Citation Nr: 1512598	
Decision Date: 03/25/15    Archive Date: 04/01/15

DOCKET NO.  10-45 897	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1.  Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD).

2.  Entitlement to service connection for an acquired psychiatric disorder.


REPRESENTATION

Appellant represented by:	Kenneth L. LaVan, Attorney


WITNESS AT HEARING ON APPEAL

Veteran



ATTORNEY FOR THE BOARD

Megan Marzec, Associate Counsel


INTRODUCTION

The Veteran served on active duty from May 1992 to March 1996.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.

In December 2014 the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing; a copy of the transcript is of record.

The Board notes that the RO initially captioned the claim as one for entitlement to service connection for PTSD.  A claimant is not competent to diagnose a particular psychiatric disability, such as PTSD, but is competent to describe her mental symptoms.  Clemons v. Shinseki, 23 Vet. App. 1 (2009).  As such, the Board finds that the Veteran's claim for service connection for PTSD should be construed more broadly as a claim for service connection for any acquired psychiatric disorder.  

As the VA has previously denied claims for entitlement to service connection for a "nervous condition" and "depression," the Board will first consider whether there is new and material evidence to reopen the previously denied claims for an acquired psychiatric disorder.  The issue has been rephrased accordingly.    

This appeal was processed using the Veterans Benefit Management System (VBMS) and Virtual VA (VVA) electronic claims processing system. 




FINDINGS OF FACT

1.  July 2003 and November 2005 rating decisions last denied service connection for a nervous condition and depression, respectively.

2.  Evidence pertaining to the Veteran's disability since the last final rating decision was not previously submitted, relates to an unestablished fact that is necessary to substantiate the claim, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claim.

3.  Giving her the benefit of the doubt, the Veteran's acquired psychiatric disorder is etiologically related to her active duty service.


CONCLUSIONS OF LAW

1.  The July 2003 and November 2005 rating decisions that last denied service connection for a nervous condition and depression are final.  38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.1103 (2014).

2.  The evidence received since the last final rating decisions is new and material and the claim for service connection for an acquired psychiatric disorder is reopened.  38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.1103 (2014).

3.  The criteria for service connection for an acquired psychiatric disorder are met.  38 U.S.C.A. §§ 1110, 1507 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2014).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran filed a request to reopen her claim for entitlement to service connection for an acquired psychiatric disorder in December 2007.

At the time of her last final denials, evidence of record included VA and private medical treatment records, a VA examination and service treatment records.

Since the last final denials, evidence added includes the Veteran's statements, additional VA and private treatment records, a private treatment provider opinion and the Veteran's testimony.

Based on a review of this new evidence, the Board finds that the new and material criteria under 38 C.F.R. § 3.156(a) have been satisfied, and the claim for service connection for an acquired psychiatric disorder is reopened.

Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Service connection requires competent evidence showing: (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, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995).  

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A.  § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.

A review of the Veteran's service treatment records shows no treatment for or reports of an acquired psychiatric disorder.  

As reported by the Veteran, her son was born in September 1993, during active duty service.  She was separated from military service in 1996 after her request for hardship separation was granted.

A review of the post-service medical treatment records shows current diagnoses of depression and PTSD.

The Veteran was afforded a VA examination in September 2005.  The examiner reviewed the claims file and recited the Veteran's reported history.  The Veteran did not report any history of military sexual trauma.  The examiner diagnosed depression and opined that the diagnosis of depression was not related to her chronic shoulder pain.

When the Veteran requested to reopen her previously denied claim, she provided a personal statement as well as statements from her mother, cousin and ex-husband detailing the sexual abuse and assault that she underwent during her active duty service.

The Veteran has not been afforded another VA examination.

The Veteran has submitted a letter dated November 2010 of her regular treatment provider at the VA medical center that diagnoses PTSD secondary to traumatic experience that occurred while she was in the military and major depressive disorder.  The examiner discussed that the Veteran's symptoms "are consistent with an individual that experienced sexual trauma."

Based on the Veteran's credible testimony and statements, the statements submitted in support of her claim, her current treatment for PTSD and depression, and the November 2010 opinion of her regular treatment provider, the Board gives the benefit of the doubt to the Veteran and finds that service connection for an acquired psychiatric disorder is warranted.



ORDER

Entitlement to service connection for an acquired psychiatric disorder is granted.



____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs