Citation Nr: 18157930 Decision Date: 12/14/18 Archive Date: 12/13/18 DOCKET NO. 08-34 201 DATE: December 14, 2018 ORDER New and material evidence having been received, the claim of entitlement to service connection for depression is reopened, the appeal is granted to this extent only. REMANDED Entitlement to service connection for a low back disorder is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include intermittent explosive disorder, posttraumatic stress disorder (PTSD), anxiety disorder, and depression is remanded. FINDING OF FACT 1. In a February 2006 decision, the Board of Veterans’ Appeals (Board) denied service connection for depression. 2. The evidence added to the record since the February 2006 Board decision denying entitlement to service connection for depression is neither cumulative nor redundant of the evidence of record at the time of the decision, and it raises a reasonable possibility of substantiating the Veteran’s claim. CONCLUSION OF LAW 1. The February 2006 Board decision that denied the Veteran’s claim of entitlement to service connection for depression is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1100. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for depression. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1988 to August 1992 and from October 1993 to March 1999. These matters come before the Board from February 2008, October 2010, and May 2013 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). A claim for service connection for a mental disability may encompass claims for service connection of any mental disability that may reasonably be encompassed by several factors, including the claimant’s description of the claim, the symptoms the claimant describes and the information the claimant submits or that the Secretary obtains in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Accordingly, the Board has taken an expansive view of the Veteran’s claim for service connection for PTSD, anxiety, explosive disorder, and the herein reopened service connection claim for depression pursuant to Clemons and recharacterized it as entitlement to service connection for an acquired psychiatric disability. The Veteran has requested that his case be advanced on the docket due to financial hardship. The motion to advance the case on the docket is granted. Please note that the case has been advanced on the docket pursuant to 38 C.F.R. § 20.900 (c). Whether new and material evidence has been received to reopen the claim for service connection for depression In general, Board decisions are final on the date stamped on the face of the decision. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1100. An exception to this rule is 38 U.S.C. § 5108, which provides that 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. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). Regardless of the AOJ’s actions, given the previous unappealed denial of the claim on appeal, the Board has a legal duty under 38 U.S.C. §§ 5108, 7104 to address the question of whether new and material evidence has been received to reopen the claims for service connection. This matter goes to the Board’s jurisdiction to reach the underlying claims and adjudicate the claims on a de novo basis. See Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996). The Board finds new and material evidence has been received sufficient to reopen the Veteran’s claim for service connection for depression. A February 2006 Board decision denied the Veteran’s claim for service connection for depression because the Veteran did not have an in-service diagnosis, treatment, or event relating to depression; and there was no nexus between the Veteran’s service and his depression. As this was a Board decision that was not appealed, it is deemed final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1100. Since February 2006, new evidence has been added to the claims file. Pertinent to this claim includes a September 2012 VA mental health treatment note that indicates the Veteran reported he had been depressed since 1992, an April 2013 statement concerning his military sexual trauma (MST), and a November 2016 private examination report. The April 2013 statement indicated that due to the MST the Veteran experienced episodes of depression. The November 2016 private examination report stated the Veteran’s MST contributed to the Veteran’s depression. The September 2012 VA treatment record, the April 2013 statement, and November 2016 private examination report are new and material evidence. The treatment record and statement are not redundant of previously considered evidence and therefore new. The evidence is material because it goes to the unestablished fact of whether the Veteran had depression in service and whether there is a nexus between the current depression and service. Therefore, the September 2012 VA treatment record, the April 2013 statement, and November 2016 private examination report are new and material evidence and sufficient to reopen the Veteran’s previously denied claim. In making the determination of materiality, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). Since the Veteran has provided new and material evidence, reopening this claim is in order. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). REASONS FOR REMAND 1. Entitlement to service connection for a low back disorder The Veteran contends that his low back disorder should be service-connected. The Veteran’s service treatment records indicate that the Veteran complained of low back pain after a motor vehicle accident. VA treatment records indicate that in September 2001 the Veteran was treated for low back pain. In January 2016, the Veteran had a complaint of low back pain. The Veteran underwent a VA back examination in November 2016. The examiner found arthritis after imaging studies of the thoracolumbar spine. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner reasoned that there was no evidence of post-service long term problems with his spine. The Veteran had one inciting event on active duty, and was seen once and a follow up without physical therapy intervention. The examiner explained the conventional expectation based on medical literature is, and would be, visits to healthcare providers for treatment, prescribed medication, interventional treatment injections, MRI, X-ray, CT, physical therapy or simply a voiced concern about the problem. The examiner noted that the imagining studies from the examination indicated lumbar related senescence change and no dating of the change. The examiner concluded that the current lumbar spine was not caused by or a result of active duty because there was no documentation trail to substantiate the medical scientific finding of the imaging and there must be a trail of active visits to establish a baseline. The Board finds that the November 2016 VA medical opinion is inadequate for adjudication. The November 2016 VA examiner’s reasoned because there was no evidence of treatment for a low back disability, there is no nexus between the Veteran’s in-service event and the current back disability. However, the lack of evidence cannot be treated as substantive negative evidence. In other words, reliance on the lack of medical evidence is inappropriate. The mere absence of evidence does not equate to unfavorable evidence. See Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (cautioning that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence). Thus, an addendum medical opinion is required for an adequate opinion that relies on the evidence not based upon the fact that the Veteran did not seek treatment for his back disability. Finally, the Veteran’s representative argued that the Veteran’s low back disability falls under the Persian Gulf presumption. Specifically, the Veteran’s disability is a diagnoseable but medically unexplained chronic multisymptom illness of unknown etiology. The Board notes that the Veteran was service-connected for fibromyalgia effective August 2017, that includes low back pain. Therefore, upon remand the examiner should opine as to whether the Veteran’s lumbar spine pathology is a diagnoseable but medically unexplained chronic multisymptom illness of unknown etiology, or alternatively, caused or aggravated by the Veteran’s service-connected fibromyalgia. 2. Entitlement to service connection for an acquired psychiatric disorder, to include intermittent explosive disorder, PTSD, anxiety disorder, and depression. The Veteran contends that his acquired psychiatric disorder should be service-connected. The Veteran underwent a VA examination in November 2016. The examiner found that the Veteran had diagnosis of personality disorder and depression. The examiner opined that the Veteran’s personality disorder and depression are less likely than not due to his military service. The Board notes that the examiner failed to render a determination as to whether the collective evidence indicated that any alleged MST occurred, which the February 2016 Board remand required. However, the examiner did not find the Veteran met the criteria for a formal diagnosis of PTSD. The examiner opined that the Veteran’s primary diagnosis is personality disorder. The examiner reasoned that the personality disorder diagnosis is supported by the records documenting the presence of personality traits, reports of his disciplinary actions during service, his legal problems since discharge from the military, and the Veteran’s report of frequent anger and disregard for authority dating back to childhood. The examiner explained that diagnosis of a personality disorder is often present prior to enlistment in the military, as appeared to be the case with the Veteran. The examiner opined that the Veteran’s depression appeared to be secondary to the Veteran’s personality disorder and, also unrelated to the Veteran’s military service. The examiner noted that during previous evaluations, the Veteran reported that he had been depressed since he was a child, and his report of significant adverse events during his childhood appear to contribute to his depression. The examiner noted that the Veteran’s report of depression symptoms did not appear to be related to any event assessed during the current evaluation. At the outset, the Board points out that a personality disorder is not a disability for which service connection may be granted; rather, it is considered a congenital or developmental abnormality. See 38 C.F.R. § 3.303 (c). As VA regulations specifically prohibit service connection for congenital or developmental defects, the Veteran’s diagnosed unspecified personality disorder is, therefore, not a disability for which VA compensation benefits may be awarded. However, a superimposed acquired psychiatric disorder resulting from such personality disorder or representing an aggravation of the disorder may be service connected. See 38 C.F.R. § 4.127; VAOPGCPREC 82-90 (1990) (cited at 55 Fed. Reg. 45,711) (Oct. 30, 1990) (service connection may not be granted for defects of congenital, developmental or familial origin, unless the defect was subject to a superimposed disease or injury); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995). The Board finds that an addendum medical opinion is required. First, the examiner noted that the Veteran’s depression was caused by his personality disorder and that the personality disorder preexisted service. The examiner also noted the Veteran had been depressed prior to service. The examiner must clarify as to whether the Veteran’s depression clearly and unmistakably preexisted service and; if so, the examiner must opine as to whether the depression clearly and unmistakably was not aggravated by his service. Second, while the examiner opined that no event in service (presumably referring to the claimed MST) was related to the Veteran’s personality disorder or depression symptoms, the examiner did not provide a rationale as to why the Veteran’s service did not aggravate the Veteran’s personality disorder (by superimposed disability in service) or depression. Finally, the Board notes that in March 2017, the Veteran submitted a November 2016 private psychiatric examination report. The private physician noted that the Veteran had depression and anxiety symptoms. The private physician stated that the Veteran’s childhood and military trauma were the main factors contributing to the Veteran’s depression and anxiety symptoms. No rationale was provided. Upon remand, the examiner must address the November 2016 private physician report concerning the Veteran’s anxiety and depression. The matters are REMANDED for the following action: 1. Obtain any updated relevant VA treatment records. 2. Obtain an addendum opinion from an appropriate clinician to determine the etiology of the Veteran’s lumbar spine disability to include arthritis. If a new examination is necessary to respond to the Board’s inquiry, one should be afforded the Veteran. The examiner should provide the following opinions: (a.) Whether the Veteran’s lumbar spine disability to include arthritis is at least as likely as not related to the Veteran’s service, to include the July 1997 motor vehicle accident. (b.) Whether the Veteran has lumbar spine disability that is at least as likely as not a diagnoseable but medically unexplained chronic multisymptom illness of unknown etiology. (c.) Whether the Veteran’s lumbar spine disability to include arthritis is at least as likely as not proximately due to service-connected fibromyalgia, or alternatively, aggravated beyond its natural progression by service-connected fibromyalgia. (d.) A full and complete rationale must be provided for all expressed opinions. 3. Obtain an addendum opinion from an appropriate clinician to determine the etiology of the Veteran’s acquired psychiatric disorder. If a new examination is necessary to respond to the Board’s inquiry, one should be afforded the Veteran. The examiner should provide the following opinions: (a.) Whether it is at least as likely as not the Veteran has a diagnosis of anxiety disorder. i. Address the Veteran’s November 2016 private examination that states the Veteran had anxiety symptoms. (b.) Whether the diagnosed preexisting personality disorder was aggravated during service beyond its natural progression by a “superimposed” disease or injury resulting in a current diagnosed psychiatric disorder. (c.) If the Veteran has a diagnosis of anxiety disorder, then opine as to whether it is at least as likely as not related to the Veteran’s service. i. Address the Veteran’s November 2016 private examination that states the Veteran’s military sexual trauma contributed to the Veteran’s anxiety symptoms. (d.) Whether the Veteran’s depression clearly and unmistakably (undebatable) preexisted the Veteran’s service. If the examiner finds it did clearly and unmistakably preexist service, the examiner must opine whether the depression was clearly and unmistakably not aggravated by service. (e.) If the examiner finds that the depression either did not clearly and unmistakably preexist service, or was not clearly and unmistakably aggravated by service, the examiner must opine whether the depression had its onset in service or is otherwise related to an in-service injury, event, or disease, including the Veteran’s claimed military sexual trauma. i. The examiner must address the November private examination report that notes the Veteran’s military sexual trauma contributed to the Veteran’s depression. (Continued on the next page)   (f.) A full and complete rationale must be provided for all expressed opinions. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Robert Batten, Associate Counsel