Citation Nr: 1803222 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 14-19 725A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE 1. Whether new and material evidence has been submitted to reopen a previously denied claim of service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and chronic depressive disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD S. Kalolwala, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1969 to September 1969, including service in the Republic of Vietnam (Vietnam) from May 1970 to April 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In July 2017, the Veteran appeared with his representative for a travel Board hearing before the undersigned. A transcript of that proceeding has been associated with the record. The Board has re-characterized the claim as it appears on the cover page. In making this determination, the Board notes that the Veteran has been diagnosed with various psychiatric disorders over the years, including PTSD and chronic depressive disorder, and that a grant of service connection for an acquired psychiatric disorder incorporates all such psychiatric symptomatology reported by the Veteran. See Clemons v. Shinseki, 23 Vet. App. 1 (2009); Mittleider v. West, 11 Vet. App. 181, 182 (1998). FINDINGS OF FACT 1. A December 2006 rating decision denied, in pertinent part, the claim of service connection for PTSD; the Veteran did not perfect an appeal with respect to this issue. 2. The evidence received since the December 2006 rating decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the underlying claim of entitlement to service connection for PTSD. 3. The Veteran has an acquired psychiatric disorder that is etiologically related to service. CONCLUSIONS OF LAW 1. The December 2006 rating decision denying, in pertinent part, service connection for PTSD is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 2. New and material evidence sufficient to reopen the claim of service connection for PTSD has been received. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. The criteria for service connection for an acquired psychiatric disorder have been met. 38 U.S.C. § 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Board finds that the competent and probative evidence of record supports the grant of service connection for an acquired psychiatric disorder. This award represents a full grant of the issue on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further discussed. II. New and Material Evidence In any case involving a finally denied claim, the Board must address whether new and material evidence has been received to reopen before addressing the merits of the claim. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 239-40 (1995). VA must reopen a previously and finally disallowed claim when "new and material evidence" is presented or secured. 38 U.S.C. §§ 5108, 7104(b); 38 C.F.R. § 3.156(a). In order to satisfy these requirements, the evidence "must be both new and material." Smith v. West, 12 Vet. App. 312, 314 (1999). "New and material evidence" is defined as follows: New evidence means existing evidence not previously submitted to agency decisionmakers. 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). In making the determination of materiality, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board notes that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). When evaluating the materiality of newly submitted evidence, the focus must not be solely on whether the evidence remedies the principal reason for denial in the last prior decision; rather the determination of materiality should focus on whether the evidence, taken together, could at least trigger the duty to assist or consideration of a new theory of entitlement. The Board has considered whether the evidence submitted since the December 2006 rating decision constitutes new and material evidence sufficient to reopen the claim of service connection for PTSD, and finds that it does. The evidence was not of record at the time of the prior denial and relates to an unestablished fact, by itself or when considered with other evidence, necessary to substantiate the claim. Moreover, the evidence, at the very least, triggered VA's duty to assist. Accordingly, the Board finds that new and material evidence has been submitted and the petition to reopen the claim for service connection for PTSD must be granted. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). III. Service connection Legal Principles Establishing service connection generally requires (1) evidence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 281 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also 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) (2017). Factual Background The relevant evidence of record consists of the Veteran's service treatment records (STRs), military personnel records (MPRs), VA and private treatment records, and lay statements from the Veteran and other sources. STRs are negative for any complaints and/or treatment of any psychiatric disorders or associated symptomatology. MPRs reflect that the Veteran's military occupational specialty (MOS) was Light Weapon Infantryman. His military decorations include the Combat Infantry Badge (CIB). Post-service medical treatment records dated between February 2005 and April 2017 reflect numerous mental health related records and diagnoses. For instance, records dated in September 2008 reflect the Veteran was diagnosed with chronic depressive disorder. Records dated in November 2010 reflect a diagnosis of adjustment disorder with mixed mood. Records dated in February 2011 noted a history of depression with irritability, disturbed mood, lack of motivation, and intermittent dysphoria. At that time, the Veteran also reported intrusive thoughts and nightmares regarding Vietnam with related sleep disturbance. The Veteran was diagnosed with depressive disorder. Records dated in June 2011 reflect the Veteran presented with symptoms consistent with a diagnosis of PTSD. Specifically, the Veteran reported persistent symptoms of depressed mood, decreased appetite (one meal a day), sleep disturbance, reduced pleasure, diminished interests in socializing, anxiety, and difficulty adjusting to change. The Veteran also reported frequent nightmares related to combat, isolation, and avoidance of negative cognitions related to Vietnam. Records dated in December 2011 reflect a continued diagnosis of chronic depressive disorder. At that time, the physician ruled out PTSD. Records dated in January 2012 reflect a diagnosis of PTSD. No reasons and/or bases for the diagnosis were provided. Records dated in March 2015 reflect ongoing symptoms of depressed mood, dysphoria, anhedonia, irritability, nightmares with related sleep disturbance, hyper-startle, isolation, and avoidance of negative cognitions. Treatment records have consistently reflected a Global Assessment Functioning (GAF) scores ranging between 50 and 60, which indicates "[m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning, (e.g., few friends, conflicts with peers or co-workers)." See DSM-IV. Medical records also reflect a history of prescribed anti-depressant medication, i.e., Prozac (Fluoxetine). A physician's statement (by Dr. C.C.) dated in May 2013 reflects, in pertinent part, diagnoses of PTSD and chronic depression. He opined the Veteran's psychiatric disorders are caused by or a result of his combat exposure in Vietnam. In doing so, the physician noted persistent symptoms of nightmares and intrusive thoughts with related sleep disturbance, hyper-startle, avoidance, social isolation, depressed mood, and lack of motivation. Report of the May 2014 VA examination reflects, in pertinent part, a diagnosis of chronic depressive disorder. The examiner indicated the Veteran does not have a diagnosis of PTSD. Specifically, the examiner noted the Veteran did not meet criterion C, D, F-H. The examiner noted prior PTSD screening tests of record which were negative for PTSD. Rather, the Veteran was diagnosed with depression, not otherwise specified, at that time. The Veteran reported current symptoms of nightmares with related sleep disturbance and depression. The examiner noted, however, that the Veteran is inconsistent with symptom reporting. In particular, the examiner noted that the Veteran initially indicated experiencing nightmares "regularly;" however, upon further questioning regarding frequency, the examiner noted the Veteran indicated he could go weeks without any nightmares. The examiner noted the Veteran endorsed multiple answers on the Beck Depression Inventory (BDI) because he could not decide which answer applied. As such, the examiner concluded that the Veteran does not have PTSD. In addressing the depressive disorder, the examiner indicated that it is less likely than not related to service given onset was so far removed from service to be reasonably related. Several lay statements are also of record. In a statement dated in October 2005, the Veteran reported experiencing persistent symptoms of intrusive thoughts, nightmares, and anxiety. The Veteran reported similar symptoms in an April 2011 statement. Additionally, he noted increased irritability and difficulty sleeping, sporadic sobbing, and hyper-vigilance. That same month, the Veteran's spouse submitted a statement, which reflects, in pertinent part, that the Veteran was "never [] the same" after returning from Vietnam. Specifically, she indicated the Veteran exhibited symptoms of sleep disturbance, excessive anger and irritability, and erratic mood ever since returning from Vietnam. As indicated, the Veteran testified at a hearing in July 2017. At that time, the Veteran reported, in pertinent part, that he experienced psychiatric symptoms such as nightmares, sleep disturbance, and anxiety since service; however, he indicated that his lack of knowledge about psychiatric disorders is what prevented them from seeking appropriate treatment earlier. In fact, it was not until approximately 2012 when he stumbled across flyers from other organizations that he found himself in a group therapy sessions with other Vietnam veterans. The Veteran indicated he continues to interact with members of his former therapy group as a coping mechanism. The Veteran further indicated avoidance of certain stimuli, such as war-related movies. Analysis As a preliminary matter, the Board recognizes the inconsistent diagnoses of PTSD in the record. On one hand, the primary record in support of the presence of PTSD is a May 2013 physician's statement, which reflects diagnoses of chronic depression and PTSD. On the other hand, clinical treatment records on file are overwhelmingly negative for a PTSD diagnosis. For instance, diagnostic testing dated in October 2010 such as the Mississippi Scale and PCL criteria did not suggest PTSD. Additionally, treatment records dated in December 2011 ruled out PTSD. This is echoed by the May 2014 VA examination of record wherein the examiner found the Veteran did not meet the criteria for a PTSD diagnosis, but rather was appropriately diagnosed with depressive disorder. Here, the Board finds that service connection is warranted for the psychiatric disability that is currently afflicting the Veteran. To that extent, the Board notes that any inconsistency regarding the diagnoses of a specific psychiatric disorder is harmless for rating purposes because a grant of service connection for an acquired psychiatric disorder incorporates all such psychiatric symptomatology reported by the Veteran. See Clemons, supra. Accordingly, the Board finds no prejudice to the Veteran will result in the adjudication of his claim. The evidence clearly shows the Veteran has an acquired psychiatric disorder. At a minimum, he has a diagnosis of chronic depressive disorder. Concerning an in-service event, illness, or injury, the Veteran has consistently reported psychiatric symptoms stemming from one or more traumatic events in service. Of note, the Veteran's military decorations include the CIB. Inasmuch as at least one reported event is consistent with his duties as an Infantryman, the Board finds that the event is consistent with the places and circumstances of his service. Finally, the evidence of record persuasively suggests a nexus between the Veterans' acquired psychiatric disorder and military service. Specifically, the May 2013 physician's statement opined, in pertinent part, that the Veteran's chronic depression is caused by or a result of his combat exposure in Vietnam. Moreover, statements by Dr. C.C. reflect a history of psychiatric symptoms since service. This information is further corroborated by the statements from the Veteran and his spouse who indicated the Veteran was "never [] the same" after he returned from service. She identified symptoms that are readily attributable to psychiatric disorders, including sleep disturbance and erratic mood. The Board acknowledges the negative nexus opinion provided in the May 2014 VA examination report. The Board notes, however, that the examiner's opinion was primarily focused on the lack of symptomatology until several decades after service. This is inconsistent with the remainder of the evidence of record. In particular, several lay statements of record reflect the Veteran experienced psychiatric symptoms since service. Moreover, the Veteran explained that his lack of knowledge about psychiatric disorders is what prevented them from seeking appropriate treatment earlier. It is not clear whether or to what extent this information would change the examiner's opinion, but given the examiner did not consider it, the Board accords the May 2014 VA examination less probative weight. Based on the above, the Board finds that the medical evidence is, at the very least, in equipoise as to whether the Veteran's acquired psychiatric disorder was caused by or a result of his active military service. Therefore, resolving reasonable doubt in the Veteran's favor, service connection for an acquired psychiatric disorder is warranted. ORDER As new and material evidence has been received, the petition to reopen the claim of entitlement to service connection for PTSD is granted. Entitlement to service connection for an acquired psychiatric disorder is granted. ____________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs