Citation Nr: 18146427 Decision Date: 11/01/18 Archive Date: 10/31/18 DOCKET NO. 16-26 587 DATE: November 1, 2018 ORDER New and material evidence having been received, the appeal to reopen a claim of entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD) is granted. Entitlement to service connection for an acquired psychiatric disorder other than PTSD, best characterized as generalized anxiety disorder, is granted. REMANDED Entitlement to service connection for diabetes mellitus, type II, to include as secondary to service-connected generalized anxiety disorder, is remanded. Entitlement to service connection for tinnitus is remanded. REFERRED In statement received by VA on March 5, 2015, prior to March 25, 2015, when VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on a standard form, the Veteran raised the issues of entitlement service connection for a pulmonary embolism, blood clots and sleep apnea and also raised claims to reopen claims for service connection for bilateral hearing loss, a vision disability, a disability manifested by memory loss, and PTSD; however, these issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Thus, they are referred to the AOJ for adjudication. FINDINGS OF FACT 1. A March 1978 Board decision, in part, denied entitlement to service connection for anxiety neurosis; the Veteran did not appeal this denial in a timely manner; however, evidence received since the final March 1978 Board decision is new, relates to an unsubstantiated issue necessary to substantiate the claim for an acquired psychiatric disorder other than PTSD, and raises a reasonable possibility of substantiating the claim. 2. Resolving reasonable doubt in the Veteran’s favor, an acquired psychiatric disorder other than PTSD, best characterized as generalized anxiety disorder, is at least as likely as not related to active service. CONCLUSIONS OF LAW 1. The March 1978 Board decision which, in part, denied entitlement to service connection for an anxiety neurosis, is final; however, new and material evidence has been received sufficient to reopen the previously denied claim of service connection for an acquired psychiatric disorder other than PTSD. 38 U.S.C. §§ 7104, 5108 (2012); 38 C.F.R. §§ 3.156 (a), 20.1100, 20.1105 (2017). 2. The criteria for service connection for an acquired psychiatric disorder other than PTSD, best characterized as generalized anxiety disorder, are met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 1970 to August 1973. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Significantly, the Board considered and denied service connection for anxiety neurosis in a March 1978 Board decision. In this regard, the March 1978 Board decision considered the claim broadly as such addressed any mental diagnosis other than PTSD. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); Ephraim v. Brown, 82 F.3d 399, 401 (1996) (a newly diagnosed disorder, whether or not medically related to a previously diagnosed disorder, cannot be the same when it has not been previously considered). As such, the threshold question of whether new and material evidence has been received must be addressed. It is also noted that in light of the Board’s decision to reopen the claim in the decision below, there is no discernable prejudice to the Veteran in this regard. Further, the Board has recharacterized the claim for service connection for anxiety, depression, nightmares, sleeplessness, stress and nervousness as single claim for any acquired psychiatric disorder other than PTSD as the February 2013 rating decision on appeal also denied entitlement to service connection for PTSD which was not appealed by the Veteran. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In March 2013, the Veteran provided notice of disagreement (NOD) with the February 2013 rating decision denials of service connection for lymphoma and a thyroid condition and an increased rating for fibrosis, left lower lung, residual of pneumonia. Thereafter, a May 2016 statement of the case (SOC) was promulgated and provided to the Veteran, in part, for these issues; however, the May 2016 substantive appeal did not perfect an appeal as to these issues. Accordingly, this decision is limited to the issues set forth on the title page. See Archbold v. Brown, 9 Vet. App. 124 (1996); Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). The Veteran’s March 2013 NOD reflected his desire to participate in a VA hearing before a Decision Review Officer. However, in May 2016, the Veteran withdrew his hearing request. Accordingly, the Board considers the Veteran’s request for a hearing to be withdrawn. 38 C.F.R. § 20.704 (d), (e) (2017). Finally, since the most recent May 2016 SOC, issued for the appeal herein, additional evidence in the form of a January 2018 VA audiological treatment record was submitted by the Veteran. The Veteran did not waive AOJ review of this additional evidence. However, if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests AOJ consideration. Here, although the Veteran’s substantive appeal was filed after February 2, 2013, the Board interprets such exception as applying evidence not developed by VA, which is not the case here. Nevertheless, this evidence is only relevant to the Veteran’s claim for tinnitus, which is remanded below, thus, there is no prejudice to the Veteran in this regard. New and Material Evidence VA may reopen and review a claim, which has been previously denied, if new and material evidence is received, or submitted by or on behalf of a veteran. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017). New evidence means existing evidence not previously submitted to agency decision makers. 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 C.F.R. § 3.156 (a) (2017). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Additionally, the law should be interpreted to enable reopening of a claim, rather than to preclude it. Shade v. Shinseki, 24 Vet. App. 110 (2010). 1. Whether new material evidence has been received in order to reopen a claim of entitlement to service connection for an acquired psychiatric disorder other than PTSD A March 1978 Board decision, in part, denied entitlement to service connection for anxiety neurosis. The Veteran did not appeal the March 1978 Board decision. Thus, the March 1978 Board decision is final. 38 U.S.C. § 7104 (b) (2012); 38 C.F.R. § 20.1100 (2017). In July 2010, the Veteran, in part, filed a claim to reopen the claim of entitlement to service connection for psychiatric disability other than PTSD, to include anxiety, depression, nightmares, sleeplessness, stress and nervousness. A review of the record reflects rating decisions dated in April 2012 and December 2012 addressing the claim were drafted but not promulgated. Thereafter, a February 2013 rating decision was promulgated, and, in pertinent part, confirmed and continued the previous denial of service connection for anxiety reaction with excessive, compulsive and immature tendencies, and denied depression, nightmares, sleeplessness, stress and nervousness on the merits, and the Veteran’s appeal of these denials forms the basis of the present appeal. New evidence added to the record since the March 1978 Board decision, includes a January 2011 PTSD examination report. Specifically, the January 2011 VA examiner opined the Veteran’s anxiety was caused by or a result of nervousness shown in service. Thus, this evidence is both new as it was not previously considered by VA, and material, as it raises a reasonable possibility of substantiating the Veteran’s claim. Accordingly, the claim for service connection for an acquired psychiatric disorder other than PTSD is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). Service Connection Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2017). To establish service connection on a direct incurrence basis, the Veteran 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. 2. Entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include anxiety, depression, nightmares, sleeplessness, stress, and nervousness The Board concludes that the Veteran has a current acquired psychiatric disorder, best characterized as generalized anxiety disorder, that is etiologically related to his active service. 38 U.S.C. §§ 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). In this regard, proximate to the currently claim received in July 2010, private medical records dated in August 2009, September 2009, November 2009, December 2009 and January 2010 endorsed a diagnosis of anxiety and insomnia, and a February 2010 private medical record endorsed a diagnosis of anxiety. Romanowsky v. Shinseki, 26 Vet. App. 303 (2013). Further, during the pendency of the claim, private medical records dated in July 2010, September 2010 and October 2010 endorsed a diagnosis of anxiety. Another July 2010 private medical record endorsed a diagnosis of depressive disorder, not otherwise specified, and subsequent medical records from the same provider dated in August 2010, April 2011, May 2011, July 2011 and August 2011 described symptoms which included irritability, sadness, depressed mood and anxiety and linked such to difficulties with a romantic relationship, a recently diagnosed serious medical condition as well as the additional stress of caring for an ailing parent. Another April 2011 private medical record noted in part, the Veteran had depression in 2007, when he essentially burned out, panic attacks in 2007 and that he currently possibly had mild agoraphobia. In an August 2012 VA treatment record, the Veteran reported, in part, difficulty falling and staying asleep, which started while he was in the military as it was “fear driven” and he had nightmares, and provided an assessment of insomnia, with significant anxiety component and poor sleep hygiene. A January 2011 examiner endorsed a diagnosis of generalized anxiety disorder. Thereafter, a July 2012 VA examiner also endorsed a diagnosis of generalized anxiety disorder. The July 2012 VA examiner further documented that the Veteran had poor concentration related to anxiety, but it was not clear if he had a separate memory disorder. He also had unrealistic fear, which he realized was unrealistic, (i.e. specifically that the Army would force him to return to active service). The July 2012 VA examiner found the Veteran had insomnia related to anxiety, and although he was not having nightmares, he had a fear at night that someone might break into his home. Thus, the Veteran is acknowledged to have a current acquired psychiatric disorder, best characterized as generalized anxiety disorder. The Board notes that while the Veteran checked yes to the existence of depression or excessive worry in his October 1970 report of medical history, completed in conjunction with his enlistment into active service, the October 1970 examination report found his psychiatric health was within normal limits and a psychiatric disorder was not otherwise identified as a defect and/or diagnosis during the examination. As such, the presumption of soundness as to a psychiatric disability applies. See McKinney v. McDonald, 28 Vet. App. 15 (2016). Significantly, no specific psychiatric disability has been identified by the Veteran, or a clinician, to have clearly and unmistakably preexisted service based on objective evidence. Notably, the evidentiary standard of clear and unmistakable evidence means that the evidence cannot be misinterpreted and misunderstood, and is undebatable. Horn v. Shinseki, 25 Vet. App. 231, 234-35 (2012). In an August 2012 addendum opinion, the January 2011 VA examiner was asked to address whether the Veteran’s preservice mental condition was as likely as not permanently aggravated beyond the natural progression, but he could not offer any opinion because such knowledge was not available in the medical literature and any opinion would be speculative. In the August 2012 addendum opinion, the examiner found the existence of a premilitary disorder was based on the Veteran’s entrance examination where he checked “yes” to the existence of depression or excessive worry. It was also noted that, in the January 2011 interview, the Veteran stated he had had brief psychotherapy at age 15 due to conflict with a brother. The examiner further noted that, in the time period just prior to service, the Veteran feared he might be sent to combat. The examiner opined there was no documented psychiatric diagnosis prior to service, and no way to establish a baseline of any disorder. Thus, based on the evidence of record, the Board finds that there is not clear and unmistakable evidence of an acquired psychiatric disability preexisting service. Therefore, the first prong necessary to rebut the presumption of soundness has not been met. As such, discussion of the second prong (i.e. clear and unmistakable evidence of no aggravation of a preexisting acquired psychiatric disability during service) is rendered moot. As the presumption of soundness on entrance to service has not been rebutted, the Veteran’s claim may not be considered on the basis of aggravation of a preexisting disability. Rather, the claim must be considered solely on a direct incurrence basis. In this regard, the January 2011 examiner found the Veteran’s anxiety was caused by or a result of nervousness shown in service, as service medical records indicated nervousness in service with treatment with medications and a history of ongoing anxiety since he left service. After review of the record, the Board finds that the evidence is at least in equipoise with regard to the issue of entitlement to service connection for an acquired psychiatric disorder. The January 2011 opinion is considered highly probative, as it is consistent with other evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Specifically, a March 1971 service treatment record described the Veteran’s affect in the hospital as notable in that he was very dependent and somewhat immature, a June 1971 service treatment record documented the Veteran received a prescription for Valium, a July 1971 service treatment record documented, in part, the Veteran was very anxious and should be provided a psychiatric consult as soon as possible, a September 1971 service treatment record documented the Veteran received a prescription refill for Valium, and a subsequent September 1971 service treatment record documented the Veteran was very nervous because of parents getting divorced, and a brother being ill, and he received another prescription refill for Valium. Further, the Veteran’s July 1973 examination, conducted in conjunction with separation from service, documented, in part, nervousness with Air Force tensions. Additionally, in his July 1973 Report of Medical History, the Veteran checked “yes” to the existence of nervous trouble of any sort. Thereafter, a post active service treatment record dated in July 1974 documented, in part, the Veteran had extreme nervousness and hyperactivity and he was again prescribed Valium. An October 1975 post active service examination found the Veteran’s psychiatric health was normal, but noted the Veteran took medication for nervousness as prescribed by a private physician since August 1973. Similarly, the Veteran, in an October 1975 post active service Report of Medical History, checked “yes” to the existence of nervous trouble of any sort. Further, shortly after separation from service, the evidence reflects the Veteran received a diagnosis of nervous tension from September 1974 to April 1976, and in May 1977, a VA examiner endorsed a diagnosis of anxiety neurosis with obsessive compulsive tendencies and elements of immaturity. Finally, in an August 2010 statement, the Veteran’s partner of 25 years M. H., stated, in part, when he first met the Veteran in 1987 he was a nervous person with lots of anxiety disorders and the Veteran explained that issues started during his military service period. Thus, although as discussed above, private medical records linked the Veteran’s current psychiatric disorder to difficulties with a romantic relationship, a recently diagnosed serious medical condition, and the additional stress of caring for an ailing parent or being burned out, the Board affords the January 2011 opinion sufficient probative value to grant the claim. Additionally, there is no other nexus opinion of record as the July 2012 VA examiner did not provide a nexus opinion. Therefore, having carefully considered the claim in light of the record and the applicable law, the Board finds that the evidence is in equipoise as to whether the Veteran’s acquired psychiatric disorder, best characterized as generalized anxiety disorder, is etiologically related to service. In applying the benefit of the doubt to the claim, as required by law, the Board finds that service connection for an acquired psychiatric disorder, best characterized as generalized anxiety disorder, is warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for diabetes mellitus, type II, to include as secondary to service-connected generalized anxiety disorder is remanded. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s diabetes mellitus, type II, is at least as likely as not aggravated beyond its natural progression by his service-connected generalized anxiety disorder. 2. Entitlement to service connection for tinnitus is remanded. As discussed above, the issue whether new and material evidence has been received to reopen a claim of entitlement to service connection for hearing loss is referred to the AOJ for adjudication. In this regard, an April 2012 VA examiner found, in part, the Veteran’s tinnitus was at least as likely as not a symptom associated with his hearing loss. Thus, as the Veteran’s tinnitus claim is intertwined with his claim to reopen a claim of entitlement to service connection for bilateral hearing loss, and may only be considered when the development is completed on this claim. Accordingly, a decision by the Board on the Veteran’s tinnitus claim would at this point be premature. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matter is REMANDED for the following actions: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s diabetes mellitus, type II, is at least as likely as not aggravated beyond its natural progression by his now service-connected generalized anxiety disorder. 2. Thereafter, after taking any other development necessary, to include development and adjudication related to the Veteran’s March 2015 claim to reopen a claim of entitlement to service connection for bilateral hearing loss, readjudicate the issues on appeal, to include entitlement to service connection for tinnitus, to include as due to or aggravated by hearing loss. If any benefit sought is not granted, furnish the Veteran with a supplemental statement of the case and afford him an opportunity to respond before the record is returned to the Board for further review. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Espinoza, Counsel