Citation Nr: 24012002 Decision Date: 03/14/24 Archive Date: 03/14/24 DOCKET NO. 21-00 542 DATE: March 14, 2024 ORDER New and material evidence has been received to reopen a claim of service connection for acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD); to that extent, the claim is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. Entitlement to service connection for a respiratory disorder is remanded. FINDINGS OF FACT 1. An April 2012 rating decision denied reopening a claim of service connection for PTSD. 2. Evidence added to the record since the April 2012 rating decision provides a reasonable possibility of substantiating the claim of service connection for an acquired psychiatric disorder to include PTSD. CONCLUSIONS OF LAW 1. The April 2012 rating decision that denied reopening a claim of service connection for PTSD is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. Evidence received since the April 2012 rating decision is new and material, and the claim for service connection for an acquired psychiatric disorder, to include PTSD is reopened. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1987 to April 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision by a Department of Veterans Affairs (VA) regional office, which is the Agency of Original Jurisdiction in this case. In February 2023, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge regarding the above issues. A transcript of that hearing is of record. In the September 2014 rating decision on appeal, the AOJ reopened the claim for service connection for PTSD, and denied the claim on de novo review. This notwithstanding, the Board has a jurisdictional responsibility to determine whether the previous claims were properly reopened. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also Barnett v Brown, 83 F.3d 1380 (Fed. Cir. 1996) The Veteran also initially claimed entitlement to service connection for PTSD, but treatment records suggest additional psychiatric diagnoses. Thus, the Board has characterized the claim to include any acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Claim to Reopen The Veteran seeks to reopen his claim of service connection for PTSD, which was initially denied in an August 2008 rating decision because the evidence did not establish that the Veteran had a verified stressor that would support a diagnosis of PTSD. More recently, an April 2012 rating decision declined to reopen the claim based on the AOJ's finding that new and material evidence had not been submitted. The question before the Board is whether new and material evidence has been submitted to reopen the claim. Evidence at the time of the April 2012 rating decision included the Veteran's service treatment records, service personnel records, the Veteran's VA treatment records, extracts from the Command History of the USS Theodore Roosevelt for 1991, and an August 2008 Formal Finding on a Lack of Information Required to Verify Stressors. Since the April 2012 rating decision, the Veteran has submitted for the record statements received from fellow servicemember J.A.S. in October 2013, the Veteran's own April 2014 lay statement, his Board hearing testimony, and a June 2014 Defense Personnel Records Information System (DPRIS) response regarding his claimed stressor event of the USS Theodore Roosevelt going to general quarters for a false alarm. The Board finds this evidence added to the record since the April 2012 rating decision is "new" in that it had not been previously submitted. Moreover, the evidence is "material" because it relates to an unestablished fact necessary to substantiate the Veteran's claim. The new evidence documents additional information to verify the Veteran's claimed stressor event. In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3?Vet. App.?510?(1992). This evidence is neither cumulative nor redundant of the evidence of record at the time of the April 2012 rating decision and raises a reasonable possibility of substantiating the claim. 38?U.S.C. §?5108; 38?C.F.R. §?3.156; Shade v. Shinseki, 24 Vet. App.?110?(2010). Accordingly, the claim is reopened. De novo consideration of the claim is addressed in the remand below. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder, to include PTSD is remanded. Further development of the record is needed prior to a de novo consideration of the Veteran's claim for an?acquired?psychiatric?disorder. The Board cannot make a fully-informed decision on the issue of service connection for?acquired?psychiatric?disorder because no VA examiner has opined any of the Veteran's diagnosed acquired psychiatric disorders are related to his active duty service, to include his verified in-service stressor of going to general quarters for a false alarm of an attack while aboard the USS Theodore Roosevelt. Entitlement to service connection for a respiratory disorder is remanded. After review of the record, the Board finds that remand is required because it cannot make a fully-informed decision on the issue of service connection for a respiratory disorder without an opinion as to whether any of the Veteran's diagnosed respiratory disorders are related to his active duty service. Specifically, there is no opinion addressing a potential nexus between the Veteran's respiratory disability and exposure to fumes and contaminates aboard the USS Theodore Roosevelt or related to his toxic exposure risk activities (TERAs) during his Persian Gulf service. In a letter received in April 2014, social worker D.H. reported that he had provided psychiatric treatment for the Veteran beginning in 2009 at a VA facility in 2009 and continuing in private practice beginning in 2012. Such private treatment records are outstanding. A remand is required to allow VA to obtain authorization and request these records. The matters are REMANDED for the following action: 1. Obtain the names and addresses of all medical care providers who treated the?Veteran for any psychiatric or respiratory complaints since service, to include from social worker D.H.?After securing the necessary release, take all appropriate action to obtain these records, including any updated VA treatment records since September 2012.??????? 2. After the completion of the above, the AOJ should obtain an opinion from an appropriate clinician, with examination if deemed necessary by the examiner, on the likely etiology of any diagnosed acquired psychiatric disorders. Copies of all pertinent records should be made available to the examiner for review. The examiner should provide an opinion as to the following:?? (a.) Identify all psychiatric disabilities diagnosed since May 2013, to include PTSD, depression, and anxiety. (b.) For the Veteran's diagnosed PTSD, is it at least as likely as not related to the Veteran's verified in-service stressor of going to general quarters for a false alarm of an attack in 1991 while aboard the USS Theodore Roosevelt or is related to the Veteran's fear of hostile military or terrorist activity as a result of his service aboard the USS Theodore Roosevelt? Why or why not? (c.) For any psychiatric disability diagnosed other than PTSD, to include depression and anxiety disorder is it at least as likely as not related to service, to include going to general quarters for a false alarm of an attack in 1991 while aboard the USS Theodore Roosevelt? Why or why not? The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. If an opinion cannot be provided, the examiner should indicate why. 3. After the completion of (1), the AOJ should obtain an opinion from an appropriate clinician, with examination if deemed necessary by the examiner, on the likely etiology of the Veteran's respiratory disorder. Copies of all pertinent records should be made available to the examiner for review. The examiner should provide an opinion as to the following:??? (a.) Identify all diagnosed respiratory disorders since April 2013 chronic rhinitis, dyspnea, and a respiratory abnormality. (b.) For each of the Veteran's diagnosed respiratory disorders, is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that it had its onset in service, or is otherwise related to an in-service injury, event, or disease during any period?of?active duty service, to include due to exposure to fumes and contaminates aboard the USS Theodore Roosevelt or TERA during his service in the Persian Gulf? (c.) As to the opinion regarding TERA, above, the examiner must address whether the Veteran's diagnosed respiratory disorder or disabilities is/are related to the Veteran's military service, to include any toxic agents, and/or due to the synergistic, combined effect?of?all toxic exposure risk activities.? (Continued on the next page) ? The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. If an opinion cannot be provided, the examiner should indicate why. J. Kirby Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Struening, Eric 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.