Citation Nr: 18139869 Decision Date: 10/01/18 Archive Date: 10/01/18 DOCKET NO. 17-03 135 DATE: October 1, 2018 ORDER The petition to reopen the previously denied claim for entitlement to service connection for an acquired psychiatric disorder is granted. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depressive disorder, is granted. FINDINGS OF FACT 1. The claim for service connection for a psychiatric disability was denied in a June 1992 unappealed decision; subsequently received evidence includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim. 2. The Veteran’s acquired psychiatric disorder is related to in-service harassment from his superiors and fellow Marines. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for an acquired psychiatric disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. An acquired psychiatric disorder was incurred in or is otherwise related to service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1977 to April 1981 and from May 1981 to October 1985. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. 1. The petition to reopen the previously denied claim for entitlement to service connection for an acquired psychiatric disorder The Board finds that the Veteran has submitted new and material evidence to warrant reopening his previously denied claim for service connection. New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156 (a). 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. The credibility of this evidence must be presumed, albeit just for the limited purpose of deciding whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In a May 1992 rating decision, the RO denied the Veteran’s claim for entitlement to service connection for anxiety attacks, homicidal and suicidal feelings due to no evidence of complaints, treatment or a diagnosis during service. In a June 1992 rating decision, the RO denied the Veteran’s claim for entitlement to service connection for a psychiatric disorder due to no evidence to substantiate incurrence or aggravation of the disability while in service. The Veteran was notified of his appellate rights. A notice of disagreement was not received within the subsequent one-year period, nor was any new and material evidence received during that time period. Therefore, the June 1992 rating decision is final. Since the last final decision, the Veteran has submitted a medical opinion from his VA psychiatrist which states that the Veteran’s acquired psychiatric disorders are related to service. As this evidence had not been previously reviewed by agency makers, the Board finds that it is new evidence under 38 C.F.R. § 3.156 (a). Moreover, the Board finds that the evidence is not only new but also material. It relates to unestablished facts necessary to substantiate the claim. Accordingly, the Veteran’s claim for service connection for an acquired psychiatric disorder is reopened. 2. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) The Veteran contends that he is entitled to service connection for an acquired psychiatric disorder because he was harassed by his superiors; threatened to have shackles put on and thrown overboard; and wrongly convicted towards the end of his active service. See January 2013 VA Form 21-4138. For the reasons explained below, the Board finds that service connection is warranted. In order to obtain service connection under 38 U.S.C. §§ 1110, 1131 and 38 C.F.R. § 3.303 (a) a Veteran must satisfy a three element test: (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, 1166-67 (Fed. Cir. 2004). Establishment of service connection for PTSD requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304 (f); see also Cohen v. Brown, 10 Vet. App. 128 (1997). An October 1985 court martial proceeding order indicates that the Veteran was sentenced to a bad conduct discharge, confinement at hard labor for 70 days; forfeiture of $150.00 pay per month for three months and a reduction to pay grade E-1. At a May 1987 Regional Office hearing, the Veteran testified that he was being harassed and unfairly targeted by his superiors. He challenged the bad conduct discharge. After a review of his testimony and personnel records, the RO found that the evidence was not adequate to support a dishonorable discharge. Ultimately, the RO found that the Veteran’s discharge for the period of service from February 1977 to October 1985 is considered to have been under honorable conditions for Veterans Administration purposes. In a March 1992 correspondence, the Veteran stated that he was currently being treated for symptoms of anger and depression but was concerned that his doctor was not interested in helping him. VA treatment records indicate that he has been treated for and/or diagnosed with alcohol use disorder, cocaine use disorder, unspecified trauma and stressor related disorder rule out PTSD. Here, the Veteran was not afforded a VA examination. However, he submitted a December 2016 letter from Dr. E.D., a board-certified psychiatrist at the Miami VA Medical Center, who opined that the Veteran’s psychiatric disorders of PTSD, major depressive disorder and alcohol use, were more likely than not caused by service. Dr. E.D. explained that she has treated the Veteran for over 3 years and relied on a review of his medical records as well as lay evidence to form her opinion. “Given the temporal relationship to the onset of symptoms and behaviors with the incidents which occurred while [the Veteran] was serving in the [United States Marine Corps] in addition to the absence of other events/incidents that would better account for his psychiatric symptoms/behaviors, the undersigned opines that [the Veteran’s] current psychiatric conditions are more likely than not caused by events which occurred while he was serving active duty in the [United States Marine Corps].” The Board assigns significant probative value to Dr. E.D.’s opinion. A medical opinion is most probative if it is factually accurate, fully articulated, and based on sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Dr. E.D. considered the Veteran’s reported history, medical records and provided an opinion, supported by rationale. Further, Dr. E.D. has treated the Veteran for over 3 years and reasonably has a thorough understanding of the Veteran’s psychiatric disabilities and their root causes. She acknowledged that there was no documented evidence in the Veteran’s files of the alleged harassment and assaults which is the source of his psychiatric problems. However, she likewise reasoned that it is not unusual that such events were not documented as they were to have been allegedly caused by superiors who would not have documented their own behavior. However, what is documented is the Veteran’s almost blemish free military record (of more than 7 years) until the last year of his discharge. During his last year, there is record of the Veteran being court martialed and charged with several counts of bad conduct. The Board finds this circumstantial but credible evidence that something changed with the Veteran. Affording the Veteran the benefit of the doubt, the Board finds that this change in the Veteran’s behavior is corroborative evidence of traumatic event during active service. Following his discharge, the Veteran sought mental health treatment, although he was initially denied service connection for the same. Within 2 years of his discharge, he challenged the bad conduct discharge and has consistently reported the same stressors throughout the years. He has also documented history of attempts to address his mental health problems. (Continued on the next page)   In considering the evidence of record, the Board finds that there are no negative opinions regarding the relationship of the Veteran’s psychiatric disability to service, and no evidence refuting the Veteran’s claims of harassment and abuse during his last year of active service. The Board should not and will not at this juncture develop the case further by attempting to obtain medical evidence for the sole purpose of refuting the positive evidence of record. Resolving doubt in favor of the Veteran, the claim of entitlement to service connection for an acquired psychiatric disorder is granted. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). BISWAJIT CHATTERJEE Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Baskerville, Counsel