Citation Nr: 18140472 Decision Date: 10/04/18 Archive Date: 10/03/18 DOCKET NO. 16-19 230 DATE: October 4, 2018 ORDER The petition to reopen the previously denied claim of entitlement to service connection for an acquired psychiatric disorder, based on the receipt of new and material evidence, is granted. Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), unspecified anxiety disorder, depression, and bipolar disorder, is denied. FINDINGS OF FACT 1. A January 2014 rating decision denied the claim of entitlement to service connection for an acquired psychiatric disorder; the Veteran did not appeal and this denial became final. 2. Evidence received since the final January 2014 rating decision is not cumulative or redundant of the evidence of record at the time of the prior final rating decision and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder. 3. The Veteran’s acquired psychiatric disorder did not originate in service and is not otherwise etiologically related to service. CONCLUSIONS OF LAW 1. The January 2014 rating decision is final. 38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.200, 20.302, 20.1103 (2018). 2. New and material evidence has been received sufficient to reopen the previously denied claim of entitlement to service connection for an acquired psychiatric disorder. 38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. §§ 3.156, 20.1103 (2018). 3. The criteria for service connection for an acquired psychiatric disorder, to include PTSD, unspecified anxiety disorder, and depression, have not been met. 38 U.S.C. §§ 1110, 1111, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1971 to August 1972. The Board notes that in May 2016, the Regional Office (RO) issued a rating decision denying entitlement to service connection for an acquired psychiatric disorder because the evidence submitted was not new and material. However, in April 2016, the Veteran appealed a May 2015 rating decision regarding the same issue to the Board. Therefore, the Board will address this matter as an appeal from the May 2015 rating decision. 1. New and material evidence to support entitlement to service connection for an acquired psychiatric disorder. Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. Id. For the purposes of reopening a claim, newly submitted evidence is generally presumed to be credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is not required as to each previously unproven element of a claim in order to reopen. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Id. at 117–18. Here, the RO denied service connection for an acquired psychiatric disorder in January 2014 based essentially on a finding that the Veteran did not provide evidence sufficient to reopen the August 2007 denial of service connection for PTSD, which denied the claim for lack of supporting evidence for an in-service stressor. The Veteran was notified of that decision in a February 2014 letter. In the year following the February 2014 notification letter, the Veteran did not submit any statements expressing disagreement with the denial of service connection for an acquired psychiatric disorder nor did he submit any documents concerning the claim of service connection for an acquired psychiatric disorder that could be considered new and material evidence. 38 C.F.R. §§ 3.156(b), 20.302. Therefore, the January 2014 decision became final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. The pertinent evidence received since the January 2014 rating decision includes the Veteran’s statements about an incident where his superior threw an ashtray on him and diagnoses for other psychiatric illnesses, specifically anxiety and depression. The Veteran’s testimony is new, as it was not previously of record; it is also presumed credible for the purposes of reopening a claim. Further, the diagnoses of anxiety and depression support reopening to the case to assess an acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). As the newly submitted evidence relates to an unestablished fact, by itself or when considered with other evidence, necessary to substantiate the claim, the Board finds that new and material evidence has been submitted and the petition to reopen the claim for service connection for an acquired psychiatric disorder must be granted. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. Service connection for an acquired psychiatric disorder, to include PTSD, unspecified anxiety disorder, and depression. Service connection is established on a direct basis when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a): (1) credible supporting evidence that the claimed in-service stressor occurred; (2) and a link, established by medical evidence, between current symptoms and an in-service stressor. When there is an approximate balance of positive and negative evidence on an issue material to a determination, VA resolves reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran asserts that he has a psychiatric disorder that is related to his active duty military service. Throughout the period on appeal, the Veteran has been diagnosed with anxiety and/or depression. Therefore, he has a current psychiatric diagnosis. The next question for the Board is whether there was an in-service incurrence or aggravation of an acquired psychiatric disorder. The Veteran’s military personnel record (MPR) indicates that he was reprimanded several times throughout his time in active service. From August 1971 to separation, the Veteran received four Article 15 citations: three for failure to repair and one for absence without leave (AWOL). A Court-Martial Convictions list indicates that the Veteran went AWOL from August 19, 1971 to August 22, 1971, June 2, 1972 to July 2, 1972, and July 2, 1972 to August 3, 1972, for a total of 66 days. A counseling record from August 1971 states that the Veteran was AWOL because he did not “want” to go to work. A May 1972 counseling record indicates that the Veteran attributed his difficulty to external factors, like his mother’s heart attacks and a poor selection of friends that encouraged poor actions. In May 1972, the Veteran had a consultation with Colonel N, an Air Force medical professional. Colonel N found that the Veteran had difficulty with directive authority, difficulty with assumption of personal responsibility, avoidance of required tasks, and was absenting himself from the arena. Colonel N noted that the Veteran had a goal of completing his high school degree while in the Air Force, but had not taken steps towards that goal. Colonel N diagnosed the Veteran with character and behavior disorder, passive-aggressive personality, passive type. In an August 1972 report of medical examination, completed for purposes of separating from service, the examiner did not note any psychiatric disorders. That report is consistent with the August 1972 report of medical history that the Veteran completed. The Board notes that the Veteran’s service treatment records (STRs) do not note any mental health concerns. Post-service, the first mental health record was a June 2006 VA treatment record indicating that the Veteran had been in an out of programs for alcohol abuse. The Veteran was afforded a VA examination in May 2015. The examiner diagnosed the Veteran with unspecified anxiety disorder and alcohol use disorder in sustained remission. Upon examination, the examiner found that the Veteran’s claimed stressor of having an ashtray thrown at him did not meet the criteria for PTSD. The examiner noted that the Veteran reported having problems since childhood, including being physically and emotionally abused by his father and sexual abuse by a neighbor. The Veteran also reported having witnessed car accidents and dead bodies as a child. The examiner stated that the Veteran was expelled in 9th grade for assaulting a teacher. The examiner noted that the Veteran reported difficulty maintaining employment related to his inability to be a reliable worker, which began before active service. The examiner concluded that the Veteran’s psychiatric diagnoses were less likely than not (less than 50 percent probability) related to service. In so concluding, the examiner noted that pre-service, the Veteran reported problems from abuse as a child and being expelled for assaulting a teacher. The examiner considered the Veteran’s military occupation specialty as a cook and his military personnel record, including his discharge for “apathy and defective attitudes.” The examiner found that Colonel N’s evaluation was consistent with difficulties noted pre-service. Based on the examination and a review of the Veteran’s record, the examiner concluded that the Veteran’s current unspecified anxiety disorder was related to his current psychosocial stressors, including his “fight for service connection” and his daughter’s drug use. The examiner’s findings are consistent with the Veteran’s treatment records. Mental health treatment records consistently note the Veteran’s then-current life events, including his daughter’s drug use, his past drug and alcohol use, difficulties with family relationships, the death of a friend, and his attempts to be granted service connection. The only discussions of the ashtray incident in his treatment records are in relation to the Veteran’s claim for service connection. These records are also consistent with June 2006 and February 2015 treatment records, which indicate that the Veteran had two past suicide attempts related to then-current psychosocial stressors. The Board notes that treatment records since service, including Social Security Administration records, indicate that the Veteran has received treatment for alcohol and cocaine use, which may be indicative of an acquired psychiatric disorder. A February 2015 treatment record indicates that the Veteran’s drinking began at the age of 13, several years before active duty. Further, the Veteran has not submitted that his substance abuse was related to active service. Therefore, the Board finds that there is no indication that the Veteran’s past substance abuse would support a finding of a psychiatric disorder being acquired in-service. The Veteran submits that he was “bullied” out of the Air Force and that Colonel N told him that he had anxiety disorder. However, there is no indication in Colonel N’s report that he believed the Veteran had an anxiety disorder. Further, the Veteran has not provided any evidence that he was treated for or had symptoms of a psychiatric disorder shortly after service. Finally, there is nothing in the record to indicate that the psychiatric treatment that the Veteran has received was due to his time in active service. As noted above, the Veteran has claimed onset of anxiety during or as a result of service. As a layperson, however, the Veteran is not capable of making medical conclusions; thus, his statements regarding causation and aggravation are not competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. Id; see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, psychiatric disorders are complex disorders which require specialized training for a determination as to diagnosis and causation, and they are therefore not susceptible of lay opinions on etiology, and the Veteran’s statements therein cannot be accepted as competent medical evidence. After a review of all the evidence, the Board finds that service connection for an acquired psychiatric disorder is not warranted. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for service connection for an acquired psychiatric disorder. The claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). The preponderance of the evidence is against a finding that an in-service event caused an acquired psychiatric disorder, to include PTSD, unspecified anxiety disorder, and depression. Therefore, the criteria for service connection for an acquired psychiatric disorder have not been met and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Shah, Associate Counsel