Citation Nr: 1754725 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 11-29 868 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement for service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD), depression and/or anxiety and, if so, whether service connection is warranted. 2. Whether new and material evidence has been received to reopen a claim of entitlement for service connection for osteoarthritis with a herniated nucleus pulposus and bulging disc (lumbar spine disability) and, if so, whether service connection is warranted. 3. Whether new and material evidence has been received to reopen a claim of entitlement for service connection for a right knee condition and, if so, whether service connection is warranted. 4. Whether new and material evidence has been received to reopen a claim of entitlement for service connection for bilateral carpel tunnel and, if so, whether service connection is warranted. 5. Whether new and material evidence has been received to reopen a claim of entitlement for service connection for fibromyalgia and, if so, whether service connection is warranted. 6. Whether new and material evidence has been received to reopen a claim of entitlement for service connection for arthritis of the left hand and, if so, whether service connection is warranted. 7. Whether new and material evidence has been received to reopen a claim of entitlement for service connection for arthritis of right hand and, if so, whether service connection is warranted. 8. Entitlement to service connection for a cognitive disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD N. Sangster, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1973 to November 1975. These matters come to the Board of Veterans' Appeals (Board) on appeal from several rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Board has broadened the claim for entitlement to service connection for an acquired psychiatric disorder. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (per curiam). The Board also notes that the Veteran had a hearing before a Veterans Law Judge in February 2017. Unfortunately, there was a malfunction of the recording and a copy of the transcript could not be transcribed. Accordingly, the Veteran was rescheduled for another Board hearing in June 2017, but she failed to appear for the hearing. Instead, in July 2017, the Veteran submitted additional evidence and waived initial consideration by the Agency of Jurisdiction (AOJ). As a transcript could not be made of the February 2017 hearing, this appeal may be adjudicated by the undersigned. FINDINGS OF FACT 1. In July 2017, the Veteran withdrew her claims for fibromyalgia, arthritis of the right hand, a cognitive disorder, lumbar spine disability, bilateral carpal tunnel and a right knee condition. 2. An unappealed September 2001 rating decision considered and denied the Veteran's claim of entitlement to service connection for depression. 3. There is evidence associated with the claims file since the September 2001 rating decision that relates to an unestablished fact necessary to substantiate the claim for service connection for depression. 4. Resolving all doubt in the Veteran's favor, an acquired psychiatric disorder, diagnosed as depression, is related to active service. 5. An unappealed July 2010 rating decision denied reopening the petition for arthritis of the left hand. 6. The evidence received since the July 2010 rating decision is cumulative or redundant of that considered previously and/or does not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim for service connection for arthritis of the left hand. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the petitions to reopen the claims for fibromyalgia, arthritis of the right hand, lumbar spine disability, bilateral carpal tunnel and a right knee condition as well as entitlement to service connection for a cognitive disorder are met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 U.S.C. § 20.204 (2017). 2. The September 2001 rating decision that denied service connection for depression is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 3. New and material evidence has been received sufficient to reopen the claim for service connection for an acquired psychiatric disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. §§ 3.156(a) (2017). 4. The criteria for entitlement to service connection for an acquired psychiatric disorder, diagnosed as depression, have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 5. The July 2010 rating decision denying the Veteran's petition to reopen the claim for service connection for arthritis of the left hand, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2016). 6. New and material evidence has not been received since the July 2010 rating decision denying the Veteran's petition to reopen the claim for service connection for arthritis of the left hand. 38 U.S.C. § 5108 (2012); 38 C.F.R. §§ 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawal An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 U.S.C. § 20.204 (2017). Here, in a July 2017 written statement, the Veteran withdrew her appeal regarding reopening the claims for fibromyalgia, arthritis of the right hand, bilateral carpal tunnel and a right knee condition, and the lumbar spine disability. She also withdrew her claim for entitlement to service connection for a cognitive disorder. Therefore, there remain no allegations of errors of fact or law for appellate consideration regarding these claims. Accordingly, the Board does not have jurisdiction to review these claims and they are dismissed. II. New and Material 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. §§ 7104(b), 7105(c) (2012). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as 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 Court has 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 post-VCAA versions of this 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." See Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). But see also Duran v. Brown, 7 Vet. App. 216 (1994) (indicating "Justus does not require the Secretary [of VA] to consider the patently incredible to be credible" or to blindly accept, as true, assertions that are beyond the competence of the person making them). Psychiatric Disorder Initially, the Veteran filed a claim for service connection for depression, which was denied in an unappealed September 2001 rating decision. She then filed a claim for PTSD in August 2007, which was denied in an August 2008 rating decision. The Veteran timely filed a Notice of Disagreement (NOD) and, subsequently, a substantive appeal. At the time of the September 2001 rating decision, the relevant evidence included the Veteran's service treatment records (STRs), which were unremarkable for any complaints, symptoms or diagnosis of any psychiatric disorder, and private medical treatment records, showing that she was treated for generalized anxiety with depressive features. Based on this evidence of record, the RO denied service connection for depression because there was no record of treatment for this condition in service. The September 2001 rating decision is final. 38 U.S.C. § 7105(c) (2012). Since the September 2001 rating decision denying the claim for depression, the pertinent evidence received includes the Veteran's statements that she was sexually assaulted by her recruiter; statements from family members and spiritual advisor attesting to the change in behavior after the Veteran was sexually assaulted; a June 2011 decision review officer (DRO) hearing; a VA examination conducted in August 2011; and VA medical treatment records. The August 2011 VA examiner ruled out PTSD, but diagnosed the Veteran with depression. The examiner, however, opined that since the Veteran's stressor, the military sexual trauma (MST), could not be verified, that it was less likely as not that the Veteran's depression was related to service. On the other hand, a January 2008 VA medical treatment record shows that the Veteran's psychologist opined that the Veteran's depression was related to the MST in service, although she likewise concluded that the Veteran did not meet the criteria for PTSD. This recently submitted evidence is new and material. In this regard, the Board notes that the evidence is not cumulative or redundant of the evidence previously of record. Moreover, it is sufficient to raise a reasonable possibility of substantiating the claim. Accordingly, reopening of the claim for entitlement to service connection for an acquired psychiatric disorder is warranted. Left Hand Arthritis The Veteran also filed a claim for left hand arthritis in August 2007, which was denied in the August 2008 rating decision. The Veteran's October 2008 NOD limited her appeal to an acquired psychiatric disorder. Thereafter, in March 2010, she requested that this claim be reopened. The RO denied the Veteran's request to reopen the petition for the claim for arthritis of the left hand in an unappealed July 2010 rating decision. Subsequently, the Veteran again filed a petition to reopen the claim for left hand arthritis, which was denied in the November 2014 rating decision. The Veteran timely filed an NOD and substantive appeal regarding this claim. The relevant evidence at the time of the July 2010 rating decision included the newly submitted VA medical treatment records showing that the Veteran had been diagnosed with arthritis in the left hand. Based on this evidence of record, the RO denied reopening the petition for arthritis of the left hand because the Veteran did not submit new and material evidence that related to an unestablished fact necessary to substantiate the claim and did not raise a reasonable possibility of substantiating the claim. The July 2010 rating decision is final. 38 U.S.C. § 7105(c) (2012). Since the July 2010 rating decision denying the petition to reopen the claim for arthritis of the left hand, the relevant evidence of record includes VA medical treatment records showing continuous treatment for arthritis of the left hand. In order, however, to prevail on the issue of service connection on the merits, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). Here, the newly received VA medical treatment records of evidence is duplicative and/or cumulative of the evidence previously submitted and considered by the RO in its previous August 2008 and July 2010 rating decisions. In addition, while the Veteran has alleged that this disability was caused or aggravated by service, she has not submitted evidence as to how the injury occurred or was related to her active duty. To the extent that any VA medical records document the presence of arthritis in the left hand, they are cumulative as there was evidence before the RO in August 2008 and July 2010 establishing this fact. Further, no new medical evidence suggests a relationship between any current left hand arthritis and active duty. Therefore, because these records do not relate to an unestablished fact necessary to substantiate the claim or raise a reasonable possibility of substantiating the claim, they are not material. Accordingly, the evidence is not new and material and the petition to reopen the claim for arthritis of the left hand may not be reopened. 38 C.F.R. § 3.156. Moreover, as new and material evidence to reopen this finally disallowed claim has not been received, the benefit-of-the-doubt doctrine is inapplicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). III. Service Connection Since the Veteran's claim for an acquired psychiatric disorder has been reopened, it must now be determined whether it is related to active service. As mentioned above already, the Veteran asserts that her MST caused her psychiatric disorder. Specifically, she alleges she was sexually assaulted by the recruiter before and after being admitted to active duty. Again, to prevail on the issue of service connection on the merits, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or is legitimately questionable. 38 C.F.R. § 3.303(b) (2017). But this alternative means of linking the currently-claimed condition to service is only available if the condition being claimed is one of those specifically identified in 38 C.F.R. § 3.309(a) as chronic, per se. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In particular, service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a) (2) credible supporting evidence that the claimed in-service stressors actually occurred, and (3) a link, established by medical evidence, between the current symptomatology and the claimed in-service stressors. See 38 C.F.R. §3.304(f). Initially, the Board notes that, as concerning the requirement that PTSD be diagnosed in accordance with the DSM-V, although 38 C.F.R. sections 3.384, 4.125, 4.126, 4.127, and 4.130 were updated via a final rule, effective August 4, 2014, in part to substitute references to the DSM-V for the DSM-IV, the changes are applied to applications for benefits received by VA or pending before the AOJ on or after August 4, 2014, but not to claims certified to or pending before the Board, the United States Court of Appeals for Veterans Claims, or the United States Court of Appeals for the Federal Circuit. 79 Fed. Reg. 45, 093, 45,094-096 (Aug. 4, 2014). Here, the Veteran's case was pending before the AOJ prior to August 4, 2014. In any event, the Board is granting the Veteran's claim for an acquired psychiatric disorder. The Veteran's STRs are silent regarding any symptoms, complaints, treatment or diagnosis of any psychiatric disorder. Her service personnel records also do not reflect any reports of being sexually assaulted. Post-service medical treatment records, however, show diagnoses of generalized anxiety and depression. Accordingly, she was provided a VA examination in August 2011. As mentioned above already, the examiner opined that the Veteran did not meet the criteria for PTSD but diagnosed her with depression. The examiner, however, concluded that it was less likely than not that the Veteran's depression was related to service because her stressor could not be verified. On the contrary, the January 2008 VA medical treatment record shows that the Veteran's VA psychologist diagnosed her with depression and linked it to the MST described by the Veteran. Moreover, the Veteran maintains that her psychiatric disorder began after her MST. January to April 2008 VA medical treatment records reflect the increased depression the Veteran experienced after having to recount her MST and disclose this information to her family. In addition, lay statements from family members and the Veteran's Chaplin were submitted in July 2017 detailing the Veteran's continued depression and behavioral change as a result of the MST. The Board not only finds that the Veteran is competent to report her MST, but finds that her statements are also credible. In addition, the Board finds that the lay statements are credible and support the Veteran's contention that her psychiatric disorder is related to active duty. Although there is conflicting evidence of record whether the Veteran's psychiatric disorder is a result of her active service, given the in-service stressor, the medical evidence diagnosing depression, the lay statements of record and the medical evidence of a nexus between the Veteran's current psychiatric symptomatology and the claimed in-service stressor, the Board finds that the evidence is at least in equipoise as to whether her current psychiatric disability is related to her active service. See 38 C.F.R. §§ 3.303(a), 3.304(f); Shedden, 381 F.3d at 1166-67. Therefore, resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for and acquired psychiatric disorder is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board has granted the claim as an acquired psychiatric disability to reflect that the Board is granting service connection for the currently diagnosed disability. Although cognizant that the Veteran has sought service connection under other diagnoses, to include PTSD, the Board finds that this grant of service connection grants the Veteran for all currently acquired psychiatric symptoms currently manifested and therefore finds that this is a full grant of the benefit sought. ORDER The petitions to reopen the claims of entitlement to fibromyalgia, arthritis of the right hand, bilateral carpal tunnel and a right knee condition, and lumbar spine disability are dismissed. Entitlement to service connection for a cognitive disorder is dismissed. The petition to reopen the claim of entitlement to service connection for an acquired psychiatric disorder is granted. The petition to reopen the claim of entitlement to service connection for arthritis of the left hand is denied. Entitlement to service connection for an acquired psychiatric disorder, diagnosed as depression, is granted. ____________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs