Undertake the necessary development to attempt to corroborate the following stressor with the appropriate federal repositories: the Veteran's statement that his in-service PTSD stressor is due to being ejected from a Jeep during his annual training at Fort Bragg with the 1/119 Infantry in the National Guard from April to June 1980. The AOJ should also verify with the appropriate sources whether this annual training/ACDUTRA was based on federalized service. Please note that reports of retirement points do not contain the necessary information in this regard. All attempts associated therewith should be memorialized in the Veteran's claims file. All verified dates of service and all responses received should be documented and associated with the claims file. If such verification is not possible, notify the Veteran. 2. Send the Veteran additional correspondence providing notification of the provisions of 38 C.F.R. § 3.304(f)(5) pertaining to the alternative sources of evidence which may be used to substantiate the occurrence of an in-service personal assault, in support of a claim for service connection for PTSD. Inform the Veteran of the opportunity to provide further evidence or information that pertains to the process of stressor verification. 3. Schedule the Veteran for a VA psychiatric examination. After reviewing the claims folder, to include a copy of this remand, and conducting all necessary tests, and examining the Veteran the examiner is asked to do the following: a.) Determine whether the Veteran has a diagnosis of PTSD per the DSM V criteria. The examiner is hereby advised that on VA PTSD examination in December 2019, the diagnosis was PTSD per the DSM V criteria. b.) If the Veteran is diagnosed with PTSD per the DSM V criteria, the examiner must provide an opinion as to whether the PTSD symptoms are related to a verified inservice stressor. c.) The examiner also is asked to provide an opinion as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's PTSD is based on an in-service personal assault stressor. In formulating the opinion, the VA examiner is asked to address whether the Veteran exhibited behavior changes which may be indicative that a personal assault occurred. The requested opinion should take into consideration all relevant evidence following the incident, as well as the Veteran's own assertions. For all opinions rendered, the examiner should explain the rationale. If the examiner is unable to provide an opinion, he or she should explain why. 4. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development is incomplete, appropriate corrective action must be ? implemented. If any report does not include adequate responses to the specific opinion requested, it must be returned to the providing examiner for corrective action. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mac, M. 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.