Citation Nr: 24013301 Decision Date: 03/28/24 Archive Date: 03/28/24 DOCKET NO. 22-00 434A DATE: March 28, 2024 ORDER The appeal seeking to reopen a claim for service connection for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection for a psychiatric disability, to include PTSD, is remanded. FINDINGS OF FACT 1. An unappealed August 2015 rating decision denied the Veteran service connection for PTSD, finding, in essence, that there was no clinically diagnosed psychiatric disability shown to be related to his active military service. 2. Evidence received since the August 2015 rating decision includes VA treatment records reflecting that the Veteran is being treated for a diagnosed psychiatric disability, and the records appear to suggest a relationship between such disability and his claimed in-service stressors; relates to unestablished facts necessary to substantiate a claim of service connection for an acquired psychiatric disability; and raises a reasonable possibility of substantiating such a claim. CONCLUSION OF LAW New and material evidence has been received, and the claim of service connection for PTSD is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is a Veteran who served on active duty from December 1990 to December 1995, from July 2004 to March 2005, from July 2006 to July 2007, from May 2009 to February 2010, and from November 2012 to January 2014. This matter is before the Board on appeal from a January 2019 Department of Veterans Affairs (VA) rating decision. The appeal seeking to reopen a claim for service connection for PTSD is granted. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C. § 5108. "New" evidence means existing evidence not previously submitted to agency decision-makers. "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 C.F.R. § 3.156(a). When determining whether the claim should be reopened, the credibility of newly submitted evidence is presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003). The requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold one. The U. S. Court of Appeals for Veterans Claims (CAVC) interpreted 38 C.F.R. § 3.156(a) and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding opening". See Shade v. Shinseki, 24 Vet. App. 110 (2010). An August 2015 rating decision denied the Veteran service connection for PTSD, finding, in essence, that the evidence did not show a currently diagnosed chronic disability that may be related to the Veteran's active duty service. He was informed of, and did not appeal, that decision, or submit new and material evidence within a year following, and that decision is final. 38 U.S.C. § 7105. The evidence of record at the time of the August 2015 rating decision included the Veteran's service treatment and personnel records, his lay statements, a VA examination, and treatment records. Evidence received since the August 2015 rating decision includes VA treatment records, a VA examination, and lay statements from the Veteran and his mother. VA treatment records show that in January 2019, the Veteran was diagnosed with unspecified trauma stressor disorder. In March 2019, he began individual therapy for unspecified anxiety disorder. Subsequent VA treatment records through 2022 reflect regular treatment for diagnoses of unspecified anxiety disorder, unspecified depressive disorder, unspecified insomnia, and unspecified trauma and stressor-related disorder. In November 2021, he was prescribed psychotropic medication for anxiety. On September 2022 VA treatment, the most recent record available, the DSM-5 diagnoses included unspecified trauma and stress-related disorder and chronic unspecified anxiety disorder. The evidence received since the August 2015 rating decision was not before agency decision-makers then, is new, and directly addresses unestablished facts necessary to substantiate the claim of service connection for PTSD. It tends to show both that he may have been exposed to a stressor event in service and that he may have a diagnosis of an acquired psychiatric disability related to his active duty service; specifically, the updated VA treatment records suggest that he may have received a diagnosis of a psychiatric disability related to his service. Considering the "low threshold" standard for reopening endorsed by the CAVC in Shade, the evidence is both new and material, and the claim of service connection for PTSD may be reopened. De novo consideration of the claim is addressed in the remand below. REASONS FOR REMAND Entitlement to service connection for a psychiatric disability, to include PTSD, is remanded. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the U.S. Court of Appeals for Veterans Claims held that the scope of a mental health disability claim includes any mental disorder that may be reasonably encompassed by the claimant's description of the claim, reported symptoms, and other information of record, i.e., that matter(s) of service connection for other psychiatric disability(ies) diagnosed is/are part and parcel of a service connection for a psychiatric disability claim. Accordingly, the matter is characterized as encompassing all psychiatric diagnoses in accordance with Clemons. The Veteran contends that his currently diagnosed psychiatric disability is related to his active duty service. On July 2015 VA examination, the examiner opined that the Veteran's symptoms did not meet the diagnostic criteria for PTSD under DSM-5 criteria, and that he did not have a mental disorder that conforms with DSM-5 criteria. The examiner opined that, while he clearly encountered some difficult and stressful experiences while in the military, the Veteran should be acknowledged for his current level of functioning; the development of a mental disorder was not supported at that time, and therefore no diagnosis was rendered. On December 2018 VA examination, the examiner noted that, since 2015, the Veteran had had a couple of encounters for mental health treatment and opined that they appeared to be the result of situational stressors leading to brief emotional reactions that resolved without any sustained treatment. The examiner opined that the Veteran did not meet the criteria for PTSD or any mental disorder, therefore no diagnosis was rendered. The examiner opined that while the Veteran's record shows brief periods of stress reactions to concurrent psychosocial stressors, they all had resolved within a short period of time. The examiner opined that the Veteran's record does not indicate a sustained, formal mental health diagnosis. As noted above, the updated VA treatment records indicate that the Veteran has been receiving regular treatment for a psychiatric disability, specifically diagnosed as unspecified trauma stressor disorder, unspecified anxiety disorder, unspecified depressive disorder, unspecified insomnia, and unspecified trauma and stressor-related disorder. The treatment records suggest he might have a diagnosis of a psychiatric disability related to his service, confirmation of which requires further development. Whether a currently diagnosed psychiatric disability may be related to an event in service such as the Veteran describes is a medical question. While the Veteran was afforded a VA mental disorders examination in July 2015 and December 2018, the examiners did not offer an opinion regarding the etiology of the now-diagnosed psychiatric disability. The Board is unable to make a fully-informed decision on this matter at this time and additional medical guidance is necessary. The matter is REMANDED for the following action: 1. Obtain any outstanding treatment records related to the Veteran's psychiatric disability. 2. Then, schedule the Veteran for a psychiatric examination to determine the nature and etiology of any diagnosed psychiatric disability. A complete copy of the claims file, to include this remand, shall be made available to and reviewed by the examiner. Any and all evaluations, studies, or tests deemed necessary by the examiner should be accomplished and any such results must be included in the examination report. The examiner should be provided information on what stressor event(s), in service, if any, have been found to be corroborated by credible supporting evidence. On review of the record and interview and evaluation of the Veteran, the examiner should provide a medical opinion that responds to the following: Identify the Veteran's psychiatric disability by diagnosis, and opine whether it is at least as likely as not (at least an approximate balance of positive and negative evidence) that the disability (i) began during his active service, (ii) was manifested as psychosis (to a compensable degree) within one year after discharge from service, (iii) was noted during service with continuity of symptoms since, or (iv) is otherwise etiologically related to service. (Continued on the next page) ? The examiner is advised that the Veteran is competent to report his symptoms and history and that such reports must be acknowledged and considered in formulating any opinion. The examiner must not rely solely on the absence of diagnosis or treatment in service, or the lack of medical documentation, as the basis for a negative opinion. Please provide a clear explanation for all opinions, and a discussion of the facts and medical principles involved. If a requested opinion cannot be provided without resort to mere speculation, it should be so stated (with explanation why the opinion cannot be offered without resort to speculation). I. Cannaday Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Schechner, 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.