Citation Nr: 18156612 Decision Date: 12/10/18 Archive Date: 12/10/18 DOCKET NO. 15-26 069 DATE: December 10, 2018 ORDER New and material evidence having been received, the claim of entitlement to service connection for posttraumatic stress disorder (PTSD) is reopened. Service connection for an acquired psychiatric disorder, to include PTSD and depressive disorder, is granted. Entitlement to service connection for an acquired psychiatric disorder for purposes of eligibility for treatment under 38 U.S.C. § 1702 is dismissed. FINDINGS OF FACT 1. In a December 2009 rating decision, the Agency of Original Jurisdiction (AOJ) declined to reopen the claim of entitlement to service connection for PTSD; a timely notice of disagreement (NOD) was not filed, and no new and material evidence was received within the appeal period. 2. Additional evidence received since the December 2009 decision is new, relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for PTSD, and raises a reasonable possibility of substantiating the claim. 3. The competent and probative evidence is at least in equipoise as to whether PTSD had its onset in or is otherwise related to the Veteran’s period of active service. 4. Service connection for an acquired psychiatric disorder has been granted herein. CONCLUSIONS OF LAW 1. The December 2009 decision declining to reopen the claim of entitlement to service connection for PTSD is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. 2. New and material evidence has been received since the December 2009 decision to reopen the claim of entitlement to service connection for PTSD. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depressive disorder, have been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. 4. Entitlement to service connection for an acquired psychiatric disorder for purposes of eligibility for treatment under 38 U.S.C. § 1702 is moot. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1979 to January 1980. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2018, the Veteran, in Atlanta, Georgia, testified before the undersigned at a videoconference hearing. A transcript of that hearing has been associated with the virtual file and reviewed. The November 2011 rating decision reopened and denied the claim of entitlement to service connection for PTSD. However, even where the AOJ determines that new and material evidence has been received to reopen a claim, or that an entirely new claim has been received, the Board is not bound by that determination and must nevertheless consider whether new and material evidence has been received. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). After reopening the claim for PTSD, the Board has broadened and recharacterized the claim as one for entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depressive disorder. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (finding that what constitutes a claim is not limited by a lay veteran’s assertion of his condition in the application, but must be construed based on the reasonable expectations of the non-expert claimant and the evidence developed in processing the claim). The Board acknowledges that the record contains an April 2014 rating decision granting service connection for PTSD. A June 2015 statement of the case (SOC) affirmed the November 2011 denial of service connection for PTSD and depression. A January 2018 rating decision states that the April 2014 rating decision was never promulgated, and the June 2015 SOC is correct. As the Board is granting service connection for an acquired psychiatric disorder herein, it is unnecessary to determine whether the April 2014 rating decision granting service connection is a final, valid decision. The January 2018 rating decision is effectively void; thus, there is no appeal arising from the May 2018 notice of disagreement (NOD) to the January 2018 rating decision.   New and Material Evidence 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for PTSD. After reviewing the record, the Board finds that new evidence has been received since the final prior decision, and such evidence is material to the issue of service connection for PTSD. In December 2009, the AOJ declined to reopen the claim of entitlement to service connection for PTSD because evidence received since the prior denial failed to demonstrate a current diagnosis of PTSD or an in-service stressor. The Veteran did not file a timely NOD and no new and material evidence was received within the appeal period; therefore, the December 2009 decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156(b), 20.1103. Consequently, the Board will consider evidence received since the December 2009 decision. A May 2018 letter from the Veteran’s treating psychologist indicates that the Veteran has PTSD related to an in-service sexual assault. 08/27/2018, Correspondence. The Board finds that this evidence is new and that it directly pertains to the basis for the prior final denial (diagnosis and in-service stressor), by addressing whether the Veteran has PTSD and whether it is related to a military sexual trauma (MST). Therefore, the claim of entitlement to service connection for PTSD is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Service Connection 2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depressive disorder. After review of the record, the Board finds that the criteria for service connection for an acquired psychiatric disorder have been met. The record contains competent diagnoses of PTSD and depressive disorder. 05/25/2018, Medical-Government. Accordingly, the Board finds competent evidence of a current disorder. The Veteran contends that his current psychiatric disorder is due to MST. Specifically, he recounted being sexually assaulted twice during basic training. The perpetrators threatened the Veteran with bodily harm if he reported the MST. The Veteran testified that as a result of the MST, he attempted to take his life the next day by overdosing on pain medication. 09/17/2018, Hearing Transcript. Service treatment records corroborate the Veteran’s testimony. The Veteran sought treatment for dizzy spells, trouble breathing, and headaches in November 1979. A December 1979 treatment note indicates an assessment of anxiety reaction to stress. In December 1979, the day after he was assessed with an anxiety reaction to stress, the Veteran was treated for an overdose of pain medication. 11/06/2014, STR-Medical. A May 2018 letter from the Veteran’s treating psychologist indicates that the Veteran has PTSD related to an in-service sexual assault. 08/27/2018, Correspondence. VA treatment records contain a diagnosis of PTSD secondary to MST. 05/25/2018, Medical-Government. Accordingly, the Board finds that the competent and probative evidence is at least in equipoise as to whether an acquired psychiatric disorder had its onset during or is otherwise related to the Veteran’s period of service, to include MST. In sum, as all three service connection elements have been established by competent, credible, and probative evidence, the Board finds that service connection is warranted. 3. Entitlement to service connection for an acquired psychiatric disorder for purposes of eligibility for treatment under 38 U.S.C. § 1702. As the Board has granted service connection for an acquired psychiatric disorder herein, entitlement to service connection for an acquired psychiatric disorder for purposes of eligibility for treatment under 38 U.S.C. § 1702 is rendered moot and is dismissed as a matter of law. In other words, the claim is for entitlement to a benefit that the Veteran is already in receipt of. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.A. Gelber, Associate Counsel