Citation Nr: 18124044
Decision Date: 08/07/18	Archive Date: 08/03/18

DOCKET NO. 15-29 262
DATE:	August 7, 2018
ORDER
The Veteran’s petition to reopen claim for entitlement to service connection for an acquired psychiatric condition, to include post-traumatic stress disorder (PTSD), is granted.
REMANDED
Entitlement to service connection for an acquired psychiatric condition, to include PTSD, is remanded.
FINDING OF FACT
1. The RO denied a claim for service connection PTSD in an unappealed March 2009 rating decision.
2. The evidence received since the RO’s March 2009 rating decision is new to the record, is not redundant and cumulative of the evidence of record as of March 2009, and relates to an unestablished fact necessary to substantiate the Veteran’s claim for service connection.
CONCLUSION OF LAW
1. The March 2009 rating decision denying entitlement to service connection for PTSD is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.1103, 20.1104 (2017).
2. New and material evidence has been received since the RO’s March 2009 rating decision that denied a claim for service connection for PTSD; the claim for entitlement to 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 CONCLUSION
The Veteran had active service from September 1997 to February 1998 and from June  1999 to December 2003.  
In July 2010, the Veteran petitioned to reopen his claim for entitlement to service connection for PTSD.  However, the scope of the Veteran’s claim includes any mental disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and other information of record.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Therefore, the issue has been recharacterized to explicitly reflect that other acquired psychiatric disabilities which may be present are included.
In his July 2015 VA Form 9, Substantive Appeal, the Veteran requested a Video Conference Board Hearing.  That hearing was scheduled for March 2016; however, in March 2016 correspondence, the Veteran stated that he did not want a hearing and his attorney representative would submit a brief in lieu of testifying before a Veterans Law Judge.  The Veteran’s hearing request is deemed withdrawn.  The Board notes that the brief from the Veteran’s attorney representative was received in April 2016.

Petition to reopen claim for entitlement to service connection for an acquired psychiatric condition, to include post-traumatic stress disorder
Irrespective of the RO’s actions, the Board must decide whether the Veteran has submitted new and material evidence to reopen a claim. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed Cir 2001).
Generally, a claim that has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed.  38 U.S.C. §§ 7104(b), 7105(c).  The exception is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim.  38 U.S.C. § 5108.
New evidence means 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).
The regulation does not require new and material evidence as to each previously unproven element of a claim and creates a low threshold for reopening claims. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010).  For the purpose of determining whether new and material evidence has been submitted, the credibility of new evidence is presumed; its weight is not presumed.  Justus v. Principi, 3 Vet. App. 510 (1992).
Service connection for PTSD was denied in a March 2009 rating decision. While a diagnosis of PTSD was of record, the RO determined that there was no evidence of a verifiable stressor.  The Veteran did not appeal the decision and no new and material evidence was received within a year of the decision. Accordingly, the March 2009 decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.1103, 20.1104.
Here, the record includes treatment records from December 2015 and January 2016 assessing whether the Veteran has PTSD and diagnosing him with another specified stressor- and trauma-related disorder.  Reference was made to the general stresses and anxiety created by his active service. The diagnosis of an active psychiatric condition is both new and material to claim for service connection. Therefore, the Veteran’s petition to reopen his claim for service connection for an acquired psychiatric condition, to include PTSD, is granted. 
REASONS FOR REMAND
Entitlement to Service Connection for an Acquired Psychiatric Disorder, to Include Post-Traumatic Stress Disorder Is Remanded.
The Veteran was deployed to Southwest Asia from January 2003 to July 2003.  In his June 2003 post-deployment health report, the Veteran noted that he feared for his life while deployed.  He also denied experiencing nightmares, avoiding memories of stressor events, being on guard or watchful, or feeling number or detached from experiences or surroundings.  In October 2004, the Veteran reported that he did not feel like himself upon returning home from deployment.  He lost enthusiasm for activities he previously enjoyed, felt disconnected from family and friends, and experience nightmares and disrupted sleep.  The Veteran reported similar symptoms in December 2004 and was diagnosed with an anxiety disorder not otherwise specified and rule out PTSD.  In February 2005, the Veteran denied problems with anxiety or depression, and reported that his sleep and appetite were okay.  The VA psychiatrist noted the Veteran had no psychiatric symptoms and diagnosed him with an anxiety disorder not otherwise specified, in remission.
The Veteran underwent an extensive psychiatric evaluation in a VA medical center in December 2015.  While the Veteran’s representative contends that this evaluation shows a current diagnosis of PTSD and establishes a nexus between PTSD and the Veteran’s active service, it instead diagnoses the Veteran with the another specified trauma- and stressor-related disorder.  The evaluation develops the Veteran’s experience while on active duty, to include his deployment to Kuwait and Iraq during which he feared hostile enemy action while aiding in the construction of an oil pipeline.  (The Board notes that VA has accepted the Veteran’s lay statements and conceded his in-service stressor.)  However, it does not establish a nexus between the Veteran’s active service and his current psychiatric diagnosis.
The Board concludes that the evidence of record indicates that there may be a nexus between the Veteran’s acquired psychiatric disorder and his active military service; however, the evidence of record is inadequate to adjudicate the Veteran’s claim for service connection for an acquired psychiatric condition.  See 38 U.S.C. § 5103A(d)(2)(B); McLendon v. Nicholson, 20 Vet App. 79, 83 (2006); see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (“fulfillment of the statutory duty to assist here includes the conduct of a thorough and contemporaneous medical examination.”).  Thus, a VA psychiatric examination is necessary to determine the Veteran’s current diagnoses and the etiology of any acquired psychiatric disability.
The matter is REMANDED for the following action:
1. Schedule the Veteran for a psychiatric examination to determine the nature and etiology of any acquired psychiatric disorder, to include other specified trauma- and stressor-related disorder, an anxiety disorder not otherwise specified, or PTSD.  
(a.) If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease, to include the Veteran’s conceded in-service stressor associated with his fear of hostile military or terrorist activity while deployed to Southwest Asia from January 2003 to July 2003. 
(b.) If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to the Veteran’s conceded in-service stressor

 
MICHAEL A. HERMAN
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Douglas M. Humphrey, Associate Counsel 

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