Citation Nr: 1417506 Decision Date: 04/18/14 Archive Date: 05/02/14 DOCKET NO. 13-13 450 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUE Whether new and material evidence was submitted sufficient to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depressive disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION The Veteran had active military service from October 1990 to April 1995. This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cheyenne, Wyoming. The Veteran testified before the undersigned Veterans Law Judge at a November 2013 hearing conducted via videoconference. A transcript of the hearing is of record. The issue of entitlement to service connection for an acquired psychiatric disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. A September 2008 rating decision denied the Veteran's claim of entitlement to service connection for PTSD. The Veteran was notified of his appellate rights, but did not complete an appeal of the rating decision. 2. Evidence received since the September 2008 rating decision is not cumulative of the evidence of record at the time of the previous denial as it relates to an unestablished fact necessary to substantiate the claim of service connection for an acquired psychiatric disorder and raises a reasonable possibility of substantiating the Veteran's claim of service connection. CONCLUSIONS OF LAW 1. The September 2008 rating decision which denied the Veteran's claim of entitlement to service connection for PTSD is final. 38 U.S.C.A. § 7105(c) (West 2002). 2. Evidence received since the September 2008 rating decision in connection with Veteran's claim of entitlement to service connection for an acquired psychiatric disorder is new and material and the claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist With respect to the Veteran's application to reopen his previously disallowed claim, since the entire benefit sought on appeal has been granted, no purpose would be served by undertaking an analysis of whether there has been compliance with the notice and duty to assist requirements set out at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002)). See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Analysis The RO previously denied the Veteran's claim of service connection for PTSD disease by a September 2008 rating decision. In this decision, the RO determined that service connection was not warranted because there was then no diagnosis of PTSD. The Veteran was notified of this decision and of his procedural and appellate rights but did not complete an appeal of this decision. Therefore, the September 2008 rating decision is final. 38 U.S.C.A. § 7105(a) (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2013). A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C.A. § 5108. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994). New evidence means existing evidence not previously submitted to agency decisionmakers. 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 and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. At 118. Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). Finally, for the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence received since the September 2008 rating decision includes a number of treatment records, several statement from the Veteran, and the transcript of an November 2013 hearing before the Board. Significantly, records indicate the Veteran has been diagnosed with PTSD due to an alleged in-service personal assault, as well as major depressive disorder. As the Veteran's allegations of an in-service personal assault are presumed credible for the purpose of reopening, the Board concludes that the additional evidence is new and material with respect to the issue of service connection for an acquired psychiatric disorder, to include PTSD. This evidence was not of record at the time of the previous final denial and raises a reasonable possibility of substantiating the Veteran's claim of service connection by providing a current diagnosis related to the Veteran's active service. See Shade, 24 Vet. App. at 118. Consequently, the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder must be reopened. ORDER New and material evidence having been received, the claim of entitlement to service connection for an acquired psychiatric disorder is reopened; to this extent only, the appeal is granted. REMAND Before the Board can address the Veteran's service connection claim on the merits, additional development is required. During the development of his claim, the Veteran was provided a VA examination in February 2012, with addendum opinions obtained in July and September 2012. In this examination, VA examiner determined that the Veteran's depressive disorder, now in full remission, preexisted active service. In the September 2012 addendum, the examiner opined that this condition was not aggravated by service, basing this opinion on the fact that personality disorders, by their nature, preexisted military service, and many individuals with such conditions function better in highly structured environments like the military. No discussion of depression, which is not a personality disorder, was offered. With regards to the opinion expressed by the February 2012 VA examiner, the Board initially notes that the Veteran's enlistment examination is absent a notation of a psychiatric condition at service entry. See October 1989 Report of Medical Examination. For purposes of service connection pursuant to 38 U.S.C.A. § 1110, every veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002). To rebut the presumption of sound condition, VA must show by clear and unmistakable evidence both (1) that the disease or injury existed prior to service, and (2) that the disease or injury was not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). In other words, the "at least as likely as not" standard utilized by the VA examiner in the February 2012 examination and subsequent opinions was incorrect under Wagner. To satisfy the second requirement for rebutting the presumption of soundness, the government must show, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or that (2) any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845 (Fed. Cir. 2006). In considering whether the presumption of soundness applies in the instant case, the Board again notes the Veteran's entrance examination notes no psychiatric abnormalities upon service entrance. However, given the February 2012 VA examination report, another VA examination is necessary to determine whether there is clear and unmistakable evidence that the Veteran's current psychiatric disorder(s) both (a) preexisted active service and (b) was not aggravated by such service. See Wagner, supra. Furthermore, with respect to the Veteran's claim as it pertains to PTSD, the Board notes he was not provided sufficient notice regarding the evidence he may submit to support such a claim based on personal assault. Because personal trauma is an extremely personal and sensitive issue, many incidents of personal trauma are not officially reported, and the victims of this type of in-service trauma may find it difficult to produce evidence to support the occurrence of the stressor. It is often necessary to seek alternative evidence. See Patton v. West, 12 Vet. App. 272, 278 (1999). Evidence from sources other than the Veteran's service records may corroborate the Veteran's account of the stressor incident. 38 C.F.R. § 3.304(f)(5). Examples of such evidence include, but are not limited to: records from law enforcement authorities, mental health counseling centers, hospitals, or physicians; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. Id. VA will not deny a PTSD claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the Veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. Id. On remand, the Veteran must be provided such notice. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran appropriate notice which details the potential sources of evidence that might help to verify his claimed personal assault stressor. See 38 C.F.R. § 3.304(f)(5) (2013). Allow an appropriate time for response. 2. Obtain and associate with the claims file all outstanding VA treatment records, including all records generated since February 2010. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c)(2) (2013). 3. Following completion of the above, schedule the Veteran for a VA examination to determine the nature and etiology of any current acquired psychiatric disorder. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner in conjunction with the examination. All appropriate tests and studies should be conducted, and any consultations deemed necessary should be accomplished. After reviewing the record and examining the Veteran, the examiner is to address the following: a. List all current diagnosed acquired psychiatric disorder(s). If PTSD is not diagnosed, a detailed rationale must be provided as to why the DSM-IV criterion for such a diagnosed have to been satisfied. b. If PTSD has been diagnosed, identify the specific stressor(s) leading to the diagnosis. c. For depressive disorder, and/or any other acquired psychiatric disorder other than PTSD, address the following: i. Does the evidence of record clearly and unmistakably (i.e., it is undebatable) show that the Veteran had an acquired psychiatric disorder that existed prior to his entry into active service? ii. If the answer to (a) is yes, does the evidence of record clearly and unmistakably (i.e., it is undebatable) show that the preexisting acquired psychiatric disorder was not aggravated by service or that any increase in disability was due to the natural progression of the disorder? Please identify the nature of the condition that preexisted service and discuss in detail the evidence relied upon in reaching these conclusions. iii. If the answer to either (a) or (b) is no, the examiner is instructed to presume the Veteran sound at service entrance (i.e., he did not suffer a preexisting acquired psychiatric disorder). Based on this determination, is it at least as likely as not (probability of at least 50 percent) that the Veteran's current acquired psychiatric disorder is etiologically related to his active service? In offering this opinion, the examiner must specifically address the in-service treatment for dysthymic disorder and related symptomatology. A complete rationale must be provided for all opinion(s) expressed. The examiner is advised that laypersons are competent to report symptoms and treatment, and that their reports must be taken into account in formulating the requested opinions. 4. After completing the above, and any other development deemed necessary, readjudicate the Veteran's claim based on the entirety of the evidence. If the benefits sought on appeal are not granted to the appellant's satisfaction, he and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs