Citation Nr: 18131250
Decision Date: 08/31/18	Archive Date: 08/31/18

DOCKET NO. 13-31 259A
DATE:	August 31, 2018
ORDER
New and material evidence having been submitted, the claim for service connection for posttraumatic stress disorder (PTSD) is reopened.  

REMANDED
Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. 
FINDING OF FACT
1.  In a November 2008 decision, the Board denied service connection for PTSD.  The Veteran did not file a motion to vacate, file a motion for reconsideration, or file a motion to revise the decision based on clear and unmistakable error, and he did not appeal that decision.
2.  The evidence received since the November 2008 Board decision is not cumulative of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claims for service connection for PTSD. 
CONCLUSION OF LAW
1.  The November 2008 Board decision that denied service connection for PTSD is final.  38 U.S.C. § 7103; 38 C.F.R. § 20.1100 (2017)
2.  The evidence received since the November 2008 Board decision is new and material, and the claim for service connection for PTSD is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSIONS
The Veteran served in the Army of the Philippines from September 1942 to April 1946, which included recognized guerilla service.  He also served in the United States Army from April 1946 to March 1949 and in the Army of the Philippines from May 1950 to April 1954.  
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).
The Veteran died in September 2017, and the appellant is his surviving spouse.  In July 2018, the RO recognized the appellant as a valid substitute claimant.  
In September 2014, the Board remanded the case to afford the Veteran a hearing.  The Veteran was scheduled for a hearing in July 2017; however, he was unable to report for the proceeding and died shortly thereafter.  In a July 2018 letter, the RO and asked the appellant whether she wanted to present testimony at a hearing.  To date, no response has been received regarding a hearing request.  However, in August 2018, the appellant’s representative submitted an appeal brief on her behalf.  Therefore, the Board considers the hearing request withdrawn and will proceed with adjudication of the appeal.  
New and Material
The Board previously considered and denied the Veteran’s claim for service connection for PTSD in a November 2008 decision.  In so doing, the Board found that the Veteran attributed his traumatic experiences to his service in the Armed Forces of the Philippines in 1951, which was not a period of qualifying service.  The Veteran did not file an appeal to the U.S. Court of Appeals for Veterans Claims, nor did he submit a motion for reconsideration, vacatur, or revision based on clear and unmistakable error.  As such, the November 2008 Board decision became final.  38 U.S.C. § 7103; 38 C.F.R. § 20.1100 (2017).
In making this determination, the Board notes that service personnel records were associated with the claims file after the November 2008 decision.  However, the records were cumulative or duplicate copies of service personnel records that were previously associated with the claims file.  Therefore, the Board finds that 38 C.F.R. § 3.156(c) does not apply in this case, and new and material evidence is required to reopen the claim. 
The evidence received since the November 2008 Board decision includes VA medical records, private medical records, and lay statements.  Notably, in a March 2013 private medical statement, Dr. P.E. stated that, based on the medical history provided by the Veteran, he had PTSD that was a service-related condition.  This evidence relates to previously unestablished facts necessary to substantiate the claim.  Moreover, for purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed.  See Justus v. Principi, 3 Vet. App. 510, 513 (1992).  Thus, the Board finds that the evidence is both new and material, and the claim for service connection for PTSD is reopened.  However, as will be explained below, the Board is of the opinion that further development is necessary before the merits of the Veteran’s claim can be addressed. 


REASONS FOR REMAND
The Veteran was afforded a VA examination in December 2012 during which the examiner stated that she could not establish that the Veteran satisfied the criteria for a diagnosis of PTSD.  Rather, she diagnosed him with vascular dementia with possible delusions.  In so finding, the examiner stated that the Veteran was unable to answer questions because he suffered from severe hearing loss and dementia.  However, the examiner did not adequately address whether it was possible to provide an opinion based on the medical and lay evidence of record.  
The Board acknowledges the March 2013 private medical statement from a private physical medicine physician.  Dr. P.E. (initials used to protect privacy) noted that the Veteran reported that he was exposed to mortar fire during his service in World War II.  He stated that, based on the history provided by the Veteran, he had PTSD that was a service-related condition.  However, there is no indication that Dr. P.E. is a mental health professional or that the diagnosis of PTSD was rendered in accordance with the diagnostic criteria set forth in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders.
For these reasons, the Board finds that an additional VA medical opinion is needed to determine the nature and etiology of any acquired psychiatric disorder that was present during the appeal period.  
The Board also notes that a September 2017 Social Security Administration (SSA) inquiry report indicated that the Veteran had Title II status.  However, the claims file does not contain any records from SSA.  Therefore, on remand the AOJ should attempt to obtain any such records.  See Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010).
The matter is REMANDED for the following action:
1.  The AOJ should request that the appellant provide the names and addresses of any and all health care providers who provided treatment for the Veteran’s claimed acquired psychiatric disorder.  After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file.
The AOJ should also obtain any outstanding VA medical records, including from the West Los Angeles VA Medical Center.  
2.  The AOJ should obtain a copy of any decision to grant or deny SSA benefits to the Veteran during his lifetime and the records upon which that decision was based and associate them with the claims file.  
If the search for such records has negative results, the AOJ should clearly document the claims file to that effect and notify the appellant of any inability to obtain the records, in accordance with 38 C.F.R. § 3.159(e).   
3.  After completing the foregoing development, the AOJ should refer the Veteran’s claims file to a suitably qualified VA examiner for a clarifying opinion as to the nature and etiology of any acquired psychiatric disorder.  To the extent possible, the AOJ should provide the examiner with a list of dates of verified active service for VA purposes.
The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions.  
The examiner should note that the Veteran was competent to attest to factual matters of which he had first-hand knowledge.  If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation.
The examiner should identify any psychiatric disorder that was present during the appeal period, to include PTSD.  He or she should specifically consider the December 2012 VA examination report, the March 2013 private medical statement, VA medical records noting an assessment of probable PTSD, and any other treatment or SSA records that are available for review.
For each diagnosis identified other than PTSD, the examiner should provide an opinion as to whether it is at least as likely as not that the disorder manifested in or is otherwise causally or etiologically related to the Veteran’s period of active service. 
Regarding PTSD, the AOJ should provide the examiner with a summary of any verified in-service stressors, and the examiner must be instructed that only these events, as well as any combat-related stressors or stressors related to fear of hostile military or terrorist activity, may be considered for the purpose of determining whether exposure to an in-service stressor resulted in PTSD. 
The examiner should determine whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied.  If the PTSD diagnosis is deemed appropriate, the examiner should then comment upon the link between the current symptomatology and any verified in-service stressor, including the fear of hostile military or terrorist activity or a combat-related stressor.  
 (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.)
A clear rationale for all opinions must be provided and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.
4.  The AOJ should review the examination report to ensure that it is in compliance with this remand.  If the report is deficient in any manner, the AOJ should implement corrective procedures.
 
J.W. ZISSIMOS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M. Wulff, Associate Counsel  

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