Citation Nr: 1802777 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 14-14 845 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim for service connection for posttraumatic stress disorder (PTSD), and if so, whether the claim should be granted. 2. Whether new and material evidence has been submitted to reopen the claim for service connection for an acquired psychiatric disorder other than PTSD, and if so, whether the claim should be granted. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Hampton, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from July 1972 to July 1975 and in the United States Army from July 1976 to July 1978. This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. As is further discussed below, in May 2005, the Board denied the Veteran's claim for service connection for PTSD. In its decision, the Board separated the issue of service connection for PTSD from the issue of service connection for an acquired psychiatric disorder other than PTSD, and referred the latter issue to the Agency of Original Jurisdiction (AOJ) for initial adjudication, after noting it had previously referred the issue for initial adjudication in September 2001, to no avail. The RO subsequently denied the claim. The RO has issued multiple rating decisions continuing its denials of the claims for service connection for PTSD and for service connection for an acquired psychiatric disorder other than PTSD, to include the April 2011 decision for which the Veteran perfected the present appeal. In its decisions, the RO has provided conflicting information as to whether it considered the Veteran's claims to be reopened. In either case, however, the Board notes it must determine on its own whether new and material evidence has been submitted to reopen the Veteran's claims. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). In April 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. The scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Accordingly, in its May 2005 referral of the second issue listed on the title page, above, to the AOJ, the Board broadly characterized the issue. The Board has maintained this broad characterization for purposes of continuing to adjudicate the Veteran's claim. The issue of entitlement to service connection for an acquired psychiatric disorder other than PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. A May 2005 Board decision denied the Veteran's claim for service connection for PTSD; he did not appeal the decision to the U.S. Court of Appeals for Veterans Claims. 2. Evidence received since the May 2005 Board decision is either redundant or was previously of record, or does not relate to an unestablished fact necessary to substantiate the claim; such evidence does not raise a reasonable possibility of substantiating the claim. 3. A September 1993 rating decision denied the Veteran's claim for service connection for an acquired psychiatric disorder, claimed as "nerves," and diagnosed as acute situational reaction and major depression; the Veteran did not appeal the decision or submit any pertinent evidence within the appeal period. 4. Evidence received subsequent to the September 1993 decision includes evidence that is not cumulative or redundant of the evidence previously of record and that relates to unestablished facts necessary to substantiate the claim. 5. An April 2009 rating decision denied the Veteran's claim for service connection for an anxiety disorder; the Veteran did not appeal the decision or submit any pertinent evidence within the appeal period 6. Evidence received subsequent to the April 2009 decision includes evidence that is not cumulative or redundant of the evidence previously of record and that relates to unestablished facts necessary to substantiate the claim. CONCLUSIONS OF LAW 1. The criteria for reopening the claim for service connection for PTSD have not been met. 38 U.S.C.A. §§ 5108 (West 2015); 38 C.F.R. § 3.156 (2017). 2. New and material evidence has been presented to reopen the claim for service connection for an acquired psychiatric disorder other than PTSD. 38 U.S.C.A. § 5108 (West 2015); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist With regard to the Veteran's claim to reopen the claim for service connection for PTSD, the Board notes that VA has duties to notify and assist claimants in substantiating claims for VA benefits. See e.g., 38 U.S.C.A. §§ 5103, 5103A (West 2015) and 38 C.F.R. § 3.159 (2017). In this case, the Board denied the Veteran's claim for service connection for PTSD in a May 2005 decision on the basis that there was no credible evidence of record to corroborate the occurrence of the in-service stressors described by the Veteran. Following his initiation of a claim to reopen the claim for service connection for PTSD, the RO requested, in an August 2007 letter, specific details related to the claimed stressful in-service incidents. When the Veteran failed to respond, the RO issued a formal finding of a lack of information required to corroborate the Veteran's stressors. Subsequently, in a September 2013 letter, the RO informed the Veteran his claim had been denied previously, in pertinent part, on the basis that there was insufficient information to corroborate the stressful in-service events he had described. The RO explained the Veteran needed to submit new evidence that was material to this fact, and advised him he should provide additional information in the form of, for example, his own statements, statements by others, and mental health treatment records. Upon a review of the foregoing, the Board finds VA has provided adequate notice as to the evidence needed to reopen the Veteran's claim for service connection for PTSD. With regard to VA's duty to assist, the Board notes the Veteran's service treatment records (STRs), official military personnel file (OMPF), Social Security Administration (SSA) records, VA treatment records, and private medical records have been obtained, to the extent they have been identified by the Veteran. There is no indication of additional existing evidence that is necessary for a fair adjudication of the claim that is the subject of this appeal. Consequently, the Board finds no further notice or assistance to the Veteran is required to fulfill VA's pertinent duties. As explained below, the Board has determined that new and material evidence has been submitted to reopen the claim for service connection for an acquired psychiatric disorder other than PTSD. As such, no discussion of VA's duties to notify and assist with respect to this claim is necessary. New and Material Evidence Generally, a claim that has been denied in an unappealed RO or Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. § 7105 (c) (West 2015). The exception to this rule is 38 U.S.C.A. § 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. Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 U.S.C.A. § 3.156 (b) (2017). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 U.S.C.A. § 3.156 (a) (2017). The U.S. Court of Appeals for Veterans Claims (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 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." Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). PTSD As noted above, the Board denied the Veteran's claim for service connection for PTSD in a May 2005 decision. In reaching its decision, the Board first noted the Veteran's personnel records showed he had been stationed in Japan and in Nam Phong, Thailand, during the relevant period of active duty, with a principal duty of general warehouseman and no record of medals or awards associated with combat. His STRs showed that after complaining of low back pain on several occasions, the Veteran was referred for psychiatric evaluation and diagnosed with psychophysiologic musculoskeletal reaction and acute situational reaction, resolving. The Board noted that although the Veteran filed a claim for service connection for PTSD in December 1998, he failed to respond to November 2001 and December 2002 requests for information related to in-service stressors. However, the Board noted that in the context of his psychiatric evaluations, the Veteran reported that on his way to his duty station in Thailand, he landed in Vietnam and while there, witnessed a 7-year-old being shot. He also made reference to a plane being shot down, and stated that while in Thailand, he had to shoot a 14-year-old female sniper and had to recover the body parts of children from a theater that had been blown up. The Board noted that through a series of correspondences related to its efforts to corroborate the Veteran's stressors, the RO was referred to the Marine Historical Center, which, in June 2004, provided information pertaining to the activities of the Veteran's unit during the Vietnam War. The Board stated that none of the information provided was specific to the Veteran and none of it tended to corroborate the stressful events the Veteran claimed to have experienced. The Board next noted that in order for a claim for service connection for PTSD to be successful there must be (1) medical evidence diagnosing the condition in accordance with 38 C.FR. § 4.125(a); (2) credible supporting evidence that the claimed inservice stressor actually occurred; and (3) a link, established by medical evidence, between the current symptoms and the claimed inservice stressor. 38 C.F.R. § 3.304(f) (2017); see also Cohen v. Brown, 10 Vet. App 128 (1997). In this regard, the Board observed that the Veteran had been diagnosed with PTSD following service. For example, the diagnosis was made by a VA psychiatric examiner in May 2003, "provisionally," conditioned on verification of the experiences referenced by the Veteran as having occurred in Thailand and Vietnam, and a January 2004 VA examination report also provided a PTSD diagnosis, "by history." Even in the presence of a PTSD diagnosis, however, the Board noted the Veteran's claim turned on the threshold question of whether there was credible supporting evidence that his claimed in-service stressors occurred. As to this question, the Board found there was no such evidence. Specifically, the Board again noted the Veteran's personnel records were absent any evidence that he engaged in combat. In addition, the Board noted the Marine Corps was unable to verify any of the stressors claimed by the Veteran. The Board further observed the Veteran had reported considerable service in Vietnam, but that his personnel records did not corroborate such service. The Board concluded that this lack of consistency suggested the Veteran may not have been an accurate historian. In summary, the Board stated, first, that the Veteran's own accounts of his stressors were general, contradictory, and therefore lacking in credibility, and, second, that there was no credible supporting evidence the claimed stressors actually occurred. Because any PTSD diagnosis was not based on verifiable stressors, the Board found the preponderance of the evidence weighed against the Veteran's claim, and denied the claim. The Veteran did not appeal the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). Therefore, the Board's decision became final. See 38 C.F.R. § 3.156 (b) (2017); Buie v. Shinseki, 24 Vet. App. 242, 252 (2010); 38 C.F.R. §§ 20.200, 20.201, 20.1104 (2017). New and material evidence is therefore required to reopen the claim for service connection for PTSD. As noted above, the Board found, in its May 2005 decision, that the Veteran's own accounts of his in-service stressors were not credible, and were not sufficient corroboration of his claimed stressors' occurrence. Because there was no credible supporting evidence that the claimed stressors actually occurred, the Board determined no PTSD diagnosis based on the stressors was valid for service connection purposes, and the claim was denied. In light of the foregoing, the Board finds that in order to be considered material, the evidence received since the May 2005 decision must amount to credible supporting evidence of the occurrence of the Veteran's claimed in-service stressors. Because the Board has determined the Veteran is not a credible historian, such evidence must be in a form other than the Veteran's own lay statements. In June 2007 statements, the Veteran again recounted being exposed to dead bodies during service, to include after a theater explosion in Thailand, as well as having to shoot a child. These statements provided no additional details that were not before the Board in May 2005. Pursuant to an August 2010 VA contract examination, the Veteran again reported participating in or witnessing the deaths of a 7-year-old and a 14-year-old during service. He also referenced the death of a fellow service member, C.J., whom he had also referenced during his January 2004 VA examination, discussed above. The VA contract examiner determined the Veteran did not meet the full diagnostic criteria for a PTSD diagnosis. In September 2013 statements, the Veteran referenced additional fellow service members who died or were injured during the events he previously described. The Board has carefully reviewed the foregoing and the entire record. The Board first notes that the statements submitted by the Veteran following the Board's May 2005 denial of his claim contain essentially identical descriptions of the claimed in-service stressors already considered by the Board in its May 2005 denial. The Board again emphasizes that in its May 2005 decision, it determined the Veteran was not credible. As such, to the extent any minor deviations from the Veteran's previous statements are present, they are presented in the form of the Veteran's own statements. Therefore, the Board refers to its previous determination that the Veteran's own statements do not constitute credible corroborating evidence of the occurrence of his claimed in-service stressors for purposes of the requirements for granting service connection for PTSD. Upon a thorough review, there is no such corroborating evidence of record. Accordingly, the Board has determined that the evidence received since May 2005 was either previously submitted to the Board or does not relate to unestablished facts necessary to substantiate the claim. Consequently, reopening of the Veteran's claim for service connection for PTSD is not warranted. Acquired Psychiatric Disorder other than PTSD The Veteran's claim for service connection for an acquired psychiatric disorder was initially denied in a September 1993 rating decision. Specifically, the claim was interpreted as one for service connection for an acute situational reaction and for major depression. The claim was denied for the former condition on the basis that the condition resolved in service, and for the latter condition on the basis that the diagnosis of the condition was too far removed from service to permit service connection. The Veteran did not appeal the September 1993 decision. As noted above, in September 2001, the Board determined a claim to reopen the Veteran's previously denied claim for service connection for an acquired psychiatric disorder other than PTSD had been filed, and referred this claim for initial adjudication by the AOJ. When no action was taken, the Board referred the issue again in May 2005. In September 2005, the RO determined the Veteran had not submitted new and material evidence to reopen the previously denied claim. The Veteran did not appeal that determination. He initiated a new claim for service connection for an acquired psychiatric disorder in February 2009, and in an April 2009 rating decision, the RO denied service connection for an anxiety disorder on the basis that the condition was not shown in service. The Veteran did not appeal that determination. In April 2010, the Veteran again initiated a claim for service connection for an acquired psychiatric disorder. In an April 2011 rating decision, the RO noted the claim had been characterized by the Veteran as involving a "mental condition," but had been previously denied when claimed as major depression and anxiety. The RO stated that the claim was considered reopened, but continued its denial of the claim due to the lack of any current diagnosis of depression as well as the absence of evidence showing a current psychiatric condition was present in service. The Veteran subsequently perfected an appeal of the April 2011 rating decision. After a review of the foregoing, it is evident that although the Board characterized the Veteran's claim broadly, in its September 2001 and May 2005 referrals, as a claim for service connection for any "acquired psychiatric disorder other than PTSD," the RO proceeded to address the issue in separate rating decisions in terms of individual psychiatric conditions, primarily major depression and anxiety. Under these circumstances, in determining whether new and material evidence has been submitted to reopen the Veteran's claim for service connection for an acquired psychiatric disorder other than PTSD, the Board will address both the claim for service connection for major depression, initially denied in September 1993, and the claim for service connection for an anxiety disorder, initially denied in April 2009. With respect to major depression, the Board again notes the claim was denied in September 1993 on the basis that a 1991 diagnosis of major depression was too far removed from service to permit service connection. The Veteran did not appeal the decision or submit any pertinent evidence within the appeal period. The evidence of record in September 1993 consisted of the Veteran's claim as well as his STRs and post-service VA and private treatment records. The evidence received subsequent to the September 1993 decision includes VA examination reports, additional treatment records showing diagnoses of depression, and numerous statements by the Veteran relating his psychiatric symptoms to in-service experiences. This evidence is not cumulative or redundant of the evidence that was before VA in September 1993, and it relates to unestablished facts necessary to substantiate the claim, particularly with regard to linking the Veteran's current condition to service. Based on the foregoing, the Board finds that reopening of the Veteran's claim for service connection for an acquired psychiatric disorder other than PTSD, claimed as major depression, is warranted. With respect to an anxiety disorder, the Board again notes the claim was denied in April 2009 on the basis that no treatment or diagnosis of the condition was shown in service. The Veteran did not appeal the decision or submit any pertinent evidence within the appeal period. The evidence of record in April 2009 consisted of the Veteran's claim, STRs, VA examination reports, and VA and private treatment records. The evidence received subsequent to the April 2009 decision includes additional VA outpatient treatment records which show, in pertinent part, complaints of anxiety symptoms that the Veteran related, at least in part, to in-service experiences. This evidence is not cumulative or redundant of the evidence that was before VA in April 2009, and it relates to unestablished facts necessary to substantiate the claim, particularly with regard to linking any current condition to service. Based on the foregoing, the Board finds that reopening of the Veteran's claim for service connection for an acquired psychiatric disorder other than PTSD, claimed as an anxiety disorder, is warranted. ORDER New and material evidence with respect to the claim for service connection for PTSD has not been received, and reopening of the claim is denied. New and material evidence having been submitted, reopening of the claim for service connection for an acquired psychiatric disorder other than PTSD is granted. REMAND The Veteran's STRs show he was hospitalized in August and October 1973 following complaints of low back pain. An August 1973 mental status examination was noted to be suggestive of latent schizophrenic disorder and possible borderline mental retardation. In October 1973, when no physical back problem was identified, the Veteran was diagnosed with psychophysiologic musculoskeletal reaction. Following his return to normal duty, no additional psychiatric symptoms were noted during the Veteran's Marine Corps service. No psychiatric symptoms were noted during the Veteran's Army service until he indicated a history of trouble sleeping as well as depression and excessive worry related to family troubles on his June 1978 report of medical history. Post-service treatment records show the Veteran has been diagnosed with a variety of psychiatric conditions, to include depression (on occasion with psychotic features), anxiety disorder, personality disorder (occasionally with cluster B personality traits), and substance abuse. The in-service notation of possible schizophrenia has not been confirmed with any definitive diagnosis post-service. The Veteran was afforded VA examinations in April 1996, May 2003, January 2004, and August 2010. The April 1996 examiner diagnosed cocaine dependence, depressive disorder, and personality disorder, but provided no opinion as to whether the conditions were incurred in or related to service. The May 2003 examiner diagnosed depressive disorder but provided no opinion as to whether the condition was incurred in or related to service. The January 2004 examiner diagnosed substance-induced mood disorder, cocaine dependence, cannabis abuse, and personality disorder. The examiner also referenced depressive symptoms, but did not clarify whether the Veteran had depression or provide an opinion as to the etiology of the depressive symptoms. The August 2010 examiner focused specifically on the question of whether the Veteran had depression related to his service. The examiner found that based on the Veteran's reported symptoms at the time of the examination, he did not meet the criteria for a depressive disorder. Upon a review of the foregoing, the Board first notes that none of the VA examination reports of record addressed the anxiety diagnoses contained in the Veteran's post-service treatment records. Furthermore, the April 1996, May 2003, and January 2004 VA examiners failed to provide any opinions as to the etiology of the depressive disorder they diagnosed. In addition, while the August 2010 examiner determined the Veteran did not meet the criteria for a depressive disorder at the time of his examination, the Board notes that service connection may be granted for a disability which was present during the period of the claim, even if the disability has resolved prior to VA's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Board also notes the record shows the Veteran may have suffered from psychiatric symptoms prior to his entry into service, as evidenced by reports of multiple suicide attempts as a teenager. In this regard, the VA examination reports of record do not provide any opinion as to whether any acquired psychiatric disorder was present prior to service, and if so, whether such disorder may have been aggravated by or during service. Based upon the foregoing, the Board has determined a remand is warranted in order to afford the Veteran a contemporaneous examination assessing the etiology of all acquired psychiatric disorders present during the period of the claim, to include whether any such disorders pre-dated service. Accordingly, this case is REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Then, afford the Veteran a VA examination to determine the nature and etiology of all acquired psychiatric disorders present during the period of the claim, other than PTSD. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be performed. Following the examination and a review of the relevant records and lay statements, the examiner should identify all acquired psychiatric disorders present during the period of the claim, other than PTSD. Then, with respect to each acquired psychiatric disorder present during the period of the claim, the examiner must state whether it is at least as likely as not (50 percent probability or greater) that the condition had its onset during or is otherwise etiologically related to the Veteran's military service. The examiner should also assess the likelihood that any acquired psychiatric disorder pre-existed the Veteran's service. If any acquired psychiatric disorder pre-existed service, the examiner should opine as to the likelihood that the pre-existing acquired psychiatric disorder worsened during service. The examiner must provide a rationale for any proffered opinion. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. Undertake any other development determined to be warranted. 4. Then, readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017). Department of Veterans Affairs