Citation Nr: 18148803 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 12-11 849 DATE: November 8, 2018 ORDER New and material evidence has been received to reopen an application for entitlement to service connection for acquired psychiatric disorder; the appeal is granted to this extent. Service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD), depression, and anxiety is denied. FINDINGS OF FACT 1. The Veteran served on active duty from July to December 1989 and from December 1990 to April 1991. 2. An unappealed February 1998 rating decision (notice of which was mailed in April 1998) denied service connection for sleep problems, memory loss and mood swings. 3. Evidence received since the February 1998 rating decision is new and raises a reasonable possibility of substantiating the claim of entitlement to service connection for an acquired psychiatric disorder. 4. PTSD and anxiety disorder have not been shown during the period of the claim; depression was not present during service or until 15 years after service discharge and it is not otherwise caused by or related to any incident of service. CONCLUSIONS OF LAW 1. The February 1998 rating decision which denied service connection for sleep problems, memory loss, and mood swings is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2018). 2. Evidence submitted to reopen the claim of entitlement to service connection for an acquired psychiatric disorder is new and material, and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (a) (2018). 3. A psychiatric disorder, to include PTSD, anxiety, and depression was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1112, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Although the RO considered the claim on the merits in the April 2010 rating decision on appeal, as noted below, the Veteran previously filed a claim for service connection for various psychiatric symptoms such as sleep problems, memory loss and mood swings. This claim was denied in a February 1998 rating decision. A December 1996 statement from the Veteran’s mother indicates that the Veteran’s emotional problems stemmed from the loss of her son who was born prematurely. Thus, even though the February 1998 rating decision notes that the issues denied were service connection for sleep problems, memory loss and mood swings, due to undiagnosed illness, the claims denied were for psychiatric symptoms based in part upon the same theory of entitlement as claimed here. As such, the Board will consider the claim as a claim to reopen. In this regard, the Board notes that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by a veteran’s description of the claim, reported symptoms, and other evidence of record. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). When determining whether a claim is independent from a previously adjudicated claim, VA must consider whether the evidence truly amounts to a new claim based upon a different diagnosed disease or whether the evidence substantiates an element of a previously adjudicated matter. Velez v. Shinseki, 23 Vet. App. 199, 204 (2009). However, a claim for one diagnosed disease or injury cannot be prejudiced by a prior claim for a different diagnosed disease or injury when it is an independent claim based on distinct factual bases. Boggs v. Peake, 520 F.3d 1330, 1337 (Fed. Cir. 2008). Although the Veteran requested a Board hearing in her May 2012 VA Form 9 and one was scheduled for September 2017, she did not appear for the hearing. Instead, she requested that the hearing be rescheduled. The Board hearing was rescheduled for May 2018 and she was properly notified of the May 2018 hearing but she did not appear. She has not requested that the hearing be rescheduled. As such, the hearing request is considered withdrawn. 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). Service connection for sleep problems, memory loss and mood swing was initially denied in a February 1998 rating decision (notice of which was mailed in April 1998) on the basis that the Veteran was not diagnosed with any sleep problems, memory loss and/or mood swings. Specifically, a July 1996 VA psychiatric examination report reflects no findings of sleep problems, memory loss or mood swings, and no psychiatric diagnosis whatsoever was found. The Veteran did not file a timely notice of disagreement with the February 1998 rating decision and no new and material evidence was received within a year of the April 1998 notification of the February 1998 rating decision. As such, the February 1998 rating decision is final. The evidence added to the record since the February 1998 rating action is new and material, and reopening of the claim is in order. In this regard, the evidence added to the record includes a September 2009 VA treatment record which notes a diagnosis of depression. This new evidence raises a reasonable possibility of substantiating the claim, as it reflects a psychiatric diagnosis where there was previously none. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claim is reopened and will be considered on the merits. Service Connection 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 may be granted on a presumptive basis for diseases listed in § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304 (f). A necessary element for establishing any service connection claim is the existence of a current disability. See Degmetich v. Brown, 104 F.3d 1328 (1997) (holding that § 1110 of the statute requires the existence of a present disability for VA compensation purposes). The Veteran contends that she has a psychiatric disorder, to include PTSD, depression and anxiety, which is due to service. Specifically, she alleges that her psychiatric disorder is the direct result of her early labor in June 1991, which resulted in the premature birth of her son, who died hours after being born. She claims that his premature birth was the result of being administered the anthrax vaccine in service at a time when she was pregnant but did not know yet that she was pregnant. Although she is competent to report psychiatric symptoms, as a layperson without the appropriate medical training and expertise, she is not competent to provide a probative opinion on a medical matter such as a mental health diagnosis. Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (“It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant”). Thus, her own statements diagnosing a psychiatric disorder cannot support a claim for service connection. As the medical evidence does not reflect a diagnosis of a PTSD or anxiety disorder at any time since the Veteran filed her claim for service connection in October 2009, an essential element of the claim for service connection for PTSD and/or anxiety disorder has not been established, and entitlement to service connection for PTSD and/or anxiety disorder is not warranted. However, the medical evidence reflects a diagnosis of depression. Specifically, a September 2009 VA psychiatry treatment record notes a diagnosis of depression, for which Paxil and Trazodone were prescribed. As such, the requirement of a current disorder has been shown. The service treatment records (STRs), including the April 1991 separation examination report, do not reflect any psychiatric complaints or findings, and the Veteran has not alleged that she experienced any depression or other psychiatric symptoms during service. Further, there is no evidence of depression until 2009, which is more than 15 years after service. Notably, the September 2009 VA psychiatry note (which reflects that the Veteran was seen to establish care) reflects that she had been feeling depressed. She reported that she felt like she had been on an emotional roller coaster for the past year. As such, entitlement based on an in-service chronic disease or injury is not warranted. Moreover, depression is not listed as a chronic disease under 38 C.F.R. §§ 3.307, 3.309(a); therefore, analysis under continuity of symptomatology is not for application. Further, depression is not one of the enumerated disorders listed as entitled to the one-year presumption, so no further discuss of that theory of entitlement is warranted. The Board has considered the Veteran’s lay statements that the anthrax vaccination in service caused her preterm labor, which led to premature birth and resulted in the death of her son, which in turn led to her depression. She is competent to report symptoms because this requires only personal knowledge as it comes to her through her senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, she is not competent to offer an opinion as to the etiology of her current depression 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. The evidence reflects that the Veteran was not diagnosed with depression until approximately 2009, many years after discharge. Moreover, there is no indication that an individual with appropriate expertise has rendered an opinion that the Veteran’s depression was caused by any incident of service. In light of the above discussion, the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. In the May 2012 VA Form 9, the Veteran argued that the STRs from her service in Saudi Arabia from December 1990 to February 1991 were not obtained or considered; however, STRs were obtained and considered, and nothing in the record reflects that they are incomplete. Specifically, STRs reflect that in January 1991, the Veteran received several vaccinations which she had received in the past, including oral poliovirus, tetanus-diptheria, and influenza. In addition, she received immunizations for cholera, typhoid, and gamma globulin. Anthrax was not noted. It was noted that the Veteran reported her last menstrual period was December 1990 and she had stopped taking contraceptives in January 1991. A February 1991 pregnancy test was positive, and a March 1991 ultrasound revealed a gestational age of approximately 11 weeks and 2 days. Treatment notes from June 1991 showed that the Veteran was thought to have an incompetent cervix and might be a candidate for cerclage. She denied any history of DES exposure. Strict bedrest was ordered in June 1991, but problems continued. Following the spontaneous vaginal delivery in June 1991, incompetent cervix was again noted. There are no other notes indicating the cause for a premature delivery. As such, the records that she claims are missing are not in fact missing. Therefore, the decision is based upon a complete medical record. 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). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Redman, Counsel