Citation Nr: 1329101	
Decision Date: 09/11/13    Archive Date: 09/17/13

DOCKET NO.  13-05 071	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Providence, Rhode Island


THE ISSUES

1.  Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for an unspecified psychiatric condition.

2.  Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder, post traumatic stress disorder, panic disorder with agoraphobia secondary to PTSD, generalized anxiety disorder, and alcohol dependence.


REPRESENTATION

Appellant represented by:	Robert V. Chisholm, Attorney


ATTORNEY FOR THE BOARD

W. R. Stephens, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Marine Corps from May 1971 to May 1975. 

This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. 

The Board has reviewed the Veteran's physical claims file and the electronic claims folder to ensure review of the totality of the evidence.


FINDINGS OF FACT

1.  In an unappealed March 2008 rating decision, the RO denied the Veteran's claim of entitlement to service connection for an unspecified psychiatric disorder.

2.  Evidence associated with the claims file since the March 2008 denial, when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact; and raises a reasonable possibility of substantiating the claim. 

3.  The Veteran has current diagnoses of an acquired psychiatric disorder, to include major depressive disorder, PTSD, panic disorder with agoraphobia secondary to PTSD, generalized anxiety disorder, and alcohol dependence.

4.  There is at least an approximate balance of positive and negative evidence as to whether the Veteran's current diagnoses are associated with an in-service motor vehicle accident. 



CONCLUSIONS OF LAW

1.  The evidence received since the final March 2008 denial is new and material; and 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(a) (2012).

2.  The criteria for service connection for an acquired psychiatric disorder 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. Veterans Claims Assistance Act of 2000 (VCAA)

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).  The Board is granting in full the benefit sought on appeal.  As a result, any error committed with respect to either the duty to notify or the duty to assist was harmless.  

II. New and Material Evidence

Rating decisions from which an appeal is not timely perfected become final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). An appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200 (2012). 

In a March 2008 rating decision, the RO denied the Veteran's claim of entitlement to service connection for an unspecified psychiatric disorder on the basis that the claimed disability was neither shown to have manifested during service or to otherwise be related to service.  The Veteran did not express disagreement with this decision within one year of receiving notice.  Thus, that decision became final.

In both the June 2010 and January 2011 rating decisions, the RO readjudicated the issue of entitlement to service connection for a psychiatric disorder, to include PTSD.  However, additional statements from the Veteran and relevant medical evidence were received by VA within one year of the date of notice of those decisions.  As a result, these decisions did not become final.  38 C.F.R. § 3.156(b) (2012).

A final decision cannot be reopened unless new and material evidence is presented.  38 U.S.C.A. § 5108.  The Secretary must reopen a final claim when new and material evidence is presented or secured with respect to that claim.  Knightly v. Brown, 6 Vet. App. 200 (1994). The Board finds that the submission of an April 2013 private medical examination, among other evidence, satisfies the requirements for new and material evidence.  Consequently, the March 2008 claim for service connection is reopened. 

III. Service Connection 

Generally, service connection may be granted for a disability or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  

To establish entitlement to service-connected compensation benefits, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called 'nexus' requirement." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d) (2008). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

Service connection requirements for PTSD are nearly identical to general service connection: (1) a present diagnosis of PTSD in accordance with DSM-IV Criteria, (2) an in-service stressor , and (3) a link, or nexus, that must be established by medical evidence between the current symptoms and the in-service stressor. 38. C.F.R. § 3.304(f) (2012).

With respect to requirement (1) for service connection, the record provides conflicting evidence as to the Veteran's current diagnoses.  The April 2013 private medical examination performed by a licensed psychologist diagnoses the Veteran with major depressive disorder, PTSD, panic disorder with agoraphobia secondary to PTSD, generalized anxiety disorder, and alcohol dependence.  A November 2011 VA examination diagnosed the Veteran with only depressive disorder and alcohol dependence.  Previous VA examinations had noted symptoms of depressive disorder, but had disagreed on whether they met the criteria for a diagnosis.  In addition, only the April 2013 private examination diagnosed the Veteran with PTSD.  Despite these inconsistencies, given the thorough and detailed nature of the April 2013 examination report, the Board will resolve doubt in favor of the Veteran and finds that the Veteran has a current diagnosis of an acquired psychiatric disorder, to include major depressive disorder, PTSD, panic disorder with agoraphobia secondary to PTSD, generalized anxiety disorder, and alcohol dependence.  Consequently, requirement (1) is met.

A March 1974 motor vehicle accident involving the Veteran has been recounted by the Veteran multiple times, and has been verified by the report of an April 1974 investigation into the death of the Veteran's roommate, friend, and fellow passenger in the car.  It is clear from the record that the accident and death of his friend had a very serious effect on the Veteran.  Previous VA examinations have consistently referred to the accident as a "stressor" for purposes of PTSD service connection.  The Board finds that the 1974 motor vehicle accident meets requirement (2) for service connection for an acquired psychiatric disorder, including a verified PTSD stressor. 

Regarding requirement (3), there have been conflicting opinions as to the nature of the Veteran's current diagnosis and whether it is linked to service.  The April 2013 private examiner found that it is more likely than not that the major depressive disorder and PTSD are directly related to the in-service accident that resulted in the death of his friend.  The examiner explained that the remaining diagnoses of agoraphobia, generalized anxiety disorder, and alcohol dependence developed secondary to the major depressive disorder and PTSD.  

The November 2011VA examiner provided an opinion that is less clear, noting that "the veteran's depression is at least as likely as not partially caused by his experience in the military of a serious motor vehicle accident."  The opinion also indicated that the "Veteran's Alcohol Dependence is primarily caused by a familial predisposition and that his depression is caused primarily by the difficulties of coping with a seriously disable wife."  The examiner estimated that the motor vehicle accident contributes to "about 20 to 30% of his depression...the depression is estimated to contribute to about 50% of his overall mental health disability."  A January 2012 email from the Providence RO to the examiner sought to clarify the examiner's opinion.  In an email reply, the examiner responded that "I would have to agree that it is fair to say that the veteran's depression is less likely than not (less than 50/50) caused by the in-service car accident and death of his friend." As a result of the examination and email response, the RO treated the November 2011 VA examination as a negative opinion for the purpose of service connection. 

However, the Board finds the January 2012 email to be of no probative value given its conclusory nature and how contrary it appears to be to the examiner's earlier conclusions.  As noted, the November 2011 VA examiner had determined that the "veteran's depression is at least as likely as not partially caused by" his military experience.  The Board finds that this earlier conclusion is supportive of a nexus between the veteran's diagnosed psychiatric disorder and his service, and is more probative than the later conclusory statement.  When coupled with the April 2013 private examination and the rest of the record, the Board finds that the evidence is at least in equipoise as to whether requirement (3) for service connection has been met.  As a result of meeting all three requirements, service connection for an acquired psychiatric disorder is appropriate. 



ORDER

The previously denied claim of entitlement to service connection for an unspecified psychiatric disorder is reopened.

Service connection for an acquired psychiatric disorder, to include major depressive disorder, PTSD, panic disorder with agoraphobia secondary to PTSD, generalized anxiety disorder, and alcohol dependence is granted.




____________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs