Citation Nr: 1338781 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 13-05 965 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Whether new and material evidence has been received to reopen a claim of service connection for an acquired psychiatric disorder, and if so, whether service connection may be granted. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran served on active duty from January 2002 to January 2006, including service in Iraq. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. In October 2013, the Veteran presented testimony via video-conference before the undersigned Veterans Law Judge. The Board observes that the RO has, at various times, adjudicated the issue as entitlement to service connection for posttraumatic stress disorder (PTSD), depression, and anxiety. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) held that claims of service connection for psychiatric disability encompass claims for all psychiatric disorders that are reasonably raised by the record. Medical evidence of record contains diagnoses of adjustment disorder with depressed mood, major depressive disorder, mood disorder, anxiety disorder, and dysthymia. Therefore, the Board has recharacterized the claim on appeal to include all currently diagnosed acquired psychiatric disorders. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. In a December 2010 rating decision, the RO denied the Veteran's claim of service connection for PTSD, and in a letter dated in January 2011, the RO notified him of the determination and of his appellate rights, but he did not appeal the determination and the decision became final. 2. The evidence received since the December 2010 rating decision is not duplicative or cumulative of evidence previously of record and raises a reasonable possibility of substantiating the Veteran's claim. 3. The Veteran's major depressive disorder had its onset in service. CONCLUSIONS OF LAW 1. The December 2010 rating decision that denied service connection for PTSD is final. 38 U.S.C.A. §§ 7105 (West 2002); 38 C.F.R. § 20.1103 (2013). 2. New and material evidence has been received to reopen a claim of entitlement to service connection for an acquired psychiatric disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 3. Major depressive disorder was incurred in service. 38 U.S.C.A. §§ 1110, 1111, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS While the Veteran has been diagnosed with adjustment disorder with depressed mood, major depressive disorder, mood disorder, anxiety disorder, and dysthymia, he and his representative indicated at the October 2013 hearing that a grant of service connection for any psychiatric disability would satisfy his appeal. In this decision, the Board grants service connection for major depressive disorder, which represents a complete grant of the benefit sought on appeal. Thus, no discussion of VA's duty to notify and assist is necessary. I. Reopened Claim The Veteran seeks to reopen his previously denied claim of service connection for PTSD. The RO denied the Veteran's claim for service connection for PTSD in a December 2010 rating decision due to a lack of evidence that the condition occurred in or was caused by service. The Veteran did not file a notice of disagreement and no additional evidence pertinent to the issue was physically or constructively associated with the claims file within one year of the rating decision. See 38 C.F.R. § 3.156(b) (2013); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the December 2010 rating decision became final based on the evidence then of record. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2013). Where, as here, a claim of entitlement to service connection has been previously denied and that decision has become 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 (West 2002). Moreover, where, as here, the prior final decision was an unappealed RO rating decision, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "the statutes make clear that the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the previous action denying the claim was appealed to the Board." Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Thus, the Board must now consider whether new and material evidence has been submitted to reopen the previously denied claim. In making this determination, the Board must review all of the evidence submitted since the last final decision. New evidence means 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. 38 C.F.R. § 3.156(a). In Shade v. Shinseki, 24 Vet. App. 110, 118 (2010), the Court stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Id. Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decision makers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. The Court 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. Newly submitted evidence is presumed to be credible for the purpose of determining whether evidence is sufficiently new and material. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence considered in the final December 2010 denial consisted of the service treatment records (STRs), service personnel records, VA treatment records dated before December 2010, lay statements of the Veteran, and the report of a VA examination conducted in December 2010. The basis of the final denial was a lack of evidence that the condition occurred in or was caused by service. Since the December 2010 rating decision, relevant new evidence added to the record consists of VA treatment records dated after January 2011, hearing testimony, the report of a VA examination conducted in November 2012, and lay statements from the Veteran and his brother. All of this evidence is new because it was not previously considered by agency decision makers. The new evidence includes a statement from the Veteran's brother showing that the Veteran's behavior changed and that he began exhibit psychiatric symptoms after his military service. It also includes a note in the 2012 VA examiner's report that the Veteran reported symptoms of depression while he was in the military. The absence of evidence that the condition occurred in or was caused by service was the element of service connection upon which the prior denial was based. As such, the new evidence relates to an unestablished fact necessary to substantiate the claim and raises a reasonable possibility of substantiating the Veteran's claim. It is therefore material and sufficient to reopen the previously-denied claim. Shade. The Board reopens the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder for de novo review on the merits. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156. II. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Service connection may be granted when "the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service." 38 C.F.R. § 3.303(a). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.303(a) (2013). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit, citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran' s demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, 7 Vet. App. at 511. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that service connection is warranted because his currently diagnosed psychiatric disability began in service, has continued since service, and is related to in-service stressors. The evidence shows that the Veteran has been diagnosed with adjustment disorder with depressed mood, major depressive disorder, mood disorder, anxiety disorder, and dysthymia. He was first diagnosed with adjustment disorder with depressed mood while he was deployed to Iraq on active duty as a combat photographer in June 2004. In his post-deployment evaluation, dated in September 2004, he reported that he feared he was in great danger of being killed while deployed. He was subject to mortar and rocket attacks. His personnel records confirm that his military occupational specialty was combat photographer and that he was in "combat operations" from February 2004 to September 2004. VA treatment records show that in June 2006, five months after he separated from service, he reported nightmares, hypervigilance, easy startling, and sleeping with a knife under his pillow after returning from Iraq. He was referred for a PTSD consult that yielded positive PTSD and depression screens. A January 2009 mental health diagnostic interview resulted in a diagnosis of depressive disorder, not otherwise specified (NOS), r/o PTSD. An April 2009 PTSD assessment found that the Veteran did not meet the diagnostic criteria for PTSD but did diagnose dysthymia and referred the Veteran to the Iraq/Afghanistan Readjustment Group, and recommended resources for learning about PTSD and readjustment issues. A May 2009 VA treatment note repeated the diagnosis of depressive disorder, NOS. In January 2010 he was diagnosed with major depressive disorder, in remission. The November 2012 VA examiner diagnosed recurrent major depressive disorder in partial remission. VA treatment records dated from December 2012 through April 2013 contain diagnoses of mood disorder and anxiety disorder. The Board thus finds that the Veteran has a current acquired psychiatric disability. The December 2010 VA examiner found that the Veteran did not meet the diagnostic criteria for PTSD but did not provide a current diagnosis. He opined that the Veteran is functioning at a lower level than when he entered the military, and that military service at least as likely as not aggravated pre-existing vulnerability and predispositions. The November 2012 VA examiner found that the Veteran's recurrent major depressive disorder in partial remission was less likely than not caused by or a result of military experiences. His rationale was that the Veteran endorsed symptoms of depression prior to being in the military. He stated that while the Veteran reported that psychosocial stressors during service increased symptoms of depression, a number of other psychosocial stressors such as homelessness, employment difficulty, and interpersonal relationship strain more likely contribute to his current depression. Both VA examiners based their opinions on the theory that the Veteran had pre-existing psychiatric disabilities. However, a Veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). No psychiatric disability or symptoms were noted at entrance into service. Further, the evidence does not clearly and unmistakably show that any pre-existing disability was not aggravated by service. Accordingly, the Veteran is presumed to have been sound on entry with respect to his mental health. Therefore, both VA examiner opinions are based on an inaccurate factual premise. The Court has held that a medical opinion based on an inaccurate or incomplete factual premise is not probative. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Therefore, the examiners' opinions as to nexus are not probative. The Veteran testified at his hearing that his psychological problems have existed since his period of service. The Veteran is competent to testify to the onset and recurrence of his psychiatric symptoms. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno. Moreover, it its capacity as finder of fact, the Board finds the Veteran credible as to his reports of the onset and recurrence of his psychiatric symptoms. His reports are consistent with his STRS, as he had documented psychiatric complaints in service and was diagnosed with adjustment disorder with depressed mood while deployed. He filed a claim for PTSD just five months after separating from service. His VA treatment records show reports of psychiatric symptoms from June 2006 to the present. Moreover, his brother's lay statement shows a change in behavior and onset of symptoms after service. The Veteran's lay testimony is consistent both internally and with the other medical and lay evidence of record. The Board finds that throughout the appeal period the Veteran competently, credibly, and consistently reported that his psychiatric symptoms began during his military service and have continued to the present time. Moreover, the Veteran's lay evidence of service incurrence is consistent with the circumstances, conditions, or hardships of his service as a combat photographer in Iraq. The Veteran has competently, credibly, and consistently reported that his psychiatric symptoms began during his military service. Service connection may be granted when "the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service." 38 C.F.R. § 3.303(a). Resolving all reasonable doubt in favor of the Veteran, the medical and lay evidence establish that the Veteran's acquired psychiatric disability was incurred coincident with service and service connection is warranted. ORDER Service connection for major depressive disorder is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs