Citation Nr: 1803357 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 16-15 043A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an effective date earlier than August 19, 2011, for the establishment of service connection for major depressive disorder claimed as bipolar disorder Type I, and nervous conditions and neuropsychiatric condition. 2. Entitlement to service connection for an acquired psychiatric disability, other than service-connected major depressive disorder claimed as bipolar disorder Type I, and nervous conditions and neuropsychiatric condition. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD A.M. Clark, Counsel INTRODUCTION The Veteran served on active duty from April 1991 to February 1993. This matter comes before the Board of Veterans' Appeals (BVA or Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. With respect to the Veteran's service connection claim for an acquired psychiatric disability, other than service-connected major depressive disorder claimed as bipolar disorder Type I, and nervous conditions and neuropsychiatric condition, the Board notes that the Veteran originally filed her claim in July 2013. The claim was denied in a June 2014 rating decision. Additional evidence in support of her claim was associated with the claims file within one year of the rating decision and, therefore, the decision did not become final. 38 C.F.R. § 3.156 (b) (2017). A September 2014 rating decision confirmed and continued the previous denial, and the Veteran filed a timely appeal. The Board will therefore proceed with the claim for entitlement to service connection claim for an acquired psychiatric disability, other than service-connected major depressive disorder claimed as bipolar disorder Type I, and nervous conditions and neuropsychiatric condition, on a merits consideration, as opposed to a petition to reopen the claim based on new and material evidence. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran's original claim for service connection for an acquired psychiatric disability was received by the VA on February 4, 2008. The RO denied her claim in a May 2008 rating decision; the Veteran did not timely appeal, and it became final. 2. In a statement received by the RO on August 19, 2011, the Veteran submitted a claim to reopen a claim of entitlement to service connection for an acquired psychiatric disability. 3. In September 2014, the RO granted entitlement to service connection for a major depressive disorder claimed as bipolar disorder Type I and nervous conditions and neuropsychiatric condition. An evaluation of 100 percent was awarded, effective August 19, 2011, the date the petition to reopen the previously denied claim was received. 4. The competent and credible evidence of record does not support a finding that the Veteran has an acquired psychiatric disability, other than service-connected major depressive disorder claimed as bipolar disorder Type I, and nervous conditions and neuropsychiatric condition, that is causally related to, or aggravated by, service. CONCLUSIONS OF LAW 1. The May 2008 rating decision that denied service connection for an acquired psychiatric disability is final. 38 U.S.C. § 7105 (2012), 38 C.F.R. § 20.1103 (2017). 2. The criteria for an effective date earlier than August 19, 2011, for the award of service connection for major depressive disorder claimed as bipolar disorder Type I, and nervous conditions and neuropsychiatric condition, have not been met. 38 U.S.C. §§ 5103, 5103A, 5110 (2012); 38 C.F.R. § 3.400 (2017). 3. The criteria for service connection for an acquired psychiatric disorder other than service-connected major depressive disorder claimed as bipolar disorder Type I, and nervous conditions and neuropsychiatric condition, have not been met. 38 U.S.C. §§ 1110, 1111, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Assist and Notify The record reflects that the Veteran received 38 U.S.C. § 5103(a)-compliant notice in connection with her claims. There is no indication in this record of a failure to notify. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Pursuant to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C. § 5103A(c)(2). All records pertaining to the conditions at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159(c)(3)). In this case, the Veteran has referenced no such records, and all pertinent records have been obtained. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service treatment records, and written assertions. Moreover, documents in the claims file written in Spanish have been translated to English. With respect to her claim for an acquired psychiatric disability, other than service-connected major depressive disorder claimed as bipolar disorder Type I, and nervous conditions and neuropsychiatric condition, the Veteran was afforded VA examinations in November 2012, September 2014, and April 2015. The VA examination reports reflect that the VA examiners reviewed the Veteran's past medical history, recorded her current complaints, conducted appropriate evaluations of the Veteran, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. Additionally, with respect to her acquired psychiatric disability claim, the VA examiners considered all of the pertinent evidence of record, as well as the statements of the appellant, and determined that the Veteran did not exhibit a psychiatric disability other than her already service-connected acquired psychiatric disability. As such, the Board finds that the VA examinations are sufficient upon which to base a decision with regard to these claims. See 38 C.F.R. § 4.2 (2017); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board concludes that all the available records and medical evidence have been obtained in order to make adequate determinations as to these claims. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Earlier Effective Date Generally, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. In deciding this case based on its application of the law to the pertinent facts, the Board notes that the "date of receipt" of claim means the date on which the claim was received by VA, except as to specific provisions for claims received in the State Department, the Social Security Administration, or the Department of Defense. 38 C.F.R. § 3.1(r). In this case, the Veteran seeks an effective date earlier than August 19, 2011, for the grant of service connection for major depressive disorder claimed as bipolar disorder Type I, and nervous conditions and neuropsychiatric condition. She essentially asserts that the grant of service connection should go back to her separation from service. The Veteran's original claim for service connection for an acquired psychiatric disability was received by the VA on February 4, 2008. The RO denied her claim in a May 2008 rating decision; the Veteran did not timely appeal, and it became final. In a statement received by the RO on August 19, 2011, the Veteran submitted a petition to reopen a claim of entitlement to service connection for an acquired psychiatric disability. In September 2014, the RO granted entitlement to service connection for a major depressive disorder, claimed as bipolar disorder Type I, and nervous conditions and neuropsychiatric condition. An evaluation of 100 percent was awarded, effective August 19, 2011-the date the RO received her claim. The Veteran initiated an appeal with respect to the effective date assigned. While the Board understands the Veteran's concerns, the Board finds that there is no basis to grant an effective date prior to August 19, 2011, for the award of service connection for a major depressive disorder claimed as bipolar disorder Type I and nervous conditions and neuropsychiatric condition. In fact, the Board concludes that an effective date prior to August 19, 2011, is legally precluded. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400(r) (effective date of an evaluation and an award of compensation based on a reopened claim will be the "[d]ate of receipt of claim or date entitlement arose, whichever is later"). The Veteran's application to reopen the claim for service connection for an acquired psychiatric disability was granted based upon her August 19, 2011 claim. Although the medical evidence demonstrates that the Veteran was experiencing a psychiatric disability prior to this date, her claim to reopen (following the last final denial) was not received until August 19, 2011. Thus, in this case, the later date is the date the claim for service connection for an acquired psychiatric disability was received-August 19, 2011. This is the earliest effective date possible based upon the facts in this case and the law and regulations. See id. The Board has considered the Veteran's assertions that service connection for an acquired psychiatric disability should be effective back to her date of separation from service. The Board acknowledges that treatment records show treatment for a psychiatric disability in the 1990's. However, the Court has explicitly stated that the "mere presence" of a diagnosis of a specific disorder in a VA medical report "does not establish an intent on the part of the veteran" to seek service connection for that disorder. Brannon v. West, 12 Vet. App. 32, 35 (1998); see MacPhee v. Nicholson, 459 F.3d 1323; 38 C.F.R. § 3.155. Accordingly, the mere existence of medical records in a case cannot be construed as an informal claim. Id.; Ellington v. Nicholson, 22 Vet. App. 141, 145-46 (2007), aff'd 541 F.3d 1364 (Fed. Cir. 2008). The first evidence of a claim for service connection for an acquired psychiatric disability, following the final prior decision, was on August 19, 2011. The Board finds that there was no formal claim, informal claim, or written intent to file a claim to reopen service connection for an acquired psychiatric disability prior to August 19, 2011. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). III. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012). Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/ Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Finally, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Veteran is currently service-connected for major depressive disorder claimed as bipolar disorder Type I, and nervous conditions and neuropsychiatric condition. She asserts that service connection is additionally warranted for posttraumatic stress disorder (PTSD) based on in-service assault. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with VA regulations; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304 (f). With respect to the Veteran's allegations of personal assault, the Board notes that there are special considerations for PTSD claims predicated on a personal assault. The pertinent regulation, 38 C.F.R. § 3.304(f)(5), provides that PTSD based on a personal assault in service permits evidence from sources other than the veteran's service records which may corroborate his or her account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. 38 C.F.R. § 3.304(f)(5) (2017). Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance, substance abuse, episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. 38 C.F.R. § 3.304(f)(5). VA will not deny a PTSD claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. In addition, 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). As previously noted in the VCAA section of this opinion, the Veteran received adequate notice regarding her PTSD claim based on personal assault. In essence, the Veteran contends that she has PTSD related to being sexually assaulted during her active duty service. As discussed above, in order to establish service connection for PTSD, there must be: (1) a current medical diagnosis of PTSD; (2) credible supporting evidence that a claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between the current PTSD symptomatology and the claimed in-service stressor. See 38 C.F.R. § 3.304(f) (2017). The Veteran underwent a VA examination in November 2012. The VA examiner noted that the Veteran had been diagnosed with bipolar disorder Type I. The VA examiner stated that the Veteran did not have more than one mental disorder diagnosed. In a September 2014 VA examination, the VA examiner determined that the Veteran did not have a diagnosis of PTSD. Rather, a diagnosis of major depressive disorder, unspecified, was assigned. The VA examiner noted that the Veteran did not have more than one mental disorder diagnosed. The VA examiner determined that there is no evidence to fulfill the diagnostic criteria for PTSD. The Veteran underwent an additional VA examination in April 2015. The VA examiner determined that the Veteran did not have a diagnosis of PTSD that conforms to DSM-5 criteria based on the evaluation. The VA examiner determined that the Veteran has a major depressive disorder, recurrent, severe. The VA examiner stated that there is absolutely no doubt that the Veteran's currently diagnosed mental disorder was caused and is directly related to the military sexual trauma, but not diagnosed as PTSD. The examiner noted that military sexual trauma consequences can be seen and expressed differently in each individual patient and it is a well-known fact that military sexual trauma is not synonymous with PTSD. She noted that other mental disorders, such as major depression, anxiety disorders, even psychotic disorders can be found related to an incident or incidents of sexual abuse. The VA examiner stated that the Veteran's symptoms, from the beginning, have consistently been diagnosed as major depression, even during the time she was admitted and treated by VA. The Board acknowledges that there are treatment records that note a diagnosis of PTSD and that the Veteran has been treated in PTSD support groups. The Board has not ignored any evidence. The Board finds, however, that these reports all warrant less probative weight than the VA examinations and opinions discussed above (in which the examiners determined that the Veteran does not have PTSD) as none of them contain an analysis or discussion as to whether or not all of the criteria for PTSD were met, and they provide little, if any, support for their conclusions. Nieves-Rodriguez; see also Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (recognizing the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence"). The Veteran might sincerely believe that she has an acquired psychiatric disability other than service-connected major depressive disorder claimed as bipolar disorder Type I, and nervous conditions and neuropsychiatric condition, that is related to her active service. However, as a lay person she is not competent to relate any current acquired psychiatric diagnosis to her active service, to include any treatment therein, as that is outside the common knowledge of a lay person and would require medical expertise. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In any event, her medical opinion is outweighed by the examinations of record, which have all determined that the Veteran does not have PTSD and found that she only had one mental disability, which is already service-connected. The Board finds that the Veteran's acquired psychiatric symptoms are all attributed to her already service-connected major depressive disorder claimed as bipolar disorder Type I, and nervous conditions and neuropsychiatric condition. The Board thus finds that the preponderance of the evidence is against the claim and that entitlement to service connection for an acquired psychiatric disability, other than major depressive disorder claimed as bipolar disorder Type I, and nervous conditions and neuropsychiatric condition, is not warranted. Therefore, the claim must be denied. 38 U.S.C. § 5107(b) (2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an effective date earlier than August 19, 2011, for the establishment of service connection for major depressive disorder claimed as bipolar disorder Type I, and nervous conditions and neuropsychiatric condition, is denied. Service connection for an acquired psychiatric disability, other than service-connected major depressive disorder claimed as bipolar disorder Type I, and nervous conditions and neuropsychiatric condition, is denied. ____________________________________________ CAROLINE B. FLEMING Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs