Citation Nr: 1756934 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 14-08 637 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida ISSUES 1. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depression. REPRESENTATION Appellant represented by: Shannon L. Brewer, Esq. ATTORNEY FOR THE BOARD J. Juliano, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Navy from August 1973 to August 1977. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In September 2017 and October 2017, the Veteran, by way of his representative, submitted a written statement requesting that his request for a hearing be withdrawn. Therefore, this matter is ready for further appellate review. In light of the medical evidence of record and the Veteran's statements, and in light of Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board has recharacterized the Veteran's claim for service connection for PTSD more broadly as a claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depression. Insofar as the claim relates to PTSD, it constitutes an application to reopen a previously denied claim. Regardless of the decision of the RO as to whether to reopen a previously denied claim, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also VAOPGCPREC 05-92. As explained below, the Board has found that new and material evidence has been received, and the claim for PTSD is reopened. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). This appeal was processed using the VBMS paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. A January 2008 rating decision denied the Veteran's claim for service connection for PTSD; the Veteran did not file a notice of disagreement or submit new and material evidence within one year of the denial. 2. Evidence received since the January 2008 rating decision is not cumulative or redundant, and raises a reasonable possibility of substantiating the claim of service connection for PTSD. 3. The Veteran's PTSD and major depressive disorder are shown to be related to his active service. CONCLUSIONS OF LAW 1. The January 2008 rating decision that denied the claim for service connection for PTSD is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2008). 2. New and material evidence has been received sufficient to reopen the Veteran's claim for service connection for PTSD. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2016). 3. The criteria for service connection for PTSD and a major depressive disorder are met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) The Veteran's PTSD claim is reopened, and service connection for PTSD and a major depressive disorder are granted herein. Therefore, any deficiencies regarding the duties to notify and assist are nonprejudicial. II. Analysis A. New and Material - PTSD The primary issue for resolution before the Board is whether new and material evidence has been received sufficient to reopen the Veteran's previously denied claim for service connection for PTSD. For the reasons explained below, the Board finds that new and material evidence has been received, and the claim is reopened. If a notice of disagreement or new and material evidence is not filed within one year of the date of mailing of a decision by the AOJ, the decision generally becomes final. See 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2016). Similarly, if a substantive appeal is not perfected within 60 days of the issuance of a statement of the case, or within one year of the determination by the AOJ, which date is later, the decision generally becomes final. See 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.302, 20.1103 (2016). After the decision becomes final, the claim may be reopened if new and material evidence is received. See 38 U.S.C.A. § 5108 (West 2014). 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 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) (2016). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). A January 2008 rating decision denied the Veteran's claim for service connection for PTSD. At the time of the January 2008 rating decision, there was no evidence of diagnosed PTSD. The Veteran did not file a notice of disagreement or submit new and material evidence within one year of the January 2008 rating decision, and the rating decision became final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2008). In June 2009, the Veteran filed an application to reopen the claim. An August 2009 rating decision denied the application to reopen the claim. The Veteran filed a April 2010 notice of disagreement, a February 2014 SOC was issued, and the Veteran filed a March 2014 appeal. As noted in the introduction above, regardless of a decision of the RO to reopen a previously denied claim, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also VAOPGCPREC 05-92. At the time of the last final denial in January 2008, the evidence of record included the Veteran's service treatment records, his personnel records, and VA treatment records, none of which showed diagnosed PTSD. Since the last final January 2008 rating decision, new evidence associated with the claims file includes a June 2014 DBQ examination report, prepared by Dr. I.J., the Veteran's treating physician at the VA medical center, showing that she diagnosed PTSD under the DSM based on the Veteran's report stressors, including his reported personal assault in service. See also, e.g., VA treatment record, April 2011 at p.3 of 9. Also new is a February 2017 private evaluation report by Dr. M.C., in which he also diagnosed PTSD, citing the DSM criteria, relating to the Veteran's reported stressors, including in-service personal assault. Because the new evidence received since the last final denial includes new evidence of diagnosed PTSD, the Board finds that new and material evidence has been received, and the claim is reopened. B. 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 (West 2014); 38 C.F.R. § 3.303(a) (2016). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2016). To establish service connection, the evidence generally must show: "(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" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). "If a PTSD claim is based on an in-service personal assault, evidence from sources other than the veteran's service records may corroborate the veteran's account of the stressor incident. Examples of such evidence include, but are not limited to: . . statements from family members. . . 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." 38 C.F.R. § 3.304(f)(5) (2016). The Veteran served on active duty in the U.S. Navy from August 1973 to August 1977. He claims that he has an acquired psychiatric disorder, to include PTSD and depression, due to his active service. The Veteran reports that while stationed in at the Little Creek Naval Base in Virginia, he was beaten by fellow servicemen. He also reports that his request in service to visit his dying mother was denied, she died three days later, and that he became depressed in service. See Form 21-0871, June 2009. An August 1974 service treatment record shows the Veteran complained of "psychological problems, would like to M.O." See STRs, received May 2014 at p.17 of 24. Another August 1974 record shows the Veteran complained of anxiety due to work pressures, and that he was "losing his mind" and wanted to leave the Navy. The physician noted an anxiety reaction. An April 4, 1977 service treatment record from Little Creek shows "the Veteran was attacked by three marines one day ago" and complained of pain in his chest, abdomen, and shoulders. Tenderness and multiple bruises were noted, and he was diagnosed with a contusion of the abdomen. See STRs at p.16 of 62. Two days later, an April 6, 1977 service treatment record shows that a radiographic report revealed no abnormalities. It was noted that the x-rays were order on April 4, 1997 because "patient beat up last night." See STRs at p.11 of 62. On his August 1977 separation report of medical history, the Veteran reported experiencing depression or excessive worry. The physician noted the Veteran reported that prior to entering the Navy, he was carefree, but by the end of his service, little things caused him worry. See STRs, received May 2014 at p.21 of 24. As shown above, the Veteran's service treatment records clearly document that he was beaten by marines in service. Therefore, the Board concedes this stressor occurred. Also, the Board finds the lay statements of the Veteran and his father regarding his mother dying during the Veteran's active service, and the Veteran's report of being denied leave at that time, formally or otherwise, to be credible. Post-service, a February 2009 VA psychiatry initial evaluation record shows the Veteran reported he believed his depression began when his mother died of cancer in 1976 while he was in service. He also reported he felt he had PTSD due to five to six beatings by fellow servicemen, one of which he reported broke his ankle. (The Board acknowledges as an aside that the service treatment records show a right ankle injury at Little Creek in October 1975, albeit the Veteran reported at the time it was due to a football injury.) See, e.g., STRs at p.9 of 24. The February 2009 VA treatment record shows the Veteran reported he thinks about the incidents all the time, and has nightmares about it one to two times a month. Depression and rule-out PTSD were diagnosed. See VA treatment records, received July 2009 at p.15 of 27. A June 2009 VA treatment record by Dr. I.J. shows the Veteran reported feeling depressed, crying spells, intrusive thoughts, nightmares, fear of crowds, hypervigilance, and a hyperstartle response. See VA treatment records, received July 2017 at p.5 of 27. PTSD, and a major depressive disorder with psychotic features, were diagnosed. More recent VA treatment records show the Veteran has been followed for diagnosed PTSD and a major depressive disorder. See, e.g., CAPRI, received April 2017 at p.214 of 246. A June 2014 DBQ prepared by Dr. I.J., the Veteran's treating physician at the VA medical center, shows that she noted the Veteran's reported history of being beaten in service. DR. I.J. diagnosed PTSD and a major depressive disorder. She noted PTSD symptoms including, but not limited to, intrusive memories, nightmares, fear of crowds, heighten hyperstartled response, anger, irritability, anxiety. Dr. I.J. specifically listed all of the DSM-IV criteria for PTSD that were met. She noted depressive symptoms including lack of interest, apathy, and a sad mood. She opined the Veteran had total social and occupational impairment. She noted the Veteran had stopped drinking in January 2014. At the end of her report, Dr. I.J. provided her opinion that the Veteran's mental health problems are related to the trauma he experienced in service. A very detailed February 2017 private evaluation report by Dr. M.C. shows Dr. M.C. noted the Veteran reported being physically assaulted in service, including breaking his ankle, and that he was threatened with bodily harm or death if he reported the beatings. It was also noted that the Veteran reported depression since his request for a leave of absence to see his mother three days before she died of cancer was denied. He reported using alcohol to mitigate his depressive symptoms. Dr. M.C. noted other symptoms including, but not limited to, nightmares, hypervigilance, intrusive memories, an escalated startle response, distrust of others, and social isolation. Dr. M.C. noted all the specific DSM criteria symptoms for PTSD that were met. Dr M.C. diagnosed PTSD and a major depressive disorder, recurrent, severe, with psychotic features, with anxious distress. Dr. M.C. opined the Veteran's PTSD and major depressive disorder were related to his active service. The Board also acknowledges that a January 2014 VA examination report shows the examiner opined that PTSD could not be diagnosed. The examiner explained that "the difficulty with his exam is that this Veteran has a long history of substance abuse. He acknowledged on interview that he only having stopped drinking heavily several days ago when hospitalized. . . He was wearing a hospital bracelet [at the time of the examination] dated January 27, 2014, only 4 days ago. . . [I]t is not possible at this time to conduct a reliable and valid assessment of his underlying psychological functioning." Therefore, the Board finds this examination report to have no probative value. In light of the above, the Board finds that service connection for PTSD and a major depressive disorder is warranted. As shown above, the Veteran's reported PTSD stressor involving being beaten by servicemen is clearly documented in his service treatment records and has therefore been conceded. The denial of leave to visit his dying mother during service is also conceded as credible. His service treatment records show he reported symptoms of anxiety during service, and that he checked the box on his separation report of medical history indicating depression or excessive worry. Both the June 2014 DBQ by the VA physician, and the February 2017 private evaluation by Dr. M.C., show they opined that the Veteran has PTSD that meets the DSM criteria, and a major depressive disorder, and that both are related to his active service. These opinions are not contradicted by any other medical opinion of record. The prior January 2014 VA examiner was ultimately unable to provide a medical opinion, as stated in that report. While the Board acknowledges that the Veteran has a history of alcohol abuse, the Board finds that the Veteran's history of alcohol abuse does not obviate the positive opinions of Drs. I.J. and M.C. as they relate to the Veteran's PTSD and major depressive disorder, both of which opinions addressed the Veteran's alcohol abuse history. Therefore, in summary, the Board concludes that entitlement to service connection for PTSD and a major depressive disorder is warranted. ORDER The application to reopen the claim of entitlement to service connection for PTSD is granted. Entitlement to service connection for PTSD and a major depressive disorder is granted. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs