Citation Nr: 1338281 Decision Date: 11/21/13 Archive Date: 12/06/13 DOCKET NO. 13-20 058 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Whether new and material evidence has been received to reopen a claim of service connection for a psychiatric disorder. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from December 1977 to December 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision of the VA Regional Office (RO) in Winston-Salem, North Carolina. The Board observes that the Veteran filed a claim for posttraumatic stress disorder (PTSD). As the pertinent evidence shows diagnoses of other psychiatric disorders, the issue has been characterized as set forth on the title page. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Furthermore, as discussed in detail below, the Veteran was previously denied service connection for major depression in July 1999 and PTSD in July 2009. The Board considers the claim to be a petition to reopen as the Veteran is ultimately seeking service connection for a psychiatric disorder, however diagnosed, due to his military service. FINDINGS OF FACT 1. By unappealed July 1999 and July 2009 rating decisions, the RO denied service connection for major depression and PTSD, respectively. 2. Evidence received after the July 1999 and July 2009 denials relate to unestablished facts necessary to substantiate the claim of service connection for a psychiatric disorder and raises a reasonable possibility of substantiating the underlying claim. 3. The Veteran has depressive disorder not otherwise specified (NOS) and anxiety disorder NOS that are as likely as not related to his active duty. CONCLUSIONS OF LAW 1. The RO's July 1999 and July 2009 denials of service connection for major depression and PTSD, respectively, are final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.104 (2013); 38 C.F.R. §§ 20.200, 20.302, 20.1103 (2012). 2. Evidence received since the final July 1999 and July 2009 rating decisions is new and material. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108, 7105 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156 (2013). 3. The criteria for service connection for depressive disorder NOS and anxiety disorder NOS have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In light of the fully favorable determination in this case, no discussion of compliance with VA's duty to notify and assist is necessary. A. New and Material Service connection for major depression was denied in July 1999 because there were no current findings or diagnosis of major depression. Service connection for PTSD was denied in July 2009 because the evidence did not show a stressor or medical evidence of a diagnosed condition. After receiving notice of the July 1999 and July 2009 decisions, the Veteran did not initiate an appeal of the denial of those issues. Later, in January 2011, however, he applied to have his claim reopened. A decision of the RO becomes final and is not subject to revision on the same factual basis unless an appeal is initiated within one year of the notice of decision, or within 60 days of the issuance of the statement of the case (SOC). 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103 (2012). If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C.A. § 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in that regard is irrelevant. Barnett, supra. Further analysis, beyond consideration of whether the evidence received is new and material, is neither required nor permitted. Id. at 1384. Butler v. Brown, 9 Vet. App. 167, 171 (1996). "New" evidence is evidence not previously submitted to agency decision makers. "Material" evidence is 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 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). In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). Here, relevant evidence of record at the time of the July 1999 rating decision consisted of the Veteran's service treatment records (STRs), personnel records, VA treatment records dated from 1998 to 1999 and a February 1999 VA examination. The Veteran's STRs showed that he was received occupational therapy six times for stress in July 1984; he was diagnosed with excessive stress. In July 1993, the Veteran was seen for complaints of fatigue, stress and marital problems. He was diagnosed with questionable depression versus marital problem. His June 1997 retirement report of medical history shows that he answered yes to having symptoms such as frequent trouble sleeping, depression or excessive worry and nervous trouble of any sort. He reported being treated for depression in 1996. At the February 1999 VA examination, the Veteran was diagnosed with major depression, single episode, in remission. His personnel records show that he had "duty in imminent danger pay area (Grenada)" from October 1983 to November 1983. Evidence at the time of the July 2009 decision included evidence previously considered in July 1999 as well as treatment records dated from June 2005 through November 2005. His records did not show a diagnosis of, or treatment for, any psychiatric disorder. Accordingly, at the time of the denials in July 1999 and July 2009, the claims folder contained no competent evidence of a currently diagnosed psychiatric disorder or a military stressor. Thus, the RO, in July 1999 and July 2009, denied service connection for major depression and PTSD, respectively. The Veteran did not appeal the RO's decisions, and those denials became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.104 (2013); 38 C.F.R. §§ 20.200, 20.302, 20.1103 (2012). In reaching the conclusion that those decisions are final, the Board is cognizant of the holding of the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Bond v. Shinseki, 659 F.3d 1362 (2011). In that case, the Federal Circuit found that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions during relevant time periods to determine whether they contain new and material evidence relevant to a pending claim, even if the new submission may support a new claim. Bond v. Shinseki, 659 F.3d 1362 (2012). Here, no additional evidence pertinent to the issue of service connection for a psychiatric disorder was received prior to the expiration of the appeal periods. The July 1999 and July 2009 rating decisions are thus final. The relevant evidence received since the denials consists of VA treatment records dated from February 2009 through March 2011 and an October 2011 fee-based examination. His treatment records show diagnoses of various psychiatric disorders including dysthymic disorder, recurrent major depressive disorder and PTSD. The October 2011 examiner diagnosed the Veteran with depressive disorder NOS and anxiety disorder NOS. The examiner opined that those diagnoses were related to the Veteran's military service. The evidence of record obtained since the July 1999 and July 2009 rating decisions shows that the Veteran has a current diagnosis of a psychiatric disorder in addition to a positive nexus opinion. Thus, this newly received evidence relates to unestablished facts necessary to reopen the previously denied claims of service connection for a psychiatric disorder. Therefore, the Board concludes that new and material evidence has been submitted sufficient to reopen this claim. Accordingly, and based on this evidentiary posture, the Board grants the Veteran's application to reopen this previously denied claim. B. Service Connection Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, 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 (Fed. Cir. 2004). Entitlement to service connection for PTSD requires medical evidence diagnosing PTSD in accordance with the DSM-IV, a link, established by medical evidence, between current symptoms and an in-service stressor, and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. §§ 3.304(f); 4.125(a). Where the claimed stressor is not related to combat, the Veteran's lay testimony, by itself, will not be enough to establish the occurrence of the alleged stressor. Instead, the record must contain evidence that corroborates the Veteran's account as to the occurrence of the claimed stressor. See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d), (f) (2013); Cohen v. Brown, 10 Vet. App. 128 (1997). With regards to the corroboration of stressors, the Board observes the amendment to 38 C.F.R. § 3.304 concerning stressors based on a veteran's "fear of hostile military or terrorist activity." Specifically, the amendment provides that, if a stressor claimed by a veteran is related to the veteran's "fear of hostile military or terrorist activity" and if a VA or VA-contracted psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor so long as there is not 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. Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843, 39,852 (July 13, 2010) (codified at 38 C.F.R. § 3.304(f)(3)); 75 Fed. Reg. 41,092 (July 14, 2010) (correcting the effective date of the rule published on July 13, 2010). For purposes of this section, "fear of hostile military or terrorist activity" means that "a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, . . . , and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror." 75 Fed. Reg. at 39,852. The Veteran contends that he has a psychiatric disorder that is related to his military service. His STRs show that he was treated for stress on six occasions in July 1984 as well as questionable depression in July 1993. His June 1997 retirement examination report of medical history shows that he answered yes to symptoms such as frequent trouble sleeping, depression or excessive sorry and nervous trouble of any sort. He reported being treated for depression in 1996. His personnel records confirm that he was stationed in Grenada and Korea. In a March 2009 treatment record, the Veteran reported the sound of gun fire in service. He did not report any combat stressors. The Veteran was afforded a fee-based examination in October 2011. He reported that his symptoms began in 1986 as a result of a plane crash recon observation/smell of burned body and training exercise accident with grenade simulator. The Veteran described current symptoms of nightmares about experience in Grenada. The Veteran reported that in Grenada, he performed recon of plane accident duty and saw the burned body in 1985. He also reported a training accident in 1986 in Korea where a grenade simulator exploded on the Veteran causing temporary blindness and ringing in his ears. The examiner noted that the traumatic event was supported by the DD 214 confirmed dates of service. Following examination, the Veteran was diagnosed with depressive disorder NOS and anxiety disorder NOS. The examiner opined that it was as likely as not that the Veteran's mood and anxiety disorders were linked to his experience in the military. The rationale was that the Veteran reported experiencing anxiety and mood related symptoms tied to his recurrent thoughts and dreams of the body he witnessed and the training accident in Korea. Based on a review of the evidence, the Board concludes that service connection for depressive disorder NOS and anxiety disorder NOS is warranted. While the Veteran's STRs and personnel records do not confirm the stressors he reported to the October 2011 examiner, service connection for PTSD specifically requires verification of stressors. The pertinent laws and regulations do not contain such requirement for psychiatric disorders other than PTSD. In this case, the Veteran is competent to report his in-service experiences. The Board also finds him credible. The Board finds it especially probative that the fee-based examiner, having had the opportunity to review the Veteran's claims file as well as conducting an examination, found the Veteran's credible in his reports as evidenced by the positive nexus opinion. In finding him credible, the Board acknowledges that the dates of his Grenada service contained in the personnel records do not match the dates he provided to the fee-based examiner. However, considering that the reported incident occurred almost three decades ago, the Board finds that such passage of time is a reasonable explanation for the dates being off by two years. The only medical opinion of record, that of the October 2011 examiner, indicates that the Veteran's current depressive disorder NOS and anxiety disorder NOS are related to his military service. Therefore, the medical evidence of record supports a finding that the Veteran's depressive disorder NOS and anxiety disorder NOS are related to his military service. In addition to the examiner's positive opinion, the evidence also suggests that the onset of a current psychiatric disorder occurred during service as evidenced by the fact that the Veteran was treated at various times for psychiatric symptoms in service. His STRs reflect being treated six times for stress in 1984; questionable depression in 1993; and depression in 1996. Thus, after considering all of the evidence of record, specifically the positive nexus opinion from the October 2011 examiner, the Board concludes that a finding of service connection is warranted. Service connection for depressive disorder NOS and anxiety disorder NOS is, therefore, granted. See 38 U.S.C.A §5107 (West 2002 & Supp. 2012). ORDER New and material evidence having been presented, the claim of entitlement to service connection for a psychiatric disorder is reopened. Entitlement to service connection for depressive disorder NOS and anxiety disorder NOS is granted. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs