Citation Nr: 1338052 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 13-13 292 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Whether new and material evidence has been received to reopen a claim for service connection for an acquired psychiatric disorder, to include as secondary to a service-connected disability, and if so, whether service connection should be granted. REPRESENTATION Veteran represented by: John R. Worman, Attorney ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty from January 1985 to November 1989, and December 1997 to May 2000. This case comes before the Board of Veterans' Appeal (Board) on appeal of a June 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the benefit on appeal. The Board notes that the Veteran's claim was previously characterized as two separate disabilities-entitlement to service connection for posttraumatic stress disorder (PTSD) and depression, now claimed as bipolar disorder. The Board finds that the Veteran's claim is best characterized broadly as entitlement to service connection for an acquired psychiatric disorder. The Court of Appeals for Veterans Claims (Court) has held that claims for service connection for a specific disease may include claims for service connection for any other disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). As such, the issue is properly identified on the cover page of this decision and is considered as a claim to reopen. In addition to a paper claims file, the Veteran also has an electronic file in Virtual VA and/or VBMS. The Board has reviewed both the paper and electronic records in rendering this decision. FINDINGS OF FACT 1. In an unappealed May 2002 rating decision, the RO declined to reopen the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder. 2. Evidence received since the May 2002 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claim for service connection for an acquired psychiatric disorder; such evidence is not cumulative or redundant of evidence already of record. 3. The Veteran's acquired psychiatric disorder is proximately due to his service-connected degenerative disc disease of the thoracolumbar spine (back disability). CONCLUSIONS OF LAW 1. The May 2002 rating decision that declined to reopen the claim of entitlement to service connection for an acquired psychiatric disorder is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). 2. Evidence received since the May 2002 rating decision in relation to the Veteran's claim for entitlement to service connection for an acquired psychiatric disorder is new and material, and, therefore, the claim may be reopened. 38 U.S.C.A. §§ 5108, 7104 (West 2002); 38 C.F.R. § 3.156 (2013). 3. The Veteran's acquired psychiatric disorder is proximately due to or the result of service-connected back disability. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The VCAA describes VA's duties to notify and assist veterans 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, 3.326(a) (2013). In light of the favorable decision herein as to entitlement to service connection for an acquired psychiatric disorder, the Board finds that any deficiencies in notice or assistance were not prejudicial to the Veteran. Legal Criteria Claim to Reopen Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105(c). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. 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 United States Court of Appeals for Veterans Claims (Court) recently interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2013). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, including psychoses, will be presumed if they are manifest to a compensable degree within one year following active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). To establish a right to compensation for a present disability on a direct basis, 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established for any disability which is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310 (2013). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Service connection for PTSD specifically requires medical evidence establishing a diagnosis of the disability, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. See 38 C.F.R. § 3.304(f) (2013). If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. See 38 C.F.R. § 3.304(f)(1) (2013); see also, 38 U.S.C.A. § 1154(b) (West 2002). Similarly, if a stressor claimed by a veteran is related to the Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of posttraumatic stress disorder and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. See 38 C.F.R. § 3.304(f)(3). Otherwise, the law requires verification of a claimed stressor. Where a determination is made that the Veteran did not "engage in combat with the enemy," or the claimed stressor is unrelated to combat, the Veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must include service records or other credible evidence that supports and does not contradict the Veteran's testimony. Doran v. Brown, 6 Vet. App. 283, 289 (1994). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. See Moreau, 9 Vet. App. at 395-396; Cohen v. Brown, 10 Vet. App. 128, 42 (1997). Factual Background and Analysis Claim to Reopen Service connection for depression was originally denied in an April 2001 rating decision. The basis for the denial was that the Veteran's depression was not shown to be caused by or related to his military service. The Veteran did not appeal that denial, nor did he submit any pertinent evidence within the appeal period. As such that decision became final. The Veteran then filed a new claim in March 2002. In a May 2002 rating decision, the RO declined to reopen the service connection claim for depression. He was notified of the decision that same month, but did not appeal the denial or submit any pertinent evidence within the appeal period. As such, that decision also became final. The evidence of record at the time of the May 2002 rating decision included: (1) service treatment records, (2) the Veteran's statements, (3) VA treatment records, and (4) a January 2001 VA examination report. Without the need to discuss each piece of newly received evidence since the May 2002 rating decision, the Board finds that new and material evidence has been received to reopen his claim of entitlement to service connection for an acquired psychiatric disorder. The most important piece of newly received evidence is a July 2013 private opinion finding a link between the Veteran's current psychiatric diagnosis and his service-connected back disability. A link between a current psychiatric disorder and active duty, was an element of service connection that the RO found were not met in May 2002. The Board finds that the recent private, positive nexus opinion relates to a previously unestablished element of entitlement to service connection-namely, it supports the presence of a current psychiatric disorder that has been clinically attributed to his active duty. Accordingly, this evidence is sufficient to reopen the previously-denied claim for service connection for a psychiatric disorder. Service Connection The Veteran contends that he has an acquired psychiatric disorder related to his period of service or secondary to his service-connected back disability. For the reasons discussed below, the Board finds the preponderance of the evidence supports a grant of service connection for an acquired psychiatric disorder. A review of the Veteran's service treatment records shows that the Veteran reported slight depression at service separation examination in February 2000. This was noted to be due to his back injury residuals. Following service, the Veteran was afforded a VA examination in January 2001 during which the Veteran reported mental health problems since 1999. He reported that he sought out psychiatric treatment for depressive symptoms secondary to his back injury and decreased abilities. He reported being prescribed medication for treatment of these symptoms, but had not used them since early-2000. He denied any current psychiatric treatment. The examiner diagnosed, rule-out adjustment disorder with depression and anxiety features versus depressive disorder, not otherwise specified. Without providing a more specific opinion, the examiner indicated that the Veteran "is exhibiting mild symptoms [of depression] associated with his back problems." In November 2010, the Veteran was afforded a VA psychiatric examination, during which he was diagnosed as having bipolar disorder and mood symptoms. The examiner opined that the Veteran did not meet the criteria for a PTSD diagnosis. The examiner attributed the Veteran's symptoms to preservice sexual trauma, but did not provide an opinion with respect to secondary service connection. In July 2013, the Veteran submitted an opinion from a private examiner. The examiner filled out a Disability Benefits Questionnaire (DBQ) and attached a detailed opinion. The medical professional diagnosed the Veteran as having depressive disorder, not otherwise specified. Following review of the claims file, and after interview and examination of the Veteran, the medical professional opined that the Veteran's depression is secondary to his service-connected back disability. She provided a detailed rationale including citing relevant medical literature, and specifically found that the Veteran's back disability caused and aggravated his depression. During the course of VA treatment, the Veteran has been variously diagnosed as having a mood disorder, PTSD, bipolar disorder, and major depression. Upon careful review of the evidence of record, the Board finds that the preponderance of the evidence shows the Veteran's current psychiatric disorder, however characterized, was caused or aggravated by his service-connected back disability. The only competent and credible clinical opinion of record clearly links the Veteran's currently diagnosed depression to his service-connected back disability. The July 2013 private opinion includes a detailed rationale following review of the claims file and examination of the Veteran. The Board is aware that the November 2010 VA examination report includes a negative nexus opinion as to direct service connection, but this examination fails to include an opinion as to the theory of aggravation. As such, this opinion carries no probative weight with respect to secondary service connection. Moreover, the Veteran clearly complained of depressive symptoms related to his back disability both before he separated from the military and within the following year. This contemporaneous medical evidence clearly supports the Veteran's contentions that his back disability caused his psychiatric symptoms. Ultimately, the Board finds that the most probative evidence of record supports the service connection claim for an acquired psychiatric disorder on a secondary basis. ORDER New and material evidence having been received, the claim of entitlement to service connection for an acquired psychiatric disorder is reopened. Service connection for an acquired psychiatric disorder is granted. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs