Citation Nr: 1312880 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 10-11 602 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for an acquired psychiatric disorder, other than posttraumatic stress disorder. 2. Entitlement to service connection for an acquired psychiatric disorder, other than PTSD. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran and spouse ATTORNEY FOR THE BOARD E. Woodward Deutsch, Counsel INTRODUCTION The Veteran served on active duty from April 1971 to April 1972. These matters are before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision of the Chicago, Illinois, Department of Veterans Affairs (VA) Regional Office (RO), which reopened the Veteran's previously denied claim for service connection and then denied that claim on the merits. Following the promulgation of the above rating action the RO issued a January 2008 decision confirming and continuing the January 2007 denial of the Veteran's claim. This decision was issued because new and material evidence, comprised of lay statements and medical opinion evidence, was added to the claims file within a year of the January 2007 rating decision. As such, the January 2007 denial never became final and, thus, the current appeal stems from that initial rating decision. See 38 C.F.R. § 3.156(b) (2012); Bond v. Shinseki, 659F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010) (holding that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence, even if the new submission may support a new claim). The Veteran and his spouse testified at an August 2012 videoconference hearing before the undersigned, who was designated to conduct that hearing pursuant to 38 U.S.C.A. § 7102(a). A transcript of the proceeding was associated with the claims file. Throughout the appeals period, the disability at issue has been identified as depressive disorder. However, this narrow construction belies the fact that, at the time of the last final denial of the Veteran's claim, his underlying disability was broadly characterized as an acquired psychiatric disorder and that the record currently contains multiple psychiatric diagnoses. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009) (holding that claims for one psychiatric disorder effectively encompass claims for all psychiatric disorders). Therefore, the Board has characterized his claim to be for an acquired psychiatric disorder to ensure that all potential psychiatric diagnoses are considered. However, a September 2007 rating decision denied service connection for PTSD. Subsequently in September 2007, the Veteran's representative clarified that the Veteran had filed a claim for major depressive disorder and not PTSD, as the medical evidence did not indicate the Veteran had PTSD. Additionally, in an October 2007 statement, the Veteran reported that he had claimed service connection for major depressive disorder, not for PTSD, and that the September 2007 rating decision was in error by changing his claim to one of PTSD. Given the Veteran and his representative's clear statements that the Veteran is not claiming service connection for PTSD or seeking to reopen his claim on that issue, the issues have also been recharacterized to exclude PTSD from the Board's consideration on appeal. FINDINGS OF FACT 1. In an unappealed decision issued in July 2003, the Board denied entitlement to service connection for an acquired psychiatric disorder. 2. The evidence received since the July 2003 Board decision is new and material as it relates to an unestablished fact necessary to substantiate the claim and triggers the duty to assist by providing a medical opinion. 3. The evidence of record is at least in equipoise as to whether the Veteran's currently diagnosed major depressive disorder with anxiety features and agoraphobia had its onset in service. CONCLUSIONS OF LAW 1. The unappealed July 2003 Board decision that denied service connection for an acquired psychiatric disorder is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2012). 2. The evidence received since the July 2003 Board decision is both new and material; the claim of entitlement to service connection for an acquired psychiatric disorder is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. The criteria for establishing service connection for an acquired psychiatric disorder, diagnosed as major depressive disorder with anxiety features and agoraphobia, have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). In this decision, the Board reopens the Veteran's previously denied acquired psychiatric disorder claim and then allows that claim on the merits. As these outcomes are completely favorable to the Veteran, no further discussion of VA's duties to notify and assist is necessary. II. Reopened Claim The Veteran seeks to reopen his claim of service connection for an acquired psychiatric disorder. This claim was previously denied in a July 2003 decision in which the Board concluded that there was no evidence of a nexus between depressive disorder or any other acquired psychiatric disorder and the Veteran's active service and, consequently, denied the claim. The Veteran did not file a motion for reconsideration or an appeal with respect to the July 2003 Board decision. As such, that decision achieved finality and the Veteran's acquired psychiatric disorder claim may only be reopened through the submission of new and material evidence. 38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. § 20.1100 (2012). In the January 2007 rating decision, the RO determined that such evidence had been submitted and reopened the Veteran's claim, denying it on the merits. Notwithstanding the RO's actions, the Board must make its own inquiry as to whether new and material evidence has been received as this will determine whether it has jurisdiction to adjudicate the underlying service connection claim de novo. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). To reopen a claim, new and material evidence must be presented or secured. 38 U.S.C.A. § 5108 (West 2002). "The Board does not have jurisdiction to consider [the previously-adjudicated claim] unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find." See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). When determining whether a claim should be reopened, the credibility of the newly-submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). "'New' evidence is defined as 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. See 38 C.F.R. § 3.156(a) (2012); see Shade v. Shinseki, 24 Vet. App. 110, 118 (2010) (finding that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim is a component of the question of what is new and material evidence). When evaluating the materiality of newly submitted evidence, the Board should not focus solely on whether the evidence remedies the principal reason for denial in the last prior decision, but rather should consider whether such evidence, in its entirety, could at least trigger the duty to assist by providing a medical opinion. Id. at 117. The Veteran has supported his petition to reopen his service-connection claim with letters from Dr. J.N.S., dated in April, May, and September of 2007, which attest to his struggles with major depressive disorder and anxiety and relate the underlying symptoms of those disorders "back to [his] time while on active duty in the Army." Dr. J.N.S. is a licensed psychiatrist whose training qualifies him to address the etiology of the Veteran's mental health problems. See Black v. Brown, 10 Vet. App. 279 (1997). Moreover, the Board presumes him to be credible for the purpose of determining whether his statements are new and material. Justus, 3 Vet. App. at 513. In addition to clinical observations, the Veteran has offered his own impressions of his ongoing mental health problems. Specifically, he has testified that, after undergoing psychiatric hospitalization for 47 days during his period of active service, he continued to suffer from severe depression and related symptoms, which led him to self-medicate with alcohol. Board Hearing Tr. at 3, 6. The Veteran has further testified that, despite being sober since the late 1990s, he has continued to experience continuous psychiatric symptoms, which have impaired his ability to drive and engage in other activities of daily living. Board Hearing Tr. at 3-5, 9. The Veteran's wife has also testified regarding his long-term depression and its detrimental impact on their marriage and his other social relationships. Board Hearing Tr. at 5. Although they are lay persons, the Veteran and his spouse are both competent to testify as to his perceived mental health symptoms and their functional effects. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Moreover, both parties' impressions are presumed credible for the limited purpose of reopening the Veteran's claim. Justus, 3 Vet. App. at 513. The Board finds that the above clinical and lay evidence is new to the extent that it was not previously considered by VA adjudicators. That evidence is also material as it pertains to an unestablished fact necessary to substantiate the Veteran's claim. Specifically, the statements from Dr. J.N.S. suggest a nexus between the Veteran's current depression, anxiety, and related mental health symptoms and his active service. As noted previously, that was the particular element found lacking in the previous denial of the Veteran's service-connection claim. The Veteran's own assertions are supportive of the underlying claim as they collectively suggest that his mental health problems have persisted on a chronic basis since his period of service. As such, those lay assertions, in tandem with the previously considered evidence of in-service incurrence and current disability, are sufficient to meet the low threshold for a VA examination set forth in McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006) (holding that VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim). Accordingly, the Board finds that the new evidence detailed above relates to a specific fact (nexus) that was not established at the time of the last final adjudication and, at the very least, is sufficient to trigger the need for a VA examination. See 38 C.F.R. § 3.303 (2012); see also Shade, 24 Vet. App. at 117. Therefore, the Board finds that the evidence presented is not only new but also material and, thus, sufficient to reopen the Veteran's psychiatric disorder claim. However, the Board's analysis does not end here as it must now consider the merits of whether service connection is warranted for an acquired psychiatric disorder. III. Service Connection Initially, the Board must consider whether the Veteran would be prejudiced if it proceeded to de novo review of the underlying service connection claim. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (holding that, upon reopening a claim, the Board must consider whether a claimant will be prejudiced by the Board proceeding to de novo review by considering whether the claimant has been given adequate notice of the need to submit evidence or argument and an opportunity to submit such evidence and argument and to address the matter at a hearing); Hickson v. Shinseki, 23 Vet. App. 394 (2010). Here, since the Board is granting his claim of service connection on the merits, he is not prejudiced by the Board proceeding to de novo review of the claim. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). In general, to establish service connection for an acquired psychiatric disorder there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The Veteran's treatment records and examination reports confirm that he has received DSM-IV Axis I diagnoses of major depressive disorder, with features of anxiety and agoraphobia. Accordingly, the Board finds that the Veteran currently has an acquired psychiatric disorder and, thus meets the initial element for service connection under Hickson. See Hickson, 12 Vet. App. at 253. Moving to the second Hickson element, the report of the Veteran's January 1969 pre-enlistment examination is negative for any complaints or clinical findings of mental health problems. As such, he is presumed to have been sound on entry and his claim turns on a theory of in-service incurrence, rather than aggravation. See 38 C.F.R. § 3.304(b) (2012); see also Hickson, 12 Vet. App. at 253. In this regard, the Veteran's service treatment records have multiple clinical findings of mental health pathology. Indeed, these records show that the Veteran was hospitalized for a psychiatric disturbance manifested by multiple suicide attempts, depressed mood, and an inability to restrain his impulses and adjust to unforeseen circumstances. His in-service symptoms were initially found to comport with a diagnosis of major depression. However, that diagnosis was later changed to a personality disorder manifested by passive-aggressive and dependent features. The severity of the Veteran's psychiatric symptoms ultimately led to his referral to the Mental Hygiene Consultation Service, which concluded that he was unfit for further service. He was subsequently afforded a discharge under the provisions of Chapter 10, Army Regulation (AR) 635-212. While mindful of the change of diagnosis that preceded the Veteran's release from service, the Board observes that the mere fact that depression was not shown at separation is not fatal to his claim. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); Hensley v. Brown, 5 Vet. App. 155, 159-160 (1993). Moreover, the Veteran need not demonstrate that one or more of his current psychiatric disorders was diagnosed in service in order to meet the second prong of Hickson. See Hickson, 12 Vet. App. at 253; see also 38 C.F.R. § 3.303(d) (service connection based on a disability first diagnosed after service, considering all the evidence, including that during and after service). To the contrary, he need only present evidence of a relevant in-service disease or injury. Id. This he has conclusively done through his showing of an in-service psychiatric disturbance requiring inpatient treatment. Accordingly, the Board finds that the second Hickson element has been satisfied and that the third and final inquiry is whether a causal relationship exists between one or more of the Veteran's current psychiatric disorders and his active service. See Hickson, 12 Vet. App. at 253. In an effort to establish the requisite nexus, the Veteran has submitted multiple written statements from VA staff psychiatrist, Dr. J.N.S. As discussed in the preceding section, Dr. J.N.S.'s letters not only describe the Veteran's ongoing depression and related mental health problems but also attribute those problems to his active service. Indeed, Dr. J.N.S.'s statements are unequivocal with respect to a "definite connection" that exists between the Veteran's depression symptoms and his "military traumas." See September 27, 2007, Letter from Dr. J.N.S. That VA clinician's statements also attest to the Veteran's prior struggles with alcohol abuse and to the persistence of his depression after he attained sobriety. See May 14, 2007, Letter from Dr. J.N.S. Significantly, that clinician's statements further indicate that the Veteran's delay in seeking mental health care after leaving the Army was a reflection of his ignorance of available treatment opinions, rather than a sign of any improvement or cessation of his psychiatric symptoms. Id.; see also April 4, 2007, Letter from Dr. J.N.S. After the above treating psychiatrist rendered his positive nexus findings, the Veteran underwent a November 2007 VA mental disorders examination, which yielded a countervailing opinion. Specifically, the VA psychologist who conducted that examination opined that there was no evidence relating the Veteran's currently diagnosed depressive disorder to the mental health symptoms he displayed in service. That clinician's findings were subsequently reviewed by a VA psychiatrist, who concurred that it was "not at least as likely as not that the [Veteran's] present mental disorder [was] related to his military service." When confronted with conflicting medical opinion evidence, the Board can favor one opinion over another as long as it adequately explains its reasoning. See Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In this case, the Board finds that the positive nexus findings of the Veteran's VA treating psychiatrist outweigh the negative opinion of the November 2007 examiners. Dr. J.N.S.'s letters reflect that he reviewed the Veteran's service treatment records and was aware of his pertinent service history. See September 27, 2007; May 14, 2007; and April 4, 2007 Letters of Dr. J.N.S. Dr. J.N.S. also referenced his long-term psychiatric treatment of the Veteran, thereby demonstrating a familiarity with the latter's post-service medical history. Dr. J.N.S. also considered the Veteran's own reports of ongoing mental health symptoms. Such consideration of competent lay evidence adds to the probative value of Dr. J.N.S.'s positive nexus opinion. Additionally, he provided a rationale for his opinion based on his review of the Veteran's service records, his treatment of the Veteran, and the Veteran's competent statements. Therefore, the Board finds that Dr. J.N.S.'s opinion is entitled to great probative value as it describes the disability in sufficient detail and thoroughly explains his reasoning, thus, allowing the Board to make a fully informed evaluation of the underlying medical issues. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Having thus determined that the medical opinion evidence proffered by Dr. J.N.S. is entitled to great evidentiary weight, the Board considers it significant that this evidence was disregarded by the November 2007 VA examiners. Despite having purportedly reviewed the claims file in its entirety, those examiners did not acknowledge Dr. J.N.S.'s multiple letters and declined to reconcile his findings of a positive nexus with their own cursory conclusion that no such link existed between the Veteran's depression and active service. See Stefl, 21 Vet. App. at 123 ("[A] mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor's opinion."). Moreover, in reaching the above conclusion, the November 2007 examiners avoided any mention of the pertinent lay evidence as reflected at the time in Dr. J.N.S.'s letters. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007)). These letters reflect the Veteran's reports regarding a continuity of psychiatric symptoms emanating from service. The Board recognizes that a showing of continuity of symptomatology is no longer a valid substitute for nexus in claims, such as the one at issue, which involve diseases not expressly identified as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a)). However, while no longer a sufficient stand-alone basis for establishing nexus, continuity of symptomatology is one factor that must be considered in determining whether such a causal relationship exists. Thus, the fact that the November 2007 VA psychologist and psychiatrist disregarded that factor renders their opinions inadequate for rating purposes. Generally, once VA attempts to furnish a VA examination or etiological opinion, it must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (finding that VA must provide an examination or opinion that is adequate for rating purposes). However, in this particular case, the Board finds that further development to rectify the inadequacies inherent in the November 2007 VA opinion would serve no useful purpose. Sabonis v. Brown, 6 Vet. App. 426 (1994); VAOPGCPREC 5-04 (2004), 69 Fed. Reg. 59,989 (2004). That is because the written statements of Dr. J.N.S. are fully favorable to the Veteran's acquired psychiatric disorder claim and are sufficient, in tandem with the other evidence of record, to grant that claim. In arriving at this conclusion, the Board has afforded due consideration to the Veteran's assertions, and those of his spouse, regarding his in-service and post-service psychiatric symptoms. As discussed previously, both parties are competent to testify regarding their perceptions of the Veteran's historical and current mental health problems. See Layno, 6 Vet. App. at 470 (1994). Moreover, the parties testimony in this case is deemed credible as it is both internally consistent and in line with the remaining record. See Caluza v. Brown, 7 Vet. App. 498, 511-12 (indicating that the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant). Indeed, there is nothing in the testimony of either party that contradicts the other or conflicts with the findings of the VA staff psychiatrist. Accordingly, given the positive nexus opinion rendered by Dr. J.N.S., the competent and credible testimony proffered by the Veteran and his spouse, and the lack of any contradictory evidence of similar probative weight, the Board finds that the overall record is sufficient to denote a nexus between the Veteran's currently diagnosed major depressive disorder with anxiety features and agoraphobia and the mental health problems for which he was hospitalized in service. The third and final Hickson requirement is therefore satisfied and service connection for an acquired psychiatric disorder, diagnosed as major depressive disorder with anxiety features and agoraphobia, is warranted. All reasonable doubt has been resolved in the Veteran's favor in making this determination. See 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER New and material evidence having been presented, the claim for service connection for an acquired psychiatric disorder, other than PTSD, is reopened. Service connection for an acquired psychiatric disorder, diagnosed as major depressive disorder with anxiety features and agoraphobia, is granted. ____________________________________________ M. SORISIO Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs