Citation Nr: 1806379 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 13-02 895 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim seeking entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD. REPRESENTATION Appellant represented by: Joseph Michael Woods, Attorney ATTORNEY FOR THE BOARD R. Dean, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from May 1964 to May 1968 and from June 1975 to June 1979. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The record reflects a diagnosis of anxiety disorder. As such, the Board has expanded the Veteran's claim to include the matter of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, and has recharacterized the issues accordingly. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In November 2015, the Veteran requested a hearing before the Board. The Veteran withdrew his request in May 2017. FINDINGS OF FACT 1. The Veteran's claim for service connection for PTSD was previously denied by an August 2008 rating decision; the Veteran did not appeal the decision or submit documentation constituting new and material evidence within the one-year appeal period. 2. The preponderance of the evidence is against a finding that the Veteran has a current diagnosis of PTSD. 3. The evidence of record shows that the Veteran's anxiety disorder is related to his service. CONCLUSIONS OF LAW 1. The August 2008 RO decision denying service connection for PTSD is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103 (2017) 2. New and material evidence has been received to reopen the Veteran's claim for service connection for PTSD. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125 (2017). 4. The criteria for service connection for an acquired psychiatric disorder, to include anxiety, have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Neither the Veteran nor his attorney has raised any issues with the duty to notify or 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"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Legal Criteria and Analysis A. New and Material Evidence A claim for service connection for PTSD was originally denied in an August 2008 rating decision on the basis that PTSD was not diagnosed or treated during service, there was no medical evidence showing a link between current symptoms and a claimed in-service stressor, and there was no credible supporting evidence showing that the claimed in-service stressor occurred. The RO notified the Veteran of its decision, and of his appellate rights. The Veteran did not appeal the decision, nor did he submit any new and material evidence within a year following the decision; therefore, the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. Accordingly, the claim may now be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. §§ 7104, 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA 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 decision makers. Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). 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. Id. In determining whether evidence is new and material, the credibility of the new evidence must be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); 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." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received 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, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. Shade, 24 Vet. App. at 118 (2010). If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus, 3 Vet. App. at 512 (1992). Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Id. at 513. Here, the evidence received since the August 2008 RO decision includes the Veteran's March 2010 narrative of his stressor event and the October 2010 "buddy letter" supporting the Veteran's stressor event. These are material in that they relate to the stressor event of the Veteran's PTSD. As noted above, the claim for PTSD was denied in August 2008 on the basis that PTSD was not diagnosed or treated during service, there was no medical evidence showing a link between current symptoms and a claimed in-service stressor, and there was no credible supporting evidence showing that the claimed in-service stressor occurred. This evidence was not before adjudicators when the Veteran's claim was last denied in August 2008, and it is not cumulative or redundant of the evidence of record at the time of that decision. It also relates to an unestablished fact necessary to substantiate the claim for service connection for PTSD, and raises a reasonable possibility of substantiating the claim. Accordingly, the claim is reopened. B. Service Connection The claim of service connection for PTSD having been reopened, the Board will now consider the matter of entitlement to service connection for an acquired psychiatric disorder, to include PTSD. The Veteran is not prejudiced by the Board's consideration of the claim of service connection for PTSD on the merits as the RO considered the claim on the merits in the December 2012 statement of the case. Hickson v. Shinseki, 23 Vet. App. 394 (2010). The Veteran is also not prejudiced by the Board considering the claim of service connection for an acquired psychiatric disorder other than PTSD on the merits, as that claim is being granted. The Veteran asserts that he has an acquired psychiatric disorder, to include PTSD, as a result of an incident during a period of active duty in 1966 or 1967. Specifically, the Veteran claims that he currently suffers from a psychiatric disorder due to an artillery attack on his convoy. The Board finds that service connection for PTSD is not warranted but service connection for anxiety disorder is warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). 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 in-service stressor occurred. 38 C.F.R. § 3.304(f). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). In this case, the Board has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. 1. PTSD A preponderance of the evidence is against a finding that the Veteran has a diagnosis of PTSD. VA treatment records of April 2010 show a diagnosis of PTSD, but the report shows no rationale for that conclusion. As such, the Board places little weight of probative value on that diagnosis. Conversely, the VA examination of September 2012 indicated that the Veteran's symptoms did not meet the diagnostic criteria for PTSD under DSM-IV criteria. The September 2012 examiner reviewed the claims file and interviewed the Veteran. He found that the Veteran claimed to have been involved in a traumatic encounter during his service but the Veteran did not re-experience that trauma or show the avoidance of stimuli associated with the trauma, and therefore did not meet the full criteria for PTSD. The examiner further noted that the Veteran's later re-enlistment in the Army in the same MOS was inconsistent with the avoidance behavior seen in PTSD. He found that although the Veteran showed some symptoms of PTSD, his symptoms were sub-threshold. In December 2014, the Veteran was examined by a private psychologist and diagnosed with anxiety disorder but not PTSD. The December 2014 psychologist found that the Veteran was socially isolated and occupationally impaired and that he had chronic sleep impairment. Similarly to the September 2012 examiner, she did not find that the Veteran re-experienced his traumatic experience in any way or showed avoidance of stimuli associated with that trauma, two of the criteria for PTSD under DSM-IV. The 2012 and 2014 reports are based on a detailed analysis of the Veteran's symptoms and history. These analyses and their rationales give them substantial probative value. Faced with contradictory diagnoses, the Board finds that the 2012 and 2014 reports have more weight than the 2010 test that does not contain a clear explanation for the diagnosis given. The Board acknowledges that about two years prior to when the Veteran's current claim was filed, a January 2008 Vet Center record reflected a diagnosis of PTSD under DSM-IV and a February 2008 VA record indicated that a PTSD screening test was positive. However, the Board concludes that such diagnoses were not sufficiently proximate to the filing of the Veteran's current claim and therefore places less weight of probative value on these diagnoses. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). A current disability is a cornerstone of a service connection claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the requirement of having a current disability is met "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim"). As such, as a preponderance of the evidence is against a finding that the Veteran has a current PTSD diagnosis, service connection cannot be established for that disorder on any basis. See also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable here. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). 2. Acquired Psychiatric Disorder Other than PTSD The December 2014 private psychologist noted that the Veteran had chronic sleep impairment, difficulty establishing and maintaining relationships, social isolation, and irritability. She concluded that "[i]t is the opinion of this expert that Mr. [REDACTED] suffers from anxiety disorder." However, the September 2012 VA examiner found that the Veteran had no mental disorder of any kind. As noted above, the December 2014 and September 2012 examinations were both based on an interview of the Veteran and a thorough review of the file, and both are supported by detailed rationales, thus having similar probative value. Giving the Veteran the benefit of the doubt, the Board finds that the Veteran does have a current diagnosis of anxiety disorder and that element (1) under Shedden, a current disability, has been satisfied. See Shedden, 381 F.3d at 1166-67. Turning to Shedden element (2), in-service disease or injury, service treatment records show that the Veteran suffered from anxiety during his service. A service treatment record from October 1965 described the Veteran as "very nervous." In a medical history prepared in March 1968, the Veteran said that he had nervous trouble. The Veteran has also stated that he became psychologically distressed after a truck that he was driving was struck by artillery fire in 1966 or 1967 (Statement in Support of Claim, March 10, 2008; Statement in Support of Claim, March 16, 2010). The Veteran has provided a "buddy letter" supporting his statement that the convoy was attacked (Third Party Correspondence, October 14, 2010). The Veteran is competent to report on his experiences during his service. His service personnel records reflect that his military occupational specialty included heavy truck driver and that he served in Vietnam from November 1966 to October 1967. Therefore, the Board finds that his narrative regarding what occurred to him during his service in Vietnam is credible. Lay evidence can be sufficient to show an in-service event or injury without the corroboration of medical records. Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). Giving the Veteran the benefit of the doubt, the Board finds that element (2) under Shedden, an in-service event or injury, has been satisfied. See Shedden, 381 F.3d at 1166-67. The final element of a direct service connection claim is a causal nexus between the current disability and the in-service event. 38 C.F.R. 3.303(a), Shedden, 381 F.3d at 1166-67. The December 2014 psychologist's report considered the Veteran's psychological history and his current symptoms and living situation and concluded that "[the Veteran's] anxiety disorder more likely than not began in military service, [and] continues to the present." The psychologist relied on her analysis of the claims file, her interview with the Veteran, statements from the Veteran's friend in the "buddy letter," and several medical journal articles in reaching her conclusion, lending it substantial probative value. A March 2011 letter from a licensed clinical social worker states that "[the Veteran's] symptoms are more likely than not related to his military experiences." The social worker's letter contains no rationale or explanation for his conclusion, hence, the Board places little weight of probative value on the opinion. However, the Board notes that the conclusion does lend support to the December 2014 opinion. The Board finds that the evidence is at least in equipoise on the question of whether the Veteran's anxiety disorder was caused by or is related to his military service. Accordingly, as all of the elements of the claim seeking service connection for an acquired psychiatric disorder, diagnosed as anxiety disorder, have been met, the Board concludes that service connection is warranted. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER New and material evidence having been received, the claim for service connection for PTSD is reopened. Service connection for posttraumatic stress disorder is denied. Service connection for an acquired psychiatric disorder, diagnosed as anxiety disorder, is granted. ____________________________________________ M. SORISIO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs