Citation Nr: 18142457 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 15-12 807 DATE: October 15, 2018 ORDER As new and material evidence has been received sufficient to reopen a claim for service connection for an acquired psychiatric disorder, the appeal to this extent is allowed. Entitlement to service connection for an acquired psychiatric disorder diagnosed as an unspecified depressive disorder is granted. FINDINGS OF FACT 1. In an unappealed August 2004 rating decision, the regional office (RO) denied entitlement to service connection for alcohol dependence; alcohol induced anxiety disorder (also claimed as psychiatric disorder, depression, and anxiety disorder). 2. Evidence received since the August 2004 rating decision is new and material because the evidence has not previously been submitted, is not cumulative or redundant of the evidence of record at the time of the prior rating decision, and raises a reasonable possibility of substantiating the claim. 3. Resolving reasonable doubt in the Veteran’s favor, an acquired psychiatric disorder, diagnosed as an unspecified depressive disorder, is related to service. CONCLUSIONS OF LAW 1. The August 2004 rating decision that denied entitlement to service connection for alcohol dependence; alcohol induced anxiety disorder (also claimed as psychiatric disorder, depression, and anxiety disorder) is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been received since the last previous denial in August 2004, and the claim for service connection for an acquired psychiatric disorder is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 3. The criteria for an acquired psychiatric disorder, diagnosed as an unspecified depressive disorder, have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service, to include the periods from February 1982 to June 1982, March 1991 to July 1991, and from October 2002 to October 2003. In December 2016, the Veteran withdrew his request for a Board hearing. In light of the favorable determination herein, which is a full grant of the benefit sought, VA’s duties to notify and assist are deemed fully satisfied. There is no prejudice to the Veteran in proceeding to decide herein the issues on appeal. Neither the Veteran nor his attorney has raised any issues that are not discussed herein, nor have any other issues been reasonably raised by the record. Doucette v. Shulkin, 28 Vet. App. 366 (2017). In instant case, the Veteran continues to seek service connection for an acquired psychiatric disorder however variously claimed and diagnosed. Thus, new and material evidence is required to reopen the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder. Velez v. Shinseki, 23 Vet. App. 199, 204 (2009). 1. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for an acquired psychiatric disorder. VA law provides that a claimant may reopen a finally adjudicated claim by submitting new and material evidence. 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 U.S.C. § 5108; 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has held that the credibility of evidence must be presumed for the purpose of deciding whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The United States Court of Appeals for the Federal Circuit has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000). When making a determination as to whether received evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). The RO in an August 2004 rating decision denied service connection for alcohol dependence and alcohol induced anxiety disorder (also claimed as psychiatric disorder, depression, and anxiety disorder) based on the determination that the Veteran has a confirmed diagnosis of alcohol induced anxiety disorder and alcohol dependence, which is a disability of willful misconduct origin not subject to service connection. In rendering the decision, the RO relied on a March 2004 VA examination for mental disorders. The RO notified the Veteran of that decision and apprised him of his procedural and appellate rights. He did not appeal the RO’s decision, nor did he submit any additional evidence within a year following this decision. 38 C.F.R. § 3.156(b). That decision is final and binding on him based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103. The evidence added to the record since the August 2004 rating decision includes a November 2016 opinion in which a private psychologist, Dr. C.L.R. opined that the Veteran has an unspecified depressive disorder related to service. The evidence received is neither cumulative nor redundant of the evidence of record and raises a reasonable possibility of substantiating the claim for service connection for an acquired psychiatric disorder as it shows that the Veteran currently has a diagnosis of an acquired psychiatric disorder that has been related to service. The credibility of the evidence is presumed for the purposes of reopening the claim for service connection for an acquired psychiatric disorder. 2. Entitlement to service connection for an acquired psychiatric disorder. The Veteran contends that his acquired psychiatric disorder began during service due to being stationed in Guantanamo Bay. See December 2016 statement. Effective March 19, 2015, VA adopted an interim rule as a final rule which among other changes replaced outdated references with references to the Fifth Edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5). The rulemaking amended provisions of the Code of Federal Regulations, to include 38 C.F.R. § 4.125. It was specifically noted that the Secretary did not intend for the provisions to apply to claims that were pending before the Board (i.e., certified for appeal to the Board on or before August 4, 2014). 80 Fed. Reg. 14308 (March 19, 2015). As the current appeal was certified to the Board in June 2018, the revised regulations apply. Notably, mental health care providers have employed DSM-5 since its publication in May 2013. The Board concludes that the Veteran has an acquired psychiatric disorder diagnosed as unspecified depressive disorder that is related to service. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303. By way of background, service treatment records for the Veteran’s multiple periods of active service do not include an entrance examination that shows a psychiatric disorder nor do they include treatment records for a psychiatric disorder prior to the Veteran’s period of active service from October 2002 to October 2003. Thus, the Veteran is entitled to the presumption of soundness. Although service treatment records in April 2003 show that the Veteran attempted suicide prior to his deployment, this does not rise to the level of clear and unmistakable evidence that a psychiatric disorder preexisted service as the evidentiary standard is an onerous one, and the result must be undebatable. Thus, the presumption of soundness has not been rebutted regarding the Veteran’s psychiatric condition. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). The Veteran contends that his acquired psychiatric disorder began during service due to being stationed in Guantanamo Bay where he directly worked with prisoners and developed an emotional condition that would not allow him to sleep and focus on work, causing him to drink. See December 2016 statement. The Veteran explained that due to his limited English he did not understand the VA examiner’s questions (on the March 2004 examination) and incorrectly indicated that he first start drinking at the age of nineteen because this was when he first tried whiskey. Id. He stated that he did not start drinking until he was much older. As a lay person the Veteran is competent to give evidence about what he has experienced or observed. Layno v. Brown, 6 Vet. App. 465 (1994). His statements are credible and consistent with the circumstances of his service, as his DD 214 Form shows that he was with the military police and served in Cuba from November 2002 to September 2003, his service personnel records show that he was in Guantanamo Bay including in April 2003, and his service treatment records in April 2003 show that he suffered from depression, anxiety, suicidal ideation, and homicidal ideation. In the November 2016 opinion, the private psychologist, Dr. C.L.R., noted that she reviewed the Veteran’s file and that the evidence shows that he has other specified trauma and stress-related disorder (specifically, subthreshold posttraumatic stress disorder (PTSD)), unspecified depressive disorder, and alcohol abuse disorder in remission. She opined that the evidence shows that it is as likely as not that the Veteran’s subthreshold PTSD is related to his service. Dr. C.L.R. noted that there is evidence that his experiences at Guantanamo Bay precipitated his psychiatric disorder. She found it significant that, although the Veteran had a history of drinking, which was in partial remission in 2004 and in full remission in 2007, from 2007 onward he was treated by a psychiatrist and continued having symptoms related to his experiences at Guantanamo Bay, to include his fear of guns, nightmares about Guantanamo where he feared for his life and considered hanging himself, flashbacks, and intense anxiety. She noted that the same psychiatrist treated the Veteran until 2013 for anxiety disorder and the addition of depressive disorder. Dr. C.L.R. explained that until DSM-5 was in use the most appropriate diagnosis for a trauma related disorder was anxiety disorder. However, with the publication of the DSM-5, more appropriate diagnostic options became available. She explained that according to medical literature DSM-5 did not delineate a specific diagnosis for partial PTSD, but that the absence of avoidance symptoms is the most common reason individuals do not meet the full diagnostic criteria for PTSD. She further explained that medical literature indicates that such patients be diagnosed with other specified trauma and stressor related disorder with subthreshold PTSD given as an example for the disorder. Dr. C.L.R. also indicated that the Veteran has a diagnosis of depressive disorder per the DSM-5 criteria. In her conclusion she noted that the Veteran suffered trauma while stationed in Guantanamo Bay. The Board notes that medical reports must be read as a whole and in the context of the evidence of record. Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012). Thus, based on its overall context, the private examiner’s opinion shows that the Veteran has a diagnosis of unspecified depressive disorder per the DSM-5 criteria related to his service in Guantanamo Bay as he was treated for his additional diagnosis of depressive disorder including in 2013, the year that the DSM-5 criteria were published, due to symptoms related to his experiences in Guantanamo Bay. The November 2016 opinion discussed above is significantly probative regarding the etiology of the Veteran’s psychiatric disorder diagnosed as unspecified depressive disorder, as it was predicated on careful consideration of medical principles applied to the facts of this case. The examiner considered the history and nature of the Veteran’s acquired psychiatric disorder in rendering the opinion. Although Dr. C.L.R. opined that the Veteran had subthreshold PTSD, she also noted that the DSM-5 criteria did not delineate a specific diagnosis of partial PTSD. Thus, the diagnosis of subthreshold PTSD may not be included in the grant of service connection for an acquired psychiatric disorder as it does not fully satisfy the DSM-5 criteria. To the extent that the Veteran may have diagnoses of an acquired psychiatric disorder other than an unspecified depressive disorder discussed herein, VA is precluded from differentiating between the symptoms of the Veteran’s service-connected unspecified depressive disorder and those of any other nonservice-connected mental disorder. Mittleider v. West, 11 Vet. Ap. 181, 182 (1998). As in the instant case, it is not possible to distinguish such effects, the reasonable doubt doctrine dictates that all symptoms be attributed to the acquired psychiatric disorder diagnosed as an unspecified depressive disorder. Therefore, as there are no ratable psychiatric symptoms beyond the scope of the already service-connected pathology, there is no remaining nonservice-connected psychiatric disorder for consideration in this appeal, and the decision herein represents a full grant of the benefit sought. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Mac, Counsel