Citation Nr: 18157657 Decision Date: 12/14/18 Archive Date: 12/13/18 DOCKET NO. 16-19 470 DATE: December 14, 2018 ISSUES 1. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for major depressive disorder, claimed as post-traumatic stress disorder, as secondary to the service-connected disability of postoperative residuals of right shoulder dislocation with traumatic arthritis. 2. Entitlement to service connection for an acquired psychiatric disorder, variously claimed as major depressive disorder and as post-traumatic stress disorder, to include as secondary to the service-connected disability of postoperative residuals of right shoulder dislocation with traumatic arthritis. ORDER New and material evidence sufficient to reopen the claim of service connection for major depressive disorder, claimed as posttraumatic stress disorder, as secondary to the service-connected disability of postoperative residuals of right shoulder dislocation with traumatic arthritis has been received, and to that extent only, the claim is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, variously claimed as major depressive disorder and as post-traumatic stress disorder, to include as secondary to the service-connected disability of postoperative residuals of right shoulder dislocation with traumatic arthritis, is remanded. FINDINGS OF FACT 1. A December 2001 rating decision denied service connection for post-traumatic stress disorder. The Veteran was notified of his rights, but did not express timely disagreement or submit new evidence within one year. That decision became final. 2. The evidence associated with the record since the December 2001 rating decision relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of service connection for an acquired psychiatric disorder, variously claimed as major depressive disorder and as post-traumatic stress disorder. CONCLUSION OF LAW New and material evidence sufficient to reopen the claim of service connection for an acquired psychiatric disorder, variously claimed as major depressive disorder and as post-traumatic stress disorder has been received. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1972 to September 1973. This matter is before the Board of Veterans Appeals (Board) on appeal from a March 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in June 2016. A copy of the hearing transcript has been associated with the claims file. In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the scope of a mental health disability claim includes any mental health disability that could reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record. The Board has recharacterized the appeal as encompassing the issue on the title page. Please note that the case has been advanced on the docket pursuant to 38 C.F.R. § 20.900 (c) (2017). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§3.102, 3.156(a), 3.159, 3.326(a) (2017). In the April 2016 VA Form 9, the Veteran advanced several contentions regarding reviewing and considering historical records related to his time in service. These are discussed further in the Remand section below. The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (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 [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Whether new and material evidence has been received to reopen the claim for entitlement to service connection for major depressive disorder, claimed as post-traumatic stress disorder, as secondary to the service-connected disability of postoperative residuals of right shoulder dislocation with traumatic arthritis Service connection for post-traumatic stress disorder (PTSD) was denied in a December 2001 rating decision. The Veteran was informed of the decision and of the right to appeal. He did not appeal or submit new and material evidence within one year of notification. That decision is final. At the time of the decision, the record included the claim, the Veteran’s stressor statement, a VA examination, and the service records. There was no credible supporting evidence that the claimed in-service stressor actually occurred. At the April 2001 VA examination, the Veteran had reported that memories bothered him. Despite the diagnosis of mild PTSD, there were no “overt” PTSD manifestations. There was no evidence of a nexus to service. However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. 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). The United States Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which “does not require new and material evidence as to each previously unproven element of a claim.” See id. By way of background, in April 2014, VA received the Veteran’s application to reopen the claim of service connection for PTSD. The additional evidence presented includes treatment reports and medical opinions from VA hospitals and medical centers. The evidence includes various diagnostic impressions showing that the Veteran has PTSD. It also includes documents supporting the Veteran ’s ongoing descriptions of experiencing traumatic events in service. As a lack of evidence supporting the presence of PTSD was one of the bases for the previous denial of the claim, this evidence is new and material under 38 C.F.R. § 3.156. In light of this new and material evidence, the Veteran’s claim of service connection for service connection for major depressive disorder, claimed as post-traumatic stress disorder, as secondary to the service-connected disability of postoperative residuals of right shoulder dislocation with traumatic arthritis is reopened. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder, variously claimed as major depressive disorder and as post-traumatic stress disorder, to include as secondary to the service-connected disability of postoperative residuals of right shoulder dislocation with traumatic arthritis is remanded The Board incorporates its discussion from the sections above by reference. A remand is necessary for additional development. By way of background, Service Treatment Records (STRs) from May 20, 1973 from while the Veteran was stationed aboard the USS Blue Ridge show that he was in a fight. He was hit in the head. Years later, an April 2001 VA examination diagnosed the Veteran with mild PTSD. A March 2012 VA examination diagnosed the Veteran with mood disorder not otherwise specified. The VA examiner rendered a negative nexus opinion. VA received the Veteran’s application to reopen the claim of service connection for PTSD in April 2014. The Veteran reported that on August 7, 2000, a doctor at the VA Medical Center (VAMC) in Dallas, Texas diagnosed him with PTSD. The Veteran reported that the evidence should be in the claims file. The Veteran attached a statement from a doctor. The attached December 17, 2013 letter shows in part: He was initially evaluated for mental health problems in July of 2000; at that time, he was diagnosed with Posttraumatic. Stress Disorder and Major Depressive Disorder by [C.] [S.] [J.] PhD (psychologist); after many years without follow-up, he presented again for mental health evaluation and treatment in August of 2011; when he was first seen by this provider. He has been in continuous mental health treatment since that point in time. His current psychiatric diagnoses include: Posttraumatic Stress Disorder, Major Depressive Disorder, and Panic Disorder. The letter is signed by Dr. T. S. L., a licensed clinical psychologist from the VA North Texas Healthcare System. The Veteran was afforded a February 2015 VA examination with medical opinion. The VA examiner found that the Veteran did not have post-traumatic stress disorder, but did have major depressive disorder, recurrent, moderate, with anxiety. The VA examiner opined that the “Veteran’s Major Depressive Disorder, Recurrent, Moderate, with Anxiety is less likely than not proximately due to or the result of service connected postoperative residuals of right shoulder dislocation with traumatic arthritis.” There is no opinion concerning aggravation. The Veteran filed his Notice of Disagreement (NOD) in August 2015. He averred in part, “Medical Records indicate prior diagnosis of PTSD by three different VA doctors. Doctor [R.] [B.] at the VA facility in Dallas 7/31/2000; Dr. [S.] [J.] at the VA facility in Dallas, 8/07/2001; and Dr. [S.] [L.] at the VA facility in Fort Worth. The medical documentation I was able to provide indicates VA treatment history for PTSD beginning in the year 2000 and has continued to the present. I have included a statement from Dr. [L.] with this NOD.” The Veteran also submitted a more detailed August 2015 Statement in Support of Claim for Service Connection for Post-Traumatic Stress Disorder (PTSD) describing various events in service, including being attacked in a bar and experiencing an explosion while piloting a landing craft back to the USS Blue Ridge. He described his various emotional impairments, which he alleges are the result of these incidents. The Veteran perfected his appeal in April 2016. He clarified his theory of entitlement as a claim for PTSD to include as due to personal assault and a traumatic event. He reported that the February 2015 VA examiner documented misinformation and misquoted him. He identified several medical treatment and military history records for consideration. Service Treatment Records (STRs) show that the Veteran was involved in a fight on May 20, 1973. Historical records show that the USS Blue Ridge was involved in minesweeping operations in North Vietnamese waters. They show notations of Operation End Sweep. The Veteran also referenced a website showing that Operation End Sweep still resulted in serving “under the gun,” despite peace time conditions due to a ceasefire. At the June 2016 hearing, the Veteran described the two incidents that occurred in service. The first was a race riot during which he was beaten and hit in the back of the head with a beer bottle. The second was an incident in the Gulf of Tonkin, with an explosion during Operation End Sweep. The Veteran averred that the lack of a diagnosis by the February 2015 VA examiner is against the weight of the several ongoing diagnoses by many other psychologists and psychiatrists in the VA health system. He reported that the third VA examiner was not paying attention and had written things that he did not even say. Based on the context, the Veteran is presumably referencing the February 2015 VA examiner. Ongoing VA treatment records show impressions of and treatment for generalized anxiety disorder, post-traumatic stress disorder (PTSD), and major depressive disorder. The Veteran contends that he is entitled to service connection for PTSD, and that he carries a diagnosis. He cites the ongoing VA treatment records, combined with lay and corroborating historical evidence, in support of his claim. VA has not conceded the claimed in-service stressors. With regard to the Veteran ’s report of being struck in the head during a bar fight in service, upon review of the Veteran’s claims file, we find that there has been adequate independent corroboration of the occurrence of this particular in-service event and stressor. The STRs show that the Veteran was struck and sustained injuries consistent with his descriptions of the incident. The Veteran’s descriptions are consistent with the STRs in this regard, and the Board considers the Veteran a credible historian as to this experience in service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Thus, resolving all reasonable doubt in the Veteran’s favor, the Board concedes this in-service stressor, and finds that the Veteran has satisfied this prong of service connection. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). With regard to this particular conceded in-service stressor, the crucial remaining issue is whether there is a nexus between the Veteran’s current psychiatric disability and this stressor. Next, the Board also observes that there are particular requirements for establishing service connection for PTSD in 38 C.F.R. § 3.304 (f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). 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) and 38 C.F.R. § 4.125 (requiring PTSD diagnoses to conform to the DSM-4/5). Effective July 13, 2010, 38 C.F.R. § 3.304 (f) was amended to reduce the evidentiary burden of establishing a stressor when it is related to a fear of hostile military or terrorist activity. See 75 Fed. Reg. 39843-01 (July 13, 2010), codified at 38 C.F.R. § 3.304 (f)(3). The amendment provides that, if a stressor claimed by a Veteran is related to the Veteran’s fear of hostile military activity, and a VA psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD, a veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor, as long as the claimed stressor is consistent with the places, types, and circumstances of the Veteran’s service and there is no clear and convincing evidence to the contrary. Id. Here, although we acknowledge the VA medical opinions identifying PTSD, and the Veteran’s service aboard the USS Blue Ridge, additional development is necessary to satisfy the specific statutory requirements. There are also inconsistent and incomplete medical opinions regarding the diagnosis of PTSD and its relationship to the claimed in-service stressors. There is also no discussion of aggravation in the February 2015 VA medical opinion related to a theory of secondary service connection. For PTSD, there are essentially two avenues for entitlement: a link, established by medical evidence, between current symptoms verified in-service stressors, and/or a VA psychiatrist or psychologist confirming that the claimed stressor(s) is/are adequate to support a diagnosis of PTSD pursuant to 38 C.F.R. § 3.304 (f)(3). We will address each theory of entitlement below. First, there are currently no corroborated stressors linked to the various PTSD diagnoses provided in the ongoing VA medical opinions. In other words, even though the diagnosis of PTSD found in the medical opinions conforms to the DSM, the diagnosis alone is not sufficient to establish service connection for PTSD. Indeed, 38 C.F.R. §§ 3.304 (f) and 4.125 (a) require not only a diagnosis, but also credible supporting evidence that the claimed in-service stressor occurred, in other words, corroborated stressor(s), and a link between the current symptomatology and the claimed in-service stressor(s). Second, under the liberalized standards of 38 C.F.R. § 3.304 (f)(3) for a stressor related to the Veteran’s fear of hostile military or terrorist activity, a VA psychiatrist or psychologist is still required to confirm that the claimed stressor is adequate to support a diagnosis of PTSD. The evidence is still insufficient to decide the claim in this regard. There are diagnostic impressions of the PSTD, but there is not a determinative opinion from a VA psychiatrist or psychologist confirming that the claimed stressor related to the Veteran’s fear of hostile military activity is adequate to support a diagnosis of PTSD. Therefore, it follows that additional development is necessary to attempt to corroborate the Veteran’s claimed in-service stressor of being “under fire” as part of Operation End Sweep from February 1973 to July 1973, and to afford the Veteran a VA examination specifically with a VA psychiatrist or psychologist. On remand, the VA psychiatrist or psychologist must explicitly address the Veteran’s claimed stressors, their relation to his fear of hostile military or terrorist activity, their support of a PTSD diagnosis, and their relation to the Veteran’s symptoms. An opinion related to secondary service connection to include a theory of aggravation should also be provided. Lastly, both the Veteran’s lay contentions and new historical evidence he has submitted along with the April 2016 VA Form 9 should be made available to and reviewed by the VA examiner. Consequently, the Board finds that a remand is warranted. The matter is REMANDED for the following action: 1. If the Veteran identifies other evidence, obtain updated copies of the Veteran’s VA treatment records, and associate them with the Veteran’s claims folder. 2. Attempt to corroborate the Veteran’s in-service stressor of being “under fire” as part of Operation End Sweep from February 1973 to July 1973, and the resulting a fear of hostile military activity. If more details are needed, contact the Veteran to request the information. 3. After, and only after, completion of steps one through two above, and after the Veteran’s reported stressors have been developed, schedule the Veteran for a VA psychiatric examination with a VA psychiatrist or psychologist to determine the nature and etiology of any post-traumatic stress disorder (PTSD). After reviewing the file, eliciting a history directly from the Veteran, and conducting a thorough examination, as well as any diagnostic studies deemed necessary, the VA psychiatrist or psychologist should offer an opinion as to the following: a) If the Veteran is diagnosed with PTSD, is it at least as likely as not related to a verified in-service stressor? To date, the Board has conceded the stressor of being struck in the head during a bar fight on May 20, 1973. b) Is the stressor claimed by the Veteran related to his fear of hostile military or terrorist activity? c) If so, is the claimed stressor adequate to support a diagnosis of PTSD? d) If so, are the Veteran’s symptoms related to the claimed stressor? e) As to any other diagnosed acquired psychiatric disorder, is it at least as likely as not (a 50 percent or greater probability) that such disorder: i) Had its onset during military service or is otherwise related to military service? ii) Is proximately due to, the result of, or aggravated by the Veteran’s service-connected postoperative residuals of right shoulder dislocation with traumatic arthritis? The examiner’s attention is invited to the Veteran’s lay statements referenced in the body of this remand. The examiner’s attention is also invited to the December 17, 2013 VA letter with medical opinion from Dr. T. S. L., Licensed Clinical Psychologist, VA North Texas Health Care System, showing a history of diagnostic impressions of PTSD. All opinions provided must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate). The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. It is not sufficient to base an opinion on a mere lack of documentation of complaints in the service or post-service treatment records. 4. After completing the above, and any other necessary development, the claims remaining on appeal must be readjudicated in light of all pertinent evidence and legal authority. If any benefits sought are not granted, issue the Veteran and his representative an appropriate supplemental statement of the case (SSOC). Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Bodi, Associate Counsel