Citation Nr: 1330189 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 10-47 030 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder, anxiety, and posttraumatic stress disorder. 2. Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder, anxiety, and posttraumatic stress disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and J. A. ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The Veteran had active duty service from June 1970 to January 1971, April 1976 to April 1980, and October 1980 to September 1981. This matter comes properly before the Board of Veterans Appeals (Board) on appeal from rating decisions issued in March 2008, July 2008, December 2008, May 2009, and December 2009 by the Department of Veterans Affairs (VA) Regional Office in Columbia, South Carolina (RO). In October 2011, the Veteran submitted to the Board additional evidence for consideration in connection with the claim on appeal along with a waiver of RO jurisdiction of such evidence. Thus, the Board accepts this evidence for inclusion in the record on appeal. 38 C.F.R. § 20.1304 (2012). During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (the Court) addressed the scope of a claim in regard to a claimed disability in Clemons v. Shinseki, 23 Vet. App. 1 (2009). In Clemons, the Court held that, in determining the scope of a claim, the Board must consider the Veteran's description of the claim; symptoms described; and the information submitted or developed in support of the claim. Id. at 5. In light of the Court's decision in Clemons and the varying psychiatric diagnoses of record, the Board has recharacterized the issue on appeal as entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder, anxiety, and posttraumatic stress disorder (PTSD). This will provide the most favorable review of the Veteran's claim in keeping with the Court's holding in Clemons. FINDINGS OF FACT 1. In an August 2006 rating decision, the RO denied reopening the Veteran's claims of service connection for depressive syndrome and PTSD due to sexual trauma; she did not initiate a timely appeal for these matters. 2. New evidence associated with the claims file since the August 2006 denial, when considered by itself or in connection with evidence previously assembled, relates to an unestablished fact necessary to substantiate the claim of service connection for an acquired psychiatric disorder, or raises a reasonable possibility of substantiating the claim of service connection for an acquired psychiatric disorder. 3. An acquired psychiatric disorder is causally related to the Veteran's active service. CONCLUSIONS OF LAW 1. The August 2006 RO rating decision that denied reopening the Veteran's claims of service connection for depressive syndrome and PTSD due to military sexual trauma is final. 38 U.S.C.A. § 7105(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). 2. As evidence received since the RO's August 2006 denial is new and material, the criteria for reopening the Veteran's claim of service connection for an acquired psychiatric disorder have been met. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156(a) (2012). 3. An acquired psychiatric disorder was incurred in active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Without deciding whether notice and development requirements have been satisfied in the present case, the Board is not precluded from adjudicating the issues on appeal herein. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). This is so because the Board is taking action favorable to the Veteran by reopening and granting the claim of entitlement to service connection for an acquired psychiatric disorder at hand. As such, this decision poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). New and Material Evidence The Veteran originally filed a service connection claim for chronic depression (psychothymic disorder) and recovering alcoholic (five years sober). In an April 1991 rating decision, the RO denied entitlement to service connection for depression, "as diagnosis of immature personality with adjustment disorder entered and depressive reaction acute and transitory condition of congenital origin". Entitlement to service connection for alcoholism was denied, as it was not a rated disability or disease process. While a notice of disagreement was received in May 1991 and a statement of the case was issued in June 1991, the Veteran did not initiate a timely appeal for that matter. There is also no indication that additional evidence was received between April 1991 and April 1992, which would have necessitated a reconsideration of the issue on appeal. See 38 C.F.R. § 3.156(b); Buie v. Shinseki, 24 Vet. App. 242 (2010). Thus, the April 1991 rating decision is final as to the evidence then of record, and is not subject to revision on the same factual basis. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. The Veteran sought to reopen her claim of entitlement to service connection for depression and nervous condition in October 1992. In a February 1993 rating decision, the RO reopened and denied the claim for entitlement to service connection for anxiety and depression, as it was not shown that he "incurred a chronic condition or any acquired psychiatric disorder during military service". It was further indicated that current evidence showing PTSD related to events preceding military service did not serve to establish service connection for PTSD caused by traumatic events occurring in service. PTSD was also denied as pre-existing military service, not aggravated. Shortly thereafter the Veteran submitted service personnel records. The RO again adjudicated the claim in a June 1993 rating decision. The RO considered the recently received evidence as duplicative and cumulative and noted that it did not establish a new factual basis upon which to warrant rebuttal of the prior denial of service connection for anxiety and depression or PTSD. The Veteran did not initiate a timely appeal for that matter. There is also no indication that additional evidence was received between June 1993 and June 1994, which would have necessitated a reconsideration of the issue on appeal. See 38 C.F.R. § 3.156(b); Buie v. Shinseki, 24 Vet. App. 242 (2010). Thus, the June 1993 rating decision is final as to the evidence then of record, and is not subject to revision on the same factual basis. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. The Veteran again sought to reopen her claim of entitlement to service connection for PTSD in December 2005. The RO denied reopening the claims for entitlement to service connection for adjustment disorder with immature personality, PTSD due to sexual trauma, and depressive syndrome (to include depressed anxiety reaction) in an August 2006 rating decision. The Veteran did not initiate a timely appeal for that matter. There is also no indication that additional evidence was received between August 2006 and August 2007, which would have necessitated a reconsideration of the issue on appeal. See 38 C.F.R. § 3.156(b); Buie v. Shinseki, 24 Vet. App. 242 (2010). Thus, the August 2006 rating decision is final as to the evidence then of record, and is not subject to revision on the same factual basis. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. In November 2007, the Veteran sought to reopen her claim of entitlement to service connection for a mental condition which had been diagnosed as PTSD and major depression. In a March 2008 rating decision, the RO indicated that the claim for service connection for PTSD remained denied, as evidence submitted was not new and material. Rating decisions dated in July 2008, December 2008, and May 2009 confirmed and continued the previous denial of service connection for PTSD with depression due to sexual trauma. The Veteran reiterated her claims for service connection for depression and anxiety in a July 2009 statement. In a December 2009 rating decision, the RO denied reopening the claim for service connection for depressive syndrome (to include depressed anxiety reaction), as evidence submitted was not new and material. Although a decision is final, a claim will be reopened if new and material evidence is presented. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after VA has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110, 116-118 (2010). Regardless of the RO's actions, the Board must still determine whether new and material evidence has been submitted. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (reopening after a prior Board denial); Wakeford v. Brown, 8 Vet. App. 237 (1995) (finding that VA failed to comply with its own regulations by ignoring issue of whether any new and material evidence had been submitted to reopen the veteran's previously and finally denied claims). Evidence added to the claims file since the last prior final rating decision in August 2006 includes lay statements from the Veteran and additional individuals; private treatment records from C. H., M. D., St. Francis Women's Hospital, and Marshall I. Pickens Hospital; VA outpatient and inpatient treatment records; a September 2011 statement from a VA psychiatrist; copies of service treatment records; and records from the Social Security Administration (SSA). Some of the additionally received evidence is "new" in the sense that it was not previously before agency decision makers. The new evidence of record included a September 2011 statement from the Veteran's treating VA psychiatrist. It was indicated that the Veteran was being treated for severe major depressive disorder. The VA psychiatrist then opined that the Veteran's symptoms of depression were directly correlated with the sexual trauma and other difficulties encountered during her service in Germany. This evidence is "material", as it constitutes evidence which, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, i.e., a causal relationship between the present acquired psychiatric disorder and an injury or disease incurred during active service. When presumed credible, such evidence and information raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder. Shade v. Shinseki, 24 Vet. App. 110 (2010); Justus v. Principi, 3 Vet. App. 510 (1992). Under these circumstances, the Board concludes that the criteria for reopening the claim of entitlement to service connection for an acquired psychiatric disorder are met. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. Entitlement to Service Connection for an Acquired Psychiatric Disorder The Veteran contends that she is entitled to service connection for an acquired psychiatric disorder, to include major depressive disorder, anxiety, and PTSD, due to in-service events such as sexual harassment and personal assaults. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). Service connection may be established under the provisions of 38 C.F.R. § 3.303(b) when the evidence, regardless of its date, shows that a veteran had a chronic condition in service or during the applicable presumptive period. In addition, certain chronic diseases, including psychosis, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309 (2012). The Veteran's April 1970 Navy enlistment examination report showed normal psychiatric evaluation findings. Service treatment records dated in August 1970 revealed complaints of nervousness, depression, and emotional exhaustion. An October 1970 sick call treatment record listed an impression of mild anxiety reaction. An additional October 1970 clinical record showed complaints of suicidal thoughts and a provisional diagnosis of adjustment disorder. The examiner diagnosed adolescent adjustment reaction, marked, in an immature personality, manifested by situational depression, and anger at authority which was largely internalized. It was indicated that impairment was severe for military duty. The Veteran's January 1971 exit examination report showed abnormal psychiatric evaluation findings listed as immature personality CD (considered disabling). The Veteran's March 1976 Army enlistment examination report showed normal psychiatric evaluation findings. Treatment records dated in August 1978 showed complaints of nervousness under stress. The examiner listed an assessment of anxiety reaction. Additional treatment notes dated in August 1978 indicated that the Veteran's anxiety reaction persisted with the examiner assessing depressed anxiety reaction. It was further noted that the Veteran would be followed on medication for depression - anxiety. A narrative summary detailed that the Veteran was admitted to a four week inpatient Alcohol Rehabilitation Program from October to November 1978. A July 1979 treatment note showed the Veteran was still taking Valium. The Veteran's December 1979 Army exit examination report showed normal psychiatric evaluation findings. The Veteran received private treatment from N. G., M. D. for acute anxiety during active duty in January 1979. Service personnel records submitted by the Veteran for the period from April 1976 to April 1980, including service in Germany, contained July 1977, October 1977, and September 1979 performance evaluations as well as a July 1976 transfer request from Fort Jackson to Fort Campbell. The Veteran also submitted a handwritten document detailing her sexual harassment allegations against her shift leader/author based on his September 1979 performance evaluation findings. In an August 1980 VA examination report, the Veteran was noted to exhibit normal comprehension and behavior. The Veteran's September 1980 Army enlistment examination report showed normal psychiatric evaluation findings. Service personnel records obtained by the RO for the period from October 1980 to September 1981 showed the Veteran was recommended for discharge due to homosexuality. The Veteran received additional private treatment from N. G., M. D. for depression and suicidal thoughts in September 1986 and October 1988. In an April 1991 statement, an additional private physician, R. C. K., M. D., indicated that he first evaluated the Veteran for recurrent depression June 1989. The physician noted that the Veteran's past history was significant for her having become quite depressed and suicidal while serving in the military in Germany in 1979. In a November 1992 statement, a private therapist reported that the Veteran entered outpatient counseling in August 1987. It was noted that the Veteran had post traumatic stress symptoms surface stemming from childhood abuse and struggled with depressive symptoms during the course of treatment. In a January 1993 statement, R. C. K., M. D., indicated that the Veteran had experienced periods of significant depression as well as an emergence of PTSD symptoms, noting that those symptoms had generally emerged in therapy in connection with intense feelings associated with an abusive childhood. In a January 1993 RO hearing transcript, the Veteran described receiving psychiatric treatment, filing charges for sexual harassment, and being hospitalized in an alcohol treatment program during her second period of active duty while stationed in Berlin. Private treatment records from P. L., M. D. dated from 1998 to 2005 showed treatment for psychiatric symptomatology. Post-service VA treatment records dated from 2003 to 2006 showed findings of depressive disorder NOS (not otherwise specified), recurrent major depression, and r/o (rule out) bipolar disorder with prescribed mood medications. Private treatment notes dated in 2007 from St. Francis Women's Hospital showed notations of history of PTSD and history of anxiety/depression. A December 2007 fully favorable decision from SSA was associated with the record showing that the Veteran received benefits as of June 12, 2006, in part due to various diagnosed acquired psychiatric disorders. VA outpatient and inpatient treatment records dated from 2007 to 2009 showed findings of PTSD due to childhood sexual abuse and MST (harassment), depression, MDD (major depressive disorder), depressive disorder NOS, personality disorder NOS, dysthymic disorder, dysthymia, and MDD in remission. Treatment notes detailed that the Veteran was involved in individual and group therapy. In a December 2008 statement, the Veteran described two unreported instances of military sexual trauma (MST) during service, including an attempted rape in 1976 at Fort Jackson and a rape in 1979 in Berlin. Private treatment records from Marshall I. Pickens Hospital revealed inpatient treatment for severe, recurrent major depression without psychotic features in November 2009. Additional private treatment records from C. H., M. D. dated from 2008 to 2009 showed treatment for psychiatric symptomatology. In October 2009, the Veteran submitted lay statements from multiple individuals, to include a statement from J. A., a friend later identified as a Licensed Professional Counselor (LPC) during the October 2011 Board hearing. Each individual detailed their observations of the Veteran's psychiatric symptomatology, to include her periods of depression, anxiety, and suicidal thoughts. VA individual therapy treatment notes dated in December 2009 and February 2010 reflected diagnoses of depressive disorder NOS and PTSD by history due to childhood sexual abuse and MST, specifically harassment. In a September 2011 statement, the Veteran's VA psychiatrist indicated that the Veteran was being treated for severe major depressive disorder. It was noted that the Veteran had struggled for years with symptoms of severe depression that frequently impaired her ability to work, including hopelessness, helplessness, suicidal thoughts, and anhedonia. The psychiatrist opined that the symptoms of severe depression began during her deployment to Berlin, Germany in 1977 to 1980. It was noted that the Veteran suffered MST during that deployment and had her first psychiatric hospitalization in 1978. It was the psychiatrist's professional opinion that the Veteran's symptoms of depression were directly correlated with the sexual trauma and other difficulties encountered during her service in Germany. During the October 2011 Board hearing, the Veteran asserted that she was treated in service for a psychiatric disorder and has been treated since service for a psychiatric disorder. She reported that she was not treated for a psychiatric disorder prior to service, that she was physically assaulted then harassed during service, and that her current depression was caused by in-service MST. An additional witness, J. A., the Veteran's friend as well as a Licensed Professional Counselor (LPC), asserted that the Veteran's behavior supports the criteria for depression. The LPC indicated that the Veteran suffered from depression related to trauma during military service as well as being forced to leave the military. In view of the totality of the evidence, including the in-service treatment for depression and anxiety, the current findings of various diagnosed acquired psychiatric disorders, favorable October 2011 hearing testimony from the Veteran's friend who is also a LPC, and the favorable September 2011 medical opinion from the Veteran's treating VA psychiatrist, the Board finds that Veteran's acquired psychiatric disorder is casually related to her military service. Based on the foregoing and resolving all doubt in the Veteran's favor, the Board finds that entitlement to service connection for an acquired psychiatric disorder is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER As new and material evidence has been received, the appeal to reopen a claim of entitlement to service connection for an acquired psychiatric disorder is granted. Entitlement to service connection for an acquired psychiatric disorder is granted. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs