Citation Nr: 18152389 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 17-40 432 DATE: November 21, 2018 ORDER New and material evidence having been received, the appeal to reopen the claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), major depressive disorder, and generalized anxiety disorder (hereafter referred to simply as an “acquired psychiatric disorder”), is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. FINDINGS OF FACT 1. In a December 2007 rating decision, the Regional Office (RO) denied the Veteran’s claim for service connection for an acquired psychiatric disorder; the Veteran did not perfect this appeal, and that decision became final. 2. The evidence associated with the claims file subsequent to the December 2007 rating decision denying service connection for an acquired psychiatric disorder relates to an unestablished fact and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The December 2007 rating decision is final with respect to entitlement to service connection for an acquired psychiatric disorder. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The evidence received since the final December 2007 rating decision is new and material; therefore, reopening of the Veteran’s claim for entitlement to service connection for an acquired psychiatric disorder is warranted. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from June 2003 to June 2007. This case is on appeal before the Board of Veterans’ Appeals (Board) from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran initially filed a claim for service connection for PTSD. However, in Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims clarified how the Board should analyze claims for PTSD and other acquired psychiatric disabilities. As emphasized in Clemons, a veteran’s claim “cannot be limited only to that diagnosis, but must rather be considered a claim for any mental disability that may be reasonably encompassed.” Id. Accordingly, the Board has re-characterized the issue as shown on the title page. Neither the Veteran nor his representative has raised any specific issues with the duty to notify or the duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Also, neither the Veteran nor his representative has raised any issues concerning the hearing held before the undersigned. Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence of record, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; F. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran seeks service connection for an acquired psychiatric disorder, a claim that was previously denied in a December 2007 rating decision. The Veteran did not appeal this decision within one year of its issuance; as such, it became final. However, the Board finds that new and material evidence has been received and thus reopens the claim. Nonetheless, even with these new submissions, the Board finds that additional development is needed prior to adjudication of the claim. Therefore, the Veteran’s claim for service connection for an acquired psychiatric disorder is remanded. New & Material Evidence The VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a Veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998). New evidence is evidence not previously submitted to agency decision makers. 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. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last 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). In determining whether new and material evidence has been received, the VA must initially decide whether evidence associated with the claims file since the prior final denial is new. New evidence is that which was not of record at the time of the last final disallowance on any basis of the claim, and is not merely cumulative of other evidence that was then of record. 38 C.F.R. § 3.156(a). That analysis is undertaken by comparing newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. The Board must review all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. Evans v. Brown, 9 Vet. App. 273 (1996). For purposes of determining whether new evidence is material, the credibility of the new evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 510-513 (1992). New and material evidence is not required as to each previously unproven element of a claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). The Veteran’s claim for service connection for an acquired psychiatric disorder was initially denied in a December 2007 rating decision because the evidence did not show that his acquired psychiatric disorder was related to service. Since the Veteran did not perfect an appeal of the December 2007 rating decision within one year, it became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. Based on the record, the Board finds that the claim presented is one to reopen a previously denied claim for service connection for an acquired psychiatric disorder. Velez v. Shinseki, 23 Vet. App. 199, 204 (2009). Since the previous final denial in December 2007, the Veteran has submitted evidence indicating a nexus between his acquired psychiatric disorder and active service. Specifically, statements from three VA psychological examiners and the Veteran’s treating psychiatrist all link his acquired psychiatric disorder to traumatic events he experienced in service. This evidence is “new” because it had not been previously submitted and considered by the VA. It is also material because it relates to an unestablished fact necessary to substantiate the claim – a nexus between the Veteran’s service and his acquired psychiatric disorder. Accordingly, new and material evidence has been received. Thus, the Veteran’s request to reopen his claim for entitlement to service connection for an acquired psychiatric disorder is granted. 38 C.F.R. § 3.156(a); Shade, 24 Vet. App. 110. REASONS FOR REMAND Although further delay is regrettable, the Board finds that additional development is required prior to adjudication of the remaining issue on appeal. The Veteran seeks service connection for his acquired psychiatric disorder, which he traces to traumatic events he experienced in service. The Veteran asserts that he abstained from sex before marriage due to his deeply-held religious beliefs. However, when his shipmates discovered he was a virgin, they began taunting him and calling him derogatory names. The Veteran reported these behaviors to his commanding officer, but nothing was done. When the ship put to port in Panama City, he and some other sailors went to a club that turned out to be a brothel. The other sailors began to harass and intimidate the Veteran because he refused to have sex with one of the prostitutes. His crewmates then took up a collection, paid a prostitute, and blocked the Veteran in a room with her. They continued to heckle the Veteran, which made him feel afraid because he was outnumbered. To end the embarrassment, the Veteran complied with their demands and engaged in sexual intercourse with the prostitute as his shipmates watched. See May 2014 statement. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Regulations provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection, generally, there must be (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet. App. 341, 346 (1999). The evidence of record confirms that the Veteran has been diagnosed with PTSD. Generally, service connection for PTSD requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). Depending on the circumstances, there are several avenues to document an in-service stressor: an in-service PTSD diagnosis with lay testimony; combat service with lay testimony; prisoner of war status with lay testimony; lay evidence of personal assault with appropriate corroboration; and a stressor related to a veteran's fear of hostile military or terrorist activity, with appropriate medical evidence from a VA psychiatrist or psychologist. 38 C.F.R. § 3.304(f). In PTSD claims that are not combat-related, do not pertain to the fear of hostile military or terrorist activity, nor are related to a Veteran's status as a prisoner of war, lay testimony alone is not sufficient to establish that a stressor occurred; it must be corroborated by credible supporting evidence. 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128, 142 (1997). Under 38 C.F.R. § 3.304(f)(5), if a PTSD claim is based on in-service personal assault, evidence from sources other than the Veteran’s service records may corroborate the Veteran’s account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; or tests for sexually transmitted diseases, and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. The Veteran’s service personnel records currently associated with the claims file contain glowing performance reviews, referring to him as motivated, hard-working, and highly reliable. Nonetheless, the Veteran claims that his mental condition began to deteriorate in the months following the experience in Panama City. He allegedly threatened one his shipmates with a knife, and claims to have gone AWOL in April 2007 when his ship returned to the United States. According to the Veteran, he spent 30 days with friends and family before turning himself at Camp Lejeune, where he was committed to the psychiatric ward at the Camp Lejeune Naval Hospital for two weeks. The Board notes that, although these events are referenced repeatedly in the claims file, actual documentation in the service department records is lacking. Indeed, the Veteran has not indicated an approximate timeframe for the incident in Panama City, and the service personnel records currently associated with the claims file do not state when or if he was there. Similarly, there are no performance reviews in the record dating after October 2005, and thus no documentation of the Veteran’s alleged behavioral changes leading up to his going AWOL in April 2007. Although the Veteran’s June 2007 discharge slip from the Camp Lejeune Naval Hospital is included in the claims file, the actual records of his treatment are not. The Board notes that the Veteran has attempted to gather these records himself, but the VA has not made any formal attempt to find them. Finally, the Veteran’s June 2007 separation examination reflects a diagnosis of personality disorder, not otherwise specified. However, in addition to the missing medical records from the Camp Lejeune Naval Hospital, there is no evidence of a medical board decision prior to the Veteran’s discharge, which occurred that same month. As such, the Board finds that additional development is necessary in order to corroborate the Veteran’s claims. The matter is REMANDED for the following action: 1. Attempt to obtain the Veteran’s complete service personnel records, to include documentation of any overseas ports of call as well as records of the medical board convened prior to his June 2007 discharge. 2. Attempt to obtain the Veteran’s complete service treatment records, to include any records from the Camp Lejeune Naval Hospital between May 2007 and June 2007. 3. After completing the above, and any other development deemed necessary, adjudicate the appeal. [SIGNATURE ON NEXT PAGE] JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD MJS, Associate Counsel