Citation Nr: 18139905 Decision Date: 10/01/18 Archive Date: 10/01/18 DOCKET NO. 16-12 822 DATE: October 1, 2018 ORDER The application to reopen entitlement to service connection for an acquired psychiatric disorder is granted. Service connection for posttraumatic stress disorder (PTSD) is denied. REMANDED Service connection for an acquired psychiatric disorder. FINDINGS OF FACT 1. The Veteran had active service from April 1965 to April 1973. 2. Service connection for a nervous disorder was denied in an April 1975 rating decision. Evidence submitted following the prior final decision is new and material. 3. A current diagnosis of PTSD has not been shown. CONCLUSIONS OF LAW 1. The April 1975 rating decision denying service connection for a nervous disorder is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2017). 2. The evidence received since the April 1975 rating decision is new and material; the claim for service connection for an acquired psychiatric disorder is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. PTSD was not incurred in or caused by active service. 38 U.S.C. §§ 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.310(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS New and Material Evidence to Reopen Claim Prior unappealed rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision. 38 U.S.C § 5108; 38 C.F.R. § 3.156. “New” evidence means evidence “not previously submitted to agency decisionmakers.” “Material” evidence means “evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim.” 38 C.F.R. § 3.156(a). The Veteran’s claim for service connection for a nervous disorder was originally denied in an April 1975 rating decision for lack of a medical nexus. The evidence included his statements regarding his claim, service treatment records (STRs), and VA hospitalization records that noted a diagnosis of aggravated depression/alcohol abuse. He did not appeal this decision and it became final. Evidence submitted since the April 1975 rating decision includes years of VA treatment records, hospitalization records, and private medical records containing psychiatric diagnoses other than aggravated depression/alcohol abuse. He has been diagnosed at various points with major depressive disorder and unspecified bipolar affective disorder (May 1995), nervousness (May 1996), and dysthymia, chronic (April 1996), among others. The April 1975 rating decision did not find in-service complaints of nervousness as psychiatric symptoms related to the Veteran’s then-diagnosed depression. Medical professionals have found diagnoses of acquired psychiatric disorders since the last final denial but have not opined whether complaints of nervousness in-service were etiologically related to these diagnoses. Given these new diagnoses are material in establishing theories of etiological connection to complaints of nervousness in-service, and medical nexus is an unestablished element of the claim, the application to reopen will be granted. The appeal is granted to this extent. Service Connection for PTSD Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using 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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection for PTSD requires medical evidence establishing a diagnosis of the condition, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). Significantly, the first element of service connection – a current diagnosis of PTSD – is not met. VA and private medical records show no clinical diagnosis of PTSD. A May 1995 private discharge summary noted that the Veteran complained of PTSD from service in Vietnam but diagnosed him with major depressive disorder, recurrent type, and noted a “questionable history of posttraumatic stress disorder.” As such, the first element of service connection is not met and the appeal on this issue must necessarily be denied. The Board has considered the Veteran’s lay statements that PTSD was caused by active service. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not competent to offer a diagnosis or etiology of PTSD due to the medical complexity of the matter involved. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462. Such competent evidence has been provided by the medical evidence and by service records obtained and associated with the claims file. Here, the Board attaches greater probative weight to these records than to his statements. The Veteran has claimed that his application to reopen the claim for service connection for an acquired psychiatric disorder and for entitlement to service connection for PTSD should be treated as a single claim. However, since a current diagnosis of PTSD has not been shown and there is sufficient evidence to reopen a claim for a broadly-defined acquired psychiatric disorder, it is most beneficial to the Veteran to adjudicate the claims separately. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND The Veteran’s original claim for service connection was for a nervous disorder and he was denied service connection for his then-current disability of depression. He has received several psychiatric diagnoses since the prior final decision. However, he has not received an examination for a medical opinion to determine whether any of these psychiatric disorders are related to service. Therefore, an examination should be undertaken to address this issue. The matter is REMANDED for the following actions: 1. Obtain VA clinical records that are not already associated with the claims file. 2. Make reasonable efforts to obtain any outstanding private medical records, particularly those related to psychiatric diagnoses. 3. Schedule the Veteran for an examination to ascertain whether any of his psychiatric disorders are related to service. The claims file must be made available to the examiner. The report should include a discussion of the Veteran’s documented medical history and assertions, and all clinical findings should be reported in detail. The examiner is asked to answer the following questions: (a.) After examining the Veteran, identify all his current psychiatric diagnoses. (b.) Are any of the psychiatric diagnoses at least as likely as not (a 50 percent probability or greater) related to active duty? (c.) The examiner must provide a full rationale for all opinions, and specifically comment on his complaints of nervousness during service. 4. Then, readjudicate the claim on appeal. If the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Brendan A. Evans, Associate Counsel