Citation Nr: 18153423 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 16-37 281 DATE: November 27, 2018 ORDER The application to reopen the previously denied claim for service connection for an acquired psychiatric disability is granted. Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. Entitlement to service connection for an acquired psychiatric disability, to include anxiety disorder and depressive disorder, secondary to service-connected degenerative disc left 4-5, status post laminectomy, is granted. FINDINGS OF FACT 1. In an August 2007 decision, the RO denied service connection for personality disorder, depressive disorder, generalized anxiety disorder, and dysthymia. The Veteran was properly notified of the decision in August 2007. The Veteran did not appeal this decision and it became final. 2. Evidence received since the August 2007 decision bears directly and substantially upon the specific matter under consideration, is not cumulative or redundant, and in connection with evidence previously assembled raises a reasonable possibility of substantiating the claim for entitlement of service connection of an acquired psychiatric disability. 3. The probative, competent evidence is against a finding that the Veteran has a diagnosis of PTSD. 4. The Veteran’s current psychiatric disability, which includes anxiety disorder and depressive disorder, is related to his service-connected lumbar spine disability. CONCLUSIONS OF LAW 1. New and material evidence sufficient to reopen the Veteran’s claim for entitlement to service connection for an acquired psychiatric disability has been submitted since the August 2007 decision; the claim is reopened. 38 U.S.C. § 5108 (2014); 38 C.F.R. § 3.156 (2018). 2. The criteria for entitlement to service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 5107 (2014); 38 C.F.R. §§ 3.159, 3.303. 3. The criteria for entitlement to service connection for an acquired psychiatric disability secondary to the Veteran’s service-connected lumbar spine disability have been met. 38 U.S.C. §§ 1110, 5107 (2014); 38 C.F.R. §§ 3.159, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Marine Corps from February 2006 until his discharge in February 2007. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) held that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Thus, the Veteran’s initial claim for anxiety has been recharacterized as entitlement to service connection for an acquired psychiatric disorder. New and Material Evidence The application to reopen the previously denied claim for service connection for an acquired psychiatric disability In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 3.104, 20.1100, 20.1103 (2017). A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108 (2012). Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance. Evans v. Brown, 9 Vet. App. 273, 285-86 (1996). 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 (2017). For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary’s duty to assist or consideration of a new theory of entitlement. Shade, 24 Vet. App. at 117-18. In an August 2007 rating decision, the RO denied service connection because the claimed disability existed prior to military service and there was no objective evidence of worsening. The Veteran did not appeal that decision nor submit new and material evidence within one year. The rating decision is thus final based on the evidence then of record. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Evidence of record at the time of the August 2007 decision includes Service Medical Records (SMR) from January 2006 through February 2007, July 2007 VA general examination, and June 2007 VA psychiatric examination. Evidence submitted after the August 2007 decision includes the August 2016 private provider’s medical opinion, which indicates that the Veteran’s currently diagnosed psychiatric disability is related to his service-connected lumbar spine disability. The Board finds that new and material evidence has been presented. The evidence, including the private provider opinion, is new because it was not previously submitted to VA. The evidence is material because it relates to an unestablished fact necessary to establish the claim - nexus. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167. Moreover, when considering the new evidence in conjunction with the evidence already of record, combined with VA assistance including an examination, it raises a reasonable possibility of substantiating the claim. Shade, 24 Vet. App. at 117. Accordingly, for all of the above reasons, the Veteran’s claim is reopened. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). To establish a right to compensation for a present disability, a 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 - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), that is, a diagnosis that conforms to the Diagnostic and Statistical Manual of Mental Disorders (DSM-V); a link, established by the medical evidence, between current symptoms and a stressor in service; and credible supporting evidence that the claimed stressor in service occurred. 38 C.F.R. § 3.304(f). Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a) (2017). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of the disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b) (2017); Allen v. Brown, 8 Vet. App. 374 (1995). In order to prevail on the issue of secondary service condition, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. 1. Entitlement to service connection for PTSD The Veteran alleges that he has PTSD that is related service. His reported stressors include witnessing a fellow Marine’s attempt to commit suicide and trauma associated with “crucible” training. The Board finds that there is not a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The record contains two examinations related to his claim for service connection for an acquired psychiatric disability - one by a VA examiner in November 2012 and the other by a private provider in August 2016. Both the VA psychologist and the private psychologist determined that the Veteran did not meet the criteria for a diagnosis of PTSD. The VA examiner thoroughly reviewed the record and acknowledged that the Veteran had been previously diagnosed with PTSD. However, he determined that there was “insufficient clinical evidence to suspect . . . military related PTSD.” He noted that the Veteran did not experience combat during service, did not receive any mental health treatment during service, and received negative PTSD screens “early on” when he first sought VA mental health treatment. The Board is aware of the PTSD diagnoses rendered by VA and private clinicians, to include the June 2011 psychiatric evaluation and the September 2010 VA hospitalization. Upon review, however, the Board finds the conclusion of the November 2012 VA examiner and the August 2016 private provider, that the Veteran does not meet the criteria for a diagnosis of PTSD, more probative than the findings noted in the treatment records. In that regard, the findings made in conjunction with the VA examination were the result of comprehensive psychological testing and review of the entire record, and provide thorough rationales for the conclusions reached, whereas the Veteran’s treating providers did not necessarily administer objective tests or review the entire record and, in any event, did not provide rationales for the diagnostic conclusions reached. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from whether it is factually accurate, fully articulated, and has sound reasoning for the conclusion). Without a current disability, the first element of Shedden is not met and any discussion of an in-service event, injury or disease, or medical nexus for direct service connection is not warranted. While the Veteran believes that he has PTSD related to his service, as a layperson, lacking in medical training and expertise, the Veteran cannot provide a competent opinion on a matter as complex as a diagnosis of a mental disorder, and his views are of no probative value. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board is sympathetic to the Veteran’s claim. In that regard, the Board notes that the instant decision has granted service-connected for an acquired psychiatric disorder, which has been found to be related to service. With respect to PTSD, however, the Board is cognizant that Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability during the period of the appeal. See 38 U.S.C. § 1110. In the absence of proof of present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Thus, in the absence of competent evidence showing a current diagnosis of PTSD, it is unnecessary to address the remaining elements of the claim for service connection. See Brammer, 3 Vet. App. at 225. In reaching this decision, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for an acquired psychiatric disability, to include depressive disorder and anxiety disorder, to include as secondary to the Veteran’s service-connected lumbar spine disability The Veteran alleges that his psychiatric problems are related to his military service. See June 2011 Statement in Support of Claim, p. 1. In the alternative, he contends that his currently diagnosed psychiatric disability is related to his service-connected lumbar spine disability. First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran’s private provider diagnosed the Veteran with depressive disorder due to another medical condition and unspecified anxiety disorder. See November 2013 Private Provider Evaluation, p. 6-7. The June 2007 VA examiner also diagnosed the Veteran with depressive disorder. See June 2007 VA Examination, p. 3. Second, the Board finds that there is a service connected disability, specifically, degenerative disc left 4-5, status post laminectomy. Third, the Board finds that the evidence of record does support a finding that the diagnosis of depressive disorder is related to the Veteran’s service-connected lumbar spine disability. The private provider opined that it is more likely than not that the Veteran’s service-connected back condition and concurrent pain have resulted in the mood disturbance that has been diagnosed. He noted that the back injury and increasing pain from that condition “has been particularly salient, with resultant depressive and anxious symptoms.” There is no contrary opinion with respect to secondary service connection. (Continued on the next page)   Service-connection claim for an acquired psychiatric disability, to include depressive disorder and anxiety disorder, secondary to service-connected degenerative disc left 4-5, status post laminectomy, is granted. REBECCA N. POULSON Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. DEEMER, ASSOCIATE COUNSEL