Citation Nr: 1632282 Decision Date: 08/15/16 Archive Date: 08/24/16 DOCKET NO. 13-25 087 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for an acquired psychiatric disorder, to include anxiety disorder, posttraumatic stress disorder (PTSD) and major depressive disorder (MDD) (previously claimed as a nervous condition). REPRESENTATION Veteran represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD J. L. Burroughs, Associate Counsel INTRODUCTION The Veteran served on active duty from September 2002 until August 2004. She also served with the Army National Guard from October 1979 until April 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In May 2016, the Veteran presented sworn testimony during a Travel Board hearing in Atlanta, Georgia, which was chaired by the undersigned. A transcript of the hearing has been associated with the claims file. As noted on the title page of this decision, the Board has recategorized the issue currently on appeal. The current claim was originally certified to the Board as a claim for service connection for PTSD. Nevertheless, review of the record reveals that the RO previously denied a claim for entitlement to service connection for a nervous condition in a January 2006 rating decision. The Court has held that a claimant's identification of the benefit sought does not require any technical precision. See Ingram v. Nicholson, 21 Vet. App. 232, 256-57 2007). Rather, "[a] claimant may satisfy this requirement by referring to a body part or system that is disabled or by describing symptoms of the disability." Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). The scope of a mental health disability claim includes any mental disability that reasonably may be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (per curiam). However, the Board notes that the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that, for purposes of determining whether a new claim has been submitted under 38 U.S.C.A. § 7104(b), for "factual basis" of a service connection claim is the Veteran's disease or injury, rather than the symptoms of that disease or injury. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); see also Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996). Further, the Court has determined that the scope of Boggs and Ephraim is limited to claims to reopen. Specifically, the Court stated that Boggs, as well as Ephraim, relies upon a diagnosis to define the scope of a claim only retrospectively--after there has been a finding of fact based upon competent medical evidence. See Clemons, supra at 8. In contexts of section 5108 and requests to reopen, this accomplishes a balancing effect that preserves the finality of agency decisions while not precluding veterans from pursuing claims based on evidence of injuries or diseases distinct from those upon which benefits have been denied. Id. However, the Court determined that the advantages of treating separate diagnoses as separate claims in cases to reopen do not exist where separate diagnoses are rendered for the same reported symptoms during the initial processing of a claim for benefits. Id. A change in diagnosis or specificity of the claim must be carefully considered in determining the etiology of a potentially service-connected condition and whether the new diagnosis is a progression of the prior diagnosis, correction of an error in diagnosis, or development of a new and separate condition. 38 C.F.R. § 4.13, 4.125 (2014); Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); see also Velez v. Shinseki, 23 Vet. App. 199 (2009). In determining whether new and material evidence is required, the focus of the Board's analysis must be on whether the evidence presented truly amounts to a new claim "based upon distinctly diagnosed diseases or injuries" (Boggs v. Peake, 520 F.3d 1330, 1337 (Fed. Cir. 2008)), or whether it is evidence tending to substantiate an element of a previously adjudicated matter. See Velez v. Shinseki, 23 Vet. App. 199, 204 (2009). Multiple theories pertaining to the same benefit constitute the same claim. See Roebuck v. Nicholson, 20 Vet. App. 307, 313 (2006). In the instant claim, the Veteran continues to seek service connection for a mental disability, however variously claimed and diagnosed, as due to events she experienced in service. Therefore, under Boggs, Ephraim, and Velez, new and material evidence is required to reopen the Veteran's claim of entitlement to service connection for what the Board has recategorized as an acquired psychiatric disorder. The issue of entitlement to service connection for an acquired psychiatric disorder, to include anxiety disorder, PTSD and MDD is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. An unappealed January 2006 rating decision denied the Veteran's claim of entitlement to service connection for a nervous condition on the basis of no current disability. 2. Evidence received since the January 2006 rating decision related to an unestablished fact necessary to substantiate the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder. CONCLUSIONS OF LAW 1. The January 2006 rating decision which denied the Veteran's claim of entitlement to service connection for a nervous condition is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.1103 (2015). 2. Evidence received since the January 2006 rating decision is new and material, and the Veteran's claim of entitlement to service connection for a nervous condition is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). With regard to the application to reopen the previously denied claim for service connection for an acquired psychiatric disorder, this application has been granted. Any error related to the duties to notify and assist is moot for this issue. II. Merits of the Claims Generally, a claim that has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c). The exception is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108. New evidence means 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, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The regulation does not require new and material evidence as to each previously unproven element of a claim and creates a low threshold for reopening claims. 38 C.F.R. § 3.156(a) (2014); Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of determining whether new and material evidence has been submitted, the credibility of new evidence, although not its weight, is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). The Veteran's claim for service connection for a nervous condition was first denied in a January 2006 rating decision, as the evidence did not show a current diagnosis. Within one year of this decision additional evidence, missing service treatment records, was submitted to the claims file. In August 2006, the RO issued a rating decision addressing this additional evidence. This decision continued the denial of the claim as result of a lack of a current diagnosis. No appeal was made within one year of this decision nor was new and material evidence received within that year. The original January 2006 decision thereby became final. 38 U.S.C.A. § 7105. Since this decision became final, the Veteran has submitted treatment medical records which illustrate that she has diagnoses of anxiety disorder, PTSD and MDD. See July 2013 Providence Family Physician and July 2012 VAMC Atlanta treatment medical records. The established diagnoses of acquired psychiatric disorders satisfy the low threshold requirement for new and material evidence. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The claim is reopened. ORDER As new and material evidence sufficient to reopen the previously denied claim for service connection for an acquired psychiatric disorder has been received, the application to reopen is granted; to this extent only, the appeal is granted. REMAND The Veteran's claim has been expanded to entitlement to service connection for an acquired psychiatric disorder to include PTSD, anxiety disorder and MDD. In regard to PTSD, treatment medical records in evidence indicate that she has been diagnosed by a VA psychiatrist with PTSD as a result of military sexual trauma. See July 2012 VAMC Atlanta treatment medical records. However, in relaying this diagnosis, the physician does not address the facts of the military trauma being reported. Additionally, the physician does not indicate whether the Veteran's symptomatology met the specific criteria for PTSD, as described in the American Psychiatric Association's, Diagnostic and Statistical Manual of Mental Disorders, 4th Edition (1994) (DSM-IV). Entitlement to service connection for PTSD requires a diagnosis made according to DSM criteria. 38 C.F.R. § 4.125(a) (2015). As such the current diagnosis of record is insufficient for the award of service connection. The Board notes that the newer DSM-V has now been officially released. An interim final rule was issued on August 4, 2014, that replaced the DSM-IV with the DSM-V. However, the provisions of the interim final rule apply to all applications for benefits that are received by VA or that are pending before the agency of original jurisdiction on or after August 4, 2014. Jurisdiction over the present appeal was first conferred to the Board in May 2007. With that said, the record reflects that the Veteran has yet to be afforded a VA psychiatric examination for her noted diagnoses of MDD, anxiety disorder or PTSD. As a result, the Board finds that a remand is necessary in order to afford the Veteran a VA examination so as to determine the nature and etiology of her disabilities. See 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). While on remand all outstanding treatment medical records should be obtain and associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. Copies of all outstanding treatment records, to include VAMC records, and any other records identified by the Veteran, should be obtained and added to the claims file. 2. Send the Veteran a VCAA notification letter that contains all of the required information pertaining to a claim for PTSD based on personal assault. 3. Thereafter, schedule the Veteran for an examination to determine the nature and etiology of her acquired psychiatric disabilities. The claims file, is to include a copy of this remand. Review of the remand must be noted on the examination report. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. After reviewing the record and examining the Veteran, the examiner should provide the following opinion: (a) Identify/diagnose any psychiatric disability that currently exists or has existed during the pendency of the appeal, which has since resolved. (b) The examiner must state whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran suffered a sexual assault in service. The examiner should address whether the Veteran displayed any behavior in service or since her separation from service that would be consistent with her claim of being sexually assaulted during her active service. The examiner should also note the Veteran's alleged stressors/incidents, which are found in written statements, current medical treatment records, and other lay statements of record. (c) If the examiner is of the opinion that a personal assault occurred, the examiner should then state whether the Veteran's PTSD is at least as likely as not the result of such assault in service. The examiner should also offer an opinion as to whether it is at least as likely as not (a 50 percent probability of greater) that PTSD results from another in-service stressor or other events that occurred in-service. The report should discuss, of course, any other claimed stressors. The examiner should comment upon the link between the current symptomatology and the Veteran's claimed stressor(s). The examiner should also discuss the Veteran's lay statements regarding in service stressors and symptoms, and all other lay statements of record regarding the Veteran's in service stressors and symptoms. (d) For any diagnosed psychiatric disability other than PTSD, provide an opinion as to whether it is at least as likely as not that the disorder had its onset during active service or is related to any in-service disease, event, or injury. Note treatment medical records indicate diagnoses for anxiety and major depressive disorder. See Providence Family Physicians and VAMC treatment medical records. The examiner must specifically address the Veteran's Board hearing testimony where she testified to being assaulted around Christmas in 1979. She testified to suffering from a vaginal infection shortly thereafter. Service treatment records from February 1980 indicate she was suffering from radiating vaginal, abdominal and back pain and was diagnosed with a UTI. These records indicate that she last engaged in sexual intercourse during Christmas. Attention is also directed to her January 2004 Post Deployment Examination wherein she requested counseling for emotional stress. Service treatment records also establish that while in-service she was prescribed Paxil. Finally the examiner must address the applicability of VA treatment medical records which appear to reflect that her diagnosis of PTSD was predicated on her reports of military sexual assault. See July 2012 VAMC Atlanta treatment medical records. The examiner must provide a rationale for each opinion expressed. If an opinion cannot be made without resort to speculation, the examiner must provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 4. Thereafter, the RO/AMC should readjudicate the Veteran's claim to include consideration of all evidence received as a result of this remand. If the benefits sought on appeal remain denied, the Veteran and her representative should be provided with a supplemental statement of the case and allowed an appropriate period of time for response. The case should then be returned to the Board for further consideration, if otherwise in order. 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 2014). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs